2009 California Civil Code - Section 1363.03-1363.09 :: Article 2. Elections And Meetings

CIVIL CODE
SECTION 1363.03-1363.09

1363.03.  (a) An association shall adopt rules, in accordance with
the procedures prescribed by Article 4 (commencing with Section
1357.100) of Chapter 2, 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 of
directors 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 of the association from nominating himself or
herself for election to the board of directors.
   (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 election 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.
   (b) Notwithstanding any other law or provision of the governing
documents, elections regarding assessments legally requiring a vote,
election and removal of members of the association board of
directors, amendments to the governing documents, or the grant of
exclusive use of common area property pursuant to Section 1363.07
shall be held by secret ballot in accordance with the procedures set
forth in this section. A quorum shall be required only if so stated
in the governing documents of the association or other provisions of
law. If a quorum is required by the governing documents, each ballot
received by the inspector of elections shall be treated as a member
present at a meeting for purposes of establishing a quorum. An
association shall allow for cumulative voting using the secret ballot
procedures provided in this section, if cumulative voting is
provided for in the governing documents.
   (c) (1) The association shall select an independent third party or
parties as an inspector of election. The number of inspectors of
election shall be one or three.
   (2) For the purposes of this section, an independent third party
includes, but is not limited to, a volunteer poll worker with the
county registrar of voters, a licensee of the California Board of
Accountancy, or a notary public. An independent third party may be a
member of the association, but may not be a member of the board of
directors or a candidate for the board of directors or related to a
member of the board of directors or a candidate for the board of
directors. An independent third party may not be a person, business
entity, or subdivision of a business entity who is currently employed
or under contract to the association for any compensable services
unless expressly authorized by rules of the association adopted
pursuant to paragraph (5) of subdivision (a).
   (3) The inspector or inspectors of election shall do all of the
following:
   (A) Determine the number of memberships entitled to vote and the
voting power of each.
   (B) Determine the authenticity, validity, and effect of proxies,
if any.
   (C) Receive ballots.
   (D) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
   (E) Count and tabulate all votes.
   (F) Determine when the polls shall close, consistent with the
governing documents.
   (G) Determine the tabulated results of the election.
   (H) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this section, the
Corporations Code, and all applicable rules of the association
regarding the conduct of the election that are not in conflict with
this section.
   (4) An inspector of election shall perform his or her duties
impartially, in good faith, to the best of his or her ability, and as
expeditiously as is practical. If there are three inspectors of
election, the decision or act of a majority shall be effective in all
respects as the decision or act of all. Any report made by the
inspector or inspectors of election is prima facie evidence of the
facts stated in the report.
   (d) (1) For purposes of this section, the following definitions
shall apply:
   (A) "Proxy" means a written authorization signed by a member or
the authorized representative of the member that gives another member
or members the power to vote on behalf of that member.
   (B) "Signed" means the placing of the member's name on the proxy
(whether by manual signature, typewriting, telegraphic transmission,
or otherwise) by the member or authorized representative of the
member.
   (2) Proxies shall not be construed or used in lieu of a ballot. An
association may use proxies if permitted or required by the bylaws
of the association and if those proxies meet the requirements of this
article, other laws, and the association's governing documents, but
the association shall not be required to prepare or distribute
proxies pursuant to this section.
   (3) Any instruction given in a proxy issued for an election that
directs the manner in which the proxyholder is to cast the vote shall
be set forth on a separate page of the proxy that can be detached
and given to the proxyholder to retain. The proxyholder shall cast
the member's vote by secret ballot. The proxy may be revoked by the
member prior to the receipt of the ballot by the inspector of
elections as described in Section 7613 of the Corporations Code.
   (e) Ballots and two preaddressed envelopes with instructions on
how to return ballots shall be mailed by first-class mail or
delivered by the association to every member not less than 30 days
prior to the deadline for voting. In order to preserve
confidentiality, a voter may not be identified by name, address, or
lot, parcel, or unit number on the ballot. The association shall use
as a model those procedures used by California counties for ensuring
confidentiality of vote by mail ballots, including all of the
following:
   (1) The ballot itself is not signed by the voter, but is inserted
into an envelope that is sealed. This envelope is inserted into a
second envelope that is sealed. In the upper left-hand corner of the
second envelope, the voter shall sign his or her name, indicate his
or her name, and indicate the address or separate interest identifier
that entitles him or her to vote.
   (2) The second envelope is addressed to the inspector or
inspectors of election, who will be tallying the votes. The envelope
may be mailed or delivered by hand to a location specified by the
inspector or inspectors of election. The member may request a receipt
for delivery.
   (f) All votes shall be counted and tabulated by the inspector or
inspectors of election or his or her designee in public at a properly
noticed open meeting of the board of directors or members. Any
candidate or other member of the association may witness the counting
and tabulation of the votes. No person, including a member of the
association or an employee of the management company, shall open or
otherwise review any ballot prior to the time and place at which the
ballots are counted and tabulated. The inspector of election, or his
or her designee, may verify the member's information and signature on
the outer envelope prior to the meeting at which ballots are
tabulated. Once a secret ballot is received by the inspector of
elections, it shall be irrevocable.
   (g) The tabulated results of the election shall be promptly
reported to the board of directors of the association and shall be
recorded in the minutes of the next meeting of the board of directors
and shall be available for review by members of the association.
Within 15 days of the election, the board shall publicize the
tabulated results of the election in a communication directed to all
members.
   (h) The sealed ballots at all times shall be in the custody of the
inspector or inspectors of election or at a location designated by
the inspector or inspectors until after the tabulation of the vote,
and until the time allowed by Section 7527 of the Corporations Code
for challenging the election has expired, at which time custody shall
be transferred to the association. If there is a recount or other
challenge to the election process, the inspector or inspectors of
election shall, upon written request, make the ballots available for
inspection and review by an association member or his or her
authorized representative. Any recount shall be conducted in a manner
that preserves the confidentiality of the vote.
   (i) After the transfer of the ballots to the association, the
ballots shall be stored by the association in a secure place for no
less than one year after the date of the election.
   (j) Notwithstanding any other provision of 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.
   (k) Except for the meeting to count the votes required in
subdivision (f), an election may be conducted entirely by mail unless
otherwise specified in the governing documents.
   (l) The provisions of this section apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
   (m) The procedures set forth in this section shall apply to votes
cast directly by the membership, but do not apply to votes cast by
delegates or other elected representatives.
   (n) In the event of a conflict between this section 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
section shall prevail.
   (o) The amendments made to this section by the act adding this
subdivision shall become operative on July 1, 2006.

