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).) Election challenges may be brought in either superior court or, if the amount of the demand does not exceed the jurisdictional limits of smalls claims court, 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 or one (1) year from the date the inspector of elections notifies the board and membership of the election results, whichever is later. (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 of elections following the tabulation of the vote and before custody of the ballots may be lawfully transferred to the association. (Civ. Code § 5125.)

Remedies

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).) If a member prevails in a civil action brought in small claims court, the member is entitled to court costs and “reasonable attorney’s fees incurred in consulting an attorney in connection with the civil action.” (Civ. Code § 5145(b).)

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.)

Whether or not the member has prevailed in the action against the association is a determination made at the end of the lawsuit.  If a member secures only interim relief (e.g., a preliminary injunction), that does not, in itself, entitle the member to an award of her attorney’s fees. (Artus v. Gramercy Towers Condominium Association (2018) 19 Cal. App. 5th 923.) 

Void Results of Election – Where the court finds that the association violated the required election procedures, a court shall void the results of the election, unless the association establishes, by a preponderance of the evidence, that the association’s noncompliance did not affect the results of the election. The findings of the court must be stated in writing as part of the record. (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.”)

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