Committee to Save the Beverly Highlands Home Association v. Beverly Highlands Homes Association

112 Cal.Rptr.2d 732 (2001)

735*735 Wilion, Kirkwood & Kessler and Allan E. Wilion, Beverly Hills, for Defendants and Appellants Dmitri Villard, Walter DeCaen, Lee Bronson and Margie Oswald.

Chapin, Shea, McNitt & Carter and Neil Gunny, for Defendant and Appellant The Beverly Highlands Homes Association.

Corin L. Kahn and Linda Thornton, Sherman Oaks, for Plaintiffs and Respondents.

SPENCER, P.J.

Summary by Mary M Howell, Esq.

When defendant association sought to avoid enforcement of CC&Rs by dissolution of the association, homeowners sought injunctive relief to prevent such dissolution.  The Davis-Stirling Act does not apply to subdivisions with no common area and the four open space lots owned by association did not constitute common area for purposes of Davis-Stirling.  Therefore, the requirement of Corporations Code §8724 that 100% of the owners in an owners association consent to dissolution was not applicable, and dissolution was instead governed by Corporations Code §8610.

**End Summary**

INTRODUCTION

Defendants The Beverly Highlands Homes Association, Dmitri Villard,^[1] Walter DeCaen, Lee Bronson and Margie Oswald appeal from a summary judgment in favor of plaintiffs The Committee to Save the Beverly Highlands Homes Association, Sidney Smilove and Arlene Cohen. We reverse the summary judgment.

STATEMENT OF FACTS

Defendant The Beverly Highlands Homes Association (Association) is a nonprofit mutual benefit corporation. It was formed in 1952. Its members are the owners of buildable lots in the Beverly Highlands, which is located in an area of Los Angeles north of Sunset Boulevard near West Hollywood. The Association itself does not own any of the lots in the Beverly Highlands.

A description of the property included within the Beverly Highlands, a statement as to the powers of the Association, and restrictions as to use of the property within the Beverly Highlands are set forth in the Beverly Highlands Declaration of Restrictions (Declaration). This document was recorded on June 27, 1952 by Title Insurance and Trust Company.

Four of the lots in the Beverly Highlands are called open area non-buildable lots. Owners of these lots are not members of the Association. The Declaration states that Lots 65 and 66 are “restricted for use only as open areas for planting purposes, and no building or other structure shall at any time be erected on said lots …, nor shall any driveway or street be constructed or maintained over or through said lots …, without the written approval of the Association, but such restriction 736*736 shall not be deemed or construed as a present dedication of said lots to the public or to the owners of building sites in said property for park or other purposes. The planting, care and maintenance of said lots shall be the duty of the Association, unless and until said lots shall be dedicated to the public as park areas for planting purposes….” (Art. X, § 10.04.) The Declaration also states that Lots 53 and 62 are “restricted for use only as open areas for natural growth and vegetation, areas for planting purposes and areas within which the Association may, by its written authorization, permit the location of television antennas to serve any or all of the building sites….” Again, no structure, roadway or sidewalk may be constructed on the lots. The Association is responsible for any planting and maintenance of these lots until such time as they may be dedicated to the public for park use. (Art X, § 10.05.) While Lot 53 is large enough to build upon, Lots 62, 65 and 66 are not.^[2]

The Association is governed by a Board of Directors (Board) pursuant to its bylaws. Directors are to “be elected annually by written ballot, which shall be sent for this purpose to each member.” The ballots are to be sent back to the Association prior to its annual meeting, then counted and tabulated at the annual meeting. The five persons receiving the highest number of votes are elected to the Board. (Art. IV, § 1.)

The annual meeting is to be held on the first Monday in March. (Art. X, § 2.) “The presence in person or by proxy of members entitled to exercise a majority of the voting power of [the Association] at any meeting shall constitute a quorum for the transaction of business.” (Art. X, § 6.)

The Association was suspended as a corporation on April 2, 1972. It was revived on April 19, 1989. Plaintiff Arlene Cohen (Cohen) signed the revivor.

The first annual meeting of the Association following revival of the Association was in March 1990. Whether or not there was a quorum for election purposes present at this meeting and annual meetings through 1996 is disputed. In 1996, however, the members of the Board were Cohen, plaintiff Sidney Smilove (Smilove), Ann Dan, Dan Fast and a fifth person.^[3]

On July 10, 1996, the Board sent a letter to each member of the Association. The letter advised the members that the Association did not have a general liability insurance policy because there was “no property held in common,” or common area. In August, the Board discussed purchasing Lot 66, one of the open area non-buildable lots, in order for the Association to fall within the purview of the Davis-Stirling Common Interest Development Act (Davis-Stirling Act, Civ.Code, § 1350 et seq.). At the September 9 Board meeting, the Board decided not to purchase Lot 66.

737*737 In September 1996, the Board sent a letter to Association members in response to a flier criticizing the Association. The letter discussed, in part, what the consequences to the members would be if the Association were to be dissolved.

In February 1997, the Board sent a letter to Association members regarding amendment of the Declaration to ensure preservation of the views from the members’ properties. The Board expressed the opinion that in order to be able to amend the Declaration at that time, the Association would have to own real property within the Beverly Highlands. The Board enclosed a ballot asking members whether they “supported] going forward with purchase by the Association of real property making the Beverly Highlands Homes Association subject to the provisions of the Davis-Stirling Act, in order to amend the [Declaration] at this time.” The response to the letter was 16 yes votes and 40 no votes.

An annual meeting of the Association was held on March 31, 1997. There were 117 votes for the Board at this meeting. It is undisputed that this constituted a quorum. Elected to the Board at this time were defendant Dmitri Villard (Villard), defendant Walter DeCaen (DeCaen), Neil Lidbom (Lidbom), John Lamb and Richard Wells.

At meetings held on September 8 and November 25, 1997, the Board decided to send out a letter regarding the possible dissolution of the Association. On December 1, the Board sent a letter and a ballot asking Association members to vote on dissolution. Because the question of dissolution was hotly debated, the Board undertook to notify every member regarding the matter and to encourage all members to vote.

The votes were counted on January 15, 1998. There were 129 votes out of 205 eligible voters. Of those 129, 94 voted in favor of dissolving the Association and 35 voted against dissolution. The Board then voted unanimously to approve dissolution of the Association. On February 21, the Board sent a letter to Association members notifying them of the results of the vote and that the Board had retained a law firm to advise it on dissolution.

At some point, John Lamb and Richard Wells resigned from the Board. On May 2, 1998, defendants Lee Bronson (Bronson) and Margie Oswald (Oswald) were appointed by the remainder of the Board to replace them. The Board sent a notice to Association members apprising them of this as well as possible problems with dissolution of the Association and encouraging them to attend the annual meeting scheduled for June 2.

While an attempt at an annual meeting and an election was made on June 2, 1998, a quorum was not present. It was proposed that another attempt at an election be made in the fall. No election took place in the fall or thereafter, however.

On March 31, 1999, the Board approved a resolution to take all steps necessary to dissolve the Association. A Certificate of Election to Wind Up and Dissolve the Association was executed. On April 1, the Board approved a Notice of Commencement of Proceedings to Voluntarily Wind Up and Dissolve. On April 28, this was sent to Association members along with a financial statement and accountant’s compilation report dated February 28. The Certificate of Election was filed with the Secretary of State on May 5. On July 13, the California Department of Justice Auditing Department notified the Association that it was free to proceed without waiver of objections from the State pursuant to Corporations Code section 8716, subdivision (c). In order to dissolve the Association, 738*738 funds held by the Association had to be returned to the members.

Plaintiffs’ attorney, Corin L. Kahn, sent a letter to DeCaen, as Secretary of the Association, on June 8, 1999. He stated that he had been retained by a significant number of Association members who were concerned about the efforts to dissolve the Association. Attorney Kahn requested copies of the minutes of the Board meetings for the period of March 1, 1997 through June 1999. The Board did not supply Attorney Kahn with copies of the minutes in response to this request.

PROCEDURAL BACKGROUND

On July 23, 1999, plaintiffs Committee to Save the Beverly Highlands Homes Association (Committee), Smilove and Cohen filed a first amended complaint against the Association, the Board, and Board members Villard, DeCaen, Bronson, Oswald and Lidbom.^[4] In five causes of action, plaintiffs sought (1) to enjoin wrongful dissolution of a nonprofit corporation, (2) removal of the Board, (3) an order permitting inspection of the minutes of the Board meetings, (4) an order that an annual meeting of the Association and an election be held, and (5) declaratory relief. Plaintiffs also sought injunctive relief during the pendency of the litigation. Defendant Association filed a declaration by Villard in opposition to an application for temporary restraining order and preliminary injunction. The record does not show what the trial court ruled with respect to the request for injunctive relief.

Defendants filed an answer to the first amended complaint on November 29, 1999. They denied the allegations of the complaint and asserted a number of affirmative defenses.

On approximately March 30, 2000, plaintiffs filed a motion for summary judgment or, in the alternative, summary adjudication of issues. Defendants filed opposition to the motion on April 10, along with a declaration by Villard. Their opposition was based, in part, on plaintiffs’ failure to file a separate statement of undisputed facts with their motion. Plaintiffs filed their reply on April 20.

