Judge James C. Chalfant, Case Number: 24STCP02941, Date: 2025-02-11 Tentative Ruling

Plaintiff Barry Rosen (“Rosen”) seeks a determination of the validity of elections of the directors of Defendant Clark Drive Homeowners Association (“Association”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

On September 12, 2024, Plaintiff Rosen filed the verified Complaint for declaratory relief against Defendants Association, Deborah Bushell (“Bushell”); Mary Elizabeth Muller (“Muller”), and Payam Yashar (“Yashar”) for determination of the validity of three elections of Association’s directors pursuant to Corporations (“Corp”) Code sections 709 and 7616. The verified Complaint alleges in pertinent part as follows.

Plaintiff Rosen is the owner of condominium Unit 5 located at 136 South Clark Drive, Los Angeles, CA (“Property”). He is a member of the Association, which is a California non-profit mutual benefit corporation. Compl., ¶1.

The Property consists of eight units, each a separate interest belonging to an individual owner or multiple owners. Compl., ¶11. Rosen has resided at the Property since 1999 and has been an owner/member since 2001. Compl., ¶18.

Defendant Bushell is the owner of Unit 4 and President of the Association’s Board of Directors (“Board”) since late 2021. Compl., ¶¶2-3.

Defendant Muller is the co-owner of Unit 6 and Secretary of the Association’s Board since 2021. Compl., ¶4.

Defendant Yashar is the owner of Unit 5 and Treasurer of the Association’s Board since 2021. Compl., ¶5.

The Property is subject to the Association’s Bylaws and a Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) (collectively “Governing Documents”) recorded on March 16, 1981, which are binding on owners and residents. Compl., ¶8. Under the Governing Documents, the Property is governed or managed by the Board, which consists of three directors: President, Vice-President, and the combined office of the Secretary and Treasurer, each of whom serves a one-year term. Compl., ¶12. Elections are required to be held yearly in conjunction with the required annual membership meeting and are to be done by a secret ballot. Compl., ¶13. Each unit receives only one vote per unit regardless of how many owners, thus the Association has eight voting members at any given time. Compl., ¶11.

Pursuant to the Governing Documents, the nomination for election to the Board shall be made by a nominating committee which consists of a member of the Board and two other persons. The nominations shall consist of at least three nominees, consistent with the requirement that there be three directors. Compl., ¶14.

A quorum of at least 50% of all members of the Association is required in order to conduct the annual meeting at which the election results are to be tallied. Compl., ¶16. Voting for directors occurs through cumulative voting, which requires that each member get the number of votes equal to the number of directors to be elected. Compl., ¶17. Coupled with the quorum requirements, each director needs to receive at least 51% of the votes to be elected. Compl., ¶17.

The Association was ineligible to do business starting around 2005 as it was suspended by the California Secretary of State for failing to file statements of information. Its status had also been forfeited by the Franchise Tax Board. Compl., ¶19.

In 2014, Rosen became aware that the Association had been revived with both the Secretary of State and Franchise Tax Board. Compl., ¶20.

No annual meetings or elections consistent with Civil Code section 5115 were held between 2001 and 2019. Compl., ¶21. Elections were held in 2019, 2020, and 2023 but they did not comply with all provisions of the Governing Documents and law. Compl., ¶22.

Plaintiff Rosen requests a judgment determining, inter alia, (1) whether the Association has a valid Board, (2) whether the individual Defendants are members of the Board, (3) that the election of directors on November 18, 2019 was invalid, (4) that all elections after the November 18, 2019 election were invalid or, in the alternative, that the elections on November 30, 2020 and November 7, 2023 were invalid, and (5) that the Association has no Board. Rosen also seeks a permanent injunction enjoining the individual Defendants from acting as directors or exercising any of the powers conferred on directors. Compl., at Prayer 1-12. Plaintiff Rosen also seeks costs and other relief as the court deems just and proper. Compl. at Prayer 13-16.

Non-profit mutual benefit corporations are governed by Corp. Code section 7110 et seq. Corp. Code section 7616 (“section 7616”) governs the validity of director elections and appointments for non-profit mutual benefit corporations.

“Upon the filing of an action therefor by any director or member or by any person who had the right to vote in the election at issue, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation.” §7616(a).

“Upon the filing of the complaint, and before any further proceedings are had, the court shall enter an order fixing a date for the hearing, which shall be within five days unless for good cause shown a later date is fixed, and requiring notice of the date for the hearing and a copy of the complaint to be served upon the corporation and upon the person whose purported election or appointment is questioned and upon any person (other than the plaintiff) whom the plaintiff alleges to have been elected or appointed, in the manner in which a summons is required to be served, or, if the court so directs, by registered mail; and the court may make such further requirements as to notice as appear to be proper under the circumstances.” §7616(c).

