(

8212545

IN

THE

SUPREME COURT OF CALIFORNIA

PAUL WITTENBERG, et al.,

Respondents,
v.

BEACHWALK HOMEOWNERS ASSO CIATION,

Petitioners.

AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE
CASE

No. G046891

REPLY TO ANSWER TO PETITION FOR REVIEW

ADAMS KESSLER PLC

ADRIAN J. ADAMS (BAR No. 168678)

MARY E. GRAM (BAR No. 168972)
2566 OVERLAND AVENUE, STE. 730
LOS ANGELES, CALIFORNIA 9095
(800) 464-2817 FAX: (310) 945-0281
aadams@davis-stirling.com
mgram@davis-stirling.com

ATTORNEYS FOR PETITIONER

BEACHWALK HOMEOWNERS ASSOCIATION

TABLE OF CONTENTS
P age

TABLE OF AUTHORITIES ...................... ..................................... iii

INTRODUCTION ............. : ............................................................... 1
LEGAL DISCUSSION ..................................................................... . 3
I.

WITTENBERG FAILS TO REBUT BEACHWALK'S

STATUTORY
SHOWING
THAT
THE
INTERPRETATION ISSUE MERITS REVIEW . ................. 3
A.

The parties, the amici curiae, and the Court of

Appeal have all recognized that homeowner
association elections and the interpretation of
section 1363.03(a)(l) are vitally important to
millions of Californians. ............................................... 3

B.

The amici letters and Wittenberg's answer

demonstrate that the decision has caused
confusion and uncertainty as to how "non
candidate" elections on community issues may be
conducted. ..................................................................... 6

C.

Wittenberg does not directly address many of the

key issues raised by Beachwalk
.

WITTENBERG AND AMICUS CURIAE CCHAL

RAISE ADDITIONAL QUESTIONS WARRANTING
REVIEW

11

II.

.......................

. . .......

............................... . . . . ................................. ..........

A.

The confusion regarding the scope of a court's

discretion to uphold election results when access
violations are insubstantial warrants review........... 1 1

B.

The issue raised by Wittenberg regarding .

whether the Court of Appeal should have
invalidated the election rather than leaving that
decision to the trial court's discretion also
demonstrates the need for review. ............................ 14

CONCLUSION

........... ................. . ................... . ................. .............

CERTIFICATE O F WORD COUNT

11

... . .. . ........... . . . ....

.......... . .... . .

..

16
17

TABLE OF AUTHORITIES
Page(s)
Cases

Denham v. Superior Court

( 1970) 2 Cal.3d 557 .................................................................... 1 1
Gardner v. Superior Court
( 1986) 182 Cal.App.3d 335 ........................................................ 14
Richards, Watson & Gershon v. King
( 1995) 39 Cal.App.4th 1 176 ...................................................... 14
Smith v. Fetterhoff
( 1956) 140 Cal.App.2d 47 1 ........................................................ 14
Stanson v. Matt
( 1976) 17 Cal.3d 209 .. ....... ..... ... ..... ..... .. .. ............. .. .... .. ........ .. ... 9
_ .

Statutes

. 1363.03
subd. (a) ( 1) ........................................................................... 1, 2, 3
subd. (a)(2) ................................................................................... 2

1363.04

10

1363.09, subd. (a)................................................................... 1 1, 12

111

IN THE
SUPREME COURT OF CALIFORNIA
PAUL WITTENBERG, et al.,

Respondents,

v.

BEA CHWALK HOMEOWNERS ASSOCIATION,

Petitioners.

REPLY TO ANSWER TO
PETITION FOR REVIEW

INTRODUCTION

As demonstrated by the answer to petition for review and the

amicus curiae letters on file, everyone agrees that the proper
construction of section 1363.03, subdivision (a)( 1) 1 is an important
issue that will have significant impact on millions of California
condominium owners.
The arguments asserted by Wittenberg and the amici letters
establish that the decision by the Court of Appeal has injected
serious confusion and uncertainty into the process of conducting
Unless otherwise indicated, all statutory references in this brief
are to the California Civil Code.
1

homeowner association elections. It is crucial to the functioning of

California associations that their boards know they can provide
guidance to members whenever important issues are up for election
without subjecting the membership to litigation, or causing undue
costs in conducting the election. The importance of this issue, and
the confusion and serious harm faced by California homeowner
associations warrants review.
Wittenberg and amicus curiae also raise additional grounds
for this Court to grant review. They seek guidance on the scope of a
court's discretion to uphold election results when access violations
under section 1363.03, subdivision (a)(l) or (a)(2) have occurred.
This Court should grant review and confirm that when the access
violations are insignificant, the trial court has the discretion to (and
indeed should) uphold the election results despite the alleged
violations.

