The opinion
Filed 11/4/25; certified for publication 12/1/25 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RACHEL ARROYO, D084293
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2023-00050446-CU-WM-CTL)
PACIFIC RIDGE NEIGHBORHOOD
HOMEOWNERS ASSOCIATION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Matthew C. Braner, Judge. Reversed and remanded with directions.
Law Offices of Edward M. Teyssier and Edward M. Teyssier for
Plaintiff and Appellant.
Murphy, Pearson, Bradley & Feeney and Suzie M. Tagliere, Tina L. Li,
Hershini Gopal for Defendant and Respondent Pacific Ridge Neighborhood
Homeowners Association.
Gordon Rees Sully Mansukhani and Christine Barker, Tremayne W.
Wilson for Defendant and Respondent Jennifer Figgers.
Plaintiff and appellant Rachel Arroyo appeals from a judgment
following a bench trial on her causes of action against defendants and
respondents Pacific Ridge Neighborhood Homeowners Association
(Association) and Jennifer Figgers. In her operative pleading, Arroyo alleged
claims for violations of Civil Code1 section 5105 of the Davis-Stirling
Common Interest Development Act (the Davis-Stirling Act or the Act; § 4000
et seq.) and Corporations Code sections 5513 and 5222, as well as negligence
of Figgers, an elections inspector, relating to Association’s handling of an
election to recall Arroyo as an Association director. Arroyo contends for
various reasons the court erred in its statutory interpretation of section 5105,
particularly the meaning of “association media,” and its application to this
case. She further contends Figgers was negligent in failing to conduct the
election “with fairness” to her. Finally, Arroyo contends the recall vote failed
because Association did not get the required 505 supermajority votes under
Corporations Code section 5222, subdivision (b)(1).2
Both Association and Figgers respond that Arroyo is barred from
claiming any violation of section 5105, as a prior superior court judge decided
the same cause of action and issue against her in an earlier lawsuit.
Additionally, Figgers argues Arroyo was lawfully recalled; Association argues
substantial evidence supports the court’s finding there was a sufficient
quorum and votes cast for the recall election.
1 Undesignated statutory references are to the Civil Code.
2 Arroyo additionally argues her appeal is not moot in part because the
issues are likely to recur, her reputation must be vindicated, and the
propriety of the court’s ruling will determine whether she is entitled to
attorney fees. Neither respondent contends the issues are moot, however.
2
Construing section 5105 and the phrase “association media”
independently, we conclude Association failed to provide Arroyo equal access
to association media for purposes reasonably related to her recall election,
and thus we reverse the judgment. Our decision, however, does not
automatically void the election; that decision is left to the trial court in the
first instance as indicated in our directions below.
FACTUAL AND PROCEDURAL BACKGROUND
We state uncontested background facts from the judgment and other
facts in the light most favorable to Association and Figgers as the prevailing
parties. We resolve in favor of the trial court’s decision “ ‘any conflict in the
evidence or reasonable inferences to be drawn from the facts.’ ” (Estate of
Young (2008) 160 Cal.App.4th 62, 75-76.)3
Association is a nonprofit mutual benefit corporation4 incorporated in
1994 to manage the common interests of the Pacific Ridge subdivision. The
subdivision consists of 607 homes in San Diego, California, and is governed
by articles of incorporation, bylaws, and an amendment to a declaration of
covenants, conditions and restrictions (CC&R’s). Association’s amended
election rules, adopted in December 2019 (the election rules), govern the
3 Arroyo’s factual background states many facts without record citation.
We disregard unsupported assertions. (Cal. Rules of Court, rule
8.204(a)(1)(C); see County of Sacramento v. Rawat (2021) 65 Cal.App.5th 858,
861.)
4 In its respondent’s brief, Association states it is a nonprofit public
benefit corporation. Association’s bylaws, however, state that it is a nonprofit
mutual benefit corporation, and the trial court so found. The Corporations
Code section applicable to the removal of directors in a nonprofit mutual
benefit corporations is section 7222. It is identical in all respects to
Corporations Code section 5222, relied upon by Arroyo for her arguments
concerning the validity of the recall vote.
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election and removal of Association’s board members. Association is
managed by five directors. In connection with board elections, Association
provided a “request to serve” form to candidates. That form has blanks for
candidates to fill in their name and address, and asks, among other things,
“What experience do you have serving as a Board member or any similar
relevant experience?” An Association election rule (rule B.1.) defines
“Association Media” to mean its “newsletter, internet website, other written
communication, and/or television channel(s) from [Association]” but provides
it “does not include, within its definition, the official request to serve form
provided by [Association], for Board election.”
Arroyo is an Association member and subject to its governing
documents, including the CC&R’s and election rules. In 2021, Arroyo was
elected to serve on Association’s board of directors (the board). In March
2021, she and her husband sued Association for violations of statutes relating
to its alleged failure to conduct fair elections and adopt fair election rules
(Arroyo, et al. v. Pacific Ridge Neighborhood HOA (Super. Ct. San Diego
County, 2023, No. 37-2021-0001113-CU-OR-CTL) (Arroyo I)). In part, she
claimed Association violated section 5110 relating to the positioning of names
on the ballot to promote incumbents and board-preferred candidates. She
also claimed Association’s request to serve form violated sections 5105 and
5135. The case proceeded during her tenure on the board. In May 2023, the
court held a bench trial in that action, which concluded in early May 2023.
In July 2023, Judge Loren G. Freestone issued a final statement of
decision. The court ruled in Association’s favor on Arroyo’s causes of action.