“The court, consistent with the provisions of this part and in conformity with the articles and bylaws to the extent feasible, may determine the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity, effectiveness and construction of voting agreements and voting trusts, the validity of the issuance of memberships and the right of persons to vote and may direct such other relief as may be just and proper.” §7616(d).

The Davis-Stirling Common Interest Development Act (“Davis-Stirling Act”) Civil Code §4200 et seq., applies to common interest developments, including a homeowners’ association. An “association” means a non-profit corporation or unincorporated association created for the purpose of managing a common interest development. Civil Code §4080.

The election and removal of a homeowners’ association’s directors is governed by Article 4 (Civil Code §5100 et seq.). An association shall hold an election for a seat on the board of directors at least once every four years. Civil Code §5100(a)(2). The requirements of Article 4 include election by acclamation (Civil Code §5103), the adoption of operative election rules (Civil Code §5105), an independent third party as inspector of elections (Civil Code §5110), notice of election, ballots, quorum, and cumulative voting (Civil Code §5115), counting and reporting election results (Civil Code §5120), and custody of election materials (Civil Code §5125).

A homeowners’ association member may file a civil action for declaratory, injunctive, or writ relief for violation of Article 4 within one year of the date that the inspector notifies the board and membership of the election results, or the cause of action accrues, whichever is later. Civil Code §5145(a). If the member establishes by a preponderance of the evidence that election procedures or adoption of pertinent rules were not followed, the court shall void the election unless the association establishes that its non-compliance did not affect the results of the election. Civil Code §5145(a). A member who prevails on such a challenge shall be entitled to reasonable attorney fees and costs. Civil Code §5145.

An association or member may not file a civil action unless the parties have endeavored to submit their dispute to alternative dispute resolution. Civil Code §5930(a)-(b). “Alternative dispute resolution” means mediation, arbitration, or other non-judicial procedure involving a neutral party. Civil Code §5925(a). The form of alternative dispute resolution chosen pursuant to the Davis-Stirling Act may be binding or nonbinding, with the voluntary consent of the parties. Civil Code §5925(a). The party commencing the action shall filed with the initial pleading a certificate of compliance with respect to alternative dispute resolution. Civil Code §5950.

In any conflict between the association’s governing documents and the law, the law shall prevail. Civil Code §4205(a).

Plaintiff Rosen holds an undivided 13.477% membership interest in the Association by virtue of his ownership of Unit 5 of the Property. PA-0002. Rosen has consistently questioned whether the Association was following corporate formalities and sought mediation on the topics in every stance prior to filing legal actions, including issues regarding unlawful elections and improper appointment of Board members. PA-0133-34 (Rosen Decl., ¶¶ 56-57), PA-0145, PA-0177. Rosen also sent the Association petitions under Corporations Code section 7510. PA-0133-34, PA-0145, PA-0177.

Rosen initiated a lawsuit (LASC 23STLC01807) against the Association on March 17, 2023. PA-0134 (Rosen Decl., ¶57). A verified answer to Rosen’s first amended complaint was to be filed but never followed resulting in entry of default twice. PA-0140-41 (Rosen Decl., ¶59). In that litigation, the court ordered the Association to produce evidence that it had retained a law firm, SwedelsonGottlieb. PA-0140-41 (Rosen Decl., ¶¶ 83, 85), PA-0521-22, PA-0493-95. There is no evidence the Association authorized SwedelsonGottlieb to act as its legal advisor. PA-0140-41, PA-0493-95. Specifically, the Association has not produced a writing evidencing that the Association has a written retainer agreement with SwedelsonGottlieb for legal services or that it has followed corporate formalities to engage a legal advisor and pass on its fees to the eight units in the Project. See PA-0493-95.

During the course of litigating LASC 23STLC01807, Rosen learned of a November 7, 2023 election purportedly electing Defendants Bushell, Muller and Yashar to the Board when inadmissible hearsay documents were presented by Attorney Jennifer Ryu (“Ryu”) of SwedelsonGottlieb on March 26 and April 12, 2024. PA-0014, PA-0138-39 (Rosen Decl., ¶76), PA-0317-33, PA-0372-409. Rosen also learned that election rules were allegedly adopted by the Association on August 12, 2020. PA-0139 (Rosen Decl., ¶76). PA-0372-409. The Association’s documentation does not show that elections rules were adopted on any date, including August 12, 2020. PA-0015, PA-0100-13. Likewise, the produced documents do not show that a meeting or minutes approving the August 12, 2020 election rules. PA-0100-13. Rosen requested to inspect all documents related to the alleged November 2023 election, but to date has never seen any such documents other than those presented by Ryu. PA-0032 (Rosen Decl., ¶43).