LEGAL DIS CUSSION

I.

WITTENBERG
SHOWING

FAILS TO REBUT BEACHWALK'S

THE

THAT

STATUTORY

INTERPRETATION ISSUE MERITS REVIEW.

A.

The p arties, the amici curiae, and the Court of Appeal

have

all recognized

that

homeowner

association

elections and the interpretation of section 1363.03(a)(l)

are vitally important to millions of Californians.

Wittenberg agrees that the interpretation of the equal access

provision of section 1363.03, subdivision (a)(l) will have widespread
impact across the state; (Answer to Petition for Review (APFR) p. 5
["Petitioner and Respondent agree that the issue will affect millions
of homeowners (and) . . . may have widespread impact on millions of
California residents"].) However, he contends that because the
Court of Appeal "correctly" construed the statute, there is no need to
grant review. (APFR pp. 5-6.) In other words, because he believes
he would win on the merits, this Court should decline to analyze the
decision and reach its own conclusion.

Wittenberg is mistaken

about the merits of his case. And this issue is too important, and
the resulting harm is too severe, to allow this decis1on to become the
law in California.
In an amicus letter urging this Court to grant Beachwalk's
petition, twenty law firms representing a large number of
homeowner associations throughout California emphasized the

importance of the case. (See letter from Laura Snoke, Esq. to

Supreme Court on behalf of twenty amicus curiae Davis-Stirling Act
Common Interest Development Law Firms (August 23, 2013)
(Snoke Letter) p. 1 ["There are nearly 50,000 common interest
developments in the state housing approximately 15 million
Californians (38% of the state's population)"], p. 1 ["Each year
associations conduct annual elections as well as a variety of special
elections overseen by 50,000 boards of directors"], p. 3 ["To restore
stability to common interest developments, reduce the risk of future
litigation, and provide important election guidelines to the industry,
we ask that this Court grant review of Wittenberg

v.

Beachwalk

HOA"].)
The amicus letter by the Center for California Homeowner
Association Law

(CCHAL), while submitted in support of

Wittenberg, also acknowledges the importance of homeowner

association elections and the important issue of first impression
that this case presents.

(See letter from Marjorie Murray to

Supreme Court on behalf of Center for California Homeowner

Association Law (August 19, 2013) (CCHAL letter) p. 2 ["association
elections [are] an issue of continuing pulic interest"], p. 3 [''the
Legislature apparently believes fair elections are as vital to the
governance of associations as they are to local governments"], p. 3
["The Wittenberg opinion addresses for the first time a critical issue
in association elections, namely: 'if an association permits any
candidate or member to advocate a point of view using association
media, must the association give members with opposing views
equal access to the same media"].)

The recent revisions to the Davis-Stirling Act also amplify the

urgency that this decision be reviewed and appropriate guidelines
be established for this industry.

As noted by Wittenberg,

Beachwalk urged this Court to review and reverse the decision in

part because the new burdens imposed on association boards would
make it much more difficult and expensive for associations to obtain
court approval of amendments to CC&Rs under section 1356 of the
Civil Code. (APFR pp.l0-1 1.) Amicus CCHAL confirms that the
ability to amend governing documents is of vital interest to all
California associations, and notes that this interest is heightened
because the revisions to the Davis-Stirling Act, which are effective
in 20 14, will require widespread amendments to governing
documents across the state. (CCHAL letter, p. 3 ["Amending
governing documents-the key issue in Wittenberg-will be of
paramount importance in 20 14, when AB805/Torres takes effect.
This legislation overhauls Davis-Stirling, the body of laws
governing associations. Boards are already being told that they will
have to revise their governing documents to make them conform to
AB805. Amending Conditions Covenants and Restrictions (CC&Rs)
is a critical issue for homeowners"].)
The Court of Appeal itself deemed its decision a significant
one by certifying it for publication. The policy issues raised by the
decision are important and the industry it impacts is large.
Accordingly, this Court's review is warranted.

B.

The

amici

letters

and

Wittenberg's

answer

demonstrate that the decision has caused confusion

and uncertainty as to how "non-candidate" elections
on community issues may be conducted.

