I appreciate your response, and as you can imagine I live the life every day of misguided agendas that you describe.  

For the very reason that I work every day at keeping the inmates from running the asylum, is why I get frustrated when I see the methods others use to perpetuate problems instead of solving them.  That is when "normal" people get unfairly labeled, when in fact they are just people trying to exercise their legitimate points of view, which is exactly what I believe is happening at HVL. INSTEAD OF INITIATING A RECALL, THOSE FOLKS SHOULD DECLARE THEIR CANDIDACY (AS THEY NOW HAVE A RIGHT TO DO UNDER CIVIL CODE SECTION 1363.03

Since I have been on all sides of the fence I think it provides me the unique perspective of seeing the "whole picture": 1) frustrated homeowner; 2) board member; and 3) general manager.  I am NOT proposing the members run the Association, only participate in it, and a petition circulated representing a large number of members is a good measurement as to when the members should have the right to vote (which I believe is the true intent of the way the law is written, in contrast to your opinion).    Had I been the general manager in this situation, I would have invited you as the Association's attorney to come to a meeting and explain your position on a more friendly note to the community directly.  Our attorneys have done this on occasion and it works great.   I would have also advised the Board, what's the harm, let them vote -- that would eliminate the flame that is obviously feeding the fire at HVL.

LINDA, WHAT YOU ARE RECOMMENDING IS A VERY SLIPPERY SLOPE, INDEED. ONCE THE BOARD CAPITULATES TO UN-ELECTED FACTIONS AND CALLS FOR A MEMBER VOTE ON AN ISSUE THAT IS CLEARLY WITHIN THE BOARD’S PREROGATIVE, THERE IS, AT THE VERY LEAST, A CAPITULATION OF THE BOARD’S OBLIGATION UNDER THE LAW TO MAKE INFORMED AND REASONED DECISIONS ON BEHALF OF ALL THE MEMBERS. AT THE WORST, THE BOARD IS ABDICATING ITS MORE INFORMED JUDGMENT ON THE MATTER TO MEMBERS WHO ARE LIKELY TO HAVE A WIDE RANGE OF INDIVIDUAL FOCUS AND ATTENTION TO THE ISSUES AT HAND, NOT TO MENTION PERSONAL AGENDAS. I RECOMMEND THAT YOU READ THE CALIFORNIA SUPREME COURT’S DECISION IN THE LAMDEN CASE WHICH I WILL PDF TO YOU. THE BOARD IN THAT CASE WAS FACED WITH A DECISION ON HOW TO BEST DEAL WITH A TERMITE PROBLEM – SPOT TREATMENT OR TENT ALL THE BUILDINGS AND RELOCATE THE RESIDENTS AT GREAT EXPENSE. MRS. LAMDEN (THE PLAINTIFF AND A NON-RESIDENT WHO ACTUALLY LIVED ON THE EAST COAST) WANTED THE ENTIRE DEVELOPMENT TENTED AND THE BOARD DISAGREED. THE CALIFORNIA SUPREME COURT BACKED UP THE BOARD’S JUDGMENT CALL ON THE ISSUE. WHERE DO YOU DRAW THE LINE ON WHAT MATTERS GO TO THE MEMBERS FOR APPROVAL OR A MANDATE? IF THE GOLF COURSE IN A COMMON INTEREST COMMUNITY REQUIRES MAJOR WORK TO RE-SOD AND RE-SEED THE FAIRWAYS AND TO INSTALL NEW IRRIGATION EQUIPMENT AND THE NUMBER OF OWNERS WHO ARE REGULAR GOLFERS HOVERS AROUND 30 % TO 40% OF ALL OWNERS (THAT IS THE TYPICAL STATISTIC IN GOLF COMMUNITIES), SHOULD THE BOARD PUT THE REHABILITATION PROJECT TO A VOTE OF THE MEMBERS AND FOLLOW THE WILL OF THE "MAJORITY"? REMEMBER THAT EVERYONE – GOLFERS AND NON-GOLFERS ALIKE – VOLUNTARILY ELECTED TO BECOME PROPERTY OWNERS AND ASSOCIATION MEMBERS.