The documentation provided by Ryu on March 26 and April 12, 2024 (PA-0085, PA-0016-121, PA-0372-409) has internally contradictory and unauthenticated statements of dates as follows: (a) an annual Association meeting with election on August 31, 2023 (PA-0395); (b) a ballot tabulation to take place on September 25, 2023;[2] and (c) the election, according to the Inspector of Elections report, was November 7, 2023 when the election results were tallied (PA-0393). The Inspector of Elections report indicates that six members whose voting rights were not suspended and were entitled to vote and that five ballots were received from those six elector-members. PA-0393. The Property has eight units, and eight members were entitled to vote. PA-0004. The Board never sent election results to all eight members within 15 days and Rosen never received a copy. PA-0027 (Rosen Decl., ¶23).

The Association relies on exhibits attached to Rosen’s verified Complaint as follows. On October 18, 2022, Rosen sent two petitions directed to the Association’s Board to recall/remove the current Board members and to set a meeting to fully reorganize the Association. Compl., Ex. 25.

On October 7, 2023, Rosen sent the Association eight separate petitions: (1) to set a mandatory meeting of the Association in order to put it into receivership; (2) to set a mandatory meeting of the Association to fire the current management company and hire a new one; (3) to set a mandatory special meeting of the Association to revoke/rescind certain professional services contracts; (4) to set a mandatory meeting to fully reorganize the Association; (5) to recall/remove current and/or future Board Member Yashar; (6) to recall/remove current and/or future Board Member Muller; (7) to recall/remove current and/or future Board Member Bushell; and (8) to recall/remove the current and/or future Board. Compl., Ex. 27.

Following Rosen’s petition to recall or remove the Board, the Association held an election of the Board on November 7, 2023, which was carried out by an Inspector of Elections, HOA Ballot Professionals, to ensure fair and impartial election results. Compl., Ex. 15. By the close of polls, the Inspector of Election received the ballots from the members representing 83% of the total number of votes, and a quorum was met. Compl., Ex. 15. The Inspector of Elections received and tabulated the votes of the members at the open Board meeting and certified the following elected Board members: Bushell, Muller, and Yashar. Compl., Ex. 15.

There were no proper elections prior to 2019 and no Board existed as a result. PA-0006 (¶21), PA-0007 (¶27). The failure to comply with the timeframe for the 2019 election at or around the time of the meeting in the Spring per section 4.5 of the Governing Documents invalidates the 2019 election. PA-0136 (Rosen Decl., ¶¶64-65), PA-0218-19.

The election rules were never adopted pursuant to the procedure for rule adoption under Civil Code sections 4340, 4350, 4355, 4360, 4365, and 4370 and instead were simply put in place by the management company randomly listing a date of adoption that fails to coincide with any meeting in 2019. PA-0535-36 (Rosen Decl., ¶¶ 102-03), PA-0546, PA-0548, PA-0550.

The nomination procedures for Board candidates in the Governing Documents were not followed. PA-0007 (¶29), PA-0025 (¶16), PA-0283-84. Also, Bryan Cooper was likely an ineligible candidate under Corp. Code section 7220 as he served for more than four years without an election. PA-0135 (¶¶61, 62), PA-0137 (¶69), PA-0185. In addition, the election was unlawfully conducted by management company Chris Rainey, not an independent election inspector as required under both the Davis-Stirling Act and Corp. Code section 7614. PA-0298, PA-0063-64, PA-0136 (¶61).

The ballots are suspicious because of the Dickens Terrace affirmation, and the 2019 election tally has the wrong vote count. PA-0008 (¶32a), PA-0054-59, PA-0535 (¶101), PA-0544, PA-0008 (¶¶32b to 32d), PA-0053-64. Lastly, the election is void as results were not reported by the Board to all members within 15 days pursuant to Civil Code section 5120(b). PA-0009 (¶33), PA-0027 (¶23), PA-0535-36 (¶102), PA-0550.

The 2020 election failed to comply with the Spring timeframe for the meeting per section 4.5 of the Governing Documents. PA-0195 (§4.5), PA-0128-219, PA-0279. The only election rules that existed were the 2019 election rules put in place by the management company randomly listing a date of adoption that fails to coincide with any meeting in 2019. PA-0010-11 (¶¶41, 42), PA-0015 (¶63), PA-0027 (¶25). The nomination procedures for Board candidates in the Governing Documents were not followed. PA-0007 (¶29), PA-0011 (¶43), PA-0028 (¶26), PA-0283-84. Bryan Cooper was likely ineligible to be a candidate under Corp. Code section 7220 as he had continually served for more than four years without an election. PA-0135 (¶¶61, 62), PA-0137 (¶69), PA-0185.

