Q&A: You can sue your board without an attorney — but think twice before doing it
Question: I finally sued my homeowner association board for mismanagement and breach of duty in a Los Angeles court but did so in “pro per” without an attorney.
The association’s insurance company’s attorney filed a demurrer and argued that because the claims in my lawsuit are “derivative” in nature that I, as the homeowner, cannot be “pro per.” He claims that I am “representing” the other homeowners through the derivative claims and therefore I am practicing law without a license.
Do I have to hire an attorney to represent me in a general breach of fiduciary duty case and to protect my rights as a member?
Answer: Some lawsuits do require the plaintiff to be represented by an attorney but that does not seem to be the case for you.
A plaintiff in propria persona (or “pro per”) is acting on his or her own behalf and is not represented by counsel. Our legal system was designed to allow such pro per plaintiffs to represent themselves for claims related to their own injuries.
A derivative lawsuit is filed by a plaintiff on behalf of a corporate entity when the plaintiff’s damages are derived from injury to that entity. For example, a shareholder that suffers from a drop in stock price as a result of corporate mismanagement has been injured by the mismanagement but only because the corporation was first harmed by the board’s actions and omissions.
By characterizing your claims as “derivative,” the insurer’s attorney is arguing that although you were allegedly injured, the primary injury was to your association as a whole. By pursuing your claim to remedy that injury you are doing so on behalf of yourself, as well as on behalf of your fellow association members.
To some extent this characterization is accurate because the proceeds of a lawsuit for breach of duty by the board of directors are generally paid to the association.
To “demur” to your complaint is to ask the court to dismiss it because your pleading does not, or cannot, satisfy all of the necessary elements of the counts you alleged. In this case, the attorney is arguing that you, as an unrepresented individual, were not the proper person to file this case.
California Business and Professions Code section 6125 states that no person shall practice law in California unless the person is an active member of the State Bar. Although it is true that you cannot “represent” your fellow homeowners in legal matters without a license to practice law, your right to pursue these claims against the board does not require such a license or representation by an attorney.
Unless otherwise stated in the association’s governing documents, its members have standing to enforce the restrictions contained in the CC&Rs, according to Civil Code section 5975(a). Further, the case Posey vs. Leavitt (1991) established that a member may also “sue the association for damages and an injunction to compel the association to enforce provisions of the CC&Rs.”
Even if you can lawfully pursue this case without legal representation, you may want to consider seeking some legal assistance. You are taking on a complicated lawsuit, and because it is a derivative action, you are not the only one who will suffer if you are unsuccessful or even inefficient.
While the case proceeds, your fellow homeowners may be assessed to cover the association’s legal expenses; the faster and more efficiently this matter is resolved, the better for everyone.
If you cannot afford to have an attorney handle this case in its entirety, consider a limited scope representation, which would allow you to ask questions of an attorney or even be represented at specific hearings.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.
