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Davis-Stirling Act

Started by RobertC38 • 158 replies • 2237 views

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RobertC38 (California)
Posts: 62
Posted:
Can a HOA be sued if one of it's board members willfully commits assault and battery on a home owner in the association?

Or can board members only be sued individually if they were acting in their duties as a HOA board member?
AugustinD
Posts: 5,144
Posted:
First, if someone was assaulted and batteried, the someone should immediately make a police report. Second, I think you would have to provide many more details to get a thoughtful opinion on your question, based in much experience with HOA liability. Third, I think it would be less about whether so-and-so can be sued and far more about what the chances of winning a lawsuit (or an insurance company settlement) would be.

If a director showed up at my door, forced his way in, and gave me a black eye, after reporting this to the police, I might very well sue him and the HOA. It depends on the circumstances.
RobertC38 (California)
Posts: 62
Posted:
Thank you for responding and maybe this should give you some of the clarity you seek.

Q-First, if someone was assaulted and batteried, the someone should immediately make a police report.

A-Yes, the police came to the scene and took a report from both parties.

Q-Second, I think you would have to provide many more details to get a thoughtful opinion on your question, based in much experience with HOA liability.

A-Based on the facts surrounding the incident and the injury photos, the police believed the Board Member threw the first punch and started the fight.

I have read case-studies of the Davis-Stirling Act, and board members are generally immune from lawsuits and liability in their capacity to act for the benefit of the HOA.

Q-Third, I think it would be less about whether so-and-so can be sued and far more about what the chances of winning a lawsuit (or an insurance company settlement) would be.

A- The medical damages suffered by the person attacked are significant - and $300K-$500K in damages would be sought in a legal complaint.

Q- If a director showed up at my door, forced his way in, and gave me a black eye, after reporting this to the police, I might very well sue him and the HOA. It depends on the circumstances.

A - The homeowner was attached by the Board member after the homeowner tried to talk to the Board Member about his wife about driving DUI in the neighborhood. She's been a heavy marijuana user for 25 years.
BenA2 (Texas)
Posts: 1,273
Posted:
The law is different from state to state but generally to win a lawsuit you would have to show some negligence or failure to perform a duty on the part of the HOA. Unless you can show that the HOA either encouraged the assault or could have prevented it somehow, I don't see how you would have a claim. Generally, HOAs and boards have almost zero control over directors.

AugustinD
Posts: 5,144
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 8:04 PM
The homeowner was attached by the Board member after the homeowner tried to talk to the Board Member about his wife about driving DUI in the neighborhood. She's been a heavy marijuana user for 25 years.
If I were the victim, with those enormous medical bills, I would shop this around to an attorney. She or he might take this on contingency. In my experience insurers would have to get involved. There might be a connection to the HOA that could justify a demand letter to the HOA and so shaking some money from its insurer. E.g. the rest of the board knew this guy's wife was driving around DUI and did nothing about it, provoking a confrontation. It's a stretch but believe me, insurance companies will settle based on claims with a lot less merit.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By AugustinD on 04/28/2020 7:43 PM
First, if someone was assaulted and batteried, the someone should immediately make a police report. Second, I think you would have to provide many more details to get a thoughtful opinion on your question, based in much experience with HOA liability. Third, I think it would be less about whether so-and-so can be sued and far more about what the chances of winning a lawsuit (or an insurance company settlement) would be.

If a director showed up at my door, forced his way in, and gave me a black eye, after reporting this to the police, I might very well sue him and the HOA. It depends on the circumstances.

How is the HOA responsible for an assault? I was the victim of an assault by a homeowner. I did not file a police report, but I reported the incident to the HOA management company. How could I win a lawsuit against an HOA?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 04/28/2020 8:13 PM
How is the HOA responsible for an assault? I was the victim of an assault by a homeowner. I did not file a police report, but I reported the incident to the HOA management company. How could I win a lawsuit against an HOA?
You are saying you are a director assaulted by a HOA member. This is different.

BenA2 (Texas)
Posts: 1,273
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 8:04 PM

The homeowner was attached by the Board member after the homeowner tried to talk to the Board Member about his wife about driving DUI in the neighborhood. She's been a heavy marijuana user for 25 years.

This sounds like the incident was totally unrelated to the person being on the board. Without some connection I can't imagine a case against the HOA.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By AugustinD on 04/28/2020 8:16 PM
Posted By NpB on 04/28/2020 8:13 PM
How is the HOA responsible for an assault? I was the victim of an assault by a homeowner. I did not file a police report, but I reported the incident to the HOA management company. How could I win a lawsuit against an HOA?
You are saying you are a director assaulted by a HOA member. This is different.


