Case Number: SC120250 Hearing Date: June 06, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ELEANOR ALLEN,
Plaintiff(s),
vs.

18117 COASTLINE DRIVE HOMEOWNERS ASSOCIATION, ET AL.,

Defendant(s).

CASE NO: SC120250

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #35
June 6, 2014

Defendants, 18117 Coastline Drive Homeowners Association and 18125 Coastline Drive Homeowners Association’s Motions for Summary Judgment are Denied.

1. Background Facts
Plaintiff, Eleanor Allen filed this action against Defendants, 18117 Coastline Drive Homeowners Association and 18125 Coastline Drive Homeowners Association for damages she sustained when an elevator tram fell four floors, causing her to shatter her pelvis and sustain a traumatic brain injury.

2. Initial Note
There are two MSJs on calendar today – one by 18117 HOA and the other by 18125 HOA. The two MSJs are substantially the same, and the Court is considering them together.

3. Undisputed Facts
The facts relating to this case are essentially undisputed, and the issue before the Court turns on interpretation of case law. The undisputed facts are essentially the following: Plaintiff has resided at the condo building since 2001, and is a member of the 18117 HOA. The 18117 HOA and the 18125 HOA had joint ownership of the subject elevator tram. There were four members of each HOA. All members of each HOA had the right to vote on all major decisions, including whether to replace or repair the tram. Plaintiff was the president of the 18117 HOA from 2007 until the date of the accident. Plaintiff served as the 18117 HOA’s representative on the tram committee from 2004 to 2007, but ceased participation in the committee in 2007. Plaintiff and the other seven members of the two HOAs had equal voting power and responsibility in connection with the tram repair issues.

4. Evidentiary Objections
Plaintiff filed evidentiary objections with her opposition papers. The objections are sustained.

5. Case Authority
As noted above, this motion turns on interpretation of case law more than it turns on disputed factual issues. The parties discuss the following cases concerning whether a member of an HOA can sue the HOA when the member is injured:
• White v. Cox (1971) 17 Cal.3d 824, 831;
• Ritter & Ritter, Inc. v. Churchill Condominium Ass’n (1008) 166 Cal.App.4th 103;
• Cox v. The Evergreen Church (Tex. 1992) 836 S.W.2d 167.

White v. Cox was the first time the appellate court visited the issue of whether a member of an HOA could sue the HOA entity when the member was injured. The court noted that unincorporated associations are typically immunized from liability to their members, because each member is principal and agent for each other member. It went on, however, to note an exception – that a member of a labor union can sue the labor union, because the members of the labor union do not have control over the choices the principals and officers of the unions make. The court also noted certain legislative changes that have eroded the rule of non-liability of unincorporated associations to their members. Importantly, the court held:
Since 1962 the trend of case law has flowed toward full recognition of the unincorporated association as a separate legal entity. A member of an unincorporated association does not incur liability for acts of the association or acts of its members which he did not authorize or perform.
…
In view of these developments over the past decade we conclude that unincorporated associations are now entitled to general recognition as separate legal entities and that as a consequence a member of an unincorporated association may maintain a tort action against his association.
…
Our answer to the first question derives from the nature of the condominium and its employment of the concept of separateness. Were separateness not clearly embodied within the condominium project the unit owners would become tenants in common of an estate in real property and remain exposed to all the consequences which flow from such a status. We think the concept of separateness in the condominium project carries over to any management body or association formed to handle the common affairs of the project, and that both the condominium project and the condominium association must be considered separate legal entities from its unit owners and association members.

For answer to our second question we turn to the statutory scheme, whence it clearly appears that in ordinary course a unit owner does not directly control the activities of the management body set up to handle the common affairs of the condominium project. To illustrate from the facts at bench: White owns his individual unit and a one-sixtieth interest in the common areas of Merrywood. An administrator controls the common affairs of Merrywood and maintains the common area where White tripped over the sprinkler. The administrator is appointed by and responsible to a board of governors. The board of governors is elected by the unit owners in an election in which each owner has one vote, owners vote by proxy, and cumulative voting is allowed. White is not a member of the board of governors. The Merrywood condominium plan succinctly warns, “In case management is not to your satisfaction, you may have no recourse.” To use the language of the Marshall opinion, we would be sacrificing reality to theoretical formalism to rule that White had any effective control over the operation of the common areas of Merrywood, for in fact he had no more control over operations than he would have had as a stockholder in a corporation which owned and operated the project.
With respect to the elements deemed critical in Marshall we find no substantial distinction between a condominium and a labor union. A condominium, like a labor union, has a separate existence from its members. Control of a condominium, like control of a labor union, is normally vested in a management body over which the individual member has no direct control. We conclude, therefore, that a condominium possesses sufficient aspects of an unincorporated association to make it liable in tort to its members. The condominium and the condominium association may be sued in the condominium name under authority of section 388 of the Code of Civil Procedure. The condominium and the condominium association may be served in the statutory manner provided for service on an unincorporated association (Corp. Code, §§24003- 24007), and individual unit owners need not be named or served as parties in a negligence action against the condominium and the condominium association.

In Cox v. Thee Evergreen Church (a Texas case discussing California law), the plaintiff was a member of the defendant church. Plaintiff cites this case, noting that the plaintiff in this case was on the board of the defendant church. Notably, Plaintiff does not provide a pinpoint citation to this case; the court therein did note the plaintiff’s position on the board, but this court cannot locate a substantial discussion of that position in the opinion.

In Ritter & Ritter, the most recent California case cited by the parties, several issues were presented. On the issue of whether the HOA could be liable to its members, the court merely regurgitated the case law set forth above, in White v. Cox; nothing substantial was added to the analysis.

6. Analysis
Defendants concede that there is no authority on point concerning this issue. They concede there is no case holding that a plaintiff who is a member of the HOA’s board, and/or a plaintiff who is a member of a very small HOA, is precluded from suing the HOA because of its status as an unincorporated association. Defendants argue, instead, that the reasons for the courts’ determination that HOAs are not immune from liability do not exist under such circumstances.

The Court is sympathetic to this argument. However, the HOA has the burden when moving for summary judgment. The HOA has presented absolutely no authority distinguishing the facts of this case from the facts of the White and Ritter cases. Notably, Plaintiff is only one of eight voting members, and there has been no showing that Plaintiff, personally, could have forced the other seven members of the HOA to fix the tram. Plaintiff’s involvement on the tram committee ended in 2007, so it does not appear she was even involved intimately in reviewing tram-related decisions for the five years prior to her accident. The Court cannot find, as a matter of law, that she is precluded from maintaining this action in light of her status on the board of one of the two HOAs or her status as a prior chair of the tram committee. The motion for summary judgment is therefore denied.

Dated this 6th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court