The election results show the failure to have three candidates on the ballot per the Governing Documents and/or no candidate was elected for the failure to have three candidates receive a quorum (50.1%) of votes cast. PA-0011 (¶47a), PA-0028-PA-0029 (¶30), PA-0066-PA-0067, PA-0069-74, PA-0078, PA-0282-83. Thus, a write-in space was improperly placed on the ballot and Yashar could not receive write-in votes under Corp. Code section 7615(b). PA-0069-PA-0074.

No evidence exists of a required annual members’ meeting. PA-0012 (¶¶47e, 47f), PA-0030 (¶¶34, 35), PA-0066, PA-0080-81. Therefore, the votes were improperly tallied at a never noticed Board meeting. PA-0012 (¶47d, PA-0029 (¶33), PA-0078, PA-0012 (¶47c), PA-0029 (¶32), PA-0069-74.

The Election Inspector Jordan Pollock was unlawfully appointed to the Board pursuant to Corp. Code section 7614 and under CC&R section 4.3.3.5 because he was a homeowner and could not be an independent election inspector. PA-0217, PA-0030 (¶35), PA-0066, PA-0012 (¶47f), PA-0080-81.

There are no verifiable (i.e., non-hearsay) documents (e.g., agendas, meeting minutes, or ballots) that demonstrate the election ever actually took place. PA-0378-PA- 0409. There are no documents supporting the existence of a Board to be able to call for an election as the Board terms had long expired in 2021 due to the failure to have elections in 2021 and 2022. PA-0014 (Compl., ¶58), PA-0031 (Rosen Decl. ¶38). While the Association claims the Election Rules were adopted on August 12, 2020, the Association’s documents show that such Election Rules were never adopted on that date or any time prior to the 2023 election.

As of March 2022, the Association’s documents show that the Election Rules were never adopted in 2019 as discussed above. PA-0010-11 (Rosen Decl., ¶¶41, 42), PA-0015 (Compl., ¶¶62, 63), PA-0032-33 (Rosen Decl., ¶¶ 43-44), PA-0027 (Rosen Decl., ¶25), PA-099-113, PA-0137-38 (Rosen Decl., ¶¶ 71-73), PA-0306, PA-0309, PA-0535-36 (Rosen Decl., ¶102), PA-0536 (Rosen Decl., ¶¶103, 104), PA-0369-70, PA-0546, PA-0548, PA-0550. Further, metadata from the purported August 12, 2020 Election Rules shows that they were likely created in June 2023 and suggests fraud. PA-0010-11 (Compl., ¶¶ 41, 42), PA-0015 (Compl., ¶¶ 62, 63), PA-0032-33 (Compl., ¶¶ 43-44), PA-0027 (Compl., ¶25), PA-099-PA-0113, PA-0137-38 (Rosen Decl., ¶¶ 71-73), PA-0306, PA-0309, PA-0535-36 (Rosen Decl., ¶102), PA-0536 (Rosen Decl., ¶¶ 103, 104), PA-0369-70, PA-0546, PA-0548, PA-0550.

Similarly, the nomination procedures for Board candidates in the Governing Documents were not followed. PA-0016 (Compl., ¶64), PA-0033 (Compl., ¶45), PA-0283-84. There is no evidence the election was noticed to all members. PA-0280. The election was unlawfully conducted by a likely never retained election inspector, who was not acting impartially pursuant to Corp. Code section 7614. PA-0034 (Compl., ¶49), PA-0129, PA-0378, PA-0395, PA-0402, PA-0407. Voter suppression also occurred with least two members, including Rosen. PA-0015, (Rosen Decl., ¶¶ 60-61), PA-0031-32 (Compl,, ¶¶ 40-42), PA-0378, PA-0393.

The results were not reported by the Board to all members within 15 days. Alternatively, if an election occurred in November 2023, the director terms expired on November 7, 2024 as the term is for only one year. PA-0393, PA-0282, PA-0287, PA-0288.

Plaintiff Rosen seeks the court’s determination under section 7616 concerning the validity of three elections of the Board’s directors.[4] Although styled as declaratory relief, Rosen’s claim is more accurately a claim of traditional mandamus because it looks back to historical elections rather than looking forward.

Section 7616 concerns “the validity of any election or appointment of any director of any [non-profit mutual benefit] corporation.” §7616(a). The petitioner is required to serve the corporation and any person whose purported election or appointment is questioned. §7616(c). The court may determine the person entitled to the office of director or may order a new election to be held or appointment to be made. §7616(d).

Like a hearing under Corp. Code section 709, a hearing under section 7616 is summary in nature and concerns only directors currently hold the office. It does not concern historical elections or appointments of directors no longer in office or corporate matters. See Columbia Engineering Co. v. Joiner, (1965) 231 Cal.App.2d 837, 849 (scope of summary proceeding is to determine validity of the election; matters of corporate management, general accounting, and the like cannot be considered unless they affect the validity of the election).