Wittenberg's contention that review is not warranted because

the law is not "unsettled" and the decision interpreted the statute in
a clear manner is mistaken. (APFR p. 5) This is a case of first

impression interpreting a statute in which the trial court and

appellate court came to opposite conclusions as to the plain meaning
of its provisions.
The twenty law firms that joined as amici in urging review
have emphasized the confusion and disruption the decision has
caused. (Snoke Letter, p. 1 ["As mini-governments, the state's
associations now lack clear policies for how boards participate in
those elections, thereby making them vulnerable to litigation that
ultimately is harmful to all association members"], p. 2 ["Instead of
bringing clarity, the appellate decision in Wittenberg has created
confusion].)
CCHAL also notes the confusion and uncertainty surrounding
association elections and the invalidation of election results based
on equal access violations. (CCHAL letter, p. 1 ["there seem to be no
uniform standards used by California Courts for determining what
circumstances or sets of facts lead to invalidation"], p. 1
["Homeowner plaintiffs, alleging similar violations of the statute
e.g. that they were denied equal access to association media or were
refused a ballot - get widely varying results in court"], p. 4 ["there

are no standards to guide lower courts in the exerc1se of their

discretion to invalidate an election"].)
Wittenberg's arguments opposing review also demonstrate the
confusion and lack of clarity surrounding the decision. For example,
Wittenberg argues that the decision "does not mandate that
associations 'must publish unredacted, unedited statements of all of
its members.' (Citation.)" (APFR p. 6.) Yet section 1363.03,
subdivision (a)(l) expressly provides that an association may not
edit or redact any member's submission.
Wittenberg argues that there is "nothing in the statute that
prohibits an association from enacting reasonable word limits" or
other "reasonable submission guidelines" that comply with
subsection (a)(l) and boards are free to "monitor what it considers to
be inflammatory or defamatory instances of member advocacy."
(APFR pp. 7-8.). Suggesting that associations may get around the
"no redacting and no editing" mandate by enacting prior restraints
on the acceptable length and content of member's submissions as a
condition for publication (essentially pre-editing and pre-redacting
them) only highlights the confusion surrounding the Court of
Appeal's decision and the impossible position in which it has placed
associations attempting to conduct elections. This demonstrates the
need for review and clarification by this Court.

C.

Wittenberg does not directly address many of the key

issues raised by B eachwalk.

Wittenberg

asserts

that

the

widespread,

negative

consequences enunciated by Beachwalk will not occur, dismissing

them as "hyperbolic doomsday contentions" that do not support
granting review. (APFR p. 6.) He simply assumes that publishing
unredacted, unedited commentary from all members who wish to be
heard during elections will not cause any problems and will not
impede an association from using its media to communicate
recommendations about election issues to its members. Based on
that assumption, he concludes the decision creates no impediment
to associations fulfilling their fiduciary duties related to elections,
no undue difficulty in obtaining necessary amendments to CC&Rs
pursuant to section 1356 when faced with voter apathy, and no
interference with the duties of disclosure and care mandated by
various provisions of the Davis-Stirling Act. (APFR pp. 6-8, 10-13.)
Wittenberg's assumption is mistaken. Beachwalk's assertion
that onerous, unpredictable consequences will result if the decision
is not reversed is supported not only by common sense, but also by
the amici common interest development law firms, who have
confirmed that the decision will interfere with boards fulfilling their
duties related to elections and potentially expose the members to
unreasonable litigation expenses. (Snoke Letter,

p. 3 ["if the

appellate court's decision is not overturned 50,000 homeowner

association boards will annually face potential litigation every time
they send out election materials"], p. 3 ["They will be afraid to

provide important information to their membership for fear of

subjecting their associations to costly and contentious court
battles"]

p.

["To

stability. to

restore

common

interest

developments, reduce the risk of future litigation, and provide

important election guidelines to the industry, we ask that this Court
grant review of Wittenberg v. Beachwalk HOA"].)
Wittenberg does not directly address Beachwalk's argument
that the decision conflicts with settled law regarding the separate
entity status of a corporation, despite the fact that it is undisputed
that the "media" communications at issue in this case were made by
the board in its official capacity on behalf of the corporate entity.
Wittenberg argues there is no conflict because equal access can only
be triggered when a "candidate or member" advocates a point of
view about an election and "the 'association' is not one of the actors
subject to the statute . . . . " (APFR p. 9.) Thus, he argues because
the decision ignored the corporate status of the author of the media
communications, there can be no conflict with corporate law. This
convoluted, circular argument arises from the refusal to accept the
obvious - that an "association" is not a "member" of an association
whose advocacy can trigger equal access under the statute.
Wittenberg completely ignores Beachwalk's contention that
the decision advances a policy of discouraging elected board
members from advising their constituents on important election
issues which is contrary to policies underlying this Court's decision
in Stanson

v.

