See the E-Newsletter Sent in September 2013 about the story behind this case and the reasons for writing this letter -
AMICUS LETTER TO THE COURT BY BETH A. GRIMM, CALIFORNIA HOA ATTORNEY
SUBMITTED IN SUPPORT OF SUPREME COURT REVIEW OF
Wittenberg v. Beachwalk HOA, Case No. S212545
Amicus Letter in Support of Petition for Review
"Dear Chief Justice Cantil-Sakauye and Associate Justices:
This law firm makes this individual request respectfully asking that this Court grant the Petition for Review in Wittenberg v. Beachwalk Homeowners Association.
My Firm's Interest: In the interest of disclosure, my firm signed on to a group letter of California Common Interest Development attorneys that has been proffered to the Court and I agree with that letter in matters stated therein. It is not my intent to be repetitive of that information and the citations already provided to the Court in that letter. However, I have a law practice that has many rather unique aspects to it that differ from the other firms in that letter. I believe that it offers me some additional perspective that could be of value to the Court. For more than 20 years I have counseled homeowners as well as homeowner associations in resolving legal issues. About ? of my practice involves individual telephone consultations and specialized services assisting homeowners all over the State of California who cannot find knowledgeable HOA attorneys in their area to advise them. For those who cannot pay for advocacy, I solicit simpler, more generic questions that I answer on one of my two blogs (California Condo & HOA law blog and Condolawguru.com). The second blog was developed specifically to answer questions of owners. I have had a website (www.californiadoguru.com) for more than 20 years that offers free articles, FAQs and makes other publications available to help homeowner associations boards and owners. I have served on government-appointed committees and participated in discussions relating to the promulgation of homeowner association laws in California. I have followed and participated in legislation since 1988. With regard to more involved issues, I publish and circulate an E-Newsletter on a regular basis that helps to educate boards and homeowners on the rights, responsibilities, roles and the law in California for homeowner associations (What's New in HOA Land?)
Most HOA attorneys do not take individual homeowners as clients, let alone serve them by offering substantial free information. I recognize that the owners need information and assistance and they should have access to various resources they might not be able to find otherwise, resources which I offer. Because I serve the homeowner contingent, I believe that my perspective is broadened in many areas. My eyes are opened to some board abuses and I am called upon to address those abuses. It is true that there are some boards that abuse their offices. However, in many cases, a board's failures comes from a lack, and likewise, an owners' frustration comes from a lack a lack of education and understanding the roles and responsibilities of the volunteer boards and of the basis and value in having more structure than the average subdivision without leadership or fiduciary responsibilities.
The item of interest most pertinent to this Amicus letter and the Wittenberg case is that more than 99% of the owners that have utilized my services over the past 20 years are looking to make decisions based their singular interests and perspective as an individual, i.e., decisions that benefit them or improve their own circumstances. Very few call me with advice to help the collective membership unless they are a director who is at odds with the board. Some of my individual clients serve on boards when they call me or have in the past, and even including those, the bulk of individuals seek me out for my specialized knowledge because of their singular interests.
Why Review Should Be Granted
It is the singular insight and interest of an individual owner that begs the question to what end are homeowners associations in this State benefitted by an Appellate Court decision that dynamites the idea of fiduciary responsibility as it levels the "playing field" between the board and the individual members with specific regard to amendments or matters of importance to the collective membership that are proposed by the Board?
It is true that concerns about equality in the right to run as a candidate for the board of an HOA served as part the impetus of the elections laws promulgated for homeowner associations in Civil Code Sections 1363.03, 1363.04, and 1363.09 in 2006. And when it comes to running for the board, the playing field ought to be balanced, so that incumbents do not get an unfair advantage over owners who want to serve.
However, by going so far as interpreting the word member as being synonymous with an association's board of directors for purposes of the fact pattern in the Wittenberg decision, the Appellate Court is not only undermining the several cases mentioned in the group letter that were previously decided by this Court, but is ignoring another very important fact. That fact is that any owner's tendency to speak out to oppose important measures thought by the Board as a collective body to be beneficial to the membership, is promoting his or her singular interest, not out of responsibility to address the interest of the group as a whole, while the board is bridled with the responsibility of the community's interest.
Like the Amicus letter I signed on to indicated, I am very concerned that if the Appellate Court's decision is not overturned, the 50,000+ homeowner association boards in California will be facing yet another threat which is the possibility of litigation arising every time they send out election materials on a measure the board believes to be necessary or beneficial to the membership.
It is of no benefit to silence the Boards or expose them to allegations of unfair treatment because they desire to explain their reasons to members for proposing a measure. Owners are not prohibited from addressing the members they have access to mailing lists and the right to address communications to the other owners. And if any board member wants to individually address the members with their views, opposing or otherwise, they should be advised to do it outside of their position on the board, which would put them on equal footing with other members. I see little value in offering individuals the unfettered resources of the association when they choose to rise up and oppose the board's attempts to responsibly act as a fiduciary.
I believe the elections law is fair as written and that in board elections when the board uses Association resources to promote any candidate it should place all that want to run and are qualified on equal footing. And if the association holds a meeting to discuss a proposed measure before the membership, the board should allow people to espouse their own views. But it is patently unfair to expect the board as a collective body, that holds the interests of the members as a collective body, on the same footing as an individual member whose interests are singular.
Applying the idea of equality in a manner that chills the very idea of explaining the reasons for proposing an amendment to the governing documents or an assessment to meet an association need is going too far. Boards are likely to hesitate to provide important information to their membership when proposing a measure seeking approval for fear of subjecting their associations to a barrage of demands for "equal time and resources" and/or costly and contentious litigation and unnecessary disruption in the community.
I and my firm respectfully request that you consider these matters and grant review of this case.
Very truly yours,
BETH A. GRIMM, Attorney