Consequently, Rosen’s arguments and evidence concerning the invalidity of the 2019 and 2020 Board elections and a pattern of lawless behavior are not within the scope of his claim. See Pet. Op. Br. at 15-16, 20.[5] Similarly, Rosen’s reference to the appointments of Bushell and Muller as directors in 2021 (Pet. Op. Br. at 11), and discussion of the proceedings in his other lawsuit against the Association (LASC 23STLC01807) -- including that the court ordered the Association to produce evidence that it actually retained the law firm of SwedelsonGottlieb, and none has been produced (Pet. Op. Br. at 13) -- are not properly within the scope. The only matter properly within the scope of Rosen’s section 7616 claim is the November 7, 2023 election.

Rosen notes that the Association is a quasi-governmental entity required to follow the election procedures of the Davis-Sterling Act. Cohen v Kite Hill Community Assn., (1983) 142 Cal.App.3d 642, 651. Pet. Op. Br. at 8, 15. He mentions Corp. Code sections 709 and 7616 without describing their content. Pet. Op. Br. at 7. He contends that the Association violated Corp. Code sections 6341 and 81320, again without describing their content, by not following the doctrine of fair procedure and argues that the court is authorized to inquire whether two members were suspended in good faith and a fair and reasonable manner in compliance with Civil Code section 5105(h). Pet. Op. Br. at 18-19. He contends that the Association was required to follow corporate formalities to adopt election rules, citing Civil Code section 5105(a). He also refers to two cases, Lake Lindero Homeowners Assn, Inc. v. Barone, (“Lake Liindero”), (2023) 89 Cal.App.5tth 834, 849 and Takiguchi v. Venetian Condominiums Maintenance Corp, (“Takiguchi”) (2023) 90 Cal.App.5th 880, 883, without explaining how they bear on this case. Pet. Op. Br. at 7.

Rosen’s moving papers fail to apply the law to the facts. Although he relies on both section 7616 and the Davis-Stirling Act, he does not cite specific election provisions of the Davis-Sterling Act (with the exception of Civil Code section 5015(a). He does not explain how the Davis-Stirling Act they relates to section 7616. Nor does he explain what provisions of the Davis-Stirling Act were violated by the November 7, 2023 election (other than Civil Code section 5105(a)). Finally, he does not cite any provisions of the Association’s Bylaws and CC&Rs (Governing Documents) and explain how they were violated.

The court contemplated denying Rosen’s claims based on these failures. Instead, it has decided that they will bear on any award of attorney fees. See post.

For its part, the Association labors under the misapprehension that the trial will include live testimony. As a result, the Association has filed a witness list, an exhibit list, and a motion in limine. These documents are irrelevant in a section 7616 trial. The court is confident that it explained to the parties that this is a documents case for which the parties must present authenticated evidence for trial. LASC Rule 3.231(h) also states as much. See also LASC 3.231(m). Rosen certainly understood this to be the case. The result of the Association’s misunderstanding is that it has presented no evidence, and the court must rely solely on Rosen’s evidence.

Not addressed by the parties is the issue of mootness. “Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509. "The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief." Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541.

A court should not dismiss a case as moot if a substantial issue remains. Terry v. Civil Serv. Comm’n, (1952) 108 Cal. App. 2d 861. A case is not moot where, despite the happening of a subsequent event, there remain material questions for the court’s determination that impact a party’s future and contingent legal rights. Eye Dog Foundation, supra, 67 Cal.3d at 541. In other words, a case is moot only where the disposition of the case is “a matter of indifference to the parties” -- where disposition of the case will neither benefit the plaintiff nor harm the defendant. Turner v. Markham, (1909) 156 Cal. 68, 69.

In Lake Lindero, a homeowners’ association conducted an election after the plaintiffs’ section 7616 challenge to the validity of a recall election was on appeal. 89 Cal.App.5^th at 837, 842. The trial court had granted the petition and removed the executive, and the executive appealed. The appellate court held that the case was not moot because, even if it accepted that it could not grant relief, the appeal presented a material question of the executive’s future and continuing legal rights concerning the recall of the association’s board. Id. at 844.

In Takiguchi, the petitioner sought an order compelling a homeowners’ association to count ballots from an election under Corp. Code section 7510. 90 Cal.App.5^th at 888. The trial court, after determining that a quorum was present, ordered the association to hold a meeting to count the ballots from an annual member meeting to decide on the election of a director. Id. During the appeal, the parties notified the appellate court that another annual meeting for the purpose of electing the same director position had been scheduled. Id. at 890. The appellate court noted that the association’s bylaws provide that incumbent directors shall hold their office until a successor is elected. Therefore, the rightfully elected director would remain in place until the new election even though the director’s two-year term had expired. Id.

