Where the procedural requirements applicable to an association’s election are violated by the association, a member of the association may bring a civil action against the association for declaratory or equitable relief. (Civ. Code § 5145(a).) Most election challenges may be brought in small claims court. (Civ. Code § 5145(c).)
Challenge Period: 1 Year
The period within which a member may bring an action is one (1) year from the date the election violation occurred. (Civ. Code § 5145(a).) This time period coincides with the length of time that the ballots are required to be kept in the custody of the association’s inspector(s) of election following the tabulation of the vote and before custody of the ballots may be lawfully transferred to the association. (Civ. Code § 5125.)
Civil Penalties – Where a member prevails in the action against the association, the court may impose a civil penalty against the association of up to five hundred dollars ($500) for each violation, except that each identical violation is subject to only one (1) penalty if the violation affects each member of the association equally. (Civ. Code § 5145(b).)
Costs & Attorney’s Fees – Where a member prevails in the action against the association, the member is “entitled to reasonable attorney’s fees and court costs.” (Civ. Code § 5145(b).) By contrast, if the association prevails, the association is entitled to recover its “costs” only if the “court finds the action to be frivolous, unreasonable, or without foundation.” (Civ. Code § 5145(b).) However, “costs” does not include attorney’s fees; even where the court finds the action to be frivolous, the association is not entitled to recover its attorney’s fees when it prevails in the action:
“While we agree that the trial court’s conclusion that [the member’s] decision to file this lawsuit was indeed frivolous, we must also agree with [the member] that the plain language of [Section 5145] does not support an award of attorney fees to [the association], as unfair at that may seem.” (That v. Alders Maintenance Corporation (2012) 206 Cal.App.4th 1419, 1428.)
Void Results of Election – Where the court finds that the association violated the required election procedures, a court may void the results of the election. (Civ. Code § 5145(a).)
Inspection of Ballots
Where an action is filed to challenge the election process, the association’s inspector(s) of elections is required, upon written request, to make the ballots available for inspection by the member or the member’s authorized representative. (Civ. Code § 5125; See also “Inspection of Ballots.”)
Related Case Law
- That v. Alders Maintenance Corporation
(2012) 206 Cal.App.4th 1419
[Elections; Legal Challenges] Where a HOA prevails in an action brought against it on the basis of alleged election violations, the HOA is not entitled to recover its attorney’s fees even where the action is found to be frivolous.
- Wittenburg v. Beachwalk Homeowners Association
(2013) 217 Cal.App.4th 654
[Elections; Equal Access] Where a board utilizes HOA media to advocate its point of view regarding an upcoming election, equal access to such media must also be provided to any member advocating a point of view on the issue.