1363.04.  (a) Association funds shall not be used for campaign
purposes in connection with any association board election. Funds of
the association shall not be used for campaign purposes in connection
with any other association election except to the extent necessary
to comply with duties of the association imposed by law.
   (b) For the purposes of this section, "campaign purposes"
includes, but is not limited to, the following:
   (1) Expressly advocating the election or defeat of any candidate
that is on the association election ballot.
   (2) Including the photograph or prominently featuring the name of
any candidate on a communication from the association or its board,
excepting the ballot and ballot materials, within 30 days of an
election. This is not a campaign purpose if the communication is one
for which subdivision (a) of Section 1363.03 requires that equal
access be provided to another candidate or advocate.

1363.05.  (a) This section shall be known and may be cited as the
Common Interest Development Open Meeting Act.
   (b) Any member of the association may attend meetings of the board
of directors of the association, except when the board adjourns to
executive session to consider litigation, matters relating to the
formation of contracts with third parties, member discipline,
personnel matters, or to meet with a member, upon the member's
request, regarding the member's payment of assessments, as specified
in Section 1367 or 1367.1. The board of directors of the association
shall meet in executive session, if requested by a member who may be
subject to a fine, penalty, or other form of discipline, and the
member shall be entitled to attend the executive session.
   (c) Any matter discussed in executive session shall be generally
noted in the minutes of the immediately following meeting that is
open to the entire membership.
   (d) The minutes, minutes proposed for adoption that are marked to
indicate draft status, or a summary of the minutes, of any meeting of
the board of directors of an association, other than an executive
session, shall be available to members within 30 days of the meeting.
The minutes, proposed minutes, or summary minutes shall be
distributed to any member of the association upon request and upon
reimbursement of the association's costs for making that
distribution.
   (e) Members of the association shall be notified in writing at the
time that the pro forma budget required in Section 1365 is
distributed, or at the time of any general mailing to the entire
membership of the association, of their right to have copies of the
minutes of meetings of the board of directors, and how and where
those minutes may be obtained.
   (f) Unless the time and place of meeting is fixed by the bylaws,
or unless the bylaws provide for a longer period of notice, members
shall be given notice of the time and place of a meeting as defined
in subdivision (j), except for an emergency meeting, at least four
days prior to the meeting. Notice shall be given by posting the
notice in a prominent place or places within the common area and by
mail to any owner who had requested notification of board meetings by
mail, at the address requested by the owner. Notice may also be
given, by mail or delivery of the notice to each unit in the
development or by newsletter or similar means of communication. The
notice shall contain the agenda for the meeting.
   (g) An emergency meeting of the board may be called by the
president of the association, or by any two members of the governing
body other than the president, if there are circumstances that could
not have been reasonably foreseen which require immediate attention
and possible action by the board, and which of necessity make it
impracticable to provide notice as required by this section.
   (h) The board of directors of the association shall permit any
member of the association to speak at any meeting of the association
or the board of directors, except for meetings of the board held in
executive session. A reasonable time limit for all members of the
association to speak to the board of directors or before a meeting of
the association shall be established by the board of directors.
   (i)  (1)  Except as described in paragraphs (2) to (4), inclusive,
the board of directors of the association may not discuss or take
action on any item at a nonemergency meeting unless the item was
placed on the agenda included in the notice that was posted and
distributed pursuant to subdivision (f). This subdivision does not
prohibit a resident who is not a member of the board from speaking on
issues not on the agenda.
   (2) Notwithstanding paragraph (1), a member of the board of
directors, a managing agent or other agent of the board of directors,
or a member of the staff of the board of directors, may do any of
the following:
   (A) Briefly respond to statements made or questions posed by a
person speaking at a meeting as described in subdivision (h).
   (B) Ask a question for clarification, make a brief announcement,
or make a brief report on his or her own activities, whether in
response to questions posed by a member of the association or based
upon his or her own initiative.
   (3) Notwithstanding paragraph (1), the board of directors or a
member of the board of directors, subject to rules or procedures of
the board of directors, may do any of the following:
   (A) Provide a reference to, or provide other resources for factual