Rosen argues that, if Bushell, Muller, and Yashar were elected on November 7, 2023, their terms expired as of November 7, 2024. Pet. Op. Br. at 17. There is apparently an election scheduled for the near future in March 2025. See Reply at 5, n. 4. These facts are similar to Takiguchi except that neither party cites any Governing Document suggesting that a director carries over at the end of his or her term until a new director is elected. Nonetheless, the case is not moot until the March 2025 election because all three directors have remained in office.

Rosen relies on the following evidence that he contends is the sole evidence concerning the November 7, 2023 election presented by Attorney Ryu of SwedelsonGottlieb on March 26 and April 12, 2024. PA-0014, PA-0131, PA-0138-39, PA-0014, PA-0317-23, PA-0343, PA-0338, PA0372-PA-0409. He has asked to inspect all documents related to the November 2023 election, and he has received no documents other than this evidence. PA-0139 (Rosen Decl., ¶78), PA-0465-66. Pet. Op. Br. at 13-14; Reply at 10-11.[6]

Rosen contends that the documentation provided by Ryu reflect dates contradicting a November 7, 2023 election: (a) an annual Association meeting with election dated August 31, 2023 (PA-0395); and (b) a ballot tabulation was to take place on September 25, 2023 (PA-0409). But the election, according to the inspection of elections report, was November 7, 2023 when the election results were tallied. PA-0393. Pet. Op. Br. at 14.

Ryu’s evidence shows Election Rules adopted by the Association on August 12, 2020. PA-0380-91. Rosen contends that Association documentation does not reflect Election Rules were ever adopted on any date, including August 12, 2020. He possesses all 2020 minutes, and no election Rules were adopted that year. PA-0015 (Rosen Decl., ¶63). PA-0100-13, PA-0304.

The Inspector of Elections Report indicates that there were six members whose voting rights were not suspended and entitled to vote as six and that five ballots were received from those six elector-members. PA-0393. The Property has eight units and would have eight members entitled to vote. PA-0004, PA-0245.

The Board never sent election results to all eight members within 15 days. PA-0017, PA0027 (Rosen Decl., ¶22).

From this evidence, Rosen argues that the November 2023 election of directors was invalid because (1) the Association failed to adopt election rules, (2) the appointment of Bushell and Muller to the Board in 2021 was improper as they were unqualified at the time due their failure to meet the Governing Documents’ one-year ownership requirement (PA-0022, PA-0142 (Rosen Decl., ¶93) and because CC&Rs section 4.3.3.5 precludes appointments created by removal of a director (PA-0217), (3) no Board existed for the November 7, 2023 election as the director’s terms had expired in 2021, (4) the Association failed to comply with the nomination procedures in the Governing Documents, (5) Yashar was/is likely ineligible to be a candidate (PA-0283) under Corp. Code section 7220, (6) no evidence exists that the November 7, 2023 election meeting was noticed to all members, (7) no evidence of a quorum exists to be able to tabulate the votes, (8) the election was not lawfully conducted by an independent election inspector because the inspector was not acting impartially, (9) voter suppression occurred with least two members including Rosen, and (10) the election is void as the results were never reported by the Board to all members within 15 days. Pet. Op. Br. at 16-17.

Of these arguments, it is irrelevant whether Bushell and Muller were qualified to be directors in 2021(item 2), Rosen fails to explain why the Association cannot be conducted where the directors’ terms have expired item (3), he cites no evidence or authority for nomination procedures (item (4)), he fails to show why Yashar was ineligible under Corp. Code section 7220 (item (5)), he fails to cite the requirements for a quorum to tabulate votes (item 7), and he cites no evidence that the independent elections inspector was not impartial (item 8).

This leaves Rosen’s arguments that the Associated failed to adopt election rules (item 1), there is no evidence that the November 7, 2023 election meeting was noticed to all members (item 6), voter suppression occurred with least two members including Rosen (item 9), and the election is void as the results were never reported to all members within 15 days (item 10).

The Association relies on Section IV of the Association’s Election Rules to provide the procedures for nomination of candidates. Def. Ex. A. In compliance with Section IV, Subsection B, the Inspector of Elections sent out a call for nominations to all members of the Association. Def. Ex. D. The call for nominations also included a summary of the Association’s Election Rules for members to review. The Inspector of Elections also sent all members a copy of the Board of Directors Election and Pre-Ballot & Voter Address Verification Notice. Def. Ex. E. This notice provided the Association members with instructions on verifying their mailing information on the Association’s voter list. Opp. at 6-7.

The Association contends that, as required by the Civil Code, it properly retained the services of an independent Inspector of Elections. The Inspector of Elections conducted a review of the Association’s Governing Documents to establish the election timeline and prepared all general notices, including nomination procedures and deadlines, voter list with address verification, and pre-ballot notices. Additionally, the Inspector of Elections prepared, mailed, and received ballots using a double-envelope, secret ballot system. Finally, the Inspector of Elections attended the meeting and tabulated all votes in full view of the membership and announced the election results. Opp. at 7.