A vote would give the HVL Board the true point of view of the "majority" of the community HOW DO YOU KNOW THAT IT WOULD BE A CLEAR MANDATE? MY GUESS IS THAT THOSE WHO OPPOSE THE PROJECT WOULD TURN OUT IN DROVES AND THE REST OF THE COMMUNITY WOULD GO ABOUT THEIR BUSINESS.  ALSO THE ISSUE OR PROJECT THAT IS PUT TO A VOTE MAY HAVE HAD ONLY MINORITY SUPPORT FROM THE INCEPTION OF THE PROJECT -- SUCH AS GOLF, EQUESTRIAN FACILITIES, RESTAURANTS IN THE COMMUNITY LODGE --- AND YET THEY HAVE ALWAYS BEEN PART OF THE VERY FABRIC OF THE COMMUNITY.  IF EVERY PROPOSAL TO FUND PUBLIC LIBRARIES HAD TO BE APPROVED BY THE ELECTORATE, HOW MANY LIBRARIES DO YOU THINK YOU WOULD HAVE IN THE UNITED STATES THESE DAYS?

and a "YES" vote would bring the support I believe would be necessary to ultimately see these projects through to their successful completion.  AT TAHOE DONNER, THERE WAS A MEMBER VOTE THAT DEFEATED A VERY COSTLY COMMON FACILITIES EXPANSION PLAN – THE VOTE WAS REQUIRED BY THE LENDERS WHO WOULD ONLY FINANCE THE MULTI-YEAR FUNDING PLAN WITH A MEMBER VOTE.

I say this because my prediction of what will end up happening at HVL is a recall which will eventually result in new board members coming in; then both the general manager and you will eventually be fired. THAT IS EXACTLY THE SCENARIO THAT I ALSO ANTICIPATE IN MANY INSTANCES. IT IS THE REFORMIST BOARD THAT RIDES INTO OFFICE AND FIRES THE MANAGER THAT GENERATES THE LAW SUITS THAT END UP COSTING THE ASSOCIATION MORE THAN THE PROJECT WOULD HAVE COST. THAT IS WHAT HAPPENED AT PINE MOUNTAIN LAKE AND YOU ARE CORRECT THAT I WAS TERMINATED AS THEIR COUNSEL OF 18 YEARS. THE NEW LAWYERS RAN UP LEGAL FEES OF SEVERAL HUNDRED THOUSAND DOLLARS DEFENDING TERMINATION SUITS, AND I AM ONCE AGAIN COUNSEL TO THE ASSOCIATION.

The ousted will lash back and threats of more recalls will follow.  SO WHY IS THAT A GOOD REASON TO CAPITULATE TO THE MOB? THE BOARD HAS A FIDUCIARY OBLIGATION TO GOVERN

In the meantime, nothing will get done.  (The common excuse that the "members will never vote for anything that costs money" doesn't fly with me either.  I believe a no vote most always signifies a lack of confidence in those leaders who represent a community, nothing more.)

Regarding your legal opinion more specifically, it bothered me so much that I spoke with one of our attorneys, John Linford this morning (whom you know) and even faxed him your opinion to review.  Sorry, he agrees with me on the interpretation of "any lawful purpose" to mean any purpose related to the interests of a homeowners' association, not the narrow scope you have defined.  I AM NOT SURE THAT JOHN AND I DISAGREE AT ALL ON THAT ISSUE. WITH THIS RESPONSE I AM SENDING YOU SOME PAGES FROM THE CHAPTER I WROTE IN THE BOOK ADVISING CALIFORNIA NONPROFIT CORPORATIONS ON THIS VERY ISSUE. BEFORE I WROTE THE TEXT THAT IS IN THE BOOK (THAT I WILL SEND TO YOU) I CONSULTED WITH R. BRADBURY CLARK, WHOM JOHN WILL NO DOUBT RECOGNIZE AS THE DEAN OF THE LIVING EXPERTS ON NONPROFIT CORPORATION LAW IN THIS STATE.

