Senate Bill 323: fiduciaries not fiduciary-ing.

SB 323 revised Civil Code section 5145(a) to provide that “[a] member of an association may [sue] for a violation of this article by the association … within one year of the date that the inspector notifies the board and membership of the election results or the cause of action accrues, whichever is later.”

Civil Code section 5120(b), however, currently provides that boards are responsible for notifying the membership of election results. If an inspector does so, this in and of itself could arguably constitute an election law violation.

One wonders why SB 323 revised the law in this manner given that it also revised Civil Code section 5110(d) to provide that inspectors must perform their duties "in a manner that protects the interest of all members of the association." Section 5120(b)'s duty of notification is apparently non-delegable. Usurping that duty is not the role of a fiduciary, much less if that usurpation increases the members' exposure to costly legal liability.

For boards and inspectors who do comply with Section 5120(b)'s board notification requirement, Section 5145(a)'s new inspector-notification prong will not occur. As such, absent a direct violation of Section 5120(b) itself, the sole statute of limitation for all other election claims appears to remain one year from accrual.