These exhibits are not before the court. Moreover, the Association’s arguments do not address the Board’s alleged failure to adopt election rules (item 1) and voter suppression of at least two members, including Rosen (item 9).

Rosen argues that the Association has eight units and therefore there should be eight electors. PA-0245. The Association was required to provide all eight members ballots and not deny ballots to any member under Civil Code section 5105(h). The Inspector of Elections report shows only six members were entitled to vote and only five ballots were received for the November 7, 2023 election without any reason for omitting two member-electors. PA-0085, PA-0393. The Inspector of Elections report shows the Association suppressed the voting rights of two members. PA-0085, PA-0031 (Rosen Decl., ¶40). There is no evidence that the Association suspended two members from voting in good faith and in a fair and reasonable manner in compliance with Corp. Code section 7341 and 18320.[7] Rosen never knew a movement was afoot to suspend his right to vote. The actions also took place while the parties were litigating in another action, further suggesting lack of good faith. Pet. Op. Br. at 18.

The Association responds that it retained an independent Inspector of Elections, HOA Ballot Professionals, to handle the entire 2023 election process in accordance with the Association’s Bylaws, Election Rules, and the Davis-Stirling Act. The Inspector of Elections provided an election timeline, setting out deadlines for opening and closing nominations, providing notice of pre-ballot and voter address accuracy, deadline to correct voter list, mailing ballots, voting deadline, and date for the annual meeting. See Def. Exs. C, F. The Inspector of Elections prepared all general notices, including nomination procedures and deadlines, voter list with address verification, candidate registration list, and pre-ballot notices. Def. Exs. C, E, F. The Inspector of Elections prepared, mailed, and received ballots using a double-envelope, secret ballot system. Finally, the Inspector of Elections attended the annual meeting to count and tabulate all votes in full view of the membership and announced the election results. Opp. at 6-7.

The Association’s argument does not address the voter suppression issue. Rosen contends that he did not receive notice of the election and that he and another member were not permitted to vote. The evidence supports this contention. Without evidence that the Association followed a valid suspension procedure for two excluded members, the election was unlawful.

Rosen argues that the Association was required to follow corporate formalities to adopt election rules. Civil Code §5105(a). Rules provided by the Association suggest election rules were adopted August 12, 2020. PA-0087-98. He possesses all 2020 minutes, and no election rules were adopted that year. PA-0015 (Rosen Decl., ¶63). PA-0100-13, PA-0304. There are no agendas for the adoption of election rules on any date. PA-0032 (Rosen Decl., ¶43). As a result, the independent Inspector of Elections had no adopted election rules to follow. Pet. Op. Br.19. at 19.

The Association argues that the Board adopted the Election Rules on August 12, 2020. See Def. Ex. A. This is reflected in the executive session meeting minutes dated August 12, 2020: “A motion was made and seconded to approve and adopt the Election & Voting Rules by Swedelson & Gottlieb. Motion adopted.” See Def. Ex. G. Opp. at 8.

The Association fails to provide the court with any evidence of executive session minutes dated August 12, 2020. The court only has the Election Rules (PA-0380) and Rosen’s evidence that there are no 2020 minutes or agendas showing passage of those Election Rules. Without evidence that the Board adopted election rules, the election was unlawful.

The Association argues that, even if Rosen successfully shows evidence of voter suppression and that the Election Rules were never adopted, the election results should not be voided. Where an association violates the required election procedures, a court shall void the results of the election, unless the association establishes, by a preponderance of the evidence, that its non-compliance did not affect the results of the election. Civil Code §5145(a).

The Inspector of Elections received five ballots for the 2023 election. PA-0085, PA-0393. Of the eight homeowners, six homeowners’ voting rights were not suspended and entitled to vote. Id. The number of votes was as follows:

No other candidates were on the ballot. Accordingly, even if Rosen had cast a vote, the results of the election would have been the same and the election results should be upheld. Opp. at 9-10. Rosen fails to reply to this issue.

Civil Code section 5145(a) provides that the court “may” void election results, which accords the court discretion. Whittenberg v. Beachwalk Homeowners Association, (2013) 217 Cal.App.4^th 654, 667. The evidence before the court shows the Association failed to adopt election rules (item 1), there is no evidence the November 7, 2023 election meeting was noticed to all members (item 6), (9) voter suppression of two members, including Rosen (item 9), and (10) the election results were never reported to all members within 15 days (item 10).

The facts that that the November 7, 2023 election meeting was not noticed to all members and that the election results were not reported to all members within 15 days do not mean the election should be voided. However, the failure to adopt election rules and voter suppression of two members, including Rosen, stands in a different posture. Without substantial compliance with appropriately adopted rules, the election must be voided. Additionally, the suppression of votes does not stand on the same footing as lack of notice because it could influence the votes of members. The November 7, 2023 election is void.