Defendants filed their own motion for summary adjudication on March 30, 2000. It was accompanied by a declaration by Villard and a separate statement of undisputed facts. On approximately April 13, 2000, plaintiffs filed opposition to defendants’ motion, accompanied by supporting declarations and exhibits. They also requested that the court take judicial notice of Simon v. Clavin. (Ante, p. 736, fn. 2) Defendants filed their reply about April 21, supported by a declaration by Villard and exhibits.

On April 27, 2000, the trial court ordered plaintiffs to file, by May 15, a separate statement in support of their motion for summary judgment and in opposition to defendants’ motion for summary adjudication. It also granted the parties permission to file, by the same date, legislative history or case law regarding the meaning of Civil Code section 1352. It additionally granted them permission to file, by the same date, papers on the res judicata or collateral estoppel effect of Simon v. Clavin.

Plaintiffs filed a separate statement of disputed and undisputed facts in opposition to defendants’ motion for summary adjudication on approximately May 2, 739*739 2000. They filed their own separate statement of undisputed facts in support of their motion for summary judgment at about the same time. On May 15, they filed a memorandum concerning the res judicata or collateral estoppel effect of Simon v. Clavin.

On May 15, 2000, defendants filed a request for judicial notice of an unpublished opinion, OSCA Development v. Elkin (May 5, 2000, E023835), the legislative history of the Davis Stirling Act and certain treatises. They also filed a supplemental separate statement in response to plaintiffs’ separate statement in support of plaintiffs’ summary judgment motion and in support of their own motion for summary adjudication. They filed additional papers in support of their motion and in opposition to plaintiffs’ motion as well.

At the May 16, 2000 hearing on the motions, the trial court granted an extension of time to May 24 to allow plaintiffs to file materials on the legislative history of the Davis-Stirling Act. After the materials were filed, the court would take the matter under submission until June 7, at which time it would issue a ruling. Plaintiffs filed their materials on approximately May 24.

On June 6, 2000, defendants filed a declaration by Walter Leimert, Jr., with exhibits, in support of their motion for summary adjudication. He was one of the developers of the Beverly Highlands. Defendants also filed documents relating to title to Lots 65 and 66.

On June 7, 2000, the trial court issued a minute order denying defendants’ motion for summary adjudication and granting plaintiffs’ motion for summary judgment. It ordered plaintiffs to file and serve a proposed order meeting the requirements of Corporations Code section 7511, providing for an election of Board members.

The court filed a summary judgment ruling on June 9, 2000. Although the file stamp reads May 9, 2000, the date at the bottom of the document by the trial court’s signature is June 9, 2000.

Plaintiffs filed their proposed order of election on about June 21, 2000. Defendants filed opposition on July 3. They also filed objections to the trial court’s June 7 minute order and June 9 summary judgment ruling, along with a counter-proposed order of election.

On July 20, 2000, the trial court ordered defendants’ objections stricken, in that they “were not invited by the court in its prior ruling and are procedurally improperly filed.” The court also ordered that the court minutes reflect that the summary judgment ruling was issued on June 9, and that conformed copies bearing that date be sent to the parties.^[5] It further noted that its summary judgment ruling was not intended as a final judgment in the action. The court did not believe final judgment was appropriate until after the election was held, although it was willing to consider contrary approaches if the parties thought them appropriate. Finally, the court ordered that an election of a new 740*740 Board take place concurrently with an annual meeting of the Association, and that plaintiffs’ counsel file an order to that effect by July 24.

Plaintiffs’ counsel filed a second proposed order of election, along with notices to the members and ballot, about July 23, 2000. On July 26, defendants filed objections to the trial court’s June 7 minute order, June 9 summary judgment ruling, and the July 20 minute order changing the dates on the summary judgment ruling and striking defendants’ prior objections. Defendants also filed a counter-proposed order of election, under protest, a proposed judgment, and objections to plaintiffs’ proposed order.

The trial court issued a minute order on July 28, 2000, stating that it had decided to issue a final judgment in the case at that time. It held a hearing on its proposed final judgment and a proposed ballot and notices of special election and annual meeting of the Association. It then filed a final judgment and supplement to the summary judgment ruling.

On August 1, 2000, defendants DeCaen, Villard, Bronson and Oswald filed a notice of appeal from the final judgment, as well as a number of interlocutory rulings and orders. On August 4, they filed a motion for an order staying the judgment pending appeal. This was opposed by plaintiffs. On August 15, the trial court requested additional points and authorities as to the operation of Corporations Code section 7510. Defendants filed supplemental papers on August 17. Also on August 17, plaintiffs filed opposition to a proposed ruling modifying the final judgment to allow the Association to appeal the judgment.

By minute order dated August 18, 2000, the trial court ordered that “all aspects of the judgment rendered in this case [except] those provisions which prohibit all defendants from acting or purporting to act as or for the Beverly Highlands Homes Association (which includes filing an appeal or otherwise acting or purporting to act) are temporarily stayed until September 12, 2000 when the Court will hear defendant’s motion for a new trial and all stay issues now before the Court….” The court issued a tentative ruling on stay issues on August 22. The court basically was of the opinion that a stay order would not preclude defendants from continuing to act in their capacity as Association and Board.

About August 25, 2000, plaintiffs, in response, filed an application for summary order for directors’ election for mutual benefit corporation under Corporations Code section 7511, subdivision (c). Defendants filed opposition on August 31. About September 11, plaintiffs filed a response to the trial court’s tentative ruling on stay issues.

On September 13, 2000, the trial court granted plaintiffs’ application on the same terms set forth in the final judgment. It ordered that its previous order precluding “defendants from acting or purporting to act as the Board or as the Association is stayed only as would permit them to proceed with this litigation and without imprimatur of any approval by the court of their claimed status and without any bar to issues before the appellate court….” It denied a motion by defendants for new trial. It granted motions by plaintiffs for a determination that they were the prevailing parties in this litigation and for attorney’s fees.

Plaintiffs then filed an ex parte application for entry of an order on application for directors’ election and annual meeting for mutual benefit corporation. On September 20, 2000, the trial court granted plaintiffs’ application in part and denied it in part, noting that the requested order 741*741 already had been made; the trial court simply had to sign a written order. A signed order was filed the same day.

On September 27, 2000, the Association filed a notice of appeal from the judgment. Defendants also petitioned this court for a writ of supersedeas. On October 20, we granted the petition, staying the election pending resolution of defendants’ appeal.

CONTENTIONS

I

Defendants contend that, as a matter of law, the trial court erred in granting plaintiffs a summary judgment on the basis of the Davis-Stirling Act, which is inapplicable.

II

Defendants further contend that retroactive application of the Davis-Stirling Act is unconstitutional.

III

Defendants assert that even if the Association is dissolved, the Beverly Highlands property owners still can enforce the Declaration.

IV

Defendants additionally assert that the trial court erred in ruling, relative to the second cause of action for removal, that the Board was a holdover board.

V

Finally, defendants contend that the portion of the judgment relating to an election is erroneous and must be reversed.

DISCUSSION

I

Defendants contend that, as a matter of law, the trial court erred in granting plaintiffs a summary judgment on the basis of the Davis-Stirling Act, which is inapplicable. We agree.

Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Mars v. Wedbush Morgan Securities, Inc. (1991) 231 Cal. App.3d 1608, 1613, 283 Cal.Rptr. 238.) Inasmuch as summary judgment is a drastic procedure and should be used with caution (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134), the moving party’s papers are strictly construed, while the opposing party’s papers are liberally construed (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376, 63 Cal.Rptr.2d 522).

Notwithstanding the strict construction given the moving party’s evidence and the liberal construction given to that of the opposing party, the opponent has the burden of showing triable issues of material fact do exist; he or she may not rely on the pleadings. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596, 125 Cal.Rptr. 557, 542 P.2d 981; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524, 80 Cal.Rptr.2d 94.) As noted in Hunter v. Pacific Mechanical Corp. (1995) 37Cal.App.4th 1282, 44 Cal. Rptr.2d 335, disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, fn. 23, 107 Cal. Rptr.2d 841, 24 P.3d 493, “[a] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. [Citation.]” (At p. 1286, 44 Cal.Rptr.2d 335.)

742*742 In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. {Sacks v. FSR Brokerage, Inc. (1992) 7 Cal. App.4th950, 962, 9 Cal.Rptr.2d 306; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5, 269 Cal.Rptr. 196.) The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

On appeal, this court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Union Bank v. Superior Court (1995) 31 Cal.App.4th573, 579, 37 Cal.Rptr.2d 653; Torres v. Cool Carriers A.B. (1994) 26 Cal.App.4th900, 904, 31 Cal.Rptr.2d 790.) We examine the evidence and independently determine its effect. (Crouse v. Brobeck, Phleger & Harrison, supra, 67 Cal.App.4that p. 1524, 80 Cal.Rptr.2d 94.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, 267 Cal.Rptr. 819.)

To the extent that resolution of the case turns on an interpretation of statutory law, we also make an independent interpretation of the statutes involved. (Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850, 1855, 50 Cal.Rptr.2d 626; Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9, 28 Cal.Rptr.2d 133.) Our review of documents in the case is independent as well, provided no conflicting extrinsic evidence on the meaning of the documents was presented to the trial court. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1244, 100 Cal.Rptr.2d 403.)

