Judge: Timothy B. Taylor, Case: 37-2023-00001472-CU-PT-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - August 31, 2023

09/01/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Petitions - Other Motion Hearing (Civil) 37-2023-00001472-CU-PT-CTL PETITION OF ALOFT ON CORTEZ HILL CONDOMINIUM ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 04/07/2023

Tentative Ruling on Petition to Reduce Voting Percentage to Amend CC&Rs In Re Aloft on Cortez Hill Condominium, Case No. 2023-01472 September 1, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

The 168 unit condominium community in question in this case was developed in the early 2000s, and is governed by a set of CC&Rs and bylaws which has been amended once since that timeframe. These governing documents state that the bylaws may be amended only by an affirmative vote of a majority of the members of the HOA. The governing body of the association concluded that the bylaws and CC&Rs are in need of complete restatement, owing to intervening changes in California law, obsolescence, and ambiguity. The board engaged counsel, redrafted the bylaws and CC&Rs, communicated with the members, and set a voting protocol regarding the bylaws. The board then conducted a vote, extended the voting deadline, and tried to incentivize participation. But apathy set in: the governing body received sufficient votes to amend the bylaws (108 to 5), but slightly less than the votes needed to amend the CC&Rs. As to the latter, 105 voted in favor and 8 voted against, and thus the majority vote required (67% of 168) was not met. This led the HOA board to file the instant petition, which seeks the Court's order that the restated bylaws be deemed approved.

The petition was filed January 6, 2023. A few months later, counsel for the governing body filed the instant motion. ROA 8-9. It was initially scheduled for August 4, 2023, but was continued by the moving party to today. ROA 7, 10-11. The court has read the petition and moving papers.

2. Applicable Law.

A. HOA boards and similar entities which find themselves (as the result of the passage of time, changes in the law, etc.) in the predicament described in the petition in this case are not without recourse when stymied in their efforts to move the HOA forward. The Legislature has created what are in effect safety valves. One such mechanism is Civil Code section 4275, which establishes the procedures by which a homeowners' association may attempt to amend its CC&Rs: 'If in order to amend a declaration, the declaration requires members having more than 50 percent of Calendar No.: Event ID:  TENTATIVE RULINGS

3003256  38 CASE NUMBER: CASE TITLE:  PETITION OF ALOFT ON CORTEZ HILL CONDOMINIUM ASSOCIATION  37-2023-00001472-CU-PT-CTL the votes in the association, in a single class voting structure, or members having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any member, may 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 petition shall describe the effort that has been made to solicit approval of the association members in the manner provided in the declaration, the number of affirmative and negative votes actually received, the number or percentage of affirmative votes required to effect the amendment in accordance with the existing declaration, and other matters the petitioner considers relevant to the court's determination.' Civ. Code § 4275(a). An earlier version of this statute (Civil Code § 1356) was held valid as against a wide array of homeowner objections, including a constitutional challenge, by our own Fourth District Court of Appeal, Div. 1, in Fourth La Costa Condo. Owners Ass'n v. Seith (2008) 159 Cal.App.4th 563, 585 (finding the statute has 'a significant and legitimate public purpose') (McConnell, J.).

B. Tangentially relevant here is Corporations Code section 7515, which states in relevant part: '(a) If for any reason it is impractical or unduly difficult for any corporation to call or conduct a meeting of its members, delegates or directors, or otherwise obtain their consent, in the manner prescribed by its articles or bylaws, or this part, then the superior court of the proper county, upon petition of a director, officer, delegate or member, may order that such a meeting be called or that a written ballot or other form of obtaining the vote of the members, delegates or directors be authorized, in such a manner as the court finds fair and equitable under the circumstances.' 3. Ruling.

The hearing on the petition is continued to October 27, 2023 at 1:30 p.m. in Dept. 72. Civil Code section 4275(b) provides that '[u]pon filing the petition, the court shall set the matter for hearing and issue an ex parte order setting forth the manner in which notice shall be given.' Here, although petitioner provided notice of today's hearing to the homeowners (ROA 12), it did not approach the court via ex parte application in accordance with section 4275(b). The court will treat today's hearing as the ex parte hearing, and orders petitioner to bring to the hearing an order specifying the method, mode, and timing of notice of the October 27 hearing.

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