Davis-Stirling Act

Common Interest Development

Law Firms
August 23, 2013
Chief Justice Tani G. Cantil-Sakauye
and Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, California 94102
Re:

Wittenberg

v.

Beachwalk HOA, Case No. S212545

Amicus Letter in Support of Petition for Review

Dear Chief Justice Cantil-Sakauye and Associate Justices:
The twenty law firms listed below respectfully request that this Court grant the
Petition for Review in Wittenberg v. Beachwalk Homeowners Association.

INTEREST OF AMICI CURIAE

Our firms represent a large number of homeowners associations throughout
California. There are nearly 50,000 common interest developments in the state housing
approximately 15 million Californians (38% of the state's population). Each year,
associations go through an annual election plus a variety of special elections overseen by
50,000 boards of directors. As mini-governments, the state's associations now lack clear
policies for how boards participate in those elections, thereby making them vulnerable to
litigation that ultimately is harmful to all association members. Our interest in this matter
is to bring stability and clarity to the election process and minimize the risk of litigation
in the industry.

WHY REVIEW SHOULD BE GRANTED

The Supreme Court previously settled public policy issues for common interest
developments in three broad areas. The first established an association's standard of care

in protecting members from criminal activity (Frances Tv. Village Green Owners

Association (1986) 42 Cal.3d 490). The second established standards for determining the
reasonableness of equitable servitudes (Nahrstedt v. Lakeside Village (1994) 8 Ca1.4th
361). The third established a policy of judicial deference related to decisions about

common area maintenance and repairs (Lamden v. La Jolla Shores Clubdominium HOA
(1999) 21 Cal.4th 249). The industry now needs clear standards related to homeowner
association elections.

Hon. Chief Justice Cantil-Sakauye

August 23, 2013
Page 2

Instead of bringing clarity, the appellate decision in Wittenberg has created

confusion. The primary issues that need resolution are:
1. What are the fiduciary duties and rights of a board of directors to communicate
with and make recommendations to the membership about ballot measures?
2. What are the guidelines for distinguishing between "communicating
information" and "advocacy" during an election?
The Wittenberg decision is a published case. As described below, the appellate
court (i) improperly reduced the board of directors from an entity with fiduciary duties to
a group of individual homeowners unable to carry out their duties without fear of
litigation and (ii) imposed burdens on associations greater than those imposed on
governmental entities.

COURT OF APPEAL OPINION

The Davis-Stirling Common Interest Development Act is the body of law
governing homeowners associations. It is embodied in Civil Code 1350-1378. This
case involves the interpretation of Civil Code 1363.03(a)(1), which states that,
...if any candidate or member advocating a point of view is provided access to
association media... equal access shall be provided to all candidates and members
advocating a point of view...
At trial, plaintiff argued that any "candidate or member" included the association itself.
The trial court disagreed. In its statement of decision, the court wrote that:
The plain language of the statute makes a clear distinction between "candidates or
members" advocating a point of view and the "association"... The court finds that
Association, acting through its legally constituted board, used its own media to
provide information related to the election and this did not trigger the provisions
of Civil Code 1363.03(a)(1).
The court of appeal reversed the trial court's decision by interpreting the word

member as being synonymous with

an

association's board of directors.

Improper Interpretation. This interpretation is at odds with the clear language of

the statute. Throughout the Davis-Stirling Act as well as 1363.03, the Legislature
expressly used distinctly different terms to distinguish between a member of an
association and its board of directors. One is not the other. Section 1363.03 states if a

Hon. Chie f Justice Cantil-Sakauye

August 23, 2013
Page 3

"member" advocating a point of view is provided access to "association" media,

newsletters, or internet websites during a campaign, then equal access must be given to
all "members" advocating a point of view, including those not endorsed by the "board."
A corporation does not act through individual directors; rather, it acts collectively
through its board of directors. (Lames v. Hartford Financial Services Group, Inc. (2001)
88 Cal.App.4th 127) Just as the decision of a three-justice appellate panel is the decision
of the court, the acts of a board of directors are the acts of the association. So the board's
use of association media relating to the election is an act of the association, not the act of
individual members. The appellate court ignored this important distinction. Equating a
corporate act of fiduciaries with that of non-fiduciary homeowners improperly restricts an

association's ability to communicate with its membership about important issues related
to ballot measures and exposes it to potential litigation if it does.
Conflicts with Parallel Cases. A homeowners association is "a quasi-government
entity paralleling in almost every case the powers, duties, and responsibilities of a
municipal government." (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d
642, 651; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475.) In
parallel cases involving governments, this Court recognized that the public policy
favoring fair elections is not undermined by public officials making recommendations
about ballot measures. (Stanson v. Matt (1976) 17 Ca1.3d 209, 222; Vargas v. City of

Salinas (2009) 46 Cal.4th 1, 36-37.) In fact, a board's opinions and recommendations

about ballot measures and warnings about potential negative outcomes are permissible,
proper and often necessary to comply with the duties of their office. (League of Women

Voters v. Countrywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529,
545.) The same rationale should apply to homeowner association boards.