Mott ( 1976) 1 7 Cal.3d

Petition for Review (PFR) pp. 32-35.)

209 and its progeny. (See

Wittenberg also fails to address Beachwalk's argument that

the decision cannot be harmonized with section 1363.04 of the Civil
Code.

This section precludes associations from using funds to

campaign in support of favored candidates during board elections,

but provides that associations may properly use funds for campaign
purposes during non-candidate elections to the extent necessary to
comply with the association's legal duties. (See PFR pp. 30-32.)
'!'he provisions of this section demonstrate that different interests
and policies are implicated depending on the type of election being
conducted. They evidence a recognition by the Legislature that
communications by associations about issues will often be necessary
during non-candidate elections in order to comply with duties owed
to the membership. Both Wittenberg and the Court of Appeal fail to
recognize that precluding elected leaders from offering guidance to
members about important election issues is contrary to the terms of

section 1363.04 and the underlying policies concerning non

candidate elections reflected in its provisions.
Wittenberg has failed to rebut Beachwalk's showing that
review of the decision is warranted.

10

WITTENBERG AND AMICUS CURIAE C CHAL RAISE

II.

ADDITIONAL QUESTIONS WARRANTING REVIEW.

The

A.

confusion

regarding

the

scope

of

court's

discretion to uphold election results when access

violations are insubstantial warrants review.

The answer submitted by Wittenberg and CCHAL's amicus

letter both argue that review is necessary to clear up questions
about the extent of a court's discretion to uphold election results
pursuant to section 1363.09, subdivision (a) of the California Civil
Code when access violations have occurred. (APFR pp. 2, 13-17;
CCHAL letter pp. 1,4.) The Court of Appeal, after finding statutory
violations occurred, left it to the discretion of the trial court to
determine what effect that should have on Beachwalk's election
results. The answer argues that this disposition raised a "matter of
first impression" concerning the invalidation of election results by
trial courts and courts of appeal. (APFR p. 2.) Wittenberg assers
"the court of Appeal left open this crucial issue; i.e. whether or not
the election results should have been invalidated as a result of the
findings of violations under 1363.03(a)( 1) and (a)(2)." (APFR p. 2.)
He contends this "warrants this court's consideration so as to
provide guidance to California courts who struggle with the
application of these recent statutory enactments." (APFR p. 2.)
Beachwalk asserts that California law is clear that the courts
retain

great deal of discretion which is disturbed only when a

clear miscarriage of justice has occurred. (Denham v. Superior Court

11

(1970) 2 Cal.3d 557, 564-566.) Wittenberg acknowledges this in his

answer, and notes that section 1363.09, subdivision (a) provides
that a court "may" void election results if violations have occurred.
(APFR pp. 13-16,) However, he argues that the policy of liberally
construing remedial statutes requires a court to invalidate election
results whenever a violation occurs unless the court is forbidden by
statute to do so. (APFR pp. 14-15.) This argument demonstrates
some confusion about the extent to which trial courts have
discretion to uphold election results when insignificant equal access
violations have occurred.
The CCHAL letter also requests review of the "unsettled"
issue regarding the scope of a court's discretion to invalidate
election results, noting the confusion in the community regarding
whether invalidation under section 1363.09 is automatic. (CCHAL
letter, pp. 1, 4 [many homeowners believe that a violation of the
statutes leads automatically to an invalidation of an election"].)
CCHAL notes that the draft language of section 1363.09
initially provided that election results "shall" he invalidated if an
access violation occurred, but that mandatory language was
changed by the drafting committee to a permissive "may" be voided .
to address concerns of drafters that litigation would be generated
for insl.gnificant access violations. (CCHAL letter, p. 4 ["members of
the working group were concerned that homeowners would bring
suitsand elections would have to be reconvened-for what were
perceived as minor infractions of the statute"].)
Beachwalk contends that courts possess broad discretion to
uphold election results when the violations of election access rules

