FALL 2021
Dealing With Disputes
Social Media Rules
WHEN TO INVESTIGATE, ENFORCE AND RESOLVE PAGE 10
Water Claims
THE DANGERS OF OVERSHARING PAGE 14
WHO FOOTS THE BILL FOR DAMAGE? PAGE 6
Assistance Animals
Total Recall
Premises Liability
HOW TO STAY OUT OF LEGAL TROUBLE
SB 323’S IMPACT ON RECALL ELECTIONS
MANAGING COMMON AREAS OF RISK
PAGE 8
PAGE 12
PAGE 4
Fall 2021
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
2021 CACM Fall Law Journal Editorial Committee Chief Editor Attorney Guest Editor
Fred Whitney, Esq. Whitney | Petchul Jeffrey Beaumont, Esq. Beaumont Tashjian
Fall Journal Committee Members Spencer Edgett, Esq. Chapman & Intrieri, LLP
Eric Kazakoff, CAMEx, CCAM Canyon Lake Property OA
Jacqueline Pagano, Esq. Roseman Law, APC
Jill Morgan, CCAM Allure Total Management
Garrett Wait, Esq. Kriger Law Firm
Hamlet Vazquez, MCAM-HR Action Property Management, ACMC
An archive of past issues can be found under Member Resources at CACM.org. The CACM Law Journal is a digital publication distributed four times per year to all members, in addition to supporters of the California Association of Community Managers. DISCLAIMER: CACM does not assume responsibility for the accuracy of articles, events or announcements listed. Please be advised that the opinions of the authors who contribute to the Law Journal are those of the author only, and do not necessarily reflect the opinions of CACM and other industry attorneys. Please note that in a constantly evolving industry there are frequently multiple interpretations of the controlling statutes and case law. The information contained in these articles is of a general nature and not intended as legal advice. If you have any questions, please discuss them with your association’s legal counsel.
Interested in advertising in CACM’s Law Journal? Reach out to us at marketing@cacm.org
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2 The Law Journal Fall 2021 | cacm.org
Letter from the Guest Editor As we quickly approach the final months of the year, it’s hard not to look back and wonder what happened to 2021. Heck, what happened to 2020 and where is the time going? Since March 2020, time seems to have sped up and slowed down all at the same time. As we adapted to living another year during a pandemic, while running our businesses and managing community associations, I realized that we are resilient, and together we can make the changes necessary to guide our clients through education and publications such as the Law Journal. It is my honor to be the guest editor of the Fall 2021 Law Journal. The Law Journal Editorial Committee received numerous submissions, all with great topics and outlines, making it difficult to narrow down the articles for this edition. Thank you to everyone who wrote an article and for sharing your knowledge and expertise. The Editorial Committee developed the theme for this edition: “Liability – The state of being responsible for something, especially by law.” In this issue, you will find best practices for avoiding risk for matters surrounding premises liability, water damage, assistance animals, neighbor to neighbor disputes, election challenges, social media, and more. Articles will address what rules, policies and tools are available to help manage disputes, including when to notify insurance carriers and how to handle claims.
Liability – The state of being responsible for something, especially by law.
I hope you enjoy this issue as much as I enjoyed working with the Editorial Committee to bring this to you. I encourage you to reach out to the authors as I am sure they would be happy to hear your feedback and answer your questions. Take care and stay safe and healthy!
Jeffrey A. Beaumont, Esq., is a senior partner with Beaumont Tashjian, and has over 20 years of experience representing common interest developments.
cacm.org | The Law Journal Fall 2021 3
WHAT’S THE ASSOCIATION’S ROLE IN PROTECTING HOMEOWNERS FROM FORESEEABLE HARM?
By Tawnza Sofranko, Esq.
NOTICE OR KNOWLEDGE =LIABILITY “Premises liability” is the idea that if an injury occurs in a common area kept in an unsafe condition, the association may be held liable for any resulting damages. Examples may include a trip-and-fall on the sidewalk, a child injuring themselves at the community playground, poor lighting in a hallway, and/ or a host of other accidents that might happen within common areas. A premises liability action may arise where an owner/ resident suffers personal injuries (including both physical or emotional) because of the association’s alleged negligent maintenance and management of the premises and/or where the association willfully failed to warn or guard against a dangerous condition.
its residents against the foreseeable risk of criminal activity in the areas under its control. In Francis T., the association knew both that the community was located in a high crime area and that crimes had been committed in the community. As a result, the court limited the association’s liability to only damages caused by foreseeable criminal activity. The case demonstrates that failure to take reasonable steps to protect against types of crime where there is notice and which are likely to recur if the common areas are not secure may result in a judge or jury finding the association liable for negligence (i.e. foreseeability). (42 Cal. 3d 490, 503-04, 50809, 229 Cal. Rptr. 456, 463, 466-67.)
his article focuses specifically on liability arising from dangerous safety conditions created by a third party. An association’s liability for criminal acts occurring in the common area will depend on the specific facts of the situation at hand. Generally, an association is not liable for unforeseen criminal acts. If, however, there has been a history of criminal activity in or around the association’s property, the board may have a duty to take reasonable steps to increase security and/or awareness.