I ASKED BRAD (WHO, ALONG WITH ME, SERVED ON THE COMMITTEE OF THE STATE BAR THAT WROTE THE LAW): "WHY WASN’T THE SPECIAL MEETING PROVISION WRITTEN TO SAY THAT FIVE PERCENT OF THE MEMBERS COULD CALL A MEETING TO DEMAND A VOTE ON MATTERS THAT ARE SUBJECT TO APPROVAL OR ACTION BY THE MEMBERS UNDER THE CORPORATIONS CODE OR THE BYLAWS OF THE ORGANIZATION?" BRAD’S REPLY WAS THAT THE SECTION WAS WRITTEN MORE BROADLY TO PERMIT FIVE PERCENT OF THE MEMBERS TO DEMAND THAT A SPECIAL MEETING BE HELD "FOR ANY LAWFUL PURPOSE" BECAUSE THE MEMBERS HAVE A RIGHT TO COMPEL THEIR DIRECTORS TO ATTEND A MEETING CALLED TO DISCUSS OTHER MATTERS OF INTEREST OR IMPORTANCE TO THE CORPORATION THAT MAY NOT INVOLVE OR REQUIRE MEMBER ACTION. THAT SCENARIO IS NOT UNLIKE WHAT IS HAPPENING TODAY ON THE RADIO AND TELEVISION IN THE HEARINGS AND QUESTIONING OF ATTORNEY GENERAL ALBERTO GONZALEZ: THE "PEOPLE OF THE UNTIED STATES" HAVE NO RIGHT TO RECALL OR REMOVE MR. GONZALEZ, BUT THEY HAVE A RIGHT, THROUGH THEIR ELECTED REPRESENTATIVES IN CONGRESS, TO DEMAND THAT HE EXPLAIN HIS ACTIONS.

He agrees the Bylaws for HVL are more restrictive than you are alluding to, and, he also discussed the Bear Valley lawsuit with me at some length (you are familiar with) regarding limitations on use of reserve funds that parallel many of my points to you -- that the appellate court also apparently agreed with also. I THOUGHT THAT THE BEAR VALLEY SUIT WAS VERY POORLY DECIDED AND ACTUALLY GOES AGAINST THE SUPREME COURT’S RULING IN LAMDEN. HOW CAN IT POSSIBLY BE THAT A BOARD OF DIRECTORS, FACED WITH A FACILITY THAT WAS UNDERSIZED TO BEGIN WITH, POORLY DESIGNED, AND AT THE END OF ITS USEFUL LIFE, ONLY HAS THE DISCRETION AND AUTHORITY TO REPLACE THAT FACILITY WITH SUBSTANTIALLY THE SAME FACILITY? THAT MAKES ABSOLUTELY NO SENSE TO ME. IF YOU WERE RE-MODELING YOUR OWN KITCHEN AND IT WAS 40 YEARS OLD AND SOME JUDGE SAID YOU COULD ONLY REPLACE THE KITCHEN IN EXACTLY THE WAY IT WAS ORIGINALLY CONSTRUCTED, YOU WOULD PROBABLY MOVE TO AFGHANISTAN. THE BEAR VALLEY CASE ALSO HAD SOME UNIQUE FACTS, SUCH AS THE FACT THAT THE RESTAURANT FACILITY IN QUESTION WAS NOT IN A COMMON FACILITY PROPERTY OWNED BY THE ASSOCIATION.

If you are playing the odds that the complainers will not put up enough money to challenge you legally that is probably a good bet, but I will take you at your word that is not your intent.

Wouldn't it be better if we could all spend more time working with California legislature to make things more clear by helping them understand "real life" experiences from all perspectives.  That way they can write and adopt laws we can all embrace, respect, and protect, and which will ultimately serve the needs and desires of everyone involved.  LINDA – ON THIS WE AGREE WHOLEHEARTEDLY. BUT I BET I COME TO THIS DISCUSSION WITH A DIFFERENT PERSPECTIVE THAN YOU DO. MANY OF THE PROVISIONS THAT HAVE BEEN ADDED TO DAVIS-STIRLING SINCE ITS ORIGINAL PASSAGE IN 1985 HAVE BEEN WELL-INTENTIONED, BUT WRONG HEADED OR VERY POORLY DRAFTED, IN MY OPINION. THE NEW ELECTION RULES (1363.03) FOR EXAMPLE ARE VERY BURDENSOME FOR SMALLER ASSOCIATIONS AND TOTALLY UNNECESSARY FOR MOST COMMERCIAL CIDs (WHO ARE NOT EXEMPT FROM THOSE ELECTION RULES).