As to whether the request to serve forms violated the law, the court ruled the
request to serve forms “could arguably constitute campaign material on
behalf of the candidate, not necessarily on behalf of the association” and that
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they were not edited or redacted by Association but left to the candidate to
prepare. It ruled there was no violation of section 5105, reasoning that even
if those forms were considered some type of association media, they were
distributed to the members for any candidate who wishes to prepare one,
giving each candidate equal access. Judge Freestone found not credible “any
evidence to the contrary . . . .”
A member circulated a petition to recall Arroyo from the board. In
November 2023, Arroyo filed a petition and complaint for a peremptory writ
of mandate, as well as injunctive and declaratory relief against Association
and Figgers to require Association to conduct the recall election according to
various statutes. Arroyo alleged she sought “equal access” to Association’s
media under section 5105, subdivision (a)(1). She further alleged she sought
to force Association to comply with ballot printing requirements of
Corporations Code sections 5222, subdivision (b)(1) and 5513, subdivision (c),
requiring the corporation specify the percentage of votes required to approve
the measure.
At some point, Association circulated a “director recall” document
containing a “candidate form” (some capitalization omitted), asking members
for a statement of their qualifications and description of why they would like
to serve as a board member. The director recall document identifies the date
and time of the recall election, and invites members interested in running for
the recall position to submit the candidate form by a specified date. The
document states that “[t]he candidate name and statement provided below
will be included with the election materials provided to the membership.”
The director recall document listed the general duties of directors. It
provided a space for a signature and date, under a statement: “YES, I am
willing to run for the Board of Directors of Pacific Ridge Neighborhood
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Homeowners Association.” Arroyo submitted a statement to Figgers, with
Arroyo’s attorney advising Figgers that Arroyo was “not a candidate, but a
sitting director who is subject to a recall election.” Figgers asked counsel to
confirm Arroyo was a candidate, in which case her statement would be
printed with the ballot. Figgers explained that “[i]f [Arroyo] is not running
her statement will NOT be mailed with the ballot as she is not a candidate
and only candidate statements are included with the ballot mailing.”
Ultimately, Figgers did not include Arroyo’s name on the ballot.
Association put out a notice of the virtual meeting and instructions, headed:
“Pacific Ridge Neighborhood Homeowners Association Recall Direction/Elect
New Director & Ballot Instructions.”5 (Underlining omitted.) Appended to
the notice was the following statement, also headed by “Pacific Ridge
Neighborhood Homeowners Association:” “The following members have
returned their Board Member Applications to be named as candidates in the
upcoming recall election. The names of the candidates have been listed in
5 In part, the notice states: “In accordance with California law and the
Association’s governing documents, the purpose of this meeting is to open,
count and tabulate the votes on the following: Whether to recall Director
Arroyo, and if the recall vote is successful, to elect a candidate to fill the
remaining term (2 years) of the recalled director. [¶] Should the recall vote
pass, the one (1) candidate receiving the highest number of votes shall be
elected to fill the remaining term of two (2) years. [¶] Enclosed you will find
a ballot to cast your vote(s) as to the following matters: [¶] Board of Director
Rachel Arroyo [¶] Vote of whether to recall/remove Director Arroyo from the
Board; and [¶] If the recall/remove vote is approved by the members, vote of
whether to block the approval of the recall/remove vote related to Director
Arroyo; and [¶] If the recall/remove vote is approved by the members, and
not blocked, which candidate should replace Director Arroyo for the
remaining two (2) year term.” (Bolding and underlining omitted.) The notice
goes on to explain how many votes are needed to conduct the recall election,
and explains that the vote is subject to Corporations Code section 7222,
subdivision (b).
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alphabetical order by last name. The Candidates who have submitted their
names to serve on the Board to replace a recalled/removed director or to
replace an expiring director’s term in the annual meeting are as follows:
“1) [name of candidate] [¶] I and my family have lived in the
community for over 10 years. I would like to bring peace, collaboration, and
time efficiency back to the Board. As a former Director for a large Sorrento
Valley microchip firm, I am quite confident I have the skill set to accomplish
the task.”
In December 2023, Association held the recall election, hiring Figgers’s
company as the elections inspector. At the conclusion of that election, 375
ballots were opened and tallied. 369 members voted to recall Arroyo from the
board, and six voted against recalling her (five voting no, and one abstaining).
Six members voted to block the recall, and six members abstained from
blocking the recall. At the same time, members elected as a replacement
director the one member who had submitted a candidate statement and was
identified on the ballot.
Following the election, Arroyo moved for declaratory and injunctive
relief to void the election. Association, specially appearing, opposed the
motion, in part arguing Arroyo’s motion was procedurally improper, and she
was reiterating arguments she had already made and lost at trial such that
they were barred by res judicata.
In February 2024, Arroyo filed an amended petition and complaint
seeking to overturn the recall election. She included three causes of action:
(1) violation of the equal-access provision of section 5105, subdivision (a); (2)
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negligence against Figgers and (3) violation of Corporations Code sections
5513, subdivision (c) and 5222, subdivision (b)(1).6
The court conducted a hearing on the matter in April 2024, treating it
as a bench trial on Arroyo’s first amended petition and complaint. It
thereafter issued a judgment in Association and Figgers’s favor. As to
Arroyo’s claim of a section 5105, subdivision (a)(1) violation, it ruled: “[T]he
‘candidate form’ utilized by defendants for the recall election is not
‘association media’ within the meaning of . . . section 5105, subdivision (a)(1).
The court agrees with Judge Freestone’s conclusion in Arroyo I that
[Association’s] election rule B.1 does not violate, and is consistent with, . . .
section 5105. Rule B.1 defines ‘association media’ as ‘[Association’s]
newsletter, internet website, other written communication, and/or television
channel(s) from [Association].’ Rule B.1 also specifically excludes from the
definition ‘the official request to serve form provided by [Association], for
Board election.’