Put simply, the board has a duty to exercise due care for resident safety in areas under its control (i.e., the common area). If there is no reason to believe that criminal activity is occurring in or near the community on a regular basis, rather than an isolated incident, then the exposure to the board and association is likely minimal. With that said, the association may still have to defend a claim should an injury/damage occur. Thus, the board should regularly investigate, keep records of common area inspections, perform proper maintenance required by the governing documents, and consider whether there is a foreseeable risk of harm, among other things. The board must also assess whether there are reasonable steps the board should take to address foreseeable risks.
T
In the case Frances T. v. Village Green Owners Association, the California Supreme Court held that a community association is analogous to a landlord, and therefore owes a duty of reasonable care to protect
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The foregoing analysis is not only limited to steps such as hiring and/or increasing security. Reasonable steps may also include repairing broken lights or gates, adding or upgrading lighting, fencing or security features, etc. Of course, the specific action needed, if any, will depend on the community and the circumstances creating the risk. “In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.’ Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy’ of the proposed security measures.” (Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666, 678-79, 25 Cal. Rptr. 2d 137, 145 (1993).) Boards should also carefully consider owners’ requests to add lights to his/her separate interest and/or the common areas. While the board can and should exercise the architectural review process to the extent permitted by the governing documents, its decision should be balanced with the threat
THE BOARD SHOULD AVOID MAKING STATEMENTS THAT CAN BE INTERPRETED AS PROMISES OF SAFETY, WHICH PROVIDE A FALSE SENSE OF SECURITY
encourage personal and individual safety by owners against threats of third parties and neighbors and make sure owners are put on notice of the extent and limitations of security features operated and maintained by the association. Remind owners it is their own responsibility to lock doors, hide belongings, keep gates/entries to property secure, not let strangers into buildings, call the police if suspicious activity, etc.
of danger posed to the community, if any. As with the Frances T. case, the board may be held liable where it unreasonably denies an owner’s request to add lighting or cameras (doorbell, etc.) to the separate interest and/or the common area to increase security. In sum, the board must exercise reasonable care to protect residents from foreseeable harm. In connection with this duty, the board can also take proactive steps to keep residents and members informed. For example, a security disclaimer that the board is not law enforcement. Moreover, the board should avoid making statements that can be interpreted as promises of safety, which provide a false sense of security. Instead,
Tawnza Sofranko, Esq. is an attorney at Beaumont Tashjian where she provides general counsel services to the firm’s HOA clients. She works out of the firm’s Laguna Hills offices.
cacm.org | The Law Journal Fall 2021 5
Flooded Condominium: “Who’s Going to Pay?” When it comes to who pays for water damage, refer to the Civil Code for answers. By Mark Guithues, Esq.
L
et’s get the counter-intuitive part out of thewayfirstwhileyou’refreshWh. enit comestwoaterclaims,Californialaw generalldoy esnofot l oaw sourcerule. So just because the water came from within the upstairsunidot esnomtaketheupstairsunit ownerresponsiblefoal r resu l ltingflooddamage. Likewise,justbecausethewateroriginatedfrom thecom oar n eadoesnomtaketheassociation responsiblefoal r “co l nsequential”flooddamage. Rereadthisparagraphthreetimesbefore proceeding,otrherestofthearticlewilbe no sensical. Civ lode§4775(a)tellsus,paraphrasedas fol ows,whpay o sfopir perepairsand subsequentloyccur ingwaterdamage: “Unlessotherwiseprovideditnhegoverni g documents,theassociationsresponsiblefor repairing,replacing,andmaintaini gthecom on area,andtheownerofeachseparateinterestis responsibleforepairing,replacing,and maintaini gthatseparateinterest…”
