Amended in Assembly April 4, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1799

Introduced by Assembly Member Mayes

February 8, 2016

An act to amend begin delete Section 5100 end delete begin insert Sections 5100, 5105, and 5145 end insert of the Civil Code, relating to common interest developments.

LEGISLATIVE COUNSEL’S DIGEST

AB 1799, as amended, Mayes. Common interest developments: association governance: elections.

The Davis-Stirling Common Interest Development Act defines and regulates common interest begin delete developments. end delete begin insert developments that are not a commercial or industrial common interest development. end insert The act requires a common interest development to be managed by an association, requires the association to select one or 3 independent 3rd parties as an inspector or inspectors of elections, and generally requires the association’s elections regarding assessments legally requiring a vote, begin insert the end insert election and removal of directors, amendments to the governing documents, or the grant of exclusive use of common area, to be conducted by the inspector or inspectors of elections in accordance with specified begin insert rules and end insert procedures. The act excepts from these election requirements an election of directors if the governing documents of the association provide that one member from each separate interest is a director.

This bill would additionally except from those election requirements an election of directors if the election is uncontested, as begin delete defined. end delete begin insert defined, and would provide a procedure for an election to be declared as uncontested. The bill adds 2 additional election requirements that would ensure an announcement of an election and notification of nomination procedures is provided in a specific manner and would ensure a member in good standing is not denied the right to vote or the right to be a candidate for director. The bill would authorize a cause of action alleging a violation of the election requirements to be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 5100 of the Civil Code is amended to
read:

5100.  

(a) Notwithstanding any other law or provision of the
governing documents, elections regarding assessments legally
requiring a vote, begin insert the end insert election and removal of directors, amendments
to the governing documents, or the grant of exclusive use of
common area pursuant to Section 4600 shall be held by secret
ballot in accordance with the procedures set forth in this article.

(b) This article also governs an election on any topic that is
expressly identified in the operating rules as being governed by
this article.

(c) The provisions of this article apply to both incorporated and
unincorporated associations, notwithstanding any contrary
provision of the governing documents.

(d) The procedures set forth in this article shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.

(e) In the event of a conflict between this article and the
provisions of the Nonprofit Mutual Benefit Corporation Law (Part
3 (commencing with Section 7110) of Division 2 of Title 1 of the
Corporations Code) relating to elections, the provisions of this
article shall prevail.

(f) Directors shall not be required to be elected pursuant to this
article if the governing documents provide that one member from
each separate interest is a director, or if the election of directors
is uncontested. For purposes of this subdivision, an election begin insert of
directors end insert is uncontested if the number of candidates for begin delete election end delete
begin insert election end insert begin insert , including write-in candidates, if applicable, end insert does not
exceed the number of directors to be elected at that begin delete election. end delete

begin insert election and the association has declared the election is
uncontested. end insert

begin insert

(1) An association may declare an election of directors is
uncontested only if all of the following procedures have been
satisfied:

end insert begin insert

(A) The election rules required by Section 5105 have been
adopted and complied with for the election.

end insert begin insert

(B) All declared candidates were nominated before the deadline
for nominations and in accordance with all lawful provisions of
the association’s governing documents.

end insert begin insert

(C) The inspector of elections has informed the board that the
number of candidates does not exceed the number of directors to
be elected at that election.

end insert begin insert

(D) The board votes in open session to declare the election is
uncontested after a hearing during an open board meeting where
members are able to make objections to the board making that
declaration.

end insert begin insert

(E) At least 20 days before the board meeting for the vote to
declare the election is uncontested, the association provides
general notice to all members as set forth in Section 4045 of all
of the following:

end insert begin insert

(i) The intention of the board to vote at a regular board meeting
to declare the election of directors is uncontested, and giving date,
time, and place of that board meeting.

end insert begin insert

(ii) A disclosure to members of the names of all candidates,
however nominated, including self-nomination, who will be
declared elected if the board declares the election is uncontested.

end insert begin insert

(iii) The right of any member to appear at the board meeting
and make an objection to the board declaring the election is
uncontested before the board votes on the matter.