“[Arroyo] argues the candidate form utilized by defendants in the recall
is substantially different from the ‘request to serve’ form used in prior
elections and therefore does not fall within the exclusion. The court
disagrees; the obvious intent of the exclusion was to tether statements by
candidates (introducing themselves to the voting membership) to the ballot
materials, thereby distinguishing them from [Association’s] communication
network. Whether described as request to serve forms or candidate forms,
they are akin to ballot materials, which are not ‘association media.’
6 After Arroyo filed her post-election motion, the trial court deemed it to
be Arroyo’s first amended petition. But Arroyo then filed a new pleading that
she denominated her first amended petition, and the trial court allowed that
to be her operative pleading.
8
“Second, even were the court to accept [Arroyo’s] argument and
construe the candidate form as not falling within the exclusion, the court
would still conclude the form is not ‘association media,’ as it does not fall
within the categories specified in the first sentence of rule B.1. Of those
categories, the only one that arguably captures the candidate form is ‘other
written communication,’ but this category cannot be read in isolation. Read
in context, this category refers to written communications similar to
[Association’s] newsletter and internet website (i.e., its ongoing [Association]-
wide communication network).
“The court also rejects [Arroyo’s] extraordinarily broad interpretation of
the word ‘media’ in . . . section 5105, subdivision (a)(1), to include all forms of
transmitting any kind of communication. The Legislature cannot have
intended such a broad meaning of the word ‘media,’ as it would render the
terms ‘newsletters, or internet websites’ meaningless surplusage. [Citations.]
“In sum, declining to distribute [Arroyo’s] candidate form did not deny
[Arroyo] equal access to association media because the candidate form is not
association media. Accordingly, [Association] did not violate . . . section 5105,
subdivision (a).”
The court further ruled in Association’s favor on Arroyo’s claim of
violations of Corporations Code sections 5513, subdivision (c) and 5222,
subdivision (b)(1). Finding that subdivisions (a) and (b) of section 5222 are
“plainly meant to be read together,” it ruled that because Association had
more than 50 members, it was governed by Corporations Code section 5034,
and thus to recall Arroyo Association needed a majority of members to vote
for recall “ ‘at a duly held meeting at which a quorum is present.’ ” The court
ruled Arroyo “cannot rely on the exception set forth in Corporations Code
section 5222, subdivision (b)(1), to block the recall vote. That provision
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states: [‘]In a corporation in which the articles or bylaws authorize members
to cumulate their votes pursuant to subdivision (a) of Section 5616, no
director may be removed (unless the entire board is removed) if the votes cast
against removal, or not consenting in writing to the removal, would be
sufficient to elect the director if voted cumulatively at an election at which
the same total number of votes were cast (or, if the action is taken by written
ballot, all memberships entitled to vote were voted) and the entire number of
directors authorized at the time of the director’s most recent election were
then being elected.[’] ”
The court rejected Arroyo’s argument that the clause “or not consenting
in writing to the removal” referred to Association members who did not vote.
It reasoned: “That clause must be read in context with the whole section,
particularly the first part of the section prior to the clause [Arroyo] relies on.
The only logical way to read that part of the section is that ‘or not consenting
in writing to the removal’ refers to the ‘votes’ from members in the removal
election. In other words, where cumulative voting is authorized by articles or
bylaws, a director cannot be removed if, with respect to the recall election,
the votes cast against removal or the votes not consenting in writing to the
removal (i.e., participating members who abstained), would have been
cumulatively sufficient to elect the removed director in a hypothetical election
in which all director seats are open and all members voted (as action was by
written ballot).
“Here, [Association] reached well beyond the 33 [percent] quorum
required by Corporations Code sections 5222[, subdivision] (a)(2) and 5034,
and its bylaws, because 375 votes were cast (61.78 [percent] of the 607 voting
members). Of those 375 votes, only 6 were against recall (5 no, 1 abstain). Of
the 375 votes on whether to block the recall, only 6 were in favor of blocking,
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and 6 abstained. In a hypothetical election in which all five director seats are
open and all 607 members vote, the candidates for each seat would need at
least 304 votes to win any given seat. Thus, even with cumulative voting,
[Arroyo] would have needed at least 61 members to vote against recall or
abstain (majority of 607 is 304, divided by 5 is 60.8). Whether in relation to
the actual recall vote or the vote to block the recall, [Arroyo] fell well short of
that minimum, even if the no recall and abstention votes are added together
instead of counted separately (as the ‘or’ in the clause would suggest should
be done).” The court ruled Association did not violate Corporations Code
sections 5222, subdivision (b) or 5513, subdivision (c): “An appropriate
quorum was reached, and a vast majority of that quorum voted to recall
[Arroyo].”
Finally, the court ruled that because Arroyo’s negligence cause of action
was founded on the alleged statutory violations, its findings meant
Association and Figgers “cannot have acted negligently in proceeding with
and conducting the recall election.”
Arroyo filed this appeal.
DISCUSSION
I. Standard of Review
The parties disagree on the applicable standard of review. Arroyo
contends the trial court’s judgment was based entirely on statutory
interpretation, and thus this court must review the judgment de novo.
Association maintains the court resolved questions of fact, namely whether
the candidate statement, considering its distribution and content, was
“association media” as well as whether sufficient votes were cast for the
recall. It argues because the questions required factual investigation, we
must review its determinations for substantial evidence. Figgers more
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generally argues that we review factual findings stemming from the bench
trial for substantial evidence, and the court’s interpretation of Association
bylaws and California statutes de novo.
We independently review Arroyo’s first claim—that the trial court
erred in its interpretation of the term “association media” in section 5105,
subdivision (a). “The interpretation of statutes presents questions of law we
review independently.” (Fourth La Costa Condominium Owners Assn. v.