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Theassociation’sC &Rsandcondomin uplan definewhatiscom oar n eaversusseparate interestUsu . al,ly theysaysomethingliketheunit is“boundedbyandcontainedwith ne unfinishedinteriosur rfacesoftheperimeter walls,floors,ceilings,windowsanddoorsofsaid element,andtheairspaceencompassed thereby.”Thindrk ywallOw. nersgenerallrepai y r frotmhepainitward,whileassociations generallremy ediateandrepaitrhedrywall outward(includingceilings).stohepiperepai,r youCr&Rsmighstt ateeachowneris responsiblefo“pi r pesandalulti ynessolely servingtheunit”oimrtghmtakealpil pes (exceptthe“outletsthereofwith neunit”)the com oar n earesponsibilitoyftheassociation. WHAT ABOUT NEGLIGENCE? Ifanownerotrheassociationsclearlnyegligent imnaintaini gabrokenpipeoan r otherwater source,theycanbecomelegallrespo y nsiblefor theresultandam t age.Makingthatpartlyegally responsiblegenerallmyeansprovingtao court
thatthey:(i)hadalegaldutrepai yo r;(ii)knewor shouldhaveknowthattheleakwasoccur ing; and(ii )chosenotmaketherepaiIi.tsr difficult tdoo andthecosttgoo tco o urtpro oveyour actionftenexceedsthevalueofthewaterrepai. r WHAT ABOUT INSURANCE? Insuranceappearstch o angethings,buireal t ly doesn’tWh. enanassociationrw eropensa claiwmitheassociation’sinsurance,thenthe carrierwilscrambleandappoinat claimsadjustor whreads o thepolicyandC &Rsanddetermines whatrepairsare“covered”underthepolicyand thereforepaidfoby r insurance. Thebreadtohfthatpolicyshouldmatchobe r greaterthanthatcoveragerequiredbythe C &Rs.It’sastraighco t ntractreviewandit shouldn’tmatterwho nsthepropertbe yo repaired,asbotheownerandtheassociation areco-beneficiariesundertheinsurancecontract. (ndbecausetheownerandtheassociatioar n e
co-beneficiaries,theboardshouldbeverwyary aboutnilaterall“can y celing”anowner’sclaim.) Foexr ample,iftheassociatiopon licycovers improvementswith neunial t ongwith improvementsitnhecom oar n eas(sometimes referredtionheindustras y “walls-in”coverage), ican t loak lotiketheassociatio“fix n edBetty’s unit.”Ifact n ,it’sonlbecau y seinsuranceheldby theassociatioco n vered“flooco r verings,cabinets andotherbuilt- nmprovementsandfixtures with neunit”thatthisoccured.IftheC &Rs didn’trequirethisbreadtohfcoverage,andthe boardchosetredu o cecoveraget“wo allsout” (aka“barewalls”)coverage(afternoticetohe membership),thenthenexotwnerofaflooded uniwto ldnohtaveansuy chbenefitandwould belefttmoaketherepairstoheinteriorfthe unithemselvesbecausethepolicycoveredonly the(com oar n ea)drywalolutward. Ifthatownercarriedpropertiynsurance,iwtl generallbe y “secondary”toheassociation’s “primary”obligatiotnsureasstateditnhe C &Rs.Itnhatsituation,theowner’sadjustowril oftenrequiretheownertopenaclaiagai m nst the(association’s)primarpoy licytsee o what itemswilbe“covered”orepairedthereunder beforethesecondarsty artspayingfo(tr he
balanceof)repairscoveredundertheipor licyI.n the“walls-out”situation,theprimarcar y rierwil simploypenaclaian m dwritea“nco o verage” lettertellingtheownerthatonltyhecom on areasarecovered.Conversel,y ian “walls-in” situation,theprimarcl y aimsadjustowrilexplain whatitemswith neuniar t ecoveredunderthe primarpoy licy,sothatthesecondaradj y ustocan r focusorepai n ringtheremaini gthingscovered undertheowner’spolicyI.ftheownerchosenot tcar o riynsurance,thatownersimplch y oseto “self-insure,”actingastheiorwadj n ust,or and payingfotrheiorwepai n rs.
events.Ifot l owstheCiv lode,whichgenerally makesownersandtheassociatiorespo n nsibleto repaitrheiirndividualproperI.nsuty rance providesrepaimroneyiacco n rdancewithe termsoftheico r ntract(s).Understandingthis frotmhebegin i gwilhelpthemanagerbetter addresstheprocess.
WHO “PAYS” THE DEDUCTIBLE? Youco r m unityghhtaveaclearprovisioin youCr&Rs,oar ruleopor licyopon int. Otherwise,ifthosedocumentsaresilenotnhe matter,we’veseenassociationsandcourtsassign thedeductiblestohepersomnakingtheclaim, theassociation,osor meequitabledistribution between the parties such as in proportion each benefittedfrotmheinsurancepayout. Understandthatadeductibleisnoat supai m d, buat sudedu m ctedfrotmheto alpayout,so planyourepairsaccordingl. y Conversetlogicandurbanlegend,California lawdoesnofot l oaw sourcerulefowrater
Mark Guithues, Esq. is founding partner of Community Legal Advisors, which serves a portfolio of more than 300 residential and commercial community associations in Southern California.
cacm.org | The Law Journal Fall 2021 7
Dealing With Assistance Animals BY SANDRA L. GOTTLIEB, ESQ., CCAL
With certain exceptions, it is discriminatory for an association to refuse to allow an assistance animal, that may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling unit or common use areas associated with association living, to reside in a requesting owner’s unit. 8 The Law Journal Fall 2021 | cacm.org
SERVICE V. SUPPORT ANIMALS
RULE ENFORCEMENT
California statutes distinguish between two types of “assistance animals,” namely, “service animals” and “support animals.”