12

are insubstantial. This case presents a particularly good vehicle to

address this issue. The trial court found no violations of section
1363.03, subdivision (a)(2) regarding free access to common areas
during the August 2011 election. The Court of Appeal reversed,
finding two violations that were extremely attenuated from the
August election and particularly insubstantial. (Opn. 16-17.)
Specifically, the court pointed to (1) the management company
mistakenly charging a member $90 for use of a clubhouse facility
during an election in December 2010 (and evidently failing to
refund the fee), and (2) the denial of a request to use a greenbelt
based on an incomplete form submitted by the member during an
election in April 2011. (Opn. 16-17.)
Beachwalk agrees with Wittenberg that this Court should
grant review to clarify that such insubstantial violations constitute
a proper circumstance in which the trial court should exrcise its
discretion and uphold the election results.
In order to address the question raised by Wittenberg this
Court must grant review and entertain briefing on the issue. This
is consistent with Beachwalk's petition also urging this Court to
grant review and bring clarity to the Davis-Stirling statutory
scheme with respect to how association boards can fulfill their
duties as elected leaders to advise their communities while
conducting "non-candidate" elections on issues, i.e., where measures
are put on the ballot for membership approval, such as special
assessments or proposed amendments to the CC&Rs.

13

B.

The issue raised by Wittenberg regarding whether the

Court of Appeal should have invalidated the election
rather than leaving that decision to the trial court's
discretion also demonstrates the need for review.

Wittenberg also asks this Court to grant review to determine

whether the Court of Appeal should have invalidated the election
results based upon its finding of violations of section 1363.03,
subdivision (a)(1) (equal access to media) and subdivision (a)(2)
(equal access to common areas). (APFR p. 2.)
Beachwalk asserts that the trial court's discretion is broad,
and where it has discretion but has not exercised it, the proper
appellate remedy is to reverse the judgment with directions to the
trial court to exercise its discretion. (Richards, Watson & Gershon
v.

King (1995) 39 Cal.App.4th 1176, 1181 [trial court incorrectly

believed that an attorney's lawsuit against a client must be

dismissed; judgment reversed with directions to the trial court to
exercise its discretion in considering the client's motion to dismiss];
Gardner

v.

Superior Court (1986) 182 Cal.App.3d 335, 341 [trial

court incorrectly believed it was required to grant the defendant's

motion for relief from a default judgment; case remanded to allow
trial court to "to exercise informed discretion in deciding this
matter"]; Smith

v.

Fetterhoff (1956) 140 Cal.App.2d 4 71, 4 73

["where as in the instant case the trial court refused to consider and
weigh evidence upon the erroneous theory that it could not be
considered, an appellate court is not justified in affirming the

14

judgment upon the ground that the evidence supports the

judgment"].)
Wittenberg's argument that the Court of Appeal should have
invalidated the election results evidences a level of confusion about
the appropriate role of the appellate court in invalidating election
results after it has reversed a trial court's finding that no election
violation had occurred, and the need for review to clarify this issue.

15

CONCLUSION

So as to establish proper election policies for a large and

growing industry, we respectfully request this Court grant
Beachwalk's petition.
September 3, 2013

ADAMS KESSLER PL C

ADRIAN J. ADAMS
MARY E. GRAM

MARY E. GRAM
Attorneys for Petitioner
BEACHWALK HOMEOWNERS
ASSOCIATION

16

CERTIFI CATE OF WORD COUNT

(Cal. Rules of Court, rule 8.504(d)(l).)

The text of this petition consists of 3,066 words as counted by

the Microsoft Word version 20 10 word processing program used to
generate the petition.

Dated: September 3, 2013

17

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of Los Angeles, State of California. My business address is
15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000.
On September 3, 2013, I served true copies of the following document(s)
described as REPLY TO ANSWER TO PETITION FOR REVIEW on the interested
parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MAIL:

I enclosed the document(s) in a sealed envelope or package

addressed to the persons at the addresses listed in the Service List and placed the
envelope for collection and mailing, following our ordinary business practices. I am
readily familiar with Horvitz & Levy LLP's practice for collecting and processing
correspondence for mailing. On the same day that the correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in a sealed envelope with postage fully prepaid.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on September 3, 2013, at Encino, California.

SERVICE LIST

Wittenberg

v.

Beachwalk HOA

Court of Appeal Case No. G046891

Superior Court Case No. 30-2011-00507078

William L. Buus
Schiffer & Buus APC
3070 Bristol St., Ste. 530
Costa Mesa, CA 92626

Attorneys for Plaintiffs and Ap pellants

California Court of Appeal

Fourth Appellate District, Div. 3
601 W. Santa Ana Blvd.
Santa Ana, CA 92701

Court of Appeal Case No. G046891

Hon. Thierry Patrick Colaw

Orange County Superior Court
700 Civic Center Drive West
Dept. 025
Santa Ana, CA 92701

Case No. 30-2011-00507078.

Paul Wittenberg Raymond Dq,kellis