Seith (2008) 159 Cal.App.4th 563, 571; Asaro v. Maniscalco (2024) 103
Cal.App.5th 717, 738 [decision turning on the meaning of words used in a
statute “presents ‘a question of law that we review de novo’ ”].)
With respect to the validity of the recall election and the requisite
number of votes, we see no dispute in the decisive underlying facts. In such a
case, the issue raises only questions of law that we “address[ ] de novo, based
on interpretation of the statutes and governing documents.” (Friars Village
Homeowners Assn. v. Hansing (2013) 220 Cal.App.4th 405, 411-412; see also
Lake Lindero Homeowners Association, Inc. v. Barone (2023) 89 Cal.App.5th
834, 844 [plaintiff’s “contentions challenge the trial court’s application of the
bylaws and statutes to essentially undisputed facts. The contentions are
therefore subject to our de novo review”].)
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II. Interpreting “Association Media” in Section 51057
As a nonprofit mutual benefit corporation created to manage the
common interests of the Pacific Ridge subdivision, Association is governed by
the standards set forth in the Davis-Stirling Act. (Villa De Las Palmas
Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81; Nahrstedt v. Lakeside
Village Condominium Assn. (1994) 8 Cal.4th 361, 377; That v. Alders
Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1425.) It therefore must
comply with the Act’s provisions and operate in accordance with its own
governing documents. In the event of a conflict between Association’s
governing documents and the Act, the Act “shall prevail . . . .” (§ 4205, subd.
(a).) Likewise, if there are conflicts between Association’s operating rules and
the bylaws, the bylaws prevail. (§ 4205, subd. (d).)
Section 5105 provides: “An association shall adopt operating rules . . .
that do all of the following: [¶] . . . Ensure that if any candidate or member
advocating a point of view is provided access to association media,
newsletters, or internet websites 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. The association shall not edit or redact any content from these
7 Association asks us to hold Arroyo forfeited this argument for
insufficient or omitted citations to the record in violation of California Rules
of Court, rule 8.204(a)(1)(C). For example, Association claims Arroyo’s
assertion about a September 8, 2023 notice of the recall election is
unsupported by her record citation to page 611 of the appellant’s appendix.
The referenced document at page 611—the director recall document—in fact
contains a footer reading “September 8, 2023.” While we disregard assertions
that are unsupported by citations to the record, we do not find Arroyo’s
arguments—which constitute questions of law, forfeited.
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communications, but may include a statement specifying that the candidate
or member, and not the association, is responsible for that content.” (§ 5105,
subd. (a)(1).)
Arroyo advances several arguments concerning the interpretation of
the phrase “association media” in section 5105. Relying on the words’ plain
meaning, legislative intent and history as explained in Wittenburg v.
Beachwalk Homeowners Association (2013) 217 Cal.App.4th 654
(Wittenburg), she argues association media means any method of
communication under Association’s control or support, by which it is possible
for any candidate or member to advocate a point of view. She argues the
meaning is broad enough to include the candidate statement, which was
distributed to the membership with ballots and Association-paid postage.
She contends the term—which was included in Senate Bill No. 61 so as to
“provide substantial new voting protections” to homeowner association
members—should be liberally construed to foster the Legislature’s objectives.
Arroyo further contends the court’s ruling impermissibly relies on a board-
created exclusion intended to evade section 5105’s equal-access requirements.
Both Association and Figgers respond that Arroyo is barred from
relitigating this contention given Judge Freestone’s ruling in Arroyo I.
Association raises the doctrine of res judicata or claim preclusion, claiming
Arroyo is attempting to litigate the same cause of action. Figgers argues
Arroyo is barred under collateral estoppel or issue preclusion, as she seeks to
relitigate the identical issue. We begin with these contentions.
A. Claim and Issue Preclusion
“Claim and issue preclusion have different requirements. . . . [C]laim
preclusion . . . appl[ies] ‘only when “a second suit involves (1) the same cause
of action (2) between the same parties [or their privies] (3) after a final
14
judgment on the merits in the first suit.” ’ [Citation.] Issue preclusion, by
contrast, ‘applies only “(1) after final adjudication (2) of an identical issue (3)
actually litigated and necessarily decided in the first suit and (4) asserted
against one who was a party in the first suit or one in privity with that
party.” ’ ” (Grande v. Eisenhower Medical Center (2022) 13 Cal.5th 313, 323,
italics omitted.)
Arroyo’s operative pleading in Arroyo I was labeled a class action
complaint alleging two causes of action with multiple counts. In her first
cause of action (entitled “Violation of Duty to Conduct Fair Elections”) Arroyo
alleged Association “use[d] its media and newsletters to promote incumbents
and candidates that are preferred by the Board” and “used its resources to
censor and redact the completed Request to Serve form before copying and
distributing to the membership,” which violated sections 5105 and 5135. She
alleged Association modified the request to serve form “from election to
election in order to elicit whatever responses would place the Board endorsed
candidates in the best possible light” and “prohibited” other information that
candidates sought to publish to promote themselves. Arroyo alleged the
breaches of equal access resulted in “unjust and unfair elections” causing
incumbents and board-endorsed candidates to win, while challengers were
unable to win. In her second cause of action (entitled “Violation of Section
5105’s Requirement to Create and Adopt Fair Election Rules,” some italics
omitted), Arroyo claimed a violation of section 5105’s “equal access to
association media” requirement, alleging in part that Association’s “request
to serve” form was an “ ‘official’ communication from the Association” and
“precisely the type of communication from the association that the law
requires to be subject to the equal[-]access provisions of section 5105” as well
as the “single most important communication during the election.” She
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alleged Association’s attempt to redefine association media in its election
rules violated section 4205, requiring the law to prevail over Association
governing documents.