In order for rules to apply, SwedelsonGottlieb advises its clients to rename “pet rules and restrictions” to “animal rules and restrictions.”
“Service animals” are dogs and miniature horses trained to perform specific tasks to assist someone with disabilities, such as a guide dog trained to lead the visually impaired. Service animal training can be conducted by a professional, a person with a disability, or a third party. This training usually results in a well-behaved, welltrained service animal. Residents with disabilities are allowed to have service animals in all dwellings and common areas, subject to certain restrictions mostly related to health and safety concerns, such as in a common area pool. To determine if the animal is a service animal, the board can only ask two questions. 1) Is the animal required because of a disability? (2) What work is the animal trained to perform [to accommodate the disability]? If the answer is yes and a task/work has been identified, allow the animal. If not, the animal is likely not a service animal. BUT… it could be a support animal. “Support animals” are any animals that provide emotional, cognitive, or similar support to someone with a disability. Some of the stranger support animals that we have heard of include a turkey, bearded dragon, rats, spiders, snakes, etc. Anything goes if it does not pose a threat to the health and safety of other residents. Unlike service animal owners, those who have a support animal must request an accommodation related to their need for the support animal, including a specific request for the animal to be allowed in the common area. A support animal does not need any training or certification. As a result, they may display the same behavioral issues as pets. And so the trouble begins; the animal’s behavior or the owner’s maintenance of the animal could violate the association rules. Any nuisance issues, such as barking, leash laws, aggression, or the owner not picking up after the animal, must still be enforced by the association.
Some rules, however, are not enforceable against persons with disabilities. For example, assistance animals do not count toward a pet limitation, such as size or weight restrictions, or the number of pets allowed in each household. While an individual may have multiple assistance animals, the owner must seek a reasonable accommodation for each support animal. When the board encounters an animal in the community that violates the rules, the board has a right to inquire about how the resident will comply with the governing documents. For example, if the person is blind with a seeing-eye dog, you can’t ask why the resident needs the dog. But, you can ask how the resident will be able to pick up the animal’s waste in the common area. Or, if the person has hand deformities that prevent them from holding a leash, you can ask how the animal will be controlled if it is off-leash. The reasonable accommodation to the leash rule lies in the animal’s training and the owner’s ability to control the animal.
PLANNING FOR ACCOMMODATIONS Adopting a formal procedure may aid individuals with disabilities in making requests for reasonable accommodations. However, the person seeking the reasonable accommodation does not have to submit an application or written request, even if one is provided in the policy. They, or anyone acting on their behalf, may make an oral request. The board may wish to include best practices in the policies, including a recommendation that individuals seeking reasonable accommodations for support animals submit a letter from their health care provider, which includes: • That the resident is currently under their care • Whether the resident has a physical or mental impairment, • Whether the resident’s impairment(s) substantially limits at least one major life activity or major bodily function, and
• Whether the resident needs the animal(s) because it performs at least one task that benefits or alleviates a symptom the resident experiences because of their disability. Requests for reasonable accommodations must be promptly considered. The time necessary to respond to a request depends on many factors, including: • The nature of the accommodation under consideration; • Whether it is necessary to obtain supporting information because the disability or the need for the accommodation is not obvious or known to the person considering the request; • Whether the accommodation is needed on an urgent basis; and • Whether it is necessary to engage in the interactive process to resolve the request. An undue delay by the board in responding to the request, including asking for additional information, may constitute a denial of a reasonable accommodation. An unreasonable denial may be considered discriminatory by the Department of Employment and Fair Housing (DEFH). Ultimately, if a DEFH complaint is filed against the association for denying a request for reasonable accommodation, remember there are no do-overs. Therefore, do not attempt to respond to the request yourself; obtain legal counsel.
Sandra L. Gottlieb, Esq., CCAL is a founding and senior partner in the law firm of SwedelsonGottlieb that limits its practice and specializes in the representation of community associations throughout California.
cacm.org | The Law Journal Fall 2021 9
R NNEEIIGGHHBBOOR O B H G R TO NEI DISPUTES AND BALANCING THE LIABILITY LINE BY JILLIAN M. WRIGHT, ESQ.
W
ith more people working from home in the last year, you might have noticed an increase in neighbor disputes. Often, neighbors will turn to the association first to resolve the dispute. The board must determine when a neighbor-to-neighbor dispute becomes an association issue; which complaints are based merely on bad relations between the neighbors and which are based on substantial and documented violations of the governing documents. It also must determine what to do if the complaints are substantiated. WHEN AND HOW TO INVESTIGATE It can be tempting to write off neighbors’ complaints as outside the role of the association. However, the board is tasked with enforcing the governing documents. If an association fails to conduct an adequate investigation into a complaint which might involve a violation of the governing documents, an owner could sue the association for failure to enforce those governing documents. Typically, governing documents prohibit noxious, offensive behaviors and/or nuisances. One of the primary neighbor-toneighbor disputes occurs when one or both parties are accusing the other of committing a nuisance – whether it be an offensive noise, sight, or smell.
