Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

Petitioner The Colony at Westwood Condominium Association (the “Association”) is a homeowners’ association responsible for the management and maintenance of a 256 condominium units and related common areas.  The Association seeks a Court order approving an amendment to the Association’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”).   

The CC&R’s have been amended only once in the past 32 years, and that was in 1993, a couple of months after the CC&RS were recorded, when one provision was deleted. Otherwise, the document has never been amended or rewritten in 32 years.  Due to their age, the CC&Rs do not incorporate critical provisions of the Davis-Stirling Common Interest Development Act (“the Act”). 

The proposed amendment to the CC&R’s (the “Amendment”) had four objectives.  First, the Amendment is designed to make the CC&R’s consistent with the current state of the law, including the Act, other applicable statutes, and case law.  Second, the Amendment is designed to minimize the chance of legal disputes arising in the future, based on the Association’s practical experience with handling common issues that have arisen over the years. Third, the Amendment is arranged in such a way as to make it easier to find the relevant provision when an issue arises.  Fourth, the Amendment attempts to make the language simpler and easier to read and understand by eliminating legal jargon as much as possible.  

One of the Amendments is to reduce the required votes to amend the CC&Rs.  Today, CC&Rs commonly require a simple majority of the owners to vote yes for CC&Rs to be amended or restated, which is the threshold set in the Davis Stirling Act. However, for older CC&Rs from decades ago, the percentage was often set higher.  In the case of the Association, the CC&Rs require at Section 12.2 that any amendment be approved by the supermajority vote of 66 2/3rds of the owners, which meant 172 yes votes were required. 

The Association attempted to obtain the required number of votes to approve the Amendment but failed to reach 66 2/3’s approval due to insufficient homeowner participation, as only 179 of 256 ballots were submitted, meaning 30% of homeowners did not cast a vote. (Kulik Decl. ¶¶ 14-15.)  After various attempts to urge voters to submit ballots, 179 ballots were received, with 168 in favor of amending the CC&R’s and 11 against.  (Id.)  The 168 votes were just shy of the 172 yes votes that were required under the existing approval percentage.  (Id.) 

This hearing is on the Association’s petition for a court order to reduce the required voting percentage and to approve the restated CC&R’s.  The Association argues that the supermajority requirement is overly burdensome, not consistent with current legal standards and practices, and prevents the Association from exploring beneficial changes to the CC&Rs in the interest of the community.  Only one owner has opposed the petition, and the opposition is in the form of a declaration, with no memorandum of points and authorities.   

DISCUSSION 

If the CC&R’s require members having more than 50 percent of the votes to approve amendments thereto, Civil Code section 4275, subdivision (a), allows the homeowners’ association or any member to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment.”  

The purpose of the statute “is to give a property owners’ association the ability to amend its governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures authorized by the declaration.” (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 477.)  The statute essentially “provides the association with a safety valve for those situations where the need for a supermajority vote would hamstring the association.”¿ (Id.)¿ 

Specifically, Civil Code section 4275, subdivision (c), provides that the Court may grant a petition to authorize amendments to a homeowners’ association’s CC&R’s if it finds all of the following:¿ 

(1) The petitioner has given not less than 15 days written notice of the court hearing to all members of the association, to any mortgagee of a mortgage or beneficiary of a deed of trust who is entitled to notice under the terms of the declaration, and to the city, county, or city and county in which the common interest development is located that is entitled to notice under the terms of the declaration.¿ 

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(2) Balloting on the proposed amendment was conducted in accordance with the governing documents, this act, and any other applicable law.¿ 

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(3) A reasonably diligent effort was made to permit all eligible members to vote on the proposed amendment.¿ 

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(4) Members having more than 50 percent of the votes, in a single class voting structure, voted in favor of the amendment. In a voting structure with more than one class, where the declaration requires a majority of more than one class to vote in favor of the amendment, members having more than 50 percent of the votes of each class required by the declaration to vote in favor of the amendment voted in favor of the amendment.¿ 

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(5) The amendment is reasonable.¿ 

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(6) Granting the petition is not improper for any reason stated in subdivision (e).¿ 

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If the court makes the findings required by Civil Code section 4275, subdivision (c), it may issue an order to “confirm the amendment as being validly approved on the basis of the affirmative votes actually received during the balloting period,” or, alternatively, “the order may dispense with any requirement relating to quorums or to the number or percentage of votes needed for approval of the amendment that would otherwise exist under the governing documents.” (Civ. Code § 4275, subd. (d).)¿¿¿ 

The Association has complied with the filing requirements necessary to make such a petition, as the petition includes, as exhibits thereto, copies of the governing documents, the complete text of the Restatement, copies of the notice and solicitation materials utilized in the solicitation of member approvals, an explanation of the reason for the amendment, and other documents relevant to the Court’s determination on the petition. (Civ. Code § 4275, subd. (a).)¿¿ 