end insert begin insert

(F) The names of all candidates, however nominated, the general
notice required by subparagraph (E), any objection to the board
making the declaration that the election of directors is uncontested,
and the board vote declaring the election of directors is
uncontested shall be recorded in the meeting minutes.

end insert begin insert

(2) (A) If the association's governing documents provide for
write-in votes on the ballot, the association shall allow 15 days
after the board meeting described in subparagraph (D) of
paragraph (1) for a write-in candidate to submit his or her name
to the inspector of elections. In the event one or more write-in
candidates are timely submitted and additional candidates result
in the total number of candidates exceeding the number of directors
to be elected at that election, an election shall be held pursuant
to general election rules as provided in this article. If after the
15-day period the total number of candidates, including the number
of write-in candidates, does not exceed the number of directors to
be elected at that election, the uncontested election results shall
be sealed and become effective immediately, with any write-in
candidates added as members. The new board shall take office
immediately following the sealing of the election.

end insert begin insert

(B) An association that provides at least 15 days general notice
of a self-nomination process shall not be required to comply with
subparagraph (A).

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 5105 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

5105.  

(a) An association shall adopt 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 Web sites 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.

(3) Specify the qualifications for candidates for the board and
any other elected position, and procedures for the nomination of
candidates, consistent with the governing documents. A nomination
or election procedure shall not be deemed reasonable if it disallows
any member from nominating himself or herself for election to the
board.

(4) Specify the qualifications for voting, the voting power of
each membership, the authenticity, validity, and effect of proxies,
and the voting period for elections, including the times at which
polls will open and close, consistent with the governing documents.

(5) Specify a method of selecting one or three independent third
parties as inspector or inspectors of elections utilizing one of the
following methods:

(A) Appointment of the inspector or inspectors by the board.

(B) Election of the inspector or inspectors by the members of
the association.

(C) Any other method for selecting the inspector or inspectors.

(6) Allow the inspector or inspectors to appoint and oversee
additional persons to verify signatures and to count and tabulate
votes as the inspector or inspectors deem appropriate, provided
that the persons are independent third parties.

begin insert

(7) Ensure that an announcement of an election and notification
of nomination procedures, including self-nomination, shall be
provided to all members by general notice as set forth in Section
4045 at least 60 days before any election for directors.

end insert begin insert

(8) Ensure a member in good standing, who satisfies any lawful
requirements specified by the association’s governing documents,
shall not be denied the right to vote or the right to be a candidate
for director.

end insert

(b) Notwithstanding any other begin delete provision of end delete law, the rules
adopted pursuant to this section may provide for the nomination
of candidates from the floor of membership meetings or nomination
by any other manner. Those rules may permit write-in candidates
for ballots.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 5145 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

5145.  

(a) A member of an association may bring a civil action
for declaratory or equitable relief for a violation of this article by
the association, including, but not limited to, injunctive relief,
restitution, or a combination thereof, within one year of the date
the cause of action accrues. Upon a finding that the election
procedures of this article, or the adoption of and adherence to rules
provided by Article 5 (commencing with Section 4340) of Chapter
3, were not followed, a court may void any results of the election.

(b) A member who prevails in a civil action to enforce the
member’s rights pursuant to this article shall be entitled to
reasonable attorney’s fees and court costs, and the court may
impose a civil penalty of up to five hundred dollars ($500) for each
violation, except that each identical violation shall be subject to
only one penalty if the violation affects each member of the
association equally. A prevailing association shall not recover any
costs, unless the court finds the action to be frivolous,
unreasonable, or without foundation.

(c) A cause of action under Sections 5100 to 5130, inclusive,
with respect to access to association resources by a candidate or
member advocating a point of view, the receipt of a ballot by a
member, begin delete or end delete the counting, tabulation, or reporting of, or access to,
ballots for inspection and review after begin delete tabulation end delete begin insert tabulation, or a
violation of a rule required by Section 5105 end insert may be brought in
small claims court if the amount of the demand does not exceed
the jurisdiction of that court.