The Davis-Stirling Act, enacted in 1985 (Stats.1985, ch. 874, § 14), regulates common interest developments. A common interest development is a community apartment project, condominium project, planned development or stock cooperative. (Civ.Code, § 1351, subd. (c).) The Act “applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is, or has been, conveyed, provided, all of the following are recorded: [¶] (a) A declaration. [¶] (b) A condominium plan, if any exists. [¶] (c) A final map or parcel map….” (Id., § 1352.) The Act also provides that “[a] common interest development shall be managed by an association which may be incorporated or unincorporated.” (Id., § 1363, subd. (a).)

A planned development is one “having either or both of the following features: [¶] (1) The common area is owned either by … the association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area. [¶] (2) A power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment which may become a lien upon the separate interests in accordance with Section 1367.” (Civ.Code, § 1351, subd. (k).) A “`separate interest'” is “a separately owned lot, parcel, area, or space.” (Id., subd. (I )(3).) A “`[c]ommon area'” is “the entire common interest development except the separate interests therein. The estate in the common area may be a fee, a life estate, an estate for years, or any combination of the 743*743foregoing. However, the common area for a planned development specified in paragraph (2) of subdivision (k) may consist of mutual or reciprocal easement rights appurtenant to the separate interests.” (Id., subd. (b).)

As previously stated, plaintiffs sought (1) to enjoin wrongful dissolution of the Association, (2) removal of the Board, (3) an order permitting inspection of the minutes of the Board meetings, (4) an order that an annual meeting of the Association and an election be held, and (5) declaratory relief. The trial court granted them a summary judgment.

The trial court ruled that the Beverly Highlands was a common interest development within the meaning of the Davis-Stirling Act. Under Corporations Code section 8724,^[6] therefore, the approval of 100 percent of the members was required for dissolution of the Association and a transfer of the Association’s assets. Additionally, Civil Code section 1363, subdivision (a), requires that a common interest development have an association to manage it. Hence, the court concluded, the Association “was not properly dissolved by any proper vote as required by law.” ^[7]

As to plaintiffs’ second cause of action for removal of the Board, the trial court noted that in order for the court to remove the Board, Corporations Code section 7223 required that there be a complaint filed by a director or by 20 members of the Association. There was no such complaint in the instant action. The law “does not recognize a `Committee’ as an entity entitled to or able to sue,” so a suit by The Committee to Save the Beverly Highlands Homes Association is insufficient to entitle plaintiffs to obtain removal of the Board.

The trial court rejected defendants’ argument that the foregoing requirement applied to all causes of action, defendants having presented no authority in support of this argument. It rejected defendants’ argument that a member of a nonprofit corporation cannot attack an attempt by the Board to dissolve that corporation, the argument again being unsupported by any authority. The trial court similarly rejected defendants’ contention that plaintiffs Smilove and Cohen had no standing to 744*744bring this action. Finally, it rejected defendants’ claims that plaintiffs’ challenge to the election of the Board was barred by the nine-month statute of limitations contained in Corporations Code section 7616, and that plaintiffs were barred from obtaining relief by laches and unclean hands.

Even if plaintiffs were not entitled to removal of the Board, the trial court ruled, they were entitled to an annual meeting and a new election of directors. Therefore, under Corporations Code section 7510, the court could order that an annual meeting and an election be held.

Based on the foregoing, the trial court granted plaintiffs a declaration that the Board was not properly constituted and it acted in excess of its jurisdiction in attempting to dissolve the Association. The court enjoined the current Board members from acting on behalf of the Association and ordered them to permit plaintiffs’ counsel to inspect their books and records. It further ordered that an annual meeting and an election be held.

The gravamen of defendants’ contention is that the Beverly Highlands is not a common interest development within the meaning of the Davis-Stirling Act. The decision to dissolve the Association, therefore, was governed by Corporations Code section 8610, not section 8724. The vote on the dissolution issue was sufficient to meet the requirements of section 8610, so the Association properly was dissolved. Before reaching this contention, however, defendants argue that, in any event, plaintiffs’ cause of action to enjoin dissolution of the Association was barred by the nine-month statute of limitations contained in Corporations Code section 7527. This alone precluded summary judgment on this cause of action in plaintiffs’ favor.

Corporations Code section 7527 appears in title 1, division 2, part 3, Chapter 5, article 2 of the Corporations Code. Title 1, division 2, deals with nonprofit corporation law. Part 3 applies to nonprofit mutual benefit corporations. Chapter 5 addresses meetings and voting, with article 2 thereof entitled “Additional Provisions Relating to Election of Directors.” Section 7527 provides: “An action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment or removal. If no such action is commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter.”

Section 7616 of the Corporations Code refers to “Judicial determination of validity of election or appointment.” It appears in title 1, division 2, part 3, chapter 6 of the Corporations Code. Chapter 6 addresses voting of memberships. Section 7616 provides, in pertinent part, that “[u]pon 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.” (Subd. (a).) The section does not contain a limitations period.

Defendants state: “Beyond question, the term election in Section 7616 refers to any election, and not merely an election of directors.” In defendants’ view, since the titles of section 7616 and 7527 “appear to be virtually identical and use the term `election,'” and both sections are part of the same statutory scheme, the nine-month limitations period contained in section 7527 “should also apply to any election and ballot wherein a decision was made to dissolve.” Having a nine-month limitations period only for an election of directors “would be incongruous.”

745*745 In the construction of statutes, the primary goal of the court is to ascertain and give effect to the intent of the Legislature. (Code Civ. Proc., § 1859; People v. Gardeley (1996) 14 Cal.4th 605, 621, 59 Cal.Rptr.2d 356, 927 P.2d 713.) The court looks first to the language of the statute; if clear and unambiguous, the court will give effect to its plain meaning. (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209, 271 Cal.Rptr. 191, 793 P.2d 524; accord, California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)

Where the court must construe the statute, it “`turns first to the words themselves for the answer.’ [Citation.]” (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) The words used should be given their usual, ordinary meanings and, if possible, each word and phrase should be given significance. (Ibid.; accord, Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) The words used “must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.” (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836; accord, Lungren, supra, at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

Section 7527 refers to “any election, appointment or removal of a director or directors.” It appears in an article on provisions relating to the election of directors. The language of the section, as well as the context in which it appears, suggests that the only elections to which it applies are elections “of a director or directors.” (California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844, 157 Cal. Rptr. 676, 598 P.2d 836; Moyer v. Workmen’s Comp. Appeals Bd., supra, 10 Cal.3d at p. 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Section 7616 refers to “election or appointment of any director of any corporation.” (Subd. (a).) Defendant reads this to mean that it applies to any election or to the appointment of a director. In our view, as with section 7527, the description “of any director” applies to both “election” and “appointment.” Subdivision (c) of section 7616 requires “a copy of the complaint to be served upon the corporation and upon the person whose purported election or appointment is questioned.” (Italics added.) In other words, subdivision (c) presupposes that the election is of a person, i.e., a director. Therefore, section 7616 does not mandate the interpretation of the term “election” in section 7527 as applying to any election, not merely an election for directors. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299; California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

Moreover, defendants point to nothing in the Corporations Code to suggest that the limitations period provided in section 7527 does not apply to an action brought pursuant to section 7616. Absent such a provision, there is no incongruity between the two statutes.

Defendants next argue that plaintiffs’ first cause of action for injunctive relief should have been denied on the ground of laches. The affirmative defense of laches may be applied to bar relief to a plaintiff who has delayed unduly in seeking equitable relief. (Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 257, 265, 113 Cal. Rptr. 328.) The existence of laches is generally a factual question, and the trial court is given great discretion in determining 746*746whether to apply laches to bar relief. (Ibid.) The key question is whether defendants have demonstrated prejudice, making it unjust to grant relief to plaintiffs. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal. App.4th593, 607, 51 Cal.Rptr.2d 897.) On undisputed facts, the applicability of laches may be decided as a matter of law. (Ibid.)

Here, dissolving the Association was first discussed in a September 1996 letter to Association members from the Board. On December 1, 1997, the Board sent out a letter and a ballot asking Association members to vote on dissolution. The votes were counted on January 15, 1998. A majority of those voting voted in favor of dissolution. On February 21, the Board sent a letter to Association members notifying them of the results of the vote and that the board had retained a law firm to advise it on dissolution.

The record does not show that anything else happened with respect to the dissolution until March 31, 1999, when the Board approved a resolution to take all steps necessary to dissolve the Association. At that point, the Certificate of Election to Wind Up and Dissolve the Association was executed and filed with the Secretary of State. The Board approved a Notice of Commencement of Proceedings to Voluntarily Wind Up and Dissolve, which was sent to Association members along with a financial statement and accountant’s compilation report. Plaintiffs hired an attorney by the beginning of June, and their complaint was filed prior to July 23, 1999.^[8]

Defendants state that the individual defendants, as well as the 94 members who voted for dissolution, have been prejudiced by plaintiffs’ delay in filing this action after the vote for dissolution was taken. They do not explain how these people have been prejudiced. They also argue that the Association has been prejudiced “by having expended a great deal of time and expense in order to carry out the intent of the membership.” They cite nothing in the record to show how much time and expense was involved in the actions taken after the dissolution vote.