SIMILARLY, THE DISPUTE RESOLUTION MAZE THAT ASSOCIATIONS MUST NOW NAVIGATE IN ORDER TO RESOLVE EVEN THE MOST MINOR OF ASSOCIATION/OWNER DISPUTES ARE ALMOST IMPOSSIBLE TO RECONCILE, ONE TO ANOTHER: READ CIVIL CODE SECTIONS 1363(h), 1363.810 THROUGH 13463.850, 1365.2(f), 1367.1(c) (1)(b), 1369.510 THROUGH 1369.590, AND TELL ME IF YOU KNOW WITH ASSURANCE WHICH OF THOSE SECTIONS APPLY TO THE EXCLUSION OF THE OTHER SECTIONS?

The way I believe things are going now, the legislature is simply trying to curtail the amount of lawsuits initiated as a result of homeowner association issues instead of looking more deeply at what's causing all the turmoil to begin with. IF HOAs HAD NEVER COME ON THE LANDSCAPE, MOST LEGISLATORS WOULD BE VERY HAPPY, INDEED. BUT CHANGES IN COMMUNITIES AND OUR SOCIETY HAPPEN FOR A REASON AND ONE REASON WHY CIDs AND THEIR OWNER ASSOCIATIONS DOT THE CALIFORNIA LANDSCAPE IS THE STATE’S ADOPTION, THROUGH A VOTER INITIATIVE, OF THE VERY POPULAR LIMITS ON REAL PROPERTY TAXATION (PROPOSITION 13). WITH NO PUBLIC MONEY AVAILABLE TO FUND PARKS, RECREATION FACILITIES AND NEW SUBDIVISION INFRASTRUCTURE, PROPOSITION 13 GAVE BIRTH, IN A VERY REAL SENSE, TO MELLO-ROSS FEES (WHICH BULLET THE COST OF NEW DEVELOPMENT SOLELY ON THE HOMES AND NEW OWNERS IN THE DEVELOPMENT) AND PRIVATE COMMUNITIES WHERE THE FACILITIES ARE NO LONGER PUBLIC AND MUST BE MAINTAINED BY THE PROPERTY OWNERS. THE "NO NEW TAXES" ADVOCATES SEE PROPOSITION 13 AS THE HOLEY GRAIL AND HOWARD JARVIS AS THE GREATEST AVENGER OF BIG GOVERNMENT, BUT MOST OF THESE SAME CONSERVATIVES HATE HOMEOWNER ASSOCIATIONS IN SPITE OF THE FACT THAT THE INITIATIVE THEY CHAMPION GAVE BIRTH TO THE RENAISSANCE OF PRIVATE COMMUNITIES.

TODAY ON NATIONAL PUBLIC RADIO THERE WERE SEVERAL REPORTS ON THE EFFORT INITIATED BY OUR ARMED FORCES TO CONSTRUCT A TWELVE FOOT HIGH WALL THREE MILES LONG AROUND A PARTICULAR COMMUNITY OF BAGHDAD WHERE THERE HAS BEEN A LOT OF VIOLENCE . THE PROJECT PROMPTED CONSIDERABLE LOCAL PROTEST AND RESISTANCE AND, AS A RESULT, THE PRIME MINISTER CALLED FOR THE PROJECT TO COME TO A HALT. ONE U.S. PRESS RELEASE ACTUALLY SAID THAT THE PRINCIPAL IMPETUS FOR THE WALL CONSTRUCTION PROJECT WAS TO CREATE GATED COMMUNITIES IN IRAQ’S CAPITAL TO REDUCE THE AMOUNTS OF SECTARIAN VIOLENCE – WE ARE NOW TRYING TO USE THE COMMON INTEREST MODEL IN THE MIDDLE EAST AS PART OF THE BAGHDAD "CALMING PROJECT". Go figure.

Linda