The declaratory relief (traditional mandamus) claim is granted. The November 7, 2023 election is void. A judgment and writ shall issue compelling the Association to conduct a new election in compliance with the Davis-Stirling Act’s election procedures. The currently scheduled March 2025 timeframe is appropriate. As someone has to initiate the process, the election may be noticed by the directors purportedly elected in November 2023.

A member who prevails on an election challenge shall be entitled to reasonable attorney fees and costs. Civil Code §5145. Although Rosen is the prevailing party and entitled to attorney fees, his fee award will be discounted by his overblown, unnecessary, and often irrelevant effort. The parties are ordered to meet and confer on the amount of Rosen’s reasonable fees before any fee motion is filed.

Petitioner Rosen’s counsel is ordered to prepare a proposed writ and judgment, serve it on the Association’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 20, 2025 at 9:30 a.m.

[1] Rosen’s 16-page moving papers and 11-page reply violate the respective 15 and 10-page limits of CRC 3.1113(d) as well as the court’s trial setting order. The reply at pages 8-10 also violates the spacing requirements of CRC 2.108(1). The court has read and considered only relevant parts of the reply.

[2] Rosen’s citation (PA-0409) does not support this statement.

[3] In reply, Plaintiff requests judicial notice of the following: (1) Section 108 – Voter Approval and Association Elections from Witkin Summary of California Law 11^th Ed., Chp. XVII Real Property, II Estates, D. Ownership in Common Interest Developments, 4 Managing Associations (Ex. A); (2) Section 28.26 Members – Rules Governing Elections from Miller & Sarr California Real Estate 4^th Ed., Chp. 28 Common Interest Developments, B. Residential or Mixed Use Common Interest Developments, 3 Governance, A Members of a Homeowner Association (Ex. B); (3) Lake Lindero Homeowners Association, Inc. v. Barone, (2023) 89 Cal.App.5th 834 (Ex. C); (4) Takiguchi v. Venetian Condominiums Maintenance Corp, (2023) 90 Cal.App.5th 880 (Ex. D); (5) Civil Code section 784 (Ex. E); (6) Civil Code section 5105 (Ex. F); (7) Civil Code section 5145 (Ex. G); (8) Civil Code section 336 (Ex. H); (9) Corporations Code section 709 (Ex. I); (10) Corporations Code section 7220 (Ex. J); (11) Corporations Code section 7341 (Ex. K); (12) Corporations Code section 7614 (Ex. L); (13) Corporations Code section 7615 (Ex. M); (14) Corporations Code section 7616 (Ex. N); (15) California Senate Bill (“SB”) 323 (Ex. O); (16) Assembly Committee on Judiciary Synopsis of California Assembly Bill (“AB”) 2159 (Ex. P); (17) AB 2159 (Ex. Q); (18) Hearst v. Hart, (1900) 128 Cal. 327 (Ex. R); (19) Hennefer v. Butcher, (1986) 182 Cal.App.3d 492 (Ex. S); and (20) Campbell v. Career Development Institute, (2023) 97 Cal.App.5th 1109 (Ex. T).

There is no need to judicially notice California Codes (Exs. E-M) or caselaw (Exs. C, D, S, T). The court may always refer to its governing law. The Witkin and Miller & Starr treatises (Exs. A and B) also need not be judicially noticed. The legislative history (Exs. O-Q) is subject to judicial notice if it were relevant. It is not, and the requests are denied. Evid. Code §452(b).

[4] The Complaint also relies on Corporations Code section 709 but it applies to corporations generally while section 7616 specifically applies to non-profit mutual benefit corporations.

[5] Defendants point out that the statute of limitations to bring a civil action for a violation of the Davis-Sterling Act is one year. Civil Code §5145(a). Opp. at 5. Rosen fails to address the statute of limitations issue except to allege that the instant action was filed within 11 months of the November 7, 2023 election. Pet. Op. Br. at 12.

[6] Rosen purports to dispute the authenticity of the 54 exhibits in his Appendix. Pet. Op. Br. at 10, 13-14. His problem lies in the fact that he has the burden of proof. If his exhibits are not received, then his evidence consists solely of his declarations stating that he never received notice of the adoption of election rules and the November 7, 2023 election or its results, which would be insufficient to prove his case.

Rosen also argues that the Association’s inartful Amended Answer fails to controvert essential allegations in the verified Complaint. Pet. Op. Br. at 17. Rosen fails to identify these failures with specificity and the issue is waived.

[7] Corp. Code section 18320 only applies to unincorporated associations; it has no application to the Association.

Candidates	# of Votes
Debra Bushell	7
Elizabeth Muller	4
Payam Yashar	4