How and why couldn't I sue the HOA?
RobertC38 (California)
Posts: 62
Posted:
I completely understand what you are saying,namely that Board Members are generally not liable for damages suffered by homeowners in the HOA.

Here's a distinction that may apply:

If an injured home owner slips on a banana peel on the swimming pool deck - and breaks his leg - the homeowner may have a claim against the HOA but not against any individual Board Member. This is per the Davis-Stirling Act.

However, if the Board Member maliciously threw a banana peel on the pool deck that then resulted in a broken leg, the individual Board Member may be found liable for not acting in the best interests of the HOA.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Suing your HOA is suing yourself and your neighbors. It causes increased expenses in multiple forms. Which does include increased insurance cost or the loss of insurance policy. This expense is passed along to the membership to pay. Any legal costs the HOA pays is also passed along to the membership to pay. The HOA lawyer is NOT your lawyer. They do not work for free and are there to defend the HOA in a lawsuit. If you were to win, the HOA may need to have a special assessment to pay the damages. Especially if they exceed insurance policy coverages. Which in a 1 million policy only pays out 80K. It is NOT a million dollars after all expenses considered.

The court system can ONLY make you "Whole". Which means you are to win the expense you are out. Which may or may not include legal expenses. It depends on the case. A frivolous lawsuit could even have you pay not only your legal costs but the HOA's as well. The judge could have each party responsible for their own expenses. The HOA can counter-sue in response.

I am NOT against suing a HOA by any means contrary what people INFER when I say "Suing your HOA is suing yourself/neighbors". It just means that is the risk and consequence you experience when doing so. If your not willing to accept that consequence, then need to look at other non-court options that are available IF you READ your documents...
Former HOA President
RobertC38 (California)
Posts: 62
Posted:
I don't think the other board members knew one of guy's wife was a heavy marijuana user. I know because we've been next door neighbors for 25 years, and I see her lighting up in the garage every day.

Yes, insurance companies tend to be a rich target to sue - especially when you have a strong case against the person they are defending.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 04/28/2020 8:23 PM
How and why couldn't I [a director assaulted by a hoa member] sue the HOA?
You can sue the HOA for whatever you want. It does not mean you will win. Are you asking what your chances of winning are? Or maybe are you asking for a hypothetical legal argument that would result in the HOA insurer paying a large settlement to you? Okay, here's one: Condo association member Charlie M. called the manager and said, "Send Director NpB to my unit right now! She ratted me out to the Architectural Board, and now I have to install a new deck, costing me $3000! I am going to kill NpB!" The manager calls you and says that HOA member Charlie M. politely asked if maybe he could have a chat with you about why the HOA used the accrual method of accounting instead of the cash method. The manager said, "Charlie's a nice guy. He always has a couple of girlfriends he is seeing. Nice gals, too. Go talk to him. He will probably give you a beer."

This would be the HOA manager acting as an agent for the HOA. If I had medical bills et cetera, I would shop for an attorney to sue whoever has the deepest pockets: the manager, the HOA, and Charlie M., or all three.
AugustinD
Posts: 5,144
Posted:
Posted By RobertC38 on 04/28/2020 8:35 PM
I don't think the other board members knew one of guy's wife was a heavy marijuana user. I know because we've been next door neighbors for 25 years, and I see her lighting up in the garage every day./div>It was a hypothetical. If you want detailed analysis, see an attorney.
RobertC38 (California)
Posts: 62
Posted:
The law is rarely completely black or white on any issue - and this incident is no different.

According to the Davis-Stirling Act, Board Members have a "fiduciary responsibility" to act in the best interests of the HOA.

Does that include assault and battery on a fellow homeowner for any and all reasons.

I'm not an attorney, but this could be considered a "gray" area.

NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By AugustinD on 04/28/2020 8:36 PM
Posted By NpB on 04/28/2020 8:23 PM
How and why couldn't I [a director assaulted by a hoa member] sue the HOA?
You can sue the HOA for whatever you want. It does not mean you will win. Are you asking what your chances of winning are? Or maybe are you asking for a hypothetical legal argument that would result in the HOA insurer paying a large settlement to you? Okay, here's one: Condo association member Charlie M. called the manager and said, "Send Director NpB to my unit right now! She ratted me out to the Architectural Board, and now I have to install a new deck, costing me $3000! I am going to kill NpB!" The manager calls you and says that HOA member Charlie M. politely asked if maybe he could have a chat with you about why the HOA used the accrual method of accounting instead of the cash method. The manager said, "Charlie's a nice guy. He always has a couple of girlfriends he is seeing. Nice gals, too. Go talk to him. He will probably give you a beer."