Judge Freestone’s statement of decision characterizes Arroyo’s first
cause of action as whether the request to serve form violated sections 5105
and 5135, and her second cause of action as pertaining to “whether
[Association’s] Election Rule (B)(1) violates . . . section 5105[, subdivision
(a)(1)] . . . .” As summarized above, the court ruled there were no conflicts or
violations.
Arroyo’s operative pleading in the present case is her February 2024
petition and complaint. That pleading pertains to the validity of the recall
election. Arroyo’s first cause of action alleges Figgers’s refusal to distribute
Arroyo’s statement to the membership in connection with the recall ballot
violated the equal-access provisions of section 5105, subdivision (a) because
although she was not a “candidate,” she was a member entitled to section
5105’s protection. Arroyo alleges that “[h]aving her statement printed and
delivered to all the members was obviously critical to her campaign to retain
her seat on the Board. For most members, the material sent with the ballots,
such as the candidate statements, are the only campaign materials that the
voting members see. Also, because it is sent at Association’s expense and
with the official ballots it has an imprimatur of ‘officialness’ that other forms
of campaigning don’t have.” She alleged that because her “statement was not
printed and distributed with the rest of the ballot materials as the statement
from the candidate, she was denied the same ‘equal access’ to express her
point of view the same as any candidate, or any other member.”
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1. The Issues are Not Identical
Our conclusion as to issue preclusion is straightforward. For purposes
of that doctrine, “ ‘ “ ‘[t]he “identical issue” requirement addresses whether
“identical factual allegations” are at stake in the two proceedings, not
whether the ultimate issues or dispositions are the same.’ ” ’ ” (Rodriguez v.
Lawrence Equipment, Inc. (2024) 106 Cal.App.5th 645, 659; see also Lucido v.
Superior Court (1990) 51 Cal.3d 335, 342.) That is not the case here, where
Arroyo’s current petition and complaint’s allegations are specific to the recall
election and candidate statement appended to the recall ballot, whereas her
prior class action complaint pertained to Association’s use and
characterization of its request to serve form. Figgers does not acknowledge or
address the relevant standard or compare the factual allegations of the
respective pleadings. She asserts only that the question of whether the
request to serve form and the candidate form violate section 5105 are the
same issue because the two forms “both fill a singular purpose—to initiate a
member’s candidacy for election and tether the candidates’ general
information to the ballot.” The argument does not convince us that issue
preclusion applies.
2. The Class Action Causes of Action of Arroyo I Differ From the
Present Causes of Action
We readily dispose of Association’s claim preclusion arguments as well.
“ ‘Two proceedings are on the same cause of action if they are based on the
same “primary right.” [Citation.] The plaintiff’s primary right is the right to
be free from a particular injury, regardless of the legal theory on which
liability for the injury is based. [Citation.] The scope of the primary right
therefore depends on how the injury is defined. A cause of action comprises
the plaintiff’s primary right, the defendant’s corresponding primary duty, and
17
the defendant’s wrongful act in breach of that duty. [Citation.] [¶] An injury
is defined in part by reference to the set of facts, or transaction, from which
the injury arose.’ ” (Silverado Modjeska Recreation & Parks District v.
County of Orange (2011) 197 Cal.App.4th 282, 297-298; see Boeken v. Philip
Morris USA, Inc. (2010) 48 Cal.4th 788, 798 [“the cause of action is the right
to obtain redress for a harm suffered, regardless of the specific remedy sought
or the legal theory (common law or statutory) advanced”].) The harm
suffered is the “significant factor” in determining whether the same cause of
action is involved in two suits. (Cal Sierra Development, Inc. v. George Reed,
Inc. (2017) 14 Cal.App.5th 663, 675-676.)
Association does not discuss the primary right theory or apply it to
Arroyo’s pleadings. It argues only that Arroyo “brings [the present] action
under the same section of the Civil Code, under the equal[-]access provision,
regarding its application to the same materials which are prepared by
candidates—and are circulated in the same way—with ballot materials.
Appellants [sic] contentions that ballot materials containing candidate
statements are association media have not changed from Arroyo I.”
According to Association, as a result, “[t]here can be no question that the
instant action is an identical cause of action which [Arroyo] has already
brought.”
The argument without analysis of primary rights does not persuade us
to apply claim preclusion. In any event, we view Arroyo’s claims as involving
two distinct injuries or primary rights based on differing sets of facts: In
Arroyo I, the alleged injury in Arroyo’s first cause of action was to a putative
class of homeowners that would be governed by unethical or incompetent
board members; a board “with the ability to squander the Association’s
resources and . . . corrupt its elections” stemming from Association’s conduct
18
of assertedly unfair board elections and failure to adopt fair election rules.
As Arroyo alleged it, Association manipulated the position of names on the
ballot so as to elect board members unresponsive to the desires of
homeowners; used its media to promote incumbents and preferred candidates
and censored candidate responses; and breached equal-access rules by (1)
allowing the board president, but not anyone else, to include a photograph as
part of his candidate statement as well as (2) redefining “association media”
to exclude the request to serve form in order to “promote Board endorsed
candidates.”
The alleged injury in the present case, in contrast, is to Arroyo alone,
and her inability to defend herself in the recall election and subsequent loss
of her board position. The injury stemmed not from Association’s handling of
the request to serve form in board elections, but its refusal to include her
candidate statement with the ballot materials in the recall election. Claim
preclusion does not apply to these differing sets of facts and transactions.