In San Bernardino Valley Audubon Society v. City of Moreno Valley, supra, cited by defendants, the court found prejudice where, during plaintiffs’ one and one-half year delay in filing suit, defendants acquired millions of dollars in funds from different sources and expended funds completing an environmental impact report and environmental impact statements, and obtained a permit and approval for various development projects. In addition, numerous dependent agreements would be nullified, and millions of dollars worth of Metropolitan Water District projects would be affected if relief were granted. (44 Cal. App.4th at pp. 606-607, 51 Cal.Rptr.2d 897.) Under the circumstances, the court found plaintiffs’ petition for equitable relief was barred by laches as a matter of law. (Id. at p. 608, 51 Cal.Rptr.2d 897.)

In Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors, supra, during plaintiffs’ nine-month delay in challenging defendants’ actions, a company incurred over $700,000 in financial liabilities in reliance on those actions. Based on this, the court concluded that substantial evidence supported the trial court’s finding that plaintiffs’ action was barred by laches. (38 Cal.App.3d at pp. 265-266, 113 Cal. Rptr. 328.)

On the instant record, we cannot state that, as a matter of law, defendants’ expenditure 747*747 of time and effort was so substantial as to render it unjust to grant relief to plaintiffs. (See San Bernardino Valley Audubon Society v. City of Moreno Valley, supra, 44 Cal.App.4th at pp. 606-607, 608, 51 Cal.Rptr.2d 897.) That it might not have been an abuse of discretion to deny relief to plaintiffs based on laches does not compel a conclusion that granting the relief sought was an abuse of discretion as a matter of law. (Cf. People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, 60 Cal.Rptr.2d 93, 928 P.2d 1171.)

Defendants further argue that admissions by plaintiff Cohen and the Board on which she served that the Beverly Highlands does not fall within the purview of the Davis-Stirling Act “show that their lawsuit is filed in bad faith and the Judgment is wrong.” It is defendants who are wrong. That this plaintiff at one time believed that the Beverly Highlands did not fall within the purview of the Davis-Stirling Act does not prove that, when she filed the lawsuit years later, claiming the contrary, after consulting with an attorney, she still believed this to be the case and acted in bad faith. Even if she did act in bad faith, defendants do not explain how, as they claim, this creates a triable issue of material fact. (Code Civ. Proa, § 437c, subd. (c).)

Moreover, the interpretation of the Davis-Stirling Act and whether it applies to the Beverly Highlands is, in this question of law for the courts. (See Campbell v. Arco Marine, Inc., supra, 42 Cal.App.4th at p. 1855, 50 Cal.Rptr.2d 626; Martinez v. Scott Specialty Gases, Inc., supra, 83 Cal.App.4th at p. 1244, 100 Cal. Rptr.2d 403.) Plaintiffs are not bound by plaintiff Cohen’s opinion on this question. (Cf. R.J. Land & Associates Construction Co. v. Kiewitr-Shea (1999) 69 Cal.App.4th 416, 425, 81 Cal.Rptr.2d 615.)

Defendants’ next assertion is that plaintiffs’ first cause of action for injunctive relief is barred under the doctrine of unclean hands. They argue that plaintiffs’ “actions and/or admissions … certain[l]y could raise [sic] to the level of unclean hands which would be a defense to an injunction.” Unless plaintiffs were guilty of unclean hands as a matter of law, and they were not, we cannot overturn the trial court’s refusal to apply this affirmative defense to bar plaintiffs from injunctive relief. (Cf. People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978, 60 Cal.Rptr.2d 93, 928 P.2d 1171;San Bernardino Valley Audubon Society v. City of Moreno Valley, supra, 44Cal.App.4th at pp. 606-607, 608, 51 Cal.Rptr.2d 897.)

Returning to defendants’ contention that the Beverly Highlands is not a common interest development within the meaning of the Davis-Stirling Act, defendants first look to section 1374 of the Civil Code. This provides: “Nothing in this title may be construed to apply to a development wherein there does not exist a common area as defined in subdivision (b) of Section 1351, nor may this title be construed to confer standing pursuant to Section 383 of the Code of Civil Procedure to an association created for the purpose of managing a development wherein there does not exist a common area.”

Civil Code section 1351, subdivision (b), defines a “`[c]ommon area'” as “the entire common interest development except the separate interests therein. The estate in the common area may be a fee, a life estate, an estate for years, or any combination of the foregoing. However, the common area for a planned development specified in paragraph (2) of subdivision (k) may consist of mutual or reciprocal easement rights appurtenant to the separate interests.” It is undisputed that the 748*748 only portions of the Beverly Highlands which might meet the definition of “common area” are the four non-buildable lots, Lots 53, 62, 65 and 66.

The Association has no estate in Lots 53, 62, 65 and 66. Plaintiffs, in essence, admit that the separate interests in the Beverly Highlands do not include mutual or reciprocal easement rights to use of these lots. They argue that the restrictions on the use of these lots “share the fundamental characteristics of an easement. Not all restrictions create property interests amounting to easement rights, but those that limit ownership rights for the common benefit and enjoyment do.” They cite no authority in support of this argument.

“An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other’s land.” (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, § 434, p. 614, italics omitted.) An easement appurtenant to the land is “attached to the land of the owner of the easement, and benefits him as the owner or possessor of that land.” (Id., § 435, p. 615.)

“An easement differs from a covenant running with the land and from an equitable servitude, in that these are created by promises concerning the land, which may be enforceable by or binding upon successors to the estate of either party, while an easement is an interest in the land, created by grant or prescription.” (4 Witkin,supra, Real Property, § 434, p. 615, italics omitted.) A covenant running with the land is created by language in a deed or other document showing an agreement to do or refrain from doing something with respect to use of the land. (Id., § 484, pp. 661-662.) An equitable servitude may be created when a covenant does not run with the land but equity requires that it be enforced. (Id., § 493, p. 670.)

As defendants point out, the Declaration does not create any easement rights to the use of Lots 53, 62, 65 and 66. Article X of the Declaration addresses easement rights, setting forth the easement rights to which the properties in Beverly Highlands are subject. Section 10.04 restricts use of Lots 65 and 66 to “open areas for planting purposes,” with no structures or roads to be constructed over them. This restriction “shall not be deemed or construed as a present dedication of said lots to the public or to the owners of building sites in said property for park or other purposes.” The Declaration reserved the right, however, to make such a dedication in the future.

Similarly, section 10.05 restricts use of Lots 53 and 62 to “open areas for natural growth and vegetation, areas for planting purposes and areas within which the Association may, by its written authorization, permit the location of television antennas to serve any or all of the building sites,” with no other structure, road or way to be constructed over them. Again, this restriction “shall not be deemed or construed as a present dedication of said lots to the public or to the owners of building sites in said property for planting or other purposes.” The Declaration again reserved the “right to dedicate said lots to the public as open areas for the nurture of natural growth and vegetation or for planting purposes.” The Declaration also granted the Association the power to permit the owners of homesites to plant these lots.

Generally, planned developments are governed by CC & Rs (covenants, conditions and restrictions) or declarations. These are enforceable as covenants running with the land or equitable servitudes. (See, e.g., Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 352-355, 47 Cal.Rptr.2d 898, 906 P.2d 1314;Nahrstedt v. Lakeside Village Condominium 749*749 Assn. (1994) 8 Cal.4th 361, 379, 33 Cal.Rptr .2d 63, 878 P.2d 1275.)

The language in the Declaration at issue here clearly creates covenants running with the land or equitable servitudes as to Lots 53, 62, 65 and 66. It creates restrictions as to the use of that land. (4 Witkin, supra, Real Property, § 484, pp. 661-662.)^[9] It does not give the owners of the other lots in the Beverly Highlands any interest in those lots or any right to use those lots for their own enjoyment. Hence, it does not create any “mutual or reciprocal easement rights appurtenant to the separate interests” (Civ.Code, § 1351, subd. (b)). (4 Witkin, op. cit. supra, §§ 434, 435, pp. 614-616.)

By the very terms of Civil Code section 1351 and the Declaration, the Beverly Highlands has no common area. As previously stated, we will give effect to the plain meaning of a statute if the language of the statute is clear and unambiguous. (California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 11 Cal.4th at p. 349, 45 Cal.Rptr.2d 279, 902 P.2d 297; Kimmel v. Goland, supra, 51 Cal.3d at pp. 208-209, 271 Cal.Rptr. 191, 793 P.2d 524.) Similarly, if the language of an agreement is clear and explicit and does not involve an absurdity, interpretation of the contract is based on the language of the agreement alone. (Civ.Code, §§ 1638, 1639; Sass v. Hank (1951) 108 Cal.App.2d 207, 211, 238 P.2d 652.)

Nothing in the legislative history of the Davis-Stirling Act cited by plaintiffs leads to any different conclusion. Rather, everything they cite Points to the conclusion that in order for a planned development to fall within the Act, there must be, at a minimum, appurtenant easement rights to a portion of the development. And, as previously stated, they cite no authority for the proposition that restrictions on the use of a property are the equivalent of an easement.

Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169, 107 Cal.Rptr. 76, 507 P.2d 964, cited by plaintiffs, holds only “that building restrictions constitute property rights for purposes of eminent domain proceedings.” (At p. 172,107 Cal.Rptr. 76, 507 P.2d 964.) Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th 361, 33 Cal.Rptr.2d 63, 878 P.2d 1275, also cited by plaintiffs, notes that “[u]nder the law of equitable servitudes, courts may enforce a promise about the use of land even though the person who made the promise has transferred the land to another. [Citation.] The underlying idea is that a landowner’s promise to refrain from particular conduct pertaining to land creates in the beneficiary of that promise `an equitable interest in the land of the promisor.’ [Citations.]” (At p. 379, 33 Cal. Rptr.2d 63, 878 P.2d 1275.) Nahrstedt does not hold that this enforceable “`equitable interest in the land'” is an actual interest in the land, such as an easement, which entitles the promisee to use the promisor’s land. Rather, it holds that the equitable servitudes may be enforced to restrict the promisor’s use of his or her own property. (Id. at p. 389, 33 Cal. Rptr.2d 63, 878 P.2d 1275.)

Neither does King v. Kugler (1961) 197 Cal.App.2d 651, 17 Cal.Rptr. 504, cited by plaintiffs at oral argument, compel a different conclusion. King dealt with the interpretation of a declaration of conditions and restrictions applicable to property in a particular tract. (At pp. 652, 654, 17 Cal.Rptr. 504.) It did not hold that the conditions and restrictions in the declaration constituted easements, only that they 750*750 were enforceable against purchasers of those properties. (Id. at p. 654, 17 Cal. Rptr. 504.) It did not purport to define “common area” and, inasmuch as it preceded the enactment of the Davis-Stirling Act, it has no bearing on the meaning of that term as used in the Act.

Accordingly, we must conclude that the Beverly Highlands has no common area within the meaning of Civil Code section 1351, subdivision (b). Therefore, the Davis-Stirling Act does not apply to it. (Civ.Code, § 1374.) The trial court erred in finding that Beverly Highlands was a common interest development within the meaning of the Davis-Stirling Act and in granting summary judgment to plaintiffs based upon that finding. (Code Civ. Proc., § 437c, subd. (c).)

II

Defendants further contend that retroactive application of the Davis-Stirling Act is unconstitutional. In light of the conclusion reached above, we need not address this contention.

III

Defendants assert that even if the Association is dissolved, the Beverly Highlands property owners still can enforce the Declaration. While this assertion is of no relevance to this appeal, it is correct. Article XVI of the Declaration gives the individual Beverly Highlands property owners the right to enforce the Declaration.

IV

Defendants additionally assert that the trial court erred in ruling, relative to the second cause of action for removal, that the Board was a holdover board. The assertion has merit.

As to plaintiffs’ second cause of action for removal of the Board, the trial court noted in its statement of decision that in order for the court to remove the Board, Corporations Code section 7223 required that there be a complaint filed by a director or by 20 members of the Association. There was no such complaint in the instant action. The law “does not recognize a `Committee’ as an entity entitled to or able to sue,” so a suit by The Committee to Save the Beverly Highlands Homes Association is insufficient to entitle plaintiffs to obtain removal of the Board. Even if plaintiffs were not entitled to removal of the Board, however, they were entitled to an annual meeting and a new election of directors. Under Corporations Code section 7510, therefore, the court could order that an annual meeting and an election be held.

In the judgment, the trial court declared that the Board, by failing to hold annual meetings and elections for the Board, was in violation of the Davis-Stirling Act, the Corporations Code, the Association bylaws and the Declaration. The Board members (DeCaen, Villard, Lidbom, Bronson and Oswald) were “not properly serving or acting as members at this time, and as to them, solely to avoid any confusion as to their status, [the] court additionally ordered] them `removed,’ even though the terms for which they were chosen have already long since expired so no such order should be necessary to end their services[.”] Therefore, the “`existing’ carry over Board [were] all … enjoined and restrained from taking, or purporting to take any acts as or on behalf of the Association and/or its Board.”

Corporations Code section 8610 provides for voluntary dissolution of a corporation. Section 8613 provides that “[v]oluntary proceedings for winding up the corporation commence upon the adoption of the resolution required by Section 8610.” (Subd. (a).) Once “a voluntary proceeding for winding up has commenced, the board 751*751shall continue to act as a board and shall have full powers to wind up and settle its affairs, both before and after the filing of the certificate of dissolution.” (Id., subd. (b).) Additionally, “the corporation shall cease to conduct its activities except to the extent necessary for the beneficial winding up thereof….” (Id, subd. (c).)

Under Corporations Code section 8613, once voluntary dissolution of the Association was approved, the Board could continue acting to wind up and settle the Association’s affairs. No corporate activities unnecessary to the winding up could take place. An annual meeting and election of new Board members were unnecessary to the winding up. As stated in 2 Marsh’s California Corporation Law (4th ed.2001, 2000) Dissolution, section 21.10, pages 21-51 through 21-52: “Normally, of course, there would be no further annual election of directors by the shareholders after the commencement of a proceeding for the winding up and dissolution of the corporation. Such a proceeding normally would not last more than one year and, even if it did, the corporation is no longer conducting its business as originally intended and the expense of holding a meeting of shareholders would hardly be justifiable.” Thus, if a voluntary proceeding for winding up commenced in accordance with Corporations Code section 8610, no further annual meetings or elections were necessary. (Id., § 8613.)

V

Finally, defendants contend that the portion of the judgment relating to an election is erroneous and must be reversed. In light of the conclusion reached above, and our conclusion in part I, mite, that the judgment must be reversed, we need not separately address this contention.

The judgment is reversed. Defendants are to recover their costs on appeal.^[10]

I concur: MALLANO, J.

I concur in the judgment only: VOGEL (MIRIAM A.), J.

[1] This name also is spelled Dimitri Villard in some court documents.

[2] Lot 53 is an irregularly-shaped lot that borders the backs of several other lots. Lot 62 is across the street from Lot 53 and also borders the backs of several other lots. Lot 65 is a small triangle at an intersection, and Lot 66 is a small island in the middle of a roadway.

Lot 53 was the subject of a previous lawsuit. (Simon v. Clavin (Jun. 8, 1978), 2 Civ. No. 51491.) The lot was deeded to the state for nonpayment of taxes, then purchased at a public auction. (Typed opn. at p. 3.) The purchaser sought to free the property from the restrictions contained in the Declaration. (Id. at p. 2.) The court held that the restrictions were enforceable as equitable servitudes unless their enforcement would be inequitable. (Id. at p. 12.) It reversed the dismissal of the purchaser’s action which followed the sustaining of a demurrer without leave to amend in order to allow the purchaser to attempt to prove enforcement of the restrictions would be inequitable. (Id. at p. 18.)

[3] This person’s name is not legible in the record.

[4] A copy of the original complaint was not included in the record, so we do not know when it was filed. While Lidbom was named in the complaint, he is not a party to this appeal.

[5] Defendants suggest that the trial court may, in fact, have written the summary judgment ruling on May 9, 2000, which would mean that it must have ignored the papers they filed on June 6. It then improperly corrected the date on the ruling. This suggestion is not supported by the record, in that the trial court dated the ruling June 9. The May 9 date stamp was applied by the clerk. Moreover, “[w]e discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis.” (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, 32 Cal.Rptr.2d 762, 878 P.2d 521.)

[6] Corporations Code section 8724 provides: “Without the approval of 100 percent of the members, … so long as there is any lot, parcel, area, apartment or unit for which an owners association (as defined in Section 11003.1 of the Business and Professions Code and created in connection with any of the forms of development referred to in Section 11004.5 of the Business and Professions Code) is obligated to provide management, maintenance, preservation or control: [II] (a) The owners association or any person acting on its behalf shall not: [¶] (1) Transfer all or substantially all of its assets; or [¶] (2) File a certificate of dissolution; and [¶] (b) No court shall enter an order declaring the owners association duly wound up and dissolved.”

Former section 11003.1 of the Business and Professions Code (repealed by Stats. 1989, ch. 1150, § 1) defined a “`[r]eal estate development’ [as] a common interest development specified in subdivision (c) of Section 1351 of the Civil Code.” Section 11004.5 of the Business and Professions Code refers to a “planned development, as defined in Section 11003 of this code, containing five or more lots.” (Subd. (a).) Section 11003, refers back to Civil Code section 1351, subdivision (k).

In contrast to Corporations Code section 8724, section 8610 of the Corporations Code permits a corporation to “elect voluntarily to wind up and dissolve (1) by approval of a majority of all members (Section 5033), or (2) by approval of the board and approval of the members (Section 5034).” (Subd. (a).) Section 5034 of the Corporations Code defines approval of the members as approval of the majority of the members.

[7] Only 94 out of 205 eligible voters, or approximately 46 percent of the members, voted in favor of dissolution. The 94 voters were a majority of the 129 votes received on the question of dissolution, however.

[8] As previously stated (ante, p. 738, fn. 4), a copy of the complaint was not included in the record, so it is not clear when plaintiffs filed their complaint. Defendants represent that it was in June 1999. July 23, 1999 is when plaintiffs filed their first amended complaint.

[9] In Simon v. Clavin, the court found the restrictions imposed on Lot 53 by the Declaration may be enforceable as equitable servitudes. (Typed opn. at p. 12.)

[10] Plaintiffs request an award of sanctions on appeal for defendants’ failure to file an appendix that meets the requirements of the California Rules of Court. Specifically, defendants’ eight-volume appendix contained no indices, was not numbered consecutively, and did not contain conformed copies of documents. (Cal. Rules of Court, rules 5.1(c)(1), 9(d).) We would be inclined to award sanctions, as these defects hindered our review of the record as well. However, plaintiffs failed to follow the proper procedure for requesting sanctions, which is set forth in rule 26(e) of the California Rules of Court. Specifically, they failed to file a motion for sanctions including a declaration as to the amount of sanctions sought. For this reason, we must decline their request.