This would be the HOA manager acting as an agent for the HOA. If I had medical bills et cetera, I would shop for an attorney to sue whoever has the deepest pockets: the manager, the HOA, and Charlie M., or all three.

Literally, one can sue anyone for anything, but practically, I see no legal argument for the HOA being liable if a homeowner assaults a director or another non-director homeowner.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 04/28/2020 8:44 PM
Literally, one can sue anyone for anything, but practically, I see no legal argument for the HOA being liable if a homeowner assaults a director or another non-director homeowner.
You are the one who wanted to go down this path. Nice hijacking of the thread.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By AugustinD on 04/28/2020 8:47 PM
Posted By NpB on 04/28/2020 8:44 PM
Literally, one can sue anyone for anything, but practically, I see no legal argument for the HOA being liable if a homeowner assaults a director or another non-director homeowner.
You are the one who wanted to go down this path. Nice hijacking of the thread.

You initiated the premise in your post with "If a director showed up at my door, forced his way in, and gave me a black eye, after reporting this to the police, I might very well sue him and the HOA. It depends on the circumstances."

MarkW18
Posts: 1,290
Posted:
The answer is yes, they can be sued.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By MarkW18 on 04/28/2020 8:50 PM
The answer is yes, they can be sued.

So then I can sue the HOA because the blue paint color they chose for houses hurts my vision and caused me headaches, correct?
GeorgeS21 (Florida)
Posts: 3,808
Posted:
I would think the HOA could be sued for a director assaulting an owner if the Board voted to support the director in the assault.

And, NpB ... what in the world is wrong with you?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You can sue but the court could consider that a frivolous lawsuit. Thus making you pay ALL your legal expenses and the HOA's as well. The HOA has to hire a lawyer and incur expenses that otherwise would not have spent if you had not sued. So I would NOT file such a lawsuit when it can be handled via the HOA's documents not courthouse.
Former HOA President
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By GeorgeS21 on 04/28/2020 8:55 PM
I would think the HOA could be sued for a director assaulting an owner if the Board voted to support the director in the assault.

And, NpB ... what in the world is wrong with you?

Absolutely nothing is wrong me me. Re-read the threads that I have initiated. It is others that flame, troll, sarcastically oppose, etc..
RobertC38 (California)
Posts: 62
Posted:
Suing your HOA is suing yourself and your neighbors. It causes increased expenses in multiple forms. Which does include increased insurance cost or the loss of insurance policy. This expense is passed along to the membership to pay. Any legal costs the HOA pays is also passed along to the membership to pay.

A - totally understand what you are saying. Maybe I collect $300K-$500K in damages for injuries suffered and my HOA monthly costs go up by $25 per month. I'll take that trade off.

The HOA lawyer is NOT your lawyer. They do not work for free and are there to defend the HOA in a lawsuit. If you were to win, the HOA may need to have a special assessment to pay the damages. Especially if they exceed insurance policy coverages. Which in a 1 million policy only pays out 80K. It is NOT a million dollars after all expenses considered.

A - I know the HOA lawyer is not MY LAWYER - and I didn't imply that.

Legal Question: If I got a $300-$500K judgement against the HOA, could the HOA sue the guilty Board Member for reimbursement.

The court system can ONLY make you "Whole". Which means you are to win the expense you are out. Which may or may not include legal expenses. It depends on the case.

A - "pain and suffering" are grounds for damages. Monetary damages is what makes a person "whole."

A frivolous lawsuit could even have you pay not only your legal costs but the HOA's as well. The judge could have each party responsible for their own expenses. The HOA can counter-sue in response.

A - I understand your comment but this would not be a frivolous lawsuit. There is strong evidence that would be in support such a complaint - so filing a counter-suit would likely be a waste of time.

I am NOT against suing a HOA by any means contrary what people INFER when I say "Suing your HOA is suing yourself/neighbors". It just means that is the risk and consequence you experience when doing so. If your not willing to accept that consequence, then need to look at other non-court options that are available IF you READ your documents...

