Statutory Consent Requirement for HOA Gives Rise to Common Interest with Homeowners

Sehaus La Jolla Owners Association v. Superior Court, D064567 (D4d1 Mar. 12, 2014)

A homeowners’ association sued a developer over construction defects in common areas of a common interest development. While the board of the HOA was contemplating bringing the litigation, its attorneys met with the homeowners—some of whom would later bring claims arising from defects in their own units. It did so to inform them about it and obtain their majority’s consent to the litigation, as is required under Civil Code § 6150 and some regs governing HOAs. Over the HOA’s privilege objections, the developer sought discovery over what was said in these meetings. In a series of not-too-clear rulings, the trial court overruled the objections. The HOA sought mandamus. Unsurprisingly, the court of appeal grants the writ. Although prior cases establish that the attorney’s client is the HOA and its board and not the individual homeowners, given the requirement to inform and obtain consent from the homeowners, any discussions between the attorney and the homeowners were subject to attorney-client privilege, which was not waived due to the common interest doctrine.

Writ granted.