Pre-Litigation ADR Offer
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PRE-LITIGATION ADR

When Required. 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:

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.)

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.)

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:

  • ADR has been completed,
  • Other party did not accept ADR, or
  • Preliminary or temporary injunctive relief is necessary. (Civ. Code §5950(a)(3).)

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.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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