Recall election, small claims court or both?

So we finally got a poorly worded letter from our Property Management Company. (so much for them sharing the actual legal opinion) The three remaining board members (two of the five have already resigned) have decided that we need to redo the election. And no surprise, this time there will only be (2) open positions instead of the (5) we had the first time around

I was hoping that the three remaining board members would come to their senses and realize that their actions have ramifications. A new election will easily cost our Association $10k

The ironic part is the 'ex pres' is now back on the board, is one of the 2 that will be up for election, the director holding the other seat up for election has already resigned. I don't think there is a snowball chance in h*ll that the ex pres will get elected so what was the point of all this? These two remaining directors, with two new directors to be elected and a 5th spot to be filled by the board, I would think, after the election.

So what are my options?

Recall election: I have already made up the petitions, and we won't have any problem getting 5% of the homeowners to sign, but if they have already announced a new election, is it too late for a recall election?

Small Claims Court: How do I go about pursuing this in small claims court? I see there are companies that specialize in helping people, is one of these companies worth looking into?

Terri you reading this?

I agree with you 100%, that is why I have held of doing anything to date.

But, small claims court should not cost very much money and I would just be seeking to have the original election results restored

Do you have any constructive advice to share?

I am looking for any option, suing my HOA is the last thing I want to do, but I don't think a small claims action is that big of a deal, is it?

Small claims court IS a big deal. First the HOA has to also lawyer up. Whether that be advice or representation EVEN in "Small Claims". Court ONLY makes one "Whole" not a profit. Any court proceedings are reported to the mortgage companies via a PUD form. This form is like an "assessment" of the HOA. If it comes across too risky then less loan options are offered and refinancing rates rise. You risk losing FHA and other government back loans being offered to potential buyers. Less buyers is NOT a good thing.

Again your "small claims" case your seeking what you have the power to do INSIDE your HOA. It just takes actual WORK to do it. Plus it means getting a majority of like thinking people to agree with you. Otherwise the whole thing is a YOU issue NOT an HOA or majority issue.

NA1 touches on an important point. The HOA lawyer is NOT your lawyer. It is the boards. They don't have to release information other than there was a lawsuit. It may extend to higher dues or special assessment due to the expenses of a lawsuit.

JamesB37, MelissaP1 is believes it's okay for a board to violate the law. She goes down these rabbit holes and disrupts constructive discussion. My standing offer: I will pay you $10 if you ignore all further posts to this thread by Melissa.

What is the scheduled date for the new election (for only two seats)?

Also please repeat what happens to the board make-up if two of your people get elected. Are the other three directors rogue?

I will pay you 20 if you stop posting quotes of laws since you are not a lawyer ..

Got it. So your point is they are going back on their word.

But yes, I motion to move on.Yes, move on, because the only options are to either get a court ruling on the above, and that seems messy, or replace the board.
Let's hope A, B and D do not appoint someone to fill the now vacant C's seat. But given A, B, and D's aggressive actions to date, including a coup d'etat, I am not holding my breath in the hope the "Rogue 3" keep C's seat open until after the election.

How about citing exactly what Ca Civil Code says about this alleged four+ months?

Small claims is very practical and cost effective for your purpose. You can enforce election law in small claims. You are not being hostile to the association, you want the court to confirm election procedures and results.

Listen to Terri. They sued their HOA twice. Still can not figure out why their HOA treats them badly... Gee you sued ALL your neighbors and can not figure out why no one wants you to the potluck...

There are consequences to you actions. Is it worth hurting others for what you want? If you are trying to help others in your HOA then others will help you. If not, then it is a you problem.

I will be frank and honest. Suing your HOA does not get you hero status amongst your peers. Getting a majority of owners to support your view does. No court needed.

En route via paypal.

Thank you for your assistance on this matter. The money I am paying is well worth it.

TerriS6 can you send me an email to this temp address, I was had some questions about small claims court I hope you can help me with

[email protected]

It's not about money. It's about them not following their own election rules, bylaws and the fact that they invalidated the election

You think that three people who went behind the backs of a newly elected board, spent thousands of dollars getting a couple of legal opinions (the first agrees with me regarding the length of terms) and were only able to do so because of the relationship of the HOA president and the PMC, (which they recently signed a 2 year contract in violation of our 12 month limit in our bylaws) are actually going to listen to reason? And 2 of the 5 directors have resigned over this

I sure did with 10 of my neighbors. Was not alone in the battle. It was due to a special assessment that was not being done correctly. They did end up doing the vote right without going to court. Just lied to everyone about me and the amount of the assessment.

So it was a group of people whom had same issue. We hired a lawyer to write a letter. I was a board member too. Which helped with them doing the right thing even though we lost the vote. The assessment went through. The vote was collected and counted right.

But doesn't a board vacate their privilege of confidentiality with the attorney if the board president announces to all of the members that the board has sought a legal opinion from the HOA attorney and gives a short summary of that opinion? The case law pertaining to the waiving of confidentiality I've read repetitively upheld the legal concept that a client can waive their right to confidentiality by communication the basics of the client-attorney interaction to a third party.