Keywords: Davis-Stirling Common Interest Development Act, Scope, Application

Wittenburg v. Beachwalk Homeowners Association

(2013) 217 Cal.App.4th 654

COUNSEL

Schiffer & Buus, Eric M. Schiffer and William L. Buus for Plaintiffs and Appellants.

Adams Kessler, Mary E. Gram, Aide C. Ontiveros and Adrian J. Adams for Defendant and Respondent. [217 Cal.App.4th 657]

Summary by Mary M. Howell, Esq.:

Failure to allow dissenting homeowners access to association newsletter, website and common areas, in connection with a vote on a CC&R amendment favored by the board, violated Davis-Stirling Act.  The board, when it chose to use association media to urge owners to vote in favor of a proposed document amendment, triggered the obligation of the association to provide equal access to all association facilities, pursuant to Civil Code §1363.03 (now Civil Code §5105(a)(1), (2).)

**End Summary**

OPINION

IKOLA, J. — Defendant Beachwalk Homeowners Association (association) held an election to amend its bylaws. Plaintiffs Paul Wittenburg and Raymond Dukellis filed suit to void the result of the election, claiming the association’s board of directors (the board) failed to comply with Civil Code section 1363.03, subdivision (a)(1) and (2).^[1]Subdivision (a)(1) governs the use of “association media,” such as a newsletter or Web site, during a campaign. If an association permits any “candidate or member” to advocate a point of view using association media, the association must give members with opposing viewpoints equal access to the same media. Subdivision (a)(2) requires an association to permit free access to common areas for purposes reasonably related to an election. After a bench trial, the court entered judgment for the association, finding it violated neither subdivision.

Plaintiffs contend the court erred in three ways. First, they claim the court erroneously interpreted subdivision (a)(1) as containing an exception permitting the board to advocate a point of view using association media without triggering the equal-access requirement. Second, plaintiffs claim the court erroneously found certain communications from the board were merely informational rather than advocacy under subdivision (a)(1). Third, plaintiffs claim there is no substantial evidence supporting the court’s finding that the 658*658 association did not violate subdivision (a)(2) during the campaign. We agree on all three counts and reverse the judgment.

FACTS

Plaintiffs are individual homeowners and members of the association. The association is governed by a seven-member board who must be members of the association to serve and are elected by a vote of the members of the association.

The present conflict stems from paragraph 9 of the association’s covenants, conditions and restrictions (CC & R’s), which states, “no alterations, additions, or improvements, in connection with the common areas of the PRD [(Planned Residential Development)] shall be made at a cost of more than one thousand dollars ($1,000.00) without the approval of at least two-thirds (2/3) of the voting owners….” In October of 2010 plaintiffs sued the association, claiming the association had removed one pool, and were threatening to remove two more, without obtaining the two-thirds vote required by paragraph 9 of the CC & R’s. In November of 2010, the court granted a preliminary injunction preventing the removal of any more pools without obtaining the two-thirds vote required under paragraph 9. We refer to that lawsuit as the “pool litigation.”

Rather than obtain a two-thirds vote to remove the pools, the board instituted a series of elections to amend paragraph 9 of the CC & R’s to increase the dollar threshold for requiring a vote, and to reduce the number of votes required to approve expenditures. In November of 2010 the board sent a ballot and cover letter to the homeowners announcing an election to be held in December 2010. The cover letter, which was drafted by board members who supported the amendment, described paragraph 9 of the CC & R’s as “over broad, ambiguous, and open to interpretation on many levels.” The board warned, “As long as this subsection of the CC & R’s remains in force, there will be disputes about what constitutes an alteration or an improvement. Additionally, obtaining two-thirds voter approval of every project over $1000 will gridlock our operations and drive up our costs through constant ballots and legal expenses.” Accordingly, the board proposed the following revision to paragraph 9: “The Association shall maintain the common areas and Association-owned assets, except as otherwise provided in the CC & Rs. The spending for operational, maintenance, and repair expenses shall be limited by Section 1366…. Moreover, the Board of Directors may not make capital improvements to the common areas in any one fiscal year in excess of two and one-half percent (2.5%) of the Association’s budgeted gross expenses for 659*659 that year without the approval of a majority of the membership.”^[2] The letter praised this alternative as more flexible and reasonable, while still “a workable method of fiscal restraint.” The letter concluded by warning, “If we don’t take action now to resolve the situation with the CC & Rs, the Association is destined to become further mired in conflict and expensive litigation.” As one board member at trial commented, the letter “is making a strong case” in favor of the amendment and agreed it was “encouraging them to vote yes on Amendment 8.”

Accompanying the letter was a one-page attachment containing a section entitled “Case for amending the CC & Rs,” and another section entitled “Case against amending the CC & Rs.” The document was written by board members who supported the amendment. The board did not ask any opposing members for written input for the “Case against,” but did listen to their arguments at homeowner forums and attempted to incorporate those arguments. The board specifically decided not to include any opposition material.

The board’s proposal generated significant interest in the community. Fliers circulated throughout the community on almost a weekly basis.

Shortly after the board sent out the election materials, a homeowner requested use of the “rental side” of the clubhouse to put on a “town hall meeting” to support other candidates for the board who had a different view than the view expressed by the current board regarding the amendment. The association’s clubhouse is divided between one side available for free and another available for rental. The rentals are handled through the community manager and generally rental requests do not come before the board. The homeowner tendered a check to the community manager for $200 representing the cleaning deposit, believing he did not have to pay the usual $90 rental fee under subdivision (a)(2). Two days later, however, the community manager called the homeowner and stated the board had rejected the request to use the clubhouse for free. Accordingly, the homeowner paid the additional $90 fee. At trial one of the board members in support of the amendment testified the homeowner request never came before the board because it went through the community manager, but also acknowledged the board should have given the homeowner a refund.

In order to pass outright under the CC & R’s, the amendment required a yes vote from 75 percent of the members of the association. The board’s aim, however, was more modest: a yes vote from 50 percent of the members, which would allow the board to file a petition to have the CC & R’s amended 660*660 under section 1356, subdivision (c)(4). To achieve 50 percent, the board needed 227 yes votes. The December 2010 election fell short of that, garnering 188 yes votes, which amounted to 64 percent of the votes that were cast, but not 50 percent of the total number of association members.

The board scheduled another election for April of 2011. In February of 2011 the board sent ballots and voting materials to all of the members. Included with those materials was a two-page letter regarding the amendment that was nearly identical to the letter sent in connection with the prior election, as well as the same summary of the cases for and against the amendment. The proposed amendment underwent one change: for expenses that would require a vote under the amendment, instead of requiring a 50 percent vote as before, the revised amendment would require a 55 percent vote in favor of the expenditure.

The association had a newsletter that went to all members on a monthly basis. The board exclusively drafted all of the content of the newsletter. In the February 2011 issue of the newsletter, the board included a section entitled “Update on the Proposed 8th Amendment to the Beachwalk CCRs,” which listed a number of arguments in support of the amendment. For example, it asked, “Why is this so important and why does the proposed amendment benefit the community?” It answered by claiming paragraph 9 was ambiguous, the proposed alternative was more modern and adaptable, and the amendment would help resolve the pool litigation. It also asked, “What will happen if the 8th amendment does not receive 227 yes votes?” It then listed several consequences, including the pool litigation would “drag on, generating huge legal bills,” any homeowner “with the will and financial resources to sue the” association would do so on the basis of paragraph 9, the association’s insurance rates would go up, otherwise willing homeowners would stop volunteering their time to the association, and operating costs would increase. As a result, the board promised to continue holding elections until the measure passed: “Therefore, we will be asking homeowners to vote on this issue again on the March ballot. And if we cannot get 227 yes votes in March, there will be another ballot on the same issue shortly thereafter.” The article concluded with an exhortation to the members to vote yes on the amendment: “Vote YES on the proposed 8th amendment to our CCRs so we can put our money to use on physically improving Beachwalk.” One of the board members who was in favor of the amendment testified this article was encouraging the homeowners to vote yes. Nonboard members were not invited to provide opposing viewpoints in the newsletter.

Shortly thereafter, a homeowner opposed to the amendment asked to write a response to the board’s newsletter article to be published in the March 2011 issue of the newsletter. The board refused the request because only board members were permitted to publish articles in the newsletter.

661*661 At around the same time another homeowner opposed to the amendment requested use of a common area called the “greenbelt” for purposes of a political rally. The request was denied. The community manager explained by e-mail he was unable to obtain unanimous consent from the board, which was required for an action without meeting (which was necessary because no board meeting was scheduled between when the application was filed and the requested date for the rally). The homeowner replied with an angry e-mail decrying a violation of his rights under section 1363.03. The manager’s only response was to say he would pass the homeowner’s concerns on to the board, and he invited the homeowner to resubmit his request at the next regularly scheduled board meeting where a simple majority could approve his request, which was eight days after the date of the proposed political rally. The board members were concerned the homeowner had requested the greenbelt for the entire day, had requested the use of clubhouse tables and chairs, and had not specified the number of people that would attend. But there was no evidence those concerns were expressed to the homeowner, nor was the homeowner told he could resubmit the request with additional details or modifications and be approved prior to the date he had requested.