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When an association receives a nuisance complaint the first step should be to investigate the claim. In-person investigations by the manager or noninterested board member should be the first step, if at all possible, as this is often the best way to determine if the alleged nuisance is offensive to a reasonable person. If the offensive conduct happens late at night, seek other evidence to substantiate the complaint. Ask other neighbors about their experience. Ask for videos or pictures with time stamps. If the dispute takes place solely online or on social media, then the association should not intervene. Governing documents typically define nuisance as actions affecting a resident’s ability to quiet enjoyment of the common area and separate interest property. As such, complaints of online conduct should be directed to the website host (such as Facebook or Nextdoor) or law enforcement as necessary. However, if the dispute takes place on the association’s own forum the board may need to institute codes of conduct and decorum or limit posting rights in order to avoid defamation claims.
Additionally, if a resident complains that their neighbor has discriminated against them based on their protected class (including race, color, religion, national origin, sex, disability and familial status) federal law requires the association to investigate (See Code of Fed. Reg. §100.7(a)(1)(iii)). Failure to investigate and enforce quickly could result in liability for the association. However, if an association acts too quickly, without investigating, it could also face liability. For example, if an association sends a violation letter to an owner who is a member of a protected class, that owner could allege that the association’s enforcement was based solely on the board’s discriminatory beliefs. If the association did not investigate or substantiate the neighbor’s complaint, it might not have enough evidence to disprove this allegation. WHEN AND HOW TO ENFORCE If a complaint is substantiated, then the association needs to follow the enforcement procedure within the governing documents: send the violation notice and/or call the offending owners to a hearing at which the association can impose fines or suspend privileges. Alternatively, boards can request owners to mitigate the alleged nuisance, for example, install rugs to dampen sound or insulation to lessen the transmission of smoke smell.
One tool is law enforcement. An association cannot and should not guarantee a resident’s safety. Complaints of violence, harassment, or threats of violence should be directed to law enforcement. An association may have a corresponding role to law enforcement if the actions or threats are directed toward board members or vendors or violate the governing documents, but an association’s ability to intervene to prevent or stop someone’s behavior may not be effective remedies when someone is potentially committing a crime. Another little-known tool to neighbors is mediation. Some dispute resolution centers offer low or no-cost mediation. California’s Department of Consumer Affairs has a list of mediators which offer these services and the local county bar association may offer more options as well. If owners seek mediation, the association is not obligated to participate. In sum, this is a difficult balancing act. An association could face liability for both refusing to get involved and getting involved too soon, without a proper investigation. As always, consult legal counsel with questions.
Jillian M. Wright, Esq. is an attorney at Epsten, APC specializing in transactional and assessment recovery for residential and commercial CIDs. She’s worked in the industry for 9 years and is based out of the firm’s San Diego office.
If basic enforcement does not garner results, the board may need to consider litigation (and mediation prior, if necessitated by Civil Code §5925 et seq.). However, while the board is dutybound to enforce the governing documents, the law does not necessarily require the association to see the matter through to the end. In Beehan v. Lido (1977) 70 Cal.App.3d 858, the court held that a board’s decision whether or not to file an action to enforce the CC&Rs is governed by the business judgment rule. If the board determines that filing suit is not in the best interest of the association after reasonable inquiry, then the complaining neighbor has the right to bring suit pursuant to Civil Code §5975. TOOLS FOR ENFORCEMENT OR RESOLUTION Common interest developments are seen as quasi-governmental organizations, so owners often assume associations’ power reach farther than it does. Associations should make clear to owners the limited scope of the association’s authority and offer tools to help neighbors address issues with each other directly.
cacm.org | The Law Journal Fall 2021 11
TOTAL RECALL 12 The Law Journal Fall 2021 | cacm.org
Addressing the Conflicts in Law in Conducting a Recall Election By Tiffany N. Smith-Nguyen, Esq. and Dyanne L. Peters, Esq.
As you are undoubtedly aware by now, the passage of SB 323, which became effective January 1, 2020, ushered in significant modifications to the provisions governing association elections. These modifications require associations to abide by strict timelines and procedures, and failure to do so may result in a court overturning an election and imposition of fines. Though most associations have likely experienced at least one director election cycle under the new regime, it is important to be aware that the passage of SB 323 also impacted the timeline for recall elections.