So when you wrote this earlier in the thread: "Suing your HOA is suing yourself and your neighbors. It is better to work within your rules than outside," you were being a raging hypocrite who will try to dissuade other posters from doing the very thing you now claim was successful for you.

Sorry Kerry, I missed that question, but now that I have looked into it....yikes

We have 9 pages of election rules, that were updated in 2020, but they do not mention any time lines. However, the D-S Websited does
https://www.davis-stirling.com/HOME/H/HOA-Election-Timeline

"Elections can no longer be done in 60 days. Boards of directors and inspectors of election should expect them to take from 105 to 120 days. Previously, everything could be calculated from the annual meeting date. Now, dates are based on the next act in the election sequence".

So playing around with the D-S Timeline calc, it looks like since notices were just now sent out, the actual vote count would be March 1st, about 5 months from now and then we would have another election in Aug

Election timeline calculator
https://www.davis-stirling.com/HOA-Election-Timeline-Calculator

If a lawsuit arises, I suppose that any actual written opinion floating around might be discoverable. But as far as HOA records requests are concerned, I think the HOA would be in its rights to decline sharing the full opinion and forcing the owner to take the HOA to court. The owner would claim the record has to be provided because of (invented legal theory).

Please cite the case law.

The guidance is 120 days maximum. How do you come up with March 1?

I imagine a recall election would have to be structured similarly, calendar-wise.

Christopher B. Mueller & Laird C. Kirkpatrick,
FEDERAL EVIDENCE (4th edition, Thomson Reuters 2013)
§ 5:33 Waiver of privilege—Voluntary disclosure or failure to claim

A client who voluntarily discloses the content of communications covered by the attorney-client privilege waives the privilege.
Such waiver by disclosure can occur at any stage of a proceeding,1 including discovery,2 and in settings far removed from court
proceedings.3

Footnotes for Footnote#3:

* Federal Circuit: Wi-LAN, Inc. v. Kilpatrick Townsend & Stockton, 684
F.3d 1364 (Fed. Cir. 2012) (patent owner's pre-litigation disclosure of opinion
letter to competitor waived attorney-client privilege as to letter).
* Second Circuit: Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d
Cir. 2003) (client sent documents to lawyer to secure legal advice and authorized
him to send them to SEC for audit, thus waived privilege).
* U.S. v. Jacobs, 117 F.3d 82, 87 (2d Cir. 1997) (client gave inaccurate
extrajudicial summary of letters from lawyer and claimed that lawyer approved
scheme when actually he did not; disclosure of content waived privilege)
(Essentially, it seems to be the case here that Jacobs publicly disclosed a "summary" of the two letters from his lawyer — but a summary that inverted the analysis and conclusion. Attorney Swob's letters actually told Jacobs that the scheme was of dubious legality and that he should steer clear of it. The bulk of the letters was a more detailed explication of this general theme. Jacobs, on the other hand, reported that his attorney had approved of his participation. Jacobs accomplished this deception essentially by quoting a sentence of one of the letters out of context. .....The district court held that it would be unfair to allow von Bulow to use privileged information as a sword in public, and then invoke the privilege as a shield in the courtroom. In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 469 (S.D.N.Y. 1996) (emphasis supplied). In Kidder Peabody, a report was publicly released which paraphrased specific statements made in the course of arguably privileged communications. Id. at 470. The court held that the privilege was waived as to the specific statements, since "[d]isclosure of the substance of a privileged communication is as effective a waiver as a direct quotation since it reveals the `substance' of the statement." https://casetext.com/case/us-v-jacobs-57
* Ninth Circuit: U.S. v. Mendelsohn, 896 F.2d 1183 (9th Cir. 1990)
(defendant waived by telling detective about lawyer's legal advice).
* Tenth Circuit: U.S. v. Bernard, 877 F.2d 1463, 1465 (10th Cir. 1989) (client told third party he verified legality of loans with attorney, thus waived
privilege). https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-bernard

Using these case laws, a board president who communicates to 115 third party members a summary of the HOA board's communication with the HOA attorney regarding a legal matter, using the attorney's legal opinion as a "sword in public", cannot invoke the privilege of confidentiality as a shield.

We tried to obtain four years worth of draft Board meeting minutes only to have the HOA attorney claim they are "confidential". He's not denying they exist, just that the status of being draft documents, not approved minutes, makes them confidential. Apparently the attorney is quite unaware that the board president announced on Facebook that the DRAFT minutes of the Jan. 24 board meeting were now on the owner portal. Still on there as DRAFT minutes 8 months later.

Re Jeanne, I should have clarified that my comment was based on California law & cases. Your cases still support my statement. If a board says "our attorney says you can't have our legal invoices because they are privileged," that is not a waiver and doesn't give me the right to read his opinion. As you quoted about sword and shield, that demonstrates the disclosure to a third party would have to be substantive enough to use as a weapon, a sword. Again, I'm referring to California as I have an active case on this very issue.

Sorry for extra post...in California, a board must have minutes available within 30 days of a meeting but they can be draft minutes. The attorney might be worried about defamation claims if the draft minutes haven't been combed through but the board is probably still required to turn them over.