CONCLUSION
If the appellate court's decision is not overturned, 50,000 homeowner association
boards will annually face potential litigation every time they send out election materials.
They will be afraid to provide important information to their membership for fear of
subjecting their associations to costly and contentious court battles. To restore stability to
common interest developments, reduce the risk of future litigation, and provide important
election guidelines to the industry, we ask that this Court grant review of Wittenberg v.

Beachwalk HOA.
David F. Feingold, Esq.

James C. Harkins, IV, Esq.

James Judge, Esq.

Ragghianti Freitas LLP

Cane, Walker & Harkins LLP

The Judge Law Firm

874 Fourth Street, Suite D

17821 E. Seventeenth St., Suite 140

19900 MacArthur Blvd., 500

San Rafael, California 94901

Tustin, California 92780

Irvine, California 92612

Han. Chief Justice Cantil-Sakauye

August 23, 2013

Page4

Jeffrey Barnett, Esq.

David E. Hickey, Esq.

Jeffrey A. Barnett, APC

Hickey & Petchul, LLP

Law Offices of William Dunlevy

101 Metro Drive, Suite 250

114 Pacifica, Suite 340

1200 Paseo Camarillo, Suite 255

San Jose, CA 95110

Irvine, California 92618

Camarillo, California 93010

William Dunlevy, Esq.

Deon Stein, Esq.

Jakob S. Harle, Esq.

Richard A Tinnelly, Esq.

Law Offices of Deon Stein

Harle, Janics & Kannen

Tinnelly Law Group

885 University Avenue

575 Anton Boulevard, Suite 460

30 Enterprise, Suite 320

Sacramento, CA 95825

Costa Mesa, CA 92626

Aliso Viejo, CA 92656

Richard P. Neuland, Esq.

Joel M. Kriger, Esq.

Dan Nordberg, Esq.

Kriger Law Firm, LLP

Nordberg Law Group, P.C.

Neuland & Whitney, APC

8220 University Ave, Ste 100

30211 Ave.de Las Banderas, 200

22502 Avenida Empresa

La Mesa, CA 91942

Rancho Santa Margarita, CA 92688

Rancho Santa Margarita, CA 92688

Howard J. Silldorf , Esq.

Robert M. DeNichilo, Esq.

Stephany Yablow, Esq.

Silldorf & Levine, LLP

DeNichilo & Lindsley, LLP

Law Offices of Stephany Yablow

5060 Shoreham Place, Suite 115

4000 Barranca Parkway, Suite 250

11684 Ventura Blvd., Suite 233

San Diego, CA 92122

Irvine, California 92604

Studio City CA 91604

Laura Snoke, Esq.

Timothy Howett, Esq.

Matthew L. Grode, Esq.

Law Offices of Laura Snoke

Howett Law

Gibbs Giden Locher Turner &

1801 Century Park East, Ste 2400

301 E. Colorado Blvd., Suite 514

Senet LLP

Los Angeles, CA 90067

Pasadena, California 91101

1880 Century Park East, 12th Fl.

Los Angeles, California 90067

Glen L. Kulik, Esq.

Beth Grimm, Esq.

Kulik Gottesman & Siegel LLP

Beth A. Grimm, PLC

15303 Ventura Blvd., Suite 1400

3478 Buskirk Ave., #1000

Sherman Oaks, California 91403

Pleasant Hill, CA 94523

Respectfully,

ra
aw

noke, Esq.
ffices of Laura Snoke

1801 Century Park East, Suite 2400

Los Angeles, CA 90067

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to this
action. I am employed in the County of Los Angeles, State of California. My
business address is 1801 Century Park East, Suite 2400, Los Angeles, CA
90067.
On August 23, 2013, I served true copies of the following document(s)
described as AMICUS CURIAE LETTER IN SUPPORT OF PETITION FOR
REVIEW on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MAIL: I enclosed the document(s) in a sealed envelope or package
addressed to the persons at the addresses listed in the Service List and
placed the envelope for collection and mailing,
business practices.

following

our

ordinary

I am readily familiar with the Law Office of Laura

Snoke's practice for collecting and processing correspondence for mailing. On

the same day that the correspondence is placed for collection and mailing, it
is deposited in the ordinary course of business with the United States Postal
Service, in a sealed envelope with postage fully prepaid.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on August 23, 2013, at Los Angeles, California.

name

. SERVICE LIST
Wittenberg v. Beach walk HOA
Court of Appeal Case No. G046891
Superior Court Case No. 30201100507078

William L. Buus

Attorneys for Plaintiffs and

Schiffer & Buus APC

Appellants

3070 Bristol St., Ste. 530

Paul Wittenberg; Raymond Dukellis

Costa Mesa, CA 92626

Adrian J. Adams

Attorneys for Respondents and

Adams Kessler PLC

Petitioner

2566 Overland Ave. , Suite 730

Beachwalk Homeowners Association

Los Angeles, CA
California Court of Appeal

Case No. G046891

Fourth Appellate District, Div. 3

601 W. Santa Ana Blvd.

Santa Ana, CA 92701

Hon. Thierry Patrick Colaw
Orange County Superior Court
700 Civic Center Drive West
Dept. C25
Santa Ana, CA 92701

Case No. 30201100507078