Director Email Discussions: Proceed with Caution!


Dyanne L. Peters, Esq. of Delphi Law Group, LLP


The recent decision by the Fourth Appellate District Court of Appeals in LNSU #1 LLC v. Alta Del Mar Coastal Collection Community Assn., released on August 25, 2023, held that email discussions among board members related to items of association business did not violate the Open Meeting Act (“Act”), because such email exchanges are not considered “board meetings” as that term is defi ned in Civil Code 4090(a).


A “board meeting” is defi ned under Civil Code Section 4090(a) as “a gathering of a quorum of the directors of a board of homeowners association at the same time and in the same physical location for the purpose of transacting any matter of association business that is within the board’s purview.” The court reasoned that the Legislature, in using the words “congregation” and “at the same time and place,” intended the directors to come together simultaneously in one physical location. Thus, per the court’s reasoning, sending emails hours and days apart (different times) from different locations does not constitute a board meeting within the meaning of Section 4090(a).


The court also held that “e-mail exchanges among directors on those items that occur before a board meeting and in which no action is taken on the items … do not constitute board meetings within the meaning” of Civil Code Section 4090(a).


There are some issues raised in the wake of this decision, especially with regard to the public policy concerns surrounding the idea of transparency in board discussions.


The court attempted to address these concerns by reasoning that discussing items of association business via email is not contrary to the purpose of the Act because the directors took no “action” on the items in the emails. Thus, the court concluded that while the Act prohibits a board from taking action on items of association business outside of a board meeting, it does not prohibit the board from discussing the items outside of a meeting.


However, there are still some issues with this line of reasoning. First, one of the purposes of the Act is to promote transparency. The Act states: “It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” The holding in LNSU #1 appears to undermine this legislative intent.


The idea that members of the association can witness the deliberations and decision- making process of the board on an item of business during an open board meeting is fundamental to the idea of transparency. Allowing discussions to take place outside of an open meeting, whether in emails or otherwise, frustrates this purpose.


Also problematic is that the court failed to provide a defi nition of “action.” Without explaining what constitutes an “action,” there is no guidance or criteria to assist boards to know when discussions may cross the line into an “action.” There is often a fi ne line between discussion and decision where it may be unclear whether the deliberation on an issue has turned into an agreement on an action. There is also nothing to prevent an unscrupulous board from conducting essentially all of their deliberations via a series of emails, nullifying the purpose of the Act by leaving the members in the dark.


Furthermore, email “discussions” between board members are discoverable and will need to be produced during a lawsuit. If board members are not wary about what is said in these communications or if these discussions rise to the level of a decision, this could result in potential liability for the association.


Though a pivotal decision, it is important to proceed with caution. While there was both a Petition for Review and an Application for Depublication fi led with the California Supreme Court, both requests were denied on December 13, 2023. This means that, for now, the decision by the Court of Appeal currently stands as binding precedent. However, the legislature may yet determine to pass legislation that prohibits or limits email discussions of items of business by directors. Based on this and the above concerns with the decision, boards should continue forward with restraint and discretion when emailing directors outside of a meeting. Boards may consider adopting a policy which defi nes acceptable communications via email for directors and limits these types of discussions. Please consult with your legal counsel if you have questions concerning this case and how to proceed with director email communications.


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