1368.3-1369 Association Standing to Defend
1368.3. An association established to manage a common interest
development has standing to institute, defend, settle, or intervene
in litigation, arbitration, mediation, or administrative proceedings
in its own name as the real party in interest and without joining
with it the individual owners of the common interest development, in
matters pertaining to the following:
(a) Enforcement of the governing documents.
(b) Damage to the common area.
(c) Damage to a separate interest that the association is
obligated to maintain or repair.
(d) Damage to a separate interest that arises out of, or is
integrally related to, damage to the common area or a separate
interest that the association is obligated to maintain or repair.
1368.4. (a) In an action maintained by an association pursuant to
subdivision (b), (c), or (d) of Section 1368.3, the amount of damages
recovered by the association shall be reduced by the amount of
damages allocated to the association or its managing agents in direct
proportion to their percentage of fault based upon principles of
comparative fault. The comparative fault of the association or its
managing agents may be raised by way of defense, but shall not be the
basis for a cross-action or separate action against the association
or its managing agents for contribution or implied indemnity, where
the only damage was sustained by the association or its members. It
is the intent of the Legislature in enacting this subdivision to
require that comparative fault be pleaded as an affirmative defense,
rather than a separate cause of action, where the only damage was
sustained by the association or its members.
(b) In an action involving damages described in subdivision (b),
(c), or (d) of Section 1368.3, the defendant or cross-defendant may
allege and prove the comparative fault of the association or its
managing agents as a setoff to the liability of the defendant or
cross-defendant even if the association is not a party to the
litigation or is no longer a party whether by reason of settlement,
dismissal, or otherwise.
(c) Subdivisions (a) and (b) apply to actions commenced on or
after January 1, 1993.
(d) Nothing in this section affects a person's liability under
Section 1431, or the liability of the association or its managing
agent for an act or omission which causes damages to another.
1368.5. (a) Not later than 30 days prior to the filing of any civil
action by the association against the declarant or other developer
of a common interest development for alleged damage to the common
areas, alleged damage to the separate interests that the association
is obligated to maintain or repair, or alleged damage to the separate
interests that arises out of, or is integrally related to, damage to
the common areas or separate interests that the association is
obligated to maintain or repair, the board of directors of the
association shall provide a written notice to each member of the
association who appears on the records of the association when the
notice is provided. This notice shall specify all of the following:
(1) That a meeting will take place to discuss problems that may
lead to the filing of a civil action.
(2) The options, including civil actions, that are available to
address the problems.
(3) The time and place of this meeting.
(b) Notwithstanding subdivision (a), if the association has reason
to believe that the applicable statute of limitations will expire
before the association files the civil action, the association may
give the notice, as described above, within 30 days after the filing
of the action.
1369. In a condominium project, no labor performed or services or
materials furnished with the consent of, or at the request of, an
owner in the condominium project or his or her agent or his or her
contractor shall be the basis for the filing of a lien against any
other property of any other owner in the condominium project unless
that other owner has expressly consented to or requested the
performance of the labor or furnishing of the materials or services.
However, express consent shall be deemed to have been given by the
owner of any condominium in the case of emergency repairs thereto.
Labor performed or services or materials furnished for the common
areas, if duly authorized by the association, shall be deemed to be
performed or furnished with the express consent of each condominium
owner. The owner of any condominium may remove his or her condominium
from a lien against two or more condominiums or any part thereof by
payment to the holder of the lien of the fraction of the total sum
secured by the lien which is attributable to his or her condominium.