B. The Plain Meaning of Association Media Encompasses the Candidate
Statements Accompanying Ballot Materials
We turn to the merits of Arroyo’s claim concerning the interpretation of
the phrase “association media” in section 5105. Its resolution is a matter of
statutory construction that we conduct independently. “ ‘ “ ‘ “When we
interpret a statute, ‘[o]ur fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine
the statutory language, giving it a plain and commonsense meaning . . . . If
the language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did
not intend.’ ” ’ ” ’ [Citation.] However, ‘ “ ‘ “ ‘[i]f the statutory language
permits more than one reasonable interpretation, courts may consider
19
other aids, such as the statute’s purpose, legislative history, and public
policy.’ ” ’ ” ’ ” (Gutierrez v. Tostado (2025) 18 Cal.5th 222, 231.) “ ‘We do not
examine [statutory] language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment.’ ” (Asaro v. Maniscalco, supra,
103 Cal.App.5th at p. 738.)
“The equal-access provision of [former section 1363.03, now section
5105] subdivision (a)(1) is triggered any time a ‘member’ advocates a point of
view using association media.” (Wittenburg, supra, 217 Cal.App.4th at p.
664.) There are several dictionary definitions of the word medium and its
plural, media: Merriam-Webster.com defines medium as “a means of
effecting or conveying something” and “media” as “a channel or system of
communication, information, or entertainment.” (http://www.merriam-
webster.com/dictionary/medium.) The Oxford English Dictionary defines
“media,” in part, as “[t]he main means of mass communication, esp.
newspapers, radio, and television, and . . . content accessed via the internet,
regarded collectively.” (www.oed.com.) OxfordDictionaries.com defines it as
“[a] means by which something is communicated or expressed.”
(http://www.oxforddictionaries.com/us/definition/american english/medium;
see also Dictionary.com (http://dictionary.reference.com/browse/media
[defining “media” as “the means of communication, as radio and television,
newspapers, and magazines, that reach or influence people widely”]).)
Here, the plain meaning of the word “media” is dispositive. It
encompasses Association’s notice of the recall election and the attached
candidate statement. The notice—put out by Association as evidenced by its
heading—communicated the recall election’s date and time as well as voting
instructions to the membership and circulated the single member’s statement
20
(also underneath Association’s heading) explaining his intentions if elected as
the replacement board member. There can be no other purpose of the
candidate statement than to convince members to vote for him. “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.)”
(Wittenburg, supra, 217 Cal.App.4th at p. 666.) Because the materials
permitted a member to “advocate[ ] a point of view” within Association’s
notice “during a campaign, for purposes that are reasonably related to that
election” (§ 5105, subd. (a)(1)), Association was obligated to provide equal
access to Arroyo, a member, to advocate her point of view “for purposes that
are reasonably related to the election.” (Ibid.)
Wittenburg emphasized that section 5105 reflects the “Legislature’s
particular concern that viewpoints opposing the [homeowner association]
board be heard.” (Wittenburg, supra, 217 Cal.App.4th at p. 666.) The
appellate court in Wittenburg reviewed a trial court’s interpretation of the
statute that would have excluded from the equal-access rule a homeowner
association’s use of its own media to endorse a candidate or viewpoint. (Ibid.)
It held board members are treated as any other member, agreeing with the
proposition that the trial court’s rule “would allow those in power the
advantage of using Association media to advocate a point of view to the
exclusion of any opposing view,” a construction that was “fundamentally
21
unfair” and “would facilitate rather than cure the evils intended to be
remedied by the statute.” (Id. at p. 665.)8
In this case, when Association invited members to run for replacement
board position in the recall election and included with its notice and ballot
materials a candidate testimonial advocating that members vote for him
upon a successful recall, it was obligated to give other members equal access
to advocate their point of view, so long as it was for “purposes that are
reasonably related to the [recall] election.” (§ 5105, subd. (a)(1).) As in
Wittenburg, our application of the plain meaning of media—a means or
channel of communication or information—“is consistent with the overall
nature and purposes of [section 5105.] 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.)” (Wittenburg,
supra, 217 Cal.App.4th at p. 666.) Wittenburg held the statute is “thus
8 Wittenburg does not address or turn on the definition of “association
media.” It held that board members were undisputedly association members
for purposes of section 5105, subdivision (a)(1)’s equal-access provision.
(Wittenburg, supra, 217 Cal.App.4th at p. 665.) There, the board exhorted
members to vote to amend the association’s CC&R’s in a cover letter with a
ballot, made arguments in a newsletter without inviting nonboard members
to provide opposing viewpoints in the newsletter (id. at pp. 658-661), and
denied homeowners use of a community bulletin board, common area space,
and website. (Id. at pp. 661-662.) The Wittenburg court explained the rule
was triggered by “advocacy” not “campaigning,” and held the board’s
communications were advocacy, as they encouraged members to vote yes on
the amendment. (Id. at pp. 666-667.)
22
remedial in nature,” explaining that “ ‘[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.’ ” ’ ” (Ibid.) Our decision
construes the statute accordingly.
Association’s election rule B.1. limiting the definition of association
media does not change our conclusion. That rule only excludes from the
ambit of association media the request to serve form “for Board election.” It
does not address the recall notice or candidate statement form here, used for
Arroyo’s recall election. In any event, rule B.1. includes within its definition
of association media “other written communication . . . from [Association].”
The term is broad enough to encompass communications written by another
member in a document circulated to the membership by Association, as was
the candidate statement here.
Association and Figgers’s arguments to the contrary are unavailing.
Association argues substantial evidence supports the trial court’s finding that
the candidate statement is not association media. It points to the fact the
candidate statement is a “two sentence statement prepared by [the
candidate] which was included in the ballot materials circulated in the recall
election” and was “not circulated in the Association newsletter, posted on any
website maintained by the Association, or prepared on behalf of the
Association.” Figgers maintains that Association media refers to “channels of
communication the Board uses to ‘advocat[e] a point of view’ ” and not
“ ‘purely informational’ ” matters (Italics added.) She argues the candidate
statement “form does not ‘advocat[e] a point of view’ of the [Association]”
(italics added) or even advocate a point of view generally, but rather is solely
23
informational. According to Figgers, if the phrase is defined broadly, then
the addition of “newsletters” and “internet websites” would be rendered
meaningless surplusage.
