Pre-Litigation IDR. An association may not file a civil action regarding a dispute in which the member has requested dispute resolution unless the association has complied with Civil Code § 5910 by engaging in good faith in the internal dispute resolution procedures after a member invokes those procedures. (Civ. Code § 5910.1.)
Pre-Litigation ADR. Neither associations nor their members may file an "enforcement action" in superior court unless the parties have "endeavored" to submit their dispute to alternative dispute resolution pursuant to Civil Code § 5930(a). Parties are required to offer alternative dispute resolution (ADR) if the anticipated litigation is:
When Not Required. ADR is not required:
Mediation Confidentiality Disclosure. An attorney representing a person in a mediation or a mediation consultation must provide his or her client, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, with a printed disclosure, containing the confidentiality restrictions related to mediation, and to obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.
Initiating a Request for ADR. As required by Civil Code § 5935, to initiate the process for prelitigation ADR, all parties to the dispute must be served with a Request for Resolution. The Request must include all of the following:
- A brief description of the dispute between the parties.
- A request for alternative dispute resolution.
- A notice that the party receiving the Request for Resolution is required to respond within 30 days of receipt or the request will be deemed rejected.
- If the party on whom the request is served is the member, a copy of this article.
(See Sample ADR Request Form.)
Initiating a Request for ADR. (b) Service of the Request for Resolution shall be by personal delivery, first-class mail, express mail, facsimile transmission, or other means reasonably calculated to provide the party on whom the request is served actual notice of the request. (Civil Code § 5935(b).)
Deadline to Respond. A party on whom a Request for Resolution is served has 30 days following service to accept or reject the request. If a party does not accept the request within that period, the request is deemed rejected by the party. (Civil Code § 5935(c).)
Refusal to Participate. If a party unreasonably refuses to participate in alternative dispute resolution and the case proceeds to court, the court can take that into consideration when it comes to the award of attorneys' fees.
Section 5950, subdivision (a), requires a party commencing an action to file a certificate of efforts to resolve the dispute with the initial pleading. The certificate must state that either: “(1) Alternative dispute resolution has been completed in compliance with” sections 5925 et seq.; “(2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution”; or “(3) preliminary or temporary injunctive relief is necessary.” (§ 5950.) In the first action, plaintiffs filed a complaint without a certificate. In the second action, plaintiffs filed a certificate that was deemed not to “comply with Civil Code section 5950.” The court reasoned that “to dismiss the first action, and re-file it without making any substantive changes or any additional attempt to engage in ADR was frivolous.” The court’s determination that the action was frivolous depended upon the conclusion that plaintiffs did not comply with section 5950. (Retzloff v. Moulton Parkway HOA (2017) 14 Cal.App.4th 742, 753.)
Certificate of Compliance. At the commencement of litigation, the party filing the action must include certificate stating that one or more of the following conditions is satisfied (Civ. Code § 5950(a)(3)):
- ADR has been completed,
- Other party did not accept ADR, or
- Preliminary or temporary injunctive relief is necessary.
Demurrer. Failure to file a certificate of compliance is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties. (Civil Code § 5950(b).)
Discovery. An association is not required to provide plaintiffs with documents prior to ADR. ADR is not an excuse to engage in extensive discovery prior to litigation. (Retzloff v. Moulton Parkway HOA.)
CC&R ADR Provision. An association's CC&Rs may contain a provision compelling the association and members to use alternative dispute resolution instead of the courts to resolve disputes. Such provisions are enforceable provided, however, that the provision is strictly followed. (Mansouri v. Superior Court.)
IDR Comparison. See See ADR-IDR Comparison Chart.
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