A - I already know I have a Civil Tort case against the person who happens to be a Board Member - I would just like to find out if the HOA is liable for his actions as well.
NpB (Arizona)
Posts: 605
Posted:
Quote:
Posted By MelissaP1 on 04/28/2020 8:57 PM
You can sue but the court could consider that a frivolous lawsuit. Thus making you pay ALL your legal expenses and the HOA's as well. The HOA has to hire a lawyer and incur expenses that otherwise would not have spent if you had not sued. So I would NOT file such a lawsuit when it can be handled via the HOA's documents not courthouse.

Excellent post! Agree 100%. Hopefully others will see the wisdom in it.
AugustinD
Posts: 5,144
Posted:
Is the assault and battery of a HOA member by a person (who happens to be a HOA director) always a violation of the director's fiduciary duty to the HOA? I can think of instances when such an assault and battery would have no relation to the director's fiduciary duty to the HOA. So in my opinion, nope, not always.

COVID-19 chatter.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By NpB on 04/28/2020 8:49 PM
You initiated the premise in your post with "If a director showed up at my door, forced his way in, and gave me a black eye, after reporting this to the police, I might very well sue him and the HOA. It depends on the circumstances."
Are you sure I initiated the discussion of a HOA director beating up a HOA member? Positive? 100%?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By GeorgeS21 on 04/28/2020 8:55 PM
And, NpB ... what in the world is wrong with you?
Thank you.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
There is no "Pain and Suffering" involved in a HOA type suit. That is NOT awarded in general. The issue you have is a personal one that requires police response. Why make all your neighbors pay for this? Stop hiding behind the HOA thing. This person did a criminal act against another PERSON. Press charges against them and stop trying to find deep pockets out of your neighbors...
Former HOA President
RobertC38 (California)
Posts: 62
Posted:
This is NOT a frivolous lawsuit - and no court in the land would rule that way once they heard the evidence.

I'm not asking your for advice about what I should do. I am only inquiring about the legal rights I have under the Davis-Stirling Act.
MarkW18
Posts: 1,290
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 9:05 PM
This is NOT a frivolous lawsuit - and no court in the land would rule that way once they heard the evidence.

I'm not asking your for advice about what I should do. I am only inquiring about the legal rights I have under the Davis-Stirling Act.

Actually, all we should be doing is giving an opinion, not legal advice on your legal rights. You want to know what your legal rights are, hire a lawyer.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 8:59 PM
Legal Question: If I got a $300-$500K judgement against the HOA, could the HOA sue the guilty Board Member for reimbursement.
It depends. If there are any cross-claims, it's probably going to be insurance companies duking it out. (Cross-claim means one defendant sues another defendant, while both are being sued by the plaintiff.) Please take your legal question, exactly as stated here, to an attorney, and see if you get a different, legal answer.
Quote:
Posted By RobertC38 on 04/28/2020 8:59 PM
I already know I have a Civil Tort case against the person who happens to be a Board Member. I would just like to find out if the HOA is liable for his actions as well.
If I were the attorney I would be asking many more questions to identify whether the HOA has any liability here.
RobertC38 (California)
Posts: 62
Posted:
There is no "Pain and Suffering" involved in a HOA type suit. That is NOT awarded in general.

A - I will have to talk with attorney's about that - but I suspect you are incorrect.

The issue you have is a personal one that requires police response.

A- The police did respond and both parties filed a report.

Why make all your neighbors pay for this? Stop hiding behind the HOA thing. This person did a criminal act against another PERSON. Press charges against them and stop trying to find deep pockets out of your neighbors...

A- Finding deep pockets to pay for the damages you've suffered is what smart people do. Who in their right mind would seek $300K-$500K from a poor person?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By MelissaP1 on 04/28/2020 9:03 PM
There is no "Pain and Suffering" involved in a HOA type suit. That is NOT awarded in general.

If this is not enough to discredit this person, I do not know what is. https://www.ktnv.com/news/contact-13/hoa-hit-with-20m-verdict-over-swing-set-negligence
AugustinD
Posts: 5,144
Posted:
RobertC38, perhaps this will help with your decision-making:
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5800
RobertC38 (California)
Posts: 62
Posted:


Legal Question: If I got a $300-$500K judgement against the HOA, could the HOA sue the guilty Board Member for reimbursement.

You answer: It depends. If there are any cross-claims, it's probably going to be insurance companies duking it out. (Cross-claim means one defendant sues another defendant, while both are being sued by the plaintiff.) Please take your legal question, exactly as stated here, to an attorney, and see if you get a different, legal answer.

