Email Discussions Allowed. Email communications between board members are allowed, even if they discuss matters of association business. The Court of Appeal addressed the issue in LNSU #1 v. Alta Del Mar Coastal Collection Cmty. Ass'n. The court reviewed the language of the statute and concluded that a "board meeting" is an in-person gathering of a quorum of directors for the purpose of talking about and taking action on items of association business. (Civ. Code § 4090.) Email exchanges among directors between board meetings where no action is taken do not constitute board meetings. In summary, directors are allowed to (i) conduct emergency meetings by email, (ii) send emails to management and vendors, (iii) send emails to legal counsel, (iv) send administrative emails to each other about meeting dates and times, and discuss matters that may appear before the board.
Virtual Meetings. The ruling does not impact virtual meetings since atendance in this manner counts as if the director were physically present in the meeting. (Civ. Code § 4090, Corp. Code § 7211(a)(6).) For more information, see "Virtual Meetings."
Email Is Discoverable. Email between directors is discoverable in litigation. Unless the emails are attorney-client privileged communications, such emails can be projected onto screens and read to juries in open court. Including legal counsel in board communications does not protect emails from discovery. A communication is privileged only if the dominant purpose of the communication is to further the objectives of the attorney-client relationship. (2022 Ranch LLC v. Superior Court (2003) 113 Cal. App. 4th 1377, 1390.) Following are examples of email communications on behalf of the association which are privileged (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725):
- Email from attorney to director or manager for the purpose of communicating legal advice,
- Email from director or manager to attorney seeking legal advice,
- Email between director and manager communicating legal advice received from attorney, and
- Email between director and manager with attorney cc’d communicating legal advice.
Recommendation: Association should set up dedicated email accounts for board members.
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