Judge Matthew C. Braner, Case Number: 37-2023-00050446-CU-WM-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00050446-CU-WM-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 26, 2024

04/26/2024 02:01:00 PM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2023-00050446-CU-WM-CTL ARROYO VS PACIFIC RIDGE NEIGHBORHOOD HOMEOWERS' ASSOCIATION CAUSAL DOCUMENT/DATE FILED:

The court will hear from the parties regarding its comments and legal analysis below.

As a preliminary matter, the court's understanding is that the parties believe most (possibly all) of Plaintiff Rachel Arroyo's claims are legal issues that can be adjudicated based on undisputed facts. The court has afforded the parties multiple opportunities to present additional evidence, and neither party has yet done so. As such, the court will treat the hearing on Plaintiff's complaint as effectively a bench trial.

First, with respect to Plaintiff's first cause of action, the 'candidate form' utilized by Defendant Pacific Ridge Neighborhood Homeowners Association ('HOA') and Defendant Jennifer Figgers for the recall election is not 'association media' within the meaning of Civil Code section 5105, subdivision (a)(1). The court agrees with Judge Freestone's conclusion in the earlier related case that Defendant HOA's Election Rule B.1 does not violate, and is consistent with, Civil Code section 5105. Rule B.1 defines 'association media' as 'PRNHOA's newsletter, internet website, other written communication, and/or television channel(s) from PRNHOA.' Rule B.1 also specifically excludes from the definition 'the official request to serve form provided by PRNHOA, for Board election.' Plaintiff argues the candidate form utilized by Defendants in the recall is substantially different from the 'request to serve' form used in prior elections and therefore does not fall within the exclusion. The court disagrees; the obvious intent of the exclusion was to tether statements by candidates introducing themselves to the voting membership to the ballot materials, thereby distinguishing them from Defendant HOA's media communication network. Whether described as request to serve forms or candidate forms, they are akin to neutral ballot materials, which plainly are not 'association media.' Even were the court to accept Plaintiff's argument and construe the candidate form as not falling within the exclusion, the court would still conclude the form is not 'association media,' as it does not fall within the categories specified in the first sentence of Rule B.1. Of those categories, the only one that arguably captures the candidate form is 'other written communication,' but this category cannot be read in isolation. Read in context, this category refers to written communications similar to Defendant's HOA's newsletter and internet website (i.e., its ongoing HOA-wide communication network). The candidate form is also not 'from' Defendant HOA; it is 'from' a candidate seeking to replace Plaintiff via the recall election, and there is no dispute the filled-out form was not altered prior to its distribution.

In sum, declining to distribute Plaintiff's candidate form did not deny Plaintiff equal access to association media because the candidate form is not association media. Accordingly, Defendant HOA did not violate Civil Code section 5105, subdivision (a).

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3112962 67 CASE NUMBER: CASE TITLE: ARROYO VS PACIFIC RIDGE NEIGHBORHOOD HOMEOWERS' 37-2023-00050446-CU-WM-CTL Second, with respect to Plaintiff's third cause of action, Plaintiff's interpretation of Corporation Code section 5222, subdivision (b)(1), is mistaken. Plaintiff argues the clause 'or not consenting in writing to the removal' refers to members who did not vote; the court disagrees. That clause must be read in context with the whole section, particularly the first part of the section prior to the clause Plaintiff relies on: 'In a corporation in which the articles or bylaws authorize members to cumulate their votes pursuant to subdivision (a) of Section 5616, no director may be removed (unless the entire board is removed) if the votes cast against removal, or not consenting in writing to the removal, . . . .' The only logical way to read this part of the section is that 'or not consenting in writing to the removal' refers to the 'votes' from members in the removal election. In other words, where cumulative voting is authorized by articles or bylaws, a director cannot be removed if the votes cast against removal or the votes not consenting in writing to the removal (i.e., participating members who abstained) would be sufficient to elect the director if voted cumulatively at an election where all members are present to vote (as action was by written ballot) and the total number of directors (5) were being elected.

Here, Defendant HOA reached well beyond the 33% quorum consistent with Corporations Code sections 5222(a)(2) and 5034, and its bylaws, because 375 votes were cast (61.78% of the 607 voting members). Of those 375 votes, only 6 were against recall (5 no, 1 abstain). Of the 375 votes on whether to block the recall, only 6 were in favor of blocking, and 6 abstained. Even with cumulative voting, Plaintiff would have needed at least 61 votes to not recall her or votes abstaining from recalling her (majority of 607 is 304, divided by 5 is 60.8). Whether in relation to the actual recall vote or the vote to block the recall, Plaintiff fell well short of that minimum, even if the no recall and abstention votes are added together instead of counted separately (as the 'or' in the clause would suggest should be done).

Accordingly, Defendant HOA did not violate Corporations Code sections 5222(b) or 5513(c).

Finally, as to Plaintiff's second cause of action for negligence, the court is unsure whether it may persist given the court's above legal analysis and conclusions. It appears the claim is primarily founded, and possibly entirely founded, on Defendants' alleged violations of Civil Code section 5105(a) and Corporations Code sections 5513(c) 5222(b)(1). (ROA #72, FAC, p. 10:15-26.) The court will hear from the parties on this issue.

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3112962 67