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DIRECTOR ELECTIONS
Theneweqr emuir entsandtimelinesfoelr ections eqr euir associationsstto aritselectcy ion cle around12day 0 sbefoer theelectdat ion e. Beginigatleastday 90 sprtheo ir elect(iion ist eco r mendedbegi to then processaround120 daysprtheo ir election),anassociatison eqr ed uir prto ovidegeneralnoticeoftheprocedues r and deadlinesfosur bmitngcandidacynomiations. Theassociatmustion almemlow bersatleast30 dayssuto bmtheii nomiatr ions,pursuanCivl to Code§5115(a).dditional,ly theassociatshion ould appothein inspector(s)ofelection,setthedateof theannualmeeting,andadoptelectoper in ating rulesthatconfotheo rm newprovisions(ifhas it alnot eady r doneso).Codeivl §5105(h). least t 60daysbefoer theelectanion datleast30 daysbefoer theballotsaredistributedtheo
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members(iist eco r mendedbegi to these n steps closerday 90 to sbefoer theelection),the associatmustion determinethefinalcandidatesfor election,prepareacandidateegi r stratliston ,a voterlist,anda“pre-balnotice. l ” PursuanCodeivl to §5105(a)(7),thecandidate egi r stratliston shouldincludethenamesofall membershavwo ebeennomiated.The associatison alsoeqr ed uir prto epareavoterlist. Theassociatmustion almemlow bersverto ifythe accuracyoftheinformatboon i thecandidate andvoterlist. Codeivl §5115(b)alsoeqr es uir theassociatto in providea“pre-balnotice” l theo members.This “pre-balnotice” l mustbedeliveredviageneral noticeandcontaithen folowinginformation:(1)the date,time,andaddressetr to bal urn lots;(2)the
date,time,andlocatofin theannualmeeting;and (3)thelistofcandidatesappear wil ho theon bal(ilot .e.,thecandidateegi r stratliston ). Final,ly atleast30daysbefoer theelection,the association’sinspectofr election(s)mustdeliveror “causebe to delivered”theo memberstheballots andacopyoftheassociation’selectoper in ating ruleseitherviaindividualdeliverpoor y stingthe websitewheretheyareavailabletheon balCivl ot. Code§5105(g)(4). Theabove-describedtimelinesmustbecomplied underwith thenewprovisions.Thesetimelinesnot appl only anto y nualdiect r elor ections,bualt soto ecal r ell ections(aswelas l assessment,governig documenamt endment,andgranoft exclusiveuse coarmon eaelections).
RECALL ELECTIONS
Inmostcaseswhenthereisavoteecal tor l diect r ors,associationsincludetheelectionf newdiect r orsinthesamevoteincasetheecal r l issuccessful.Thisensues r thatiftheecal r lis successful,theassociationmediatelyhasnew diect r orselectedandisnotparalyzedformonths whileanelectionsconducted. Theelecttimelon ineeqr emuir entsdiscussedabove appltheo y ecal r ofl diect r ors.However,ecal r l votesarealsogovernedbyCaliforniaCorporations Codewhichsetsitsnotice w andtimeline eqr emuir ents.Unfortunatel,y theeqr two ed uir timelinesareennot eltir co y mpatible.Folwing bosetth sofeqr emuir entsisnearimpoly ssible. CorporationsCode§7510(e)specifiesmembersof anassociatcan ion calal specialmeetingofthe membershipfoanr lawy fupul rpose,(includingthe ecal r ofl diect r ors)bysubmitngapetsiiton gned byatleastfivepercenoft themembership.
exactday 90 ly safterecei r ptofthepetiton egar r dlessofwhetherthatdatecoincidedawith weekend,holidayanor otherschedulingconflict. Thesamedayanassociatecei r ion vedaecal r l petiton,thecalfol can r didates/noticeof nomiatprion ocedues r mustbemailed.Wi20 thin days,thenoticeofaspecialmeetingmustbegiven theo members.ofl theegu r larelecttimelon ine stepsdiscussedabovewouldthenhavebe to completedexact30ly ,60,andday 90 safterecei r pt ofthepetiton,alsoegar r dlessofweekends, holidays,anor otherschedulingconflict. theIn faceofaecal r pet l iton,theassociathas ion severaloptions.can It attemptfoto thelow nearly
impossibleeqr emuir entsstatedabove;ifthelawis violatedduemissi to nganofy thedeadlines,the association can try to use the argument it “substantialco ly mplied”asadefense. lternativel,y theassociatcan ion scheduleaonly votefother ecal r anl dthenscheduleanelection ifonly theecal r isl successfuBecau l. sethereisno calfol can r didates,theecal r votel caneal r isticalbe ly conductedthewin 90-daytimeframe. theIn evenasso your t ciatecei r ion vesaecal r l petiton,theassociation’slegalcounselshouldbe contactedimediateladv to y isetheassociaton i itsoptions.