Association’s arguments are misplaced. Because the relevant facts are
undisputed as to the candidate statement’s content and manner of
distribution, the question is one that we decide independently. And the
language of section 5105 shows it is triggered where “any candidate or
member [is] advocating a point of view”; it need not be a point of view held by
the Association. We disagree that the member’s candidate statement was
solely informational, it was plainly intended to convince members to vote for
him to replace Arroyo. Finally, Figgers’s surplusage point is in substance an
argument that the trial court got the statute’s interpretation right; she does
not otherwise analyze what more narrow definition of media the Legislature
must have intended by listing media along with “newsletters and internet
websites.” Nor does she provide legislative history that would explain why
the term media should be given a narrow or more specific construction. In
sum, we conclude that under section 5105, Arroyo should have been given
equal access to the recall ballot materials—including the candidate
statement—for purposes reasonably related to the recall election, which
would include stating her position against the recall efforts. We leave it to
the trial court to decide what other purposes might be reasonably related to
that election.
Because Association failed to comply with section 5105, subdivision
(a)(1) to provide Arroyo equal access to association media, we reverse the
judgment. However, on remand the court must exercise some discretion
about voiding the election: “[A] violation of [section 5105] subdivision (a)(1)
does not automatically void the election results.” (Wittenburg, supra, 217
24
Cal.App.5th at p. 667.) Wittenburg referenced former section 1363.09,9 which
is now section 5145. (Cal. Law Revision Com. com., 12B Pt. 2 West’s Ann.
Civ. Code (2016 ed.) foll. § 5145, p. 93; Artus v. Gramercy Towers
Condominium Assn. (2018) 19 Cal.App.5th 923, 944 [“section 5145 merely
‘continue[d]’ [former section 1363.09’s] remedial provisions”].) Section 5145,
subdivision (a) provides: “If a member establishes . . . that the election
procedures of this article . . . were not followed, a court shall void any results
of the election unless the association establishes, by a preponderance of the
evidence, that the association’s noncompliance with this article or the election
operating rules did not affect the results of the election. The findings of the
court shall be stated in writing as part of the record.” (Italics added.) The
trial court on remand must consider Association’s showing and make this
determination in the first instance.
III. Negligence and Validity of the Recall Election
Our reversal of the judgment renders moot Arroyo’s claims concerning
negligence and the recall election’s validity based on the number of votes
cast. (See Lake Lindero Homeowners Association v. Barone, supra, 89
Cal.App.5th at p. 840 [it is the duty of every judicial tribunal “not to give
opinions upon moot questions”].) For the parties’ and trial court’s guidance,
however, we briefly address Arroyo’s contention that the recall election failed
because Association did not obtain the supermajority vote of 505 members it
assertedly needed under the Corporations Code to pass the recall. Again, the
parties incorrectly rely on Corporations Code section 5222, subdivision (b)(1);
9 Former section 1363.09 provided that on a finding of a violation of the
article’s election procedures, “a court may void any results of the election.”
(Former § 1363.09, subd. (a), italics added; see also Wittenburg, supra, 217
Cal.App.5th at p. 667.)
25
because Association is a nonprofit mutual benefit corporation, the relevant
section is Corporations Code section 7222. The statutes are identical.
Corporations Code section 7222 provides in part: “Subject to
subdivisions (b) and (f), any or all directors may be removed without cause if:
[¶] . . . In a corporation with 50 or more members, the removal is approved
by the members (Section 5034).” (Corp. Code, § 7222, subd. (a).) Subdivision
(b) of section 7222 provides in part: “In a corporation in which the articles or
bylaws authorize members to cumulate their votes pursuant to subdivision
(a) of Section 7615, no director may be removed (unless the entire board is
removed) when the votes cast against removal, or not consenting in writing to
the removal, would be sufficient to elect the director if voted cumulatively at
an election at which the same total number of votes were cast (or, if the
action is taken by written ballot, all memberships entitled to vote were voted)
and the entire number of directors authorized at the time of the director’s
26
most recent election were then being elected.” (Corp. Code, § 7222, subd.
(b)(1).)10
Here, the trial court ruled subdivision (b)(1) of this statute did not
apply, but rather the recall election was governed by Corporations Code
section 5034. We agree. Association’s bylaws state: “Cumulative-voting is
required for all elections in which more than two (2) directors are to be
elected, subject to the procedural prerequisites prescribed in Section 7615[,
subdivision] (b) of the California Corporations Code. (Italics added.) Under
this provision, cumulative voting is not authorized for an election of only one
director, which was the case here, where the election was to recall Arroyo and
replace her with one new director.
Under these circumstances, the court properly invoked subdivision
(a)(2) of Corporations Code section 7222. The “plain terms” of Corporations
10 A leading treatise on common interest developments refers to the
application of Corporations Code section 7222, subdivision (b)(1) as
“somewhat complex” and the statute as a “rather badly worded code
provision” that “has defied many attempts at interpretation.” (2 Hanna &
Van Atta, Cal. Common Interest Developments: Law and Practice (2025 ed.)
Removal, § 18.71.) In particular, the authors say the meaning of the
statutory language on which Arroyo relies—“votes cast against removal, or
not consenting in writing to the removal”—“could be debated, which is a
reason that the statute should be amended.” (Id.) Association’s bylaws as to
removal of directors essentially restate Corporations Code section 7222,
subdivision (b)(1), but eliminate the parenthetical “(or, if the action is taken
by written ballot, all memberships entitled to vote were voted).” It provides:
“Unless the entire Board is removed from office by the vote of the Members,
an individual director shall not be removed prior to the expiration of his or
her term of office if the number of votes cast against his or her removal or not
consenting in writing to his or her removal would be sufficient to elect him or
her if voted cumulatively at an election at which the same total number of
votes were cast and the entire number of directors authorized at the time of
the most recent election of the governing Board member were then being
elected.”
