Judge: David A. Hoffer, Case: Greenman v. United Laguna Woods Mutual, Date: 2022-08-22 Tentative Ruling
A) Demurrer
Defendants United Laguna Woods Mutual (“United” individually) and Village Management Services’ (“VMS” individually; “Defendants” with United) Demurrer to plaintiff Mark Greenman’s (“Plaintiff”) Complaint is SUSTAINED with 20 days leave to amend.
Defendants demur to both causes of action (“COA”) in the Complaint on the bases they fail to state sufficient facts to constitute a COA and they are fatally uncertain. (Civ. Proc. Code § 430.10(e) and (f).) Both COA are for violation of Civ. Code § 5105. That code section in relevant part states:
“(a) An association shall adopt operating rules in accordance with the procedures prescribed by Article 5 (commencing with Section 4340) of Chapter 3, that do all of the following:
(1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or internet websites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content.
(2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.
. . .” Civ. Code § 5105(a)(1)-(2).)
1) COA No. 1 – Violation of Civ. Code § 5105 – Provision of Emails
Plaintiff alleges the provision of the email addresses of all homeowners was in violation of the election and voting policy, which constituted a violation of law. (Complaint ¶ 26.) He alleges Defendant United is liable for the violations of agent VMS. (Id.)
The portion of the election rules provided appears to specially define and identify the unique term “Corporation media” as referring to Channel 6. There is nothing regarding email addresses falling under “Corporation media” or expressly being excluded from the general term “media” under Civ. Code § 5105. Plaintiff has cited to no statute, rule, or case wherein the provision of email addresses to a candidate upon request is illegal. Civ. Code § 5105 also contains no reference to member privacy.
Plaintiff did provide a copy of a Records Request Form, which states, “Please preview [Civ. Code] Section 5200 alia describe the records/documents that you are requesting.” (Greenman Decl., Ex. B.) Civ. Code § 5200 states in relevant part:
“For the purposes of this article, the following definitions shall apply:
(a) “Association records” means all of the following:
. . .
(9) Membership lists, including name, property address, mailing address, email address, as collected by the association in accordance with Section 4041 where applicable, but not including information for members who have opted out pursuant to Section 5220. . .” [Emphasis added.] (Civ. Code § 5200(a)(9).)
Obtaining email addresses of members appears to be permitted to under the terms laid out on the records request form.
Plaintiff has failed to plead sufficient facts to support the email addresses were excluded from being used by candidates or that providing email addresses were a violation of members rights to privacy. The statements alleged are merely conclusions of fact or law which cannot overcome a demurrer.
Thus, the Demurrer is sustained as to this COA.
1) COA No. 2 – Violation of Civ. Code § 5105 – Not Providing Emails to All Candidates
Plaintiff is correct in that Civ. Code § 5105 requires that each candidate is provided equal access to association media, newsletters, or internet websites during a campaign. However, Plaintiff has not alleged that he (or some other candidate) requested email addresses and was denied, or that Defendants actively prohibited Plaintiff from using the email addresses. Plaintiff alleged only that Blackwell/Liberatore requested email addresses through a form and that the email addresses were provided to the requestor.
There is also nothing in Civ. Code § 5105 that requires Defendants to proactively seek out each candidate and notify them email addresses were requested and provided. The code only requires that equal access be given. Again, there are no allegations Plaintiff requested the email addresses and was refused access to them.
Thus, the Demurrer is sustained as to this COA.
B) Motion to Strike
Defendants’ Motion to Strike is MOOT as there are currently no valid COA with the Demurrer having been sustained in its entirety.
Defendants are ordered to give notice of these rulings.