Sect7511 ion describesthenoticeeqr emuir enfot r specialmeetings.Theassociatmustion givenotice ofthemeetingday 20 withn sofecei r ptofeqr uest andthespecialmeetingmustbeheldbetween35 andday 90 safterthedatethepetwas iton ecei r ved. ccodir ngtheo timelinefoelr ectionseqr ed uir by theCodeivl discussedabove,day 90 sisthe absoluteamminu ofunt timeneeded.This meansthatifanassociatwishon esholdt theecal r l voteandelectofin newdiect r orsthein samevote, thespecialmeetingwouldhavebe to scheduled
Tiffany N. Smith-Nguyen, Esq. and Dyanne L. Peters, Esq. are attorneys with Delphi Law Group, LLP, which services San Diego, Orange County, Los Angeles, Riverside, and the Desert. Smith-Nguyen has worked in the industry six years, and Peters for four years.
cacm.org | The Law Journal Fall 2021 13
The Dangers of Association Oversharing on Social Media BY MARIA C. KAO, ESQ.
Historically, homeowners associations only needed to manage the physical real estate. Now, associations need to manage their virtual real estate. Popular social media apps and websites hosting resident chatter appear to be: Facebook.com; Nextdoor.com; Twitter.com; and WeChat. What are the liabilities and how does one manage the online gossip mill?
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WATCH OUT. DON’T GET SUED, FINED OR JAILED.
This country prides itself on its First Amendment speech rights. Most know this, but do not know about unprotected speech. This article focuses on the speech unprotected from the law. Homeowners associations may be confronted with the following examples of unprotected speech: defamation; obscenity; threats; and intimidation (i.e., cyberbullying). Civil and criminal liabilities should be a matter of concern for homeowners associations and the members serving on their boards. Human nature instinctively drives a person to respond defensively to all negative media concerning him/her/they.
Unhappy residents posting vitriol about board members or community managers online have us wondering: “Where is the line?” That leads us to defamation. Defamation is either libel (generally written) or slander (generally spoken) (Civil Code §44). The key elements of defamation are as follows: a false statement purporting to be fact; publication to a third party; at least negligence in the publication; and damages. It matters whether the subject is a public versus private figure or if the matter discussed is a matter of public or private concern (“Malice” must be proven in order to succeed when the alleged defamation is about an association director – a limited purpose public figure). Each one of these elements have been thoroughly litigated, but most people focus on the “falsity” of a statement without knowing about the complexity of analysis. Suffice it to say, the association’s counsel should be involved in determining the viability of a defamation claim. Intentional infliction of emotional distress may also be a potential area of liability. A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffers severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is “outrageous” when it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” And the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair [2009] 46 Cal.4th 1035,10501051). Prime examples include racial or sexual verbal attacks. The above serve as only a couple categories of civil liability and
readers should know that criminal liability may also be triggered depending on the facts. Generally, cyberbullying or online shaming pursuant to Penal Code Section 653.2 is a crime where a person with intent to put another in reasonable fear of his/her/their safety through electronic communications. This crime allows for penalties of $1,000 in fines and/or one year in jail. This crime does not apply only to internet communications, but applies sweepingly to all electronic communications (e.g., emails or text messages). Interestingly, this crime may also occur where electronic communications have a likelihood of “inciting or producing unlawful action.”
CORPORATE GOVERNANCE LEGAL RESPONSE.
In light of the liability related to those abusing association media outlets, how does a board and management respond and take charge of the operations of its virtual common area? At the director level, a common tool that can be employed may simply be to adopt or revise the ethics policy for the board of directors. Many associations already require an ethics policy to be signed by its directors. Another way to assist directors in understanding how they should be communicating with the membership or its vendors is to educate and schedule board member training. For the residents, a social media policy may be useful. Such a policy may be formally adopted and agreed to upon signing up for the association website. On a social media platform, the same policy may also be posted as “forum rules” or “moderator guidelines.” However, infrastructure should be developed to handle the moderation of the association media channels. This would likely need to be a collaborative effort between the board and its community manager. The rules would dictate when privileges may be suspended on that specific association media channel or take down posts that violate the rules. The social media policy may also make clear that directors will not be communicating with residents through internet channels and that decisions will still only be made at properly held board meetings.
No one wishes to silence anyone, but we know that words unchecked create real issues and liabilities. In the modern day, internet influence and association media must be actively managed. from consulting with the association’s counsel about association media issues, the association’s insurance agent should be contacted to check on defamation coverage in the policies. No one wishes to silence anyone, but we know that unchecked words create real issues and liabilities. In the modern-day, internet influence and association media must be actively managed.
OTHER BEST PRACTICES.
Many times, negative communications or toxic online culture occurs because residents complain about being in the dark. Resident engagement may assist, and common strategies are to solicit resident responses through online surveys, committees, or community events. Aside
Maria C. Kao, Esq. is a partner at Berding & Weil, LLP. She specializes in corporate governance and enforcement litigation and has worked in the industry for 12 years. She works out of the firm’s Walnut Creek and Irvine offices.