The association also had a glass-enclosed community bulletin board, which was controlled by the board. The newsletter was posted on the bulletin board, but nonboard members were not permitted to post materials to the bulletin board.

The board also maintained an association Web site. In March of 2011, the board added an update to the pool litigation on the Web site. The update concluded with another exhortation to vote yes on the amendment: “Members are encouraged to vote yes for the 8th Amendment so that the litigation can be resolved expeditiously.” That update was present on the Web site at least through September of 2011. The board would not have allowed nonboard members to post material on the association Web site, nor were members invited to.

Subsequently, in the April 2011 issue of the newsletter, the board included a similar insert describing the ongoing pool litigation and encouraging members to vote in favor of the amendment: “Members are encouraged to vote yes for the 8th Amendment so that the litigation can be resolved expeditiously.”

The April 2011 election likewise failed to receive 227 yes votes, falling short at 219 yes votes.

Shortly thereafter the board scheduled another election regarding the amendment for August 2011. In July the board sent out ballot materials 662*662 together with a similar cover letter encouraging members to vote yes on the amendment. This time the letter added, “This issue has already gone before the homeowners on two occasions (December 2010 and April 2011). In both cases, the majority of those members who cast ballots voted to amend the CC & Rs; however, neither ballot received the necessary 227 yes votes. Although the [association] is filing a petition with the courts anyway, it is entirely possible the petition will not succeed without the 227 yes votes. Therefore, we must continue to conduct ballots (at a cost of approximately $5000 per ballot) until we can obtain 227 yes votes, or the courts accept the argument that the Beachwalk community suffers from irredeemable voter apathy.”

No opposing homeowners asked to publish articles in the newsletter after the August 2011 election was announced, though two board members in favor of the amendment testified they would have refused such requests. As one of the board members stated, “I believe the policy is one of evenhandedness, no articles for the pro side and no articles for the con side.”

The deadline for returning the ballots was August 15, 2011. On that day, however, the board had not received the ballots of 75 percent of the membership, which was the minimum required to pass the amendment under the CC & R’s, so the board extended voting one week. The amendment ultimately received 258 votes in favor, and 105 against.

Having crossed the 227 vote threshold, the association petitioned the court to amend the CC & R’s. Afterwards, plaintiffs filed the underlying complaint to invalidate the results of the August 2011 election.

Plaintiffs alleged the association violated subdivision (a)(1) by permitting board members to advocate their point of view using association media (thereby triggering the equal-access clause), and then refusing to permit opposing members to utilize the same media to express their point of view. Plaintiffs also claimed they were denied free access to common areas as required by subdivision (a)(2).

After a three-day bench trial, the court issued its judgment and statement of decision finding in favor of the association.

First, the court held the association had adopted election rules in 2007 in compliance with section 1363.03. This was based on uncontested evidence showing the association adopted rules in 2007 essentially mirroring the language of section 1363.03. Plaintiffs do not challenge that finding on appeal.

Second, the court held the equal-access requirement of subdivision (a)(1) inapplicable: “The plain language of the statute makes a clear distinction 663*663between `candidates or members’ advocating a point of view and the `association.’ The statute provides by implication that the association, a non-profit corporation which acts through its board [citations], can endorse a candidate or point of view, but mandates that if a candidate or member is given access to the association’s media then all candidates and members advocating a point of view `including those not endorsed by the board’ must be given equal access. The weight of the evidence presented establishes that the board authorized and issued the newsletter information in the `Breeze’, the pre-election Website information, and the cover letter and other attachments to the ballot materials for the August 22, 2011 election. The court finds that Association, acting through its legally constituted board, used its own media to provide information related to the election and this did not trigger the provisions of [subdivision](a)(1).”^[3]

Third, the court held there was no violation of subdivision (a)(2): “There was no persuasive evidence produced to prove that there was any violation of [subdivision](a)(2) regarding free access to common areas. The weight of the evidence presented establishes that Association allowed access to common area meeting space in Clubhouse #1, in the greenbelt area, and in other open common area space during the campaign for the August 2011 election, at no cost, to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the August 22, 2011 election.” Plaintiffs timely appealed.

DISCUSSION

(1) The Davis-Stirling Common Interest Development Act (the Act) (§ 1350 et seq.) governs homeowners associations. The Act “consolidated the statutory law governing condominiums and other common interest developments…. [Citation.] Common interest developments are required to be managed by a homeowners association [citation], defined as `a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development’ [citation], which homeowners are generally mandated to join [citation].” (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81 [14 Cal.Rptr.3d 67, 90 P.3d 1223], fn. omitted; see That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1425-1426 [142 Cal.Rptr.3d 458].)

Section 1363.03 governs certain election procedures. The two subdivisions relevant to this appeal are subdivisions (a)(1) and (a)(2). Those subdivisions 664*664 provide, “(a) An association shall adopt rules … 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…. [¶] (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.”

(2) Section 1363.09, subdivision (a) creates a right of action for a violation of subdivisions (a)(1) and (a)(2). If a court finds they were violated, it may void the election results or impose civil penalties.

The Court Erred in its Interpretation of Subdivision (a)(1)

Plaintiffs first contend the court erred in interpreting subdivision (a)(1). In particular, plaintiffs contend the court’s board-member exception to the equal-access provision violates both the text and policy of subdivision (a)(1). We review the court’s statutory interpretation de novo (Corrales v. Corrales (2011) 198 Cal.App.4th 221, 226 [129 Cal.Rptr.3d 428]), and we agree the court erred.

(3) The court concluded the board is immune from the equal-access provision. The court reasoned that subdivision (a)(1) does not apply to an association’s use of its own media to endorse a candidate or viewpoint. But the text of subdivision (a)(1) does not support the court’s interpretation. The equal-access provision of subdivision (a)(1) is triggered any time a “member” advocates a point of view using association media. It is undisputed the board members in this case were — indeed had to be — members of the association. Thus, to the extent board members advocated their point of view in association media, whether expressing a personal viewpoint, or the collective viewpoint shared by a majority of the board members, the text of the equal-access provision straightforwardly applies.

The statutory text further undermines the court’s interpretation by stating equal access must be granted to members advocating a point of view “including those not endorsed by the board.” (Subd. (a)(1).) This provision demonstrates the Legislature’s particular concern that viewpoints opposing the board be heard. The court’s interpretation turns that concern on its head and ensures the board can utilize association media to the exclusion of viewpoints “not endorsed by the board.” As plaintiffs state in their brief, “If 665*665 the Court created [a board member exception], it would allow those in power the advantage of using Association media to advocate a point of view to the exclusion of any opposing view. Such a construction would only further empower those individuals already in power, and would weaken those individuals not in power. Not only would such a construction be fundamentally unfair, but it would facilitate rather than cure the evils intended to be remedied by the statute.” We agree and hold board members are treated as any other member for purposes of subdivision (a)(1).^[4]

The association argues, “Common sense dictates that a part of effectively fulfilling the duties owed by the Association includes providing recommendations to members about managing the property, protecting the Association’s financial well-being, and explaining the basis of Board recommendations.” We have no doubt this is so, and nothing about our holding precludes a board from fulfilling that duty. We hold only, that under subdivision (a)(1), while in the midst of an election, the board must either give equal access to opposing viewpoints, or forego the use of association media to advocate its viewpoint.

The Board Engaged in Advocacy

The court further concluded the board’s various communications were merely informational, and not advocacy: “The weight of the evidence presented establishes that the board authorized and issued the newsletter information in the `Breeze’, the pre-election Website information, and the cover letter and other attachments to the ballot materials for the August 22, 2011 election. The court finds that [the] Association, acting through its legally constituted board, used its own media to provide information related to the election and this did not trigger the provisions of” subdivision (a)(1). (Italics added.) The court erred.

(4) We are not aware of any cases, nor have the parties cited any, interpreting the term “advocating” as used in subdivision (a)(1). “We begin with the language of the statute. If the text is sufficiently clear to offer conclusive evidence of the statute’s meaning, we need look no further. [Citation.] If it is susceptible of multiple interpretations, however, we will divine the statute’s meaning by turning to a variety of extrinsic sources, including the legislative history [citation], the nature of the overall statutory 666*666 scheme [citation], and consideration of the sorts of problems the Legislature was attempting to solve when it enacted the statute [citation].” (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 770 [111 Cal.Rptr.3d 666, 233 P.3d 1066].)

(5) Black’s Law Dictionary defines “advocacy” as “[t]he act of pleading for or actively supporting a cause or proposal.” (Black’s Law Dict. (7th ed. 1999) p. 55, col. 2.) And the verb “advocate” is commonly defined to mean “to plead in favor of.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 18, col. 1.)