My answer: Completely agree sir! I'm just doing some preliminary research to see what legal approach I will take.

Posted By RobertC38 on 04/28/2020 8:59 PM
I already know I have a Civil Tort case against the person who happens to be a Board Member. I would just like to find out if the HOA is liable for his actions as well.

Your answer: If I were the attorney I would be asking many more questions to identify whether the HOA has any liability here.

My answer: Once again, I completely agree with you! But even attorney's have differing opinions on legal matters. Lawsuits are often a crap-shoot - even if you think/know you have a good case.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The HOA is ONLY funded by the members FOR the members. I can't imagine getting a beat down cost 300 - 500K. Your in this for the money not what was criminal. Done with you...
Former HOA President
GeorgeS21 (Florida)
Posts: 3,808
Posted:
Sounds frivolous - and, odd.

Again, if the Board urged, on the record, the Board member to assault the other owner ... sue away.

Since that didn’t happen ... frivolous and odd.
RobertC38 (California)
Posts: 62
Posted:
https://www.ktnv.com/news/contact-13/hoa-hit-with-20m-verdict-over-swing-set-negligence

A- Wow!
RobertC38 (California)
Posts: 62
Posted:
Melissa P, you ought to read this before you make comments like you do:

https://www.ktnv.com/news/contact-13/hoa-hit-with-20m-verdict-over-swing-set-negligence
RobertC38 (California)
Posts: 62
Posted:
Comment: Actually, all we should be doing is giving an opinion, not legal advice on your legal rights. You want to know what your legal rights are, hire a lawyer.

Answer: You are absolutely correct. I'm doing my research before I make a business decision to file a complaint.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 9:17 PM
My answer: Once again, I completely agree with you! But even attorney's have differing opinions on legal matters. Lawsuits are often a crap-shoot - even if you think/know you have a good case.
I recommend that you not ask your (future or present) attorney a question and then give her or him an answer the way you are doing here.

Did you meet with this director because he is a director? From what you have posted so far, I'd say nope. You met with him because his wife was DUI'ing on the HOA grounds.
RobertC38 (California)
Posts: 62
Posted:
Comment: Again, if the Board urged, on the record, the Board member to assault the other owner ... sue away.

Since that didn’t happen ... frivolous and odd.

Answer: I disagree completely.
MarkW18
Posts: 1,290
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 9:24 PM
Comment: Actually, all we should be doing is giving an opinion, not legal advice on your legal rights. You want to know what your legal rights are, hire a lawyer.

Answer: You are absolutely correct. I'm doing my research before I make a business decision to file a complaint.

Then, I guess, my opinion I would offer, get a lawyer.
RobertC38 (California)
Posts: 62
Posted:
Your comment: I recommend that you not ask your (future or present) attorney a question and then give her or him an answer the way you are doing here.

My answer: Why's that?

Your comment: Did you meet with this director because he is a director? From what you have posted so far, I'd say nope. You met with him because his wife was DUI'ing on the HOA grounds.

My answer: The Board Member has been my neighbor for 25 years. His wife has a drug problem and I can prove it. Yes, she was driving DUI on HOA grounds. How else would I know about her driving behavior?
RobertC38 (California)
Posts: 62
Posted:
Comment by MarkW18: Then, I guess, my opinion I would offer, get a lawyer.

My answer: Again, the voice of reason. If I can get a judgement against the HOA, they will pay for attorney costs.
That's why I want to find out what my chances are of this happening.

RobertC38 (California)
Posts: 62
Posted:
BTW folks, 97% of all civil lawsuits settle before trial.
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 9:26 PM
Comment: Again, if the Board urged, on the record, the Board member to assault the other owner ... sue away.

Since that didn’t happen ... frivolous and odd.

Answer: I disagree completely.
This director beat you up because you brought up his wife's being a stoner and a hazard while driving on HOA grounds. So you feel this director violated his fiduciary duty to act in the best interests of the HOA. I see.

Check your HOA's insurance policy and see if it has a "hammer clause."
RobertC38 (California)
Posts: 62
Posted:
Your comment: Check your HOA's insurance policy and see if it has a "hammer clause."

My answer: Would that be your defense for acquittal?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By RobertC38 on 04/28/2020 9:34 PM
My answer: Again, the voice of reason. If I can get a judgement against the HOA, they will pay for attorney costs.
Denny Crane, it does not work like that. For starters, see https://www.davis-stirling.com/HOME/Attorneys-Fees

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