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2021-2022 LEGAL DIRECTORY ASSESSMENT COLLECTION SERVICES ALLIED TRUSTEE SERVICES Assessment Collection & Judgment Recovery Services Stefan Murphy Serving All of California For Over 27 Years 990 Reserve Dr., Ste. 208 Roseville, CA 95678 (800) 220-5454 smurphy@alliedtrustee.com www.alliedtrustee.com ALTERRA ASSESSMENT RECOVERY Assessment Collection Services Steven J. Tinnelly, Esq. Your Association’s Assessment Collection Partner 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (888) 818-5949 ramona@tinnellylaw.com www.alterracollections.com FELDSOTT & LEE, A LAW CORPORATION Community Association Law Stanley Feldsott, Esq. Laguna Hills | San Diego 23161 Mill Creek Dr., Ste. 300 Laguna Hills, CA 92653 (949) 729-8002 • Fax (949) 729-8012 feldsott@gmail.com www.cahoalaw.com
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UNITED TRUSTEE SERVICES Trusted Partners In Assessment Collections Lisa E. Chapman HOA Assessment Collection Services 696 San Ramon Valley Blvd., Ste. 353 Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 lisa@unitedtrusteeservices.com www.unitedtrusteeservices.com
ATTORNEYS
BEAUMONT TASHJIAN General Counsel and Assessment Collection Services Jeffrey A. Beaumont and Lisa A. Tashjian Woodland Hills, Laguna Hills, San Luis Obispo, Palm Desert, San Diego 21650 Oxnard St., Ste. 1620 Woodland Hills, CA 91367 (866) 788-9998 • Fax (818) 884-1087 info@HOAattorneys.com www.hoaattorneys.com BERDING | WEIL Construction Defect Litigation Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust Walnut Creek, San Diego, Orange County, Sacramento 2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berdingweil.com
CHAPMAN & INTRIERI, LLP General Counsel & Construction Defect Litigation John W. Chapman, Esq. & Mark G. Intrieri, Esq. Alameda l Roseville l Orange County l San Diego 2236 Mariner Square Dr., Ste. 300 Alameda, CA 94501 (510) 864-3600 • Fax (510) 864-3601 jchapman@cnilawfirm.com www.cnilawfirm.com COMMUNITY LEGAL ADVISORS, INC. General Counsel & Assessment Collections Mark Guithues, Esq. & Mark Allen Wilson, Esq. Inland Empire | Orange County | San Diego 509 N. Coast Hwy. Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com www.attorneyforhoa.com DELPHI LAW GROUP, LLP Community Association Law, General Counsel, Litigation, Assessment Collections James McCormick, Kyle Lakin, Christina DeJardin, Zachary Smith Full Service Law Firm Serving All of Southern California 1901 Camino Vida Roble, Ste. 100 Carlsbad, CA 92008 (844) 433-5744 • Fax (760) 820-2696 info@delphiLLP.com www.DelphiLLP.com EPSTEN, APC Community Association Law, Construction Defect, Litigation & Assessment Recovery Jon Epsten, Esq. & Susan Hawks McClintic, Esq. San Diego | Inland Empire | Coachella Valley 10200 Willow Creek Rd., Ste. 100 San Diego, CA 92131 (858) 527-0111 • Fax (858) 527-1531 jepsten@epsten.com www.epsten.com FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311 dweissberg@fiorelaw.com www.fiorelaw.com
FLANAGAN LAW, APC General Counsel TIM FLANAGAN, ESQ. San Diego l Orange County l Coachella Valley l Inland Empire 8880 RIO SAN DIEGO DR., STE. 800 SAN DIEGO, CA 92108 (619) 489-1340 TIM@FLANAGANHOALAW.COM WWW.FLANAGANHOALAW.COM GURALNICK & GILLILAND, LLP Association Law, Assessment Collections, General Counsel Wayne S. Guralnick, Robert J. Gilliland Jr. Serving Community Associations for Over 30 Years 40004 Cook St., Ste. 3 Palm Desert, CA 92211 (760) 340-1515 • Fax (760) 568-3053 wayneg@gghoalaw.com www.gghoalaw.com HICKEY & ASSOCIATES, P.C. Community Association Law David E. Hickey, Esq. 27261 Las Ramblas, Suite 120 Mission Viejo, CA 92691 (949) 614-1550 • Fax (949) 748-3990 dhickey@hickeyassociates.net www.HickeyAssociates.net HUGHES GILL COCHRANE TINETTI, P.C. Community Association & Construction Defect Law Michael J. Hughes, Esq., John P. Gill, Esq., Amy K. Tinetti, Esq. Complete representation of community associations 2820 Shadelands Dr., Ste. 160 Walnut Creek, CA 94598 (925) 926-1200 • Fax (925) 926-1202 atinetti@hughes-gill.com www.hughes-gill.com LOEWENTHAL, HILLSHAFER & CARTER, LLP Construction Defect Litigation