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Think Twice Before Clicking Send: The Impact of Alta Del Mar on E-Mail Communications
By Kyle Lakin, Esq.
The recent Court of Appeal opinion in LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Assn.(2023) 94 Cal.App.5th 1050 (“Alta Del Mar”) changed how e-mail communications among community association board members are viewed, giving directors more leeway in communicating with each other outside of a board meeting. That is good for the board, but directors should still think twice before e-mailing other directors.
The primary issue in Alta Del Mar was whether e-mails among directors for an association board of directors constituted a “board meeting” under Civil Code §4090(a). Section 4090(a) defines “board meeting” as “[a] congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.” (Emphasis added.)
Before Alta Del Mar, many believed that directors should limit discussing association business by e-mail to avoid a potential illegal meeting. In Alta Del Mar, the complaining homeowners contended that directors were conducting meetings violating the Civil Code by discussing association business by e-mail. They argued that “congregation,” as used in Civil Code §4090(a), encompassed a “virtual assembly by means of e-mail” because “e-mail allows directors to communicate with one another simultaneously on items of board business in the same place, namely, cyberspace.” (Alta Del Mar at 1074-75.)
The Court rejected the homeowners’ position that e-mails were a “board meeting,” concluding:
“Board meeting,” as defined by §4090(a), is an in person gathering of a quorum of the directors of a homeowners association at the same time and in the same physical location to talk about and act on items of association business. E-mail exchanges among directors on those items that occur before a board meeting and in which no action is taken on the items, such as those at issue in this case, do not constitute board meetings within the meaning of that provision. (Alta Del Mar at 1079 (emphasis added).)
In reaching its conclusion, the Court noted that “by discussing items of Association business in e-mails…, the directors did nothing contrary to the purpose of the [statute] because they took no action on those items in the e-mails.” (Id. at 1079 (emphasis added).)
Although e-mail is a convenient, affordable, and private way of communicating with others and creating a written record for the participants, directors should exercise caution when exchanging e-mails about association business. One potential issue is the risk of e-mails drifting from discussion to action. E-mail makes it easy for directors to quickly “reply all” with their opinion or agreement on a course of action. One obvious thing to avoid is making a motion by e-mail or inviting other board members to vote or agree on a course of action by e-mail.
Another potential risk is that e-mail creates a written record of the entire exchange, which could be a liability. Absent an applicable privilege (e.g., the attorney-client privilege), e-mails are discoverable in litigation (i.e., they may need to be provided to the other parties). Directors should think twice about what they discuss by e-mail and the words they choose to put in their e-mails. E-mails can and will be used against the association and the board in litigation.
Also, e-mails lack non-verbal cues and emotional tone, which may be necessary to understand the sender’s intent and meaning. Think of the times you have received an e-mail where you were unsure of the meaning or the sender’s intent. Misinterpretation could lead to misunderstanding and a breakdown in relations that affect director relationships. Some discussions may be better received and understood in person rather than by e-mail.
E-mails also potentially deprive homeowners of hearing the board’s discussion on association business. As stated by the Court, “…the purpose of the [statute] is to ensure members of a homeowners association are informed about and have input into the actions to be taken by the association’s board of directors on matters affecting the community in which they live.” (Id.) Holding meetings where homeowners can hear board discussions and votes on association actions provides transparency. When a board conducts all its discussions by e-mail and then acts at board meetings without any discussion, there is a lack of transparency for the homeowners.
To limit the preceding issues, before sending or replying to an e-mail, consider the following:
1. Is it necessary to discuss the business item before the scheduled board meeting? If not, wait until the meeting.
2. If it is necessary to discuss the item of business, is it necessary to include the entire board of directors in the e-mail?
3. If discussion by e-mail is necessary, keep the e-mail discussion to a minimum. Avoid creating a circumstance where the exchange moves from discussion to action. Do not make or invite a motion or resolution, nor reach an “agreement” on a course of action.
4. If board action by e-mail is necessary due to an emergency within the meaning of Civil Code §4923, make sure “all directors, individually or collectively, consent in writing to that action” and the “written consent or consents are filed with the minutes of the board meeting.” (Civ. Code §4910(b)(2).)
The California Supreme Court declined to review the Alta Del Mar opinion, so unless the Legislature amends the Civil Code, Alta Del Mar has opened the door for directors to discuss association business by e-mail, provided no action is taken by e-mail. Regardless, boards must exercise diligence and caution when e-mailing. When in doubt, boards should confer with legal counsel.