(6) This plain English definition, which we adopt, is consistent with the overall nature and purposes of section 1363.03. Subdivision (a)(1) was part of a bill that sought to “provide substantial new voting protections” to members of homeowners associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 61 (2005-2006 Reg. Sess.) as amended Apr. 12, 2005, pp. 1-2.) It is thus remedial in nature. “A statute which `is remedial in nature and in the public interest is to be liberally construed to the end of fostering its objectives…. “The rule of law in the construction of remedial statutes requires great liberality, and wherever the meaning is doubtful, it must be so construed as to extend the remedy.”‘” (People ex rel. Dept. of Transportation v. Muller (1984) 36 Cal.3d 263, 269 [203 Cal.Rptr. 772, 681 P.2d 1340].) The definition above is sufficiently broad to ensure one side of a debate cannot monopolize the use of association media.^[5]

With the proper definition of advocacy in mind, we reject the court’s conclusion that the board’s communications were purely informational and thus not advocacy. Both the association Web site and newsletter contained the statement, “Members are encouraged to vote yes for the 8th Amendment so 667*667 that the litigation can be resolved expeditiously.” This plainly amounts to advocacy within the meaning of subdivision (a)(1). The cover letter that was sent with each of the election ballot materials, described in detail in the facts portion above, likewise advocated for the amendment’s passage. One board member at trial described those letters as “making a strong case” in favor of the amendment and “encouraging them to vote yes on Amendment 8.” Our review of those materials confirms that description.

(7) Having engaged in advocacy, under subdivision (a)(1) the association was bound to permit other members equal access to association media. The undisputed evidence shows the association failed its duty. On at least one occasion the board outright refused to publish an article in the newsletter opposing an advocacy article the board had published. And though the association nominally enacted rules parroting the language of section 1363.03, it was undisputed at trial that the board’s policy was to not permit homeowners to publish advocacy pieces in the newsletter or the association Web site, nor to permit homeowners access to the association bulletin board. Accordingly, the association violated subdivision (a)(1).

(8) For the guidance of the court, we note, contrary to the apparent assumption of the parties and the court during trial, a violation of subdivision (a)(1) does not automatically void the election results. Section 1363.09, subdivision (a), provides, “Upon a finding that the election procedures of this article … were not followed, a court may void any results of the election.” (Italics added.) (9) “Ordinarily, the word `may’ connotes a discretionary or permissive act; the word `shall’ connotes a mandatory or directory duty.” (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433 [134 Cal.Rptr.2d 124].) The legislative history confirms that usage here. An earlier version of the Assembly bill that ultimately added subdivision (a)(1) read, “Upon a finding that the election procedures of this section … were not followed, a court shall void the results of the election.” (Assem. Bill No. 1098 (2005-2006 Reg. Sess.) as amended Apr. 11, 2005 § 1, some italics omitted.) We conclude the change from “shall” to “may” was intended to grant the court discretion.

The Association Violated Subdivision (a)(2)

(10) Subdivision (a)(2) requires the association to give members free access to common areas “during a campaign” for purposes reasonably related to the election. The court held “[t]here was no persuasive evidence produced to prove that there was any violation of [subdivision](a)(2) regarding free access to common areas” and that the association “allowed access to common area[s] for the August 2011 election, at no cost, to all members advocating a point of view, including those not endorsed by the board, for purposes 668*668 reasonably related to the August 22, 2011 election.” Under the unique circumstances of this case, the court erred by too narrowly defining the “campaign” as related solely to the association activities immediately preceding the August 22, 2011 election.

Plaintiffs presented evidence of two instances in which the association allegedly violated this subdivision.

In the first alleged violation, a homeowner attempted to reserve the rental side of the clubhouse at no cost to hold a town hall meeting in connection with the December 2010 election, but the community manager told him the board had rejected the request to use the clubhouse for free. Accordingly, the homeowner paid a $90 fee. At trial one board member testified the homeowner request never came before the board because it went through the manager, but also acknowledged she eventually became aware of it and admitted the board should have given the homeowner a refund. The only disputed aspect of this evidence is whether the board explicitly rejected the homeowner’s request or whether the community manager did so independently.

In our view, that dispute makes no difference. The community manager was hired by the association to handle clubhouse reservations on behalf of the association. Regardless of whether this request came before the board, the fact remains that the homeowner requested the free use of a common area for purposes reasonably related to the election, but was denied and told to pay a fee instead. Assuming this event is properly considered a part of the “campaign,” the court’s comment that there was no “persuasive” evidence is unavailing in this context because the evidence is, in relevant part, undisputed.

The second alleged violation occurred when, before the April 2011 election, a homeowner requested the use of a common area known as the “greenbelt” for purposes of a political rally. The request was denied in writing without explanation, other than to invite him to resubmit the request at the next regularly scheduled board meeting, which was eight days after the requested date of the political rally. The board members had concerns that the homeowner had requested the greenbelt for the entire day, rather than a specific time period, and had not specified the number of people that would attend. There was no substantial evidence, however, that such concerns had been expressed to the homeowner, nor was the homeowner told he could resubmit the request with additional details or modifications and be approved prior to the date he had requested. His request was simply denied. Again, assuming this event occurred as part of the “campaign,” the association’s legal obligation under subdivision (a)(2) was to “[e]nsure access to the 669*669 common area meeting space … to all members advocating a point of view … for purposes reasonably related to the election.” The board did not fulfill its obligation.

The association does not contest that these events occurred. Instead, it argues they are irrelevant because they occurred in connection with the December 2010 and April 2011 elections, not the August 2011 election, which is the election plaintiffs challenge. The premise underlying the association’s argument is that a violation is only relevant to a single election, after which the association is absolved of any wrongdoing for purposes of future elections.

(11) Subdivision (a)(2) does not explicitly address whether a particular violation may apply to multiple elections in circumstances such as those present here. It simply states access must be granted to common areas “during a campaign … for purposes reasonably related to the election.” The issue, therefore, is whether the “campaign” in this case encompassed all three elections or restarted after each election.

As a practical matter, most campaigns will correspond to a single election. In the unique circumstances of this case, however, we hold the campaign to pass the amendment did encompass the December 2010, April 2011, and August 2011 elections. This case is unique because the board threatened to, and did, hold multiple elections in short succession until the amendment passed. Shortly after the December 2010 election failed, the board sent a message to the homeowners in the newsletter articulating arguments in favor of the amendment and stating, “Therefore, we will be asking homeowners to vote on this issue again on the March ballot. And if we cannot get 227 yes votes in March, there will be another ballot on the same issue shortly thereafter.” It did not receive the required votes in the next election, so, true to its word, the board held another election and issued a similar warning: “This issue has already gone before the homeowners on two occasions (December 2010 and April 2011)…. Although the [association] is filing a petition with the courts anyway, it is entirely possible the petition will not succeed without the 227 yes votes. Therefore, we must continue to conduct ballots (at a cost of approximately $5000 per ballot) until we can obtain 227 yes votes, or the courts accept the argument that the Beachwalkcommunity suffers from irredeemable voter apathy.” (Italics added.) The board itself, therefore, tied the two prior elections to the August 2011 election and threatened to continue holding elections until the amendment garnered sufficient votes. Under these circumstances, we hold the “campaign” encompassed all three elections.

670*670 As noted above, however, we do not hold the court must void the August 2011 results, only that the violations of subdivision (a)(2) described above are relevant and should be considered in deciding whether to void the results of the August 2011 election.

DISPOSITION

The judgment is reversed. Plaintiffs shall recover their costs incurred on appeal.

O’Leary, P. J., and Rylaarsdam, J., concurred.

[1] All statutory references are to the Civil Code. References to “subdivision (a)(1)” and “subdivision (a)(2)” are to section 1363.03.

[2] The parties refer to this as the “8th Amendment” because it would be the eighth amendment to the CC & R’s. For clarity, we simply refer to it as the “amendment.”

[3] The court also stated, “There was no credible evidence that any member of the Association changed his/her vote because of any information contained in any of the Association’s media or ballot materials.” Both parties agree, however, that this is not a relevant consideration. Thus we do not address it.

[4] Plaintiffs filed a motion for judicial notice of the Senate bill analysis of Senate Bill No. 61 (2005-2006 Reg. Sess.), which was the bill that introduced subdivisions (a)(1) and (a)(2). (Sen. Bill No. 61 (2005-2006 Reg. Sess.).) A motion for judicial notice of published legislative history, such as the Senate analysis here, is unnecessary. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45-46, fn. 9 [77 Cal.Rptr.2d 709, 960 P.2d 513].) “Citation to the material is sufficient. [Citation.] We therefore consider the request for judicial notice as a citation to those materials that are published.” (Id. at p. 46, fn. 9.)

[5] The parties debate whether we should interpret “advocating” as synonymous with “campaigning” as that term is used in the line of cases holding a public entity may not use public funds for “campaigning.” (See, e.g., Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1];Vargas v. City of Salinas (2009) 46 Cal.4th 1 [92 Cal.Rptr.3d 286, 205 P.3d 207].) The Stanson line of cases makes a distinction between “campaigning” and “informational” activity. The analogous issue in homeowners association elections, i.e., the use of association funds, is governed by section 1363.04, which prohibits the use of association funds “for campaign purposes in connection with any association board election [or] 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.” (Id.,subd. (a).) But this case is not about the prohibited use of association funds. It is only about the equal access rules found in subdivisions (a)(1) and (a)(2) — rules triggered by “advocacy,” not “campaigning.” Thus there is no need to distinguish (or not) between “campaigning” and “informational” activity. It is enough for our purposes to interpret the word “advocacy” and determine under that definition whether the board engaged in “advocacy.”

Keywords: Voting, Elections, Davis-Stirling Common Interest Development Act, Scope, Application