27
Code section 7222, subdivision (a)(2), “for a corporation with 50 or more
members . . . dictate that the removal need only be ‘approved by the
members’ as that phrase is defined in section 5034.” (Lake Lindero
Homeowners Association v. Barone, supra, 89 Cal.App.5th at p. 845.) The
Lake Lindero court explained: “[Corporations Code s]ection 5034 provides:
‘ “Approval by (or approval of) the members” means approved or ratified by
the affirmative vote of a majority of the votes represented and voting at a duly
held meeting at which a quorum is present (which affirmative votes also
constitute a majority of the required quorum) or written ballot . . . or by the
affirmative vote or written ballot of such greater proportion, including all of
the votes of the memberships of any class, unit, or grouping of members as
may be provided in the bylaws (subdivision (e) of [Corporations Code s]ection
5151, subdivision (e) of [Corporations Code s]ection 7151, or subdivision (e) of
[Corporations Code s]ection 9151) or in Part 2, Part 3, Part 4 or Part 5 for all
or any specified member action.’ (Italics added.) The statute’s reference to
subdivision (e) of [Corporations Code] section 7151 is critical because, while
[Corporations Code] section 5034 permits a nonprofit mutual benefit
corporation to require a greater proportion of votes in its bylaws,
[Corporations Code] section 7151, subdivision (e) expressly withdraws this
authorization for a vote to remove a director from the corporation’s board. [¶]
[Corporations Code s]ection 7151, subdivision (e) provides: “The bylaws may
require, for any or all corporate actions (except as provided in paragraphs (1)
and (2) of subdivision (a) of [Corporations Code s]ection 7222 . . .) the vote of a
larger proportion of, or all of, the members or the members of any class, unit,
or grouping of members or the vote of a larger proportion of, or all of, the
directors, than is otherwise required by this part.’ ” (Lake Lindero, at pp.
845-846.)
28
Lake Lindero involved association bylaws (art. VI, § 3) that provided an
individual director could be removed from office “with or without cause at any
time by a vote of the majority of the votes held by the entire membership of
record at any regular or special meeting of members.” (Lake Lindero
Homeowners Association v. Barone, supra, 89 Cal.App.5th at p. 845.) The
court held the association could not enforce that bylaw provision: “Because
[Corporations Code] section 7151, subdivision (e) expressly prohibits a
nonprofit mutual benefit corporation with 50 or more members (like the
Association) from requiring a greater proportion of votes than is specified in
[Corporations Code] section 7222, subdivision (a)(2) for the removal of a
director, the trial court correctly concluded article VI, section 3 of the
Association’s bylaws could not be enforced to invalidate the recall election.
And, because [Corporations Code] section 7222, subdivision (a)(2) requires
only ‘approv[al] by the members’ as defined in [Corporations Code] section
5034 to remove a director ([Corp. Code,] § 7222, subd. (a)(2)), the trial court
correctly concluded the recall was valid if approved ‘by the affirmative vote of
29
a majority of the votes represented and voting at a duly held meeting at
which a quorum is present.’ ([Corp. Code,] § 5034.)” (Id. at p. 846.)11
11 Arroyo’s claim as to subdivision (b)(1) of Corporations Code section
7222 turns on interpretation of its phrase “votes cast against removal, or not
consenting in writing to the removal . . . .” She argues “or not consenting in
writing to the removal” means members who do not vote at all, not just
members who participated in the vote but abstained, as the trial court
reasoned. The trial court interpreted the statute to mean that the phrase “or
not consenting in writing to the removal” refers to the preceding votes cast,
such that it refers either to votes (1) against removal or (2) votes “not
consenting in writing to the removal” such as abstentions. We need not reach
the question. But we observe that the treatise referenced above provides the
following formula: “A formula based on [Corporations Code section 7222,
subdivision (b)(1)], for determining the number of votes needed to elect a
certain number of directors when voting cumulatively is stated as follows: X
= [(MxD)/(N+1)]+1. [¶] X = Number of votes needed to elect a director; M =
Number of members entitled to vote; D = Number of Directors to be elected or
removed; N = Total number of Directors.” (2 Hanna & Van Atta, supra,
§ 18.71, comment, quoting Ballantine and Sterling, California Corporation
Laws (4th ed. 1996) § 176.03[3].) This treatise further states that “[i]n
calculating the number of votes for retention (or against removal) the votes
should include those voting against removal (or for retention), and in
addition, those not voting at all.” (Hanna & Van Atta, § 18.71, italics added.)
As we have already indicated, the authors, however, go on to say that the
“meaning of that clause [‘votes cast against removal, or not consenting in
writing to the removal’] could be debated . . . .” (Ibid.) The Legislature
should provide clarity on this issue, particularly given the proliferation of
common interest development communities governed by directors.
30
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to
conduct further proceedings so as to give Association the opportunity to
establish, by a preponderance of the evidence, that its noncompliance with
section 5105 did not affect the results of the election, and state its findings in
writing as part of the record. Arroyo shall recover her costs on appeal.
O’ROURKE, Acting P. J.
WE CONCUR:
BUCHANAN, J.
CASTILLO, J.
31
Filed 12/1/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RACHEL ARROYO, D084293
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2023-00050446-CU-WM-CTL)
PACIFIC RIDGE NEIGHBORHOOD
HOMEOWNERS ASSOCIATION et al., ORDER CERTIFYING
Defendants and Respondents. OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed November 4, 2025, was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
O’ROURKE, Acting P. J.
Copies to: All parties