Next, the Court finds that balloting on the Amendment was conducted in accordance with the governing documents, Civ. Code § 4275, and any other applicable law.  Among other procedures, the Association mailed ballots and two preaddressed envelopes with instructions on how to return ballots to every member not less than 30 days prior to the deadline for voting, pursuant to Civ. Code § 5115. (Kulik Decl. ¶11.)  The Association also complied with the secret balloting requirements of Civ. Code § 5115(a), as well as the requirement for an independent third party as an inspector of elections pursuant to Civ. Code § 5110(a) who tabulated the results of the vote as required under Civ. Code § 5110(c).   ¿¿ 

Furthermore, the Court finds that a reasonably diligent effort was made to permit all eligible members to vote on the Amendment. (Civ. Code, § 4275, subd. (c)(3).)  The voting deadline was extended several times to achieve a quorum and to allow as many owners to vote as possible.  The members also received several written reminders to vote.  (Kulik Decl. ¶ 12.)   

In addition, the Court finds that members having more than 50 percent of the votes, in a single class voting structure, voted in favor of the Amendment.  (Civ. Code, § 4275, subd. (c)(4).)  Specifically, when the ballots were tabulated on January 31, 2025, a majority of total homeowners voted to approve the Amendment; out of 256 members, 179 members voted, with 168 voting in favor of the Amendment and 11 voting against.  Thus, of the members that did vote, 94% voted to approve the Amendment to the CC&R’s.  (Hess Decl. ¶ 9.)¿ 

Additionally, the Court concludes the Amendment is reasonable.  The terms in a set of CC&Rs are deemed valid and enforceable equitable servitudes under Section 5975(a) of the Civil Code unless they are “unreasonable.” A restriction is unreasonable only if it is “arbitrary, violates a fundamental public policy, or imposes burdens on the use of the affected property that substantially outweigh the restriction’s benefits.” (Nahrstedt, 8 Cal.4th at 389.)  A CC&R restriction is “arbitrary” only when it bears “no rational relationship to the protection, preservation, operation, or purpose of the affected land.”  (Dolan-King v. Rancho Santa Fe Association (2000) 81 Cal. App. 4th 965, 976.) 

The primary motivation for rewriting the CC&Rs was the fact that the current document was written 32 years ago and thus does not incorporate the law as it exists today.  Most changes were made simply to incorporate the language of the statutes (often verbatim) into the document. As for other changes, the current CC&Rs are unclear as to certain key issues or otherwise do not address them at all, such as what constitutes the exclusive use common area of the owners, what sanctions the Board may impose when an owner violates the governing documents, when owners may lease their units and under what conditions, what pets may be kept, what insurance must be purchased by the Association and the owners, when architectural committee approval is required, when owners are liable for damage they cause to other owners or to the common areas, and the like.   

The changes reflected in the Restated Declaration were drafted with the statutes, case decisions, and practical experience of the Association over the past 32 years, in mind. They are intended to serve the best interests of the community as a whole, and they are intended to be much more user friendly than the current CC&Rs. They are similar to the modern CC&Rs that have been adopted by many associations in Los Angeles over the past 20 years. The provisions bear a “rational relationship to the protection, preservation, operation, or purpose” of the Development. As such, they are reasonable. 

However, the Association has not addressed whether granting the petition is improper for any reason stated in Civ. Code 4275(e).  Pursuant to subdivision (e) it would be improper for the Court to approve an amendment to governing documents that:  

(1) Would change provisions in the declaration requiring the approval of members having more than 50 percent of the votes in more than one class to vote in favor of an amendment, unless members having more than 50 percent of the votes in each affected class approved the amendment.  

 

(2) Would eliminate any special rights, preferences, or privileges designated in the declaration as belonging to the declarant, without the consent of the declarant.  

 

(3) Would impair the security interest of a mortgagee of a mortgage or the beneficiary of a deed of trust without the approval of the percentage of the mortgagees and beneficiaries specified in the declaration, if the declaration requires the approval of a specified percentage of the mortgagees and beneficiaries.  

 

Here, the petition is silent on whether any of these reasons are implicated here.   

Further, Civil Code section 4275, subdivision (c)(1), requires the Association to give more “than 15 days written notice of the court hearing to all members of the association, to any mortgagee of a mortgage or beneficiary of a deed of trust who is entitled to notice under the terms of the declaration, and to the city, county, or city and county in which the common interest development is located that is entitled to notice under the terms of the declaration.”¿¿The Association has not provided proof of more than 15 days written notice of the hearing date to all required parties as of the date of hearing on this petition.¿¿ 

As such, the Court denies the motion without prejudice to the Association’s renewal of the petition after curing the defects noted above.   

IT IS SO ORDERED. 

 

DATED:  May 13, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court