information to, its managing agent or other agents or staff.
   (B) Request its managing agent or other agents or staff to report
back to the board of directors at a subsequent meeting concerning any
matter, or take action to direct its managing agent or other agents
or staff to place a matter of business on a future agenda.
   (C) Direct its managing agent or other agents or staff to perform
administrative tasks that are necessary to carry out this
subdivision.
   (4) (A) Notwithstanding paragraph (1), the board of directors may
take action on any item of business not appearing on the agenda
posted and distributed pursuant to subdivision (f) under any of the
following conditions:
   (i) Upon a determination made by a majority of the board of
directors present at the meeting that an emergency situation exists.
An emergency situation exists if there are circumstances that could
not have been reasonably foreseen by the board, that require
immediate attention and possible action by the board, and that, of
necessity, make it impracticable to provide notice.
   (ii) Upon a determination made by the board by a vote of
two-thirds of the members present at the meeting, or, if less than
two-thirds of total membership of the board is present at the
meeting, by a unanimous vote of the members present, that there is a
need to take immediate action and that the need for action came to
the attention of the board after the agenda was posted and
distributed pursuant to subdivision (f).
   (iii) The item appeared on an agenda that was posted and
distributed pursuant to subdivision (f) for a prior meeting of the
board of directors that occurred not more than 30 calendar days
before the date that action is taken on the item and, at the prior
meeting, action on the item was continued to the meeting at which the
action is taken.
   (B) Before discussing any item pursuant to this paragraph, the
board of directors shall openly identify the item to the members in
attendance at the meeting.
   (j) As used in this section, "meeting" includes any congregation
of a majority of the members of the board at the same time and place
to hear, discuss, or deliberate upon any item of business scheduled
to be heard by the board, except those matters that may be discussed
in executive session.

1363.07.  (a) After an association acquires fee title to, or any
easement right over, a common area, unless the association's
governing documents specify a different percentage, the affirmative
vote of members owning at least 67 percent of the separate interests
in the common interest development shall be required before the board
of directors may grant exclusive use of any portion of that common
area to any member, except for any of the following:
   (1) A reconveyance of all or any portion of that common area to
the subdivider to enable the continuation of development that is in
substantial conformance with a detailed plan of phased development
submitted to the Real Estate Commissioner with the application for a
public report.
   (2) Any grant of exclusive use that is in substantial conformance
with a detailed plan of phased development submitted to the Real
Estate Commissioner with the application for a public report or in
accordance with the governing documents approved by the Real Estate
Commissioner.
   (3) Any grant of exclusive use that is for any of the following
reasons:
   (A) To eliminate or correct engineering errors in documents
recorded with the county recorder or on file with a public agency or
utility company.
   (B) To eliminate or correct encroachments due to errors in
construction of any improvements.
   (C) To permit changes in the plan of development submitted to the
Real Estate Commissioner in circumstances where the changes are the
result of topography, obstruction, hardship, aesthetic
considerations, or environmental conditions.
   (D) To fulfill the requirement of a public agency.
   (E) To transfer the burden of management and maintenance of any
common area that is generally inaccessible and not of general use to
the membership at large of the association.
   (F) Any grant in connection with an expressly zoned industrial or
commercial development, or any grant within a subdivision of the type
defined in Section 1373.
   (b) Any measure placed before the members requesting that the
board of directors grant exclusive use of any portion of the common
area shall specify whether the association will receive any monetary
consideration for the grant and whether the association or the
transferee will be responsible for providing any insurance coverage
for exclusive use of the common area.

1363.09.  (a) A member of an association may bring a civil action
for declaratory or equitable relief for a violation of this article
by an association of which he or she is a member, 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 4 (commencing with
Section 1357.100) of Chapter 2, were not followed, a court may void
any results of the election.
   (b) A member who prevails in a civil action to enforce his or her
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 Section 1363.03 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, or the counting,
tabulation, or reporting of, or access to, ballots for inspection and
review after tabulation may be brought in small claims court if the
amount of the demand does not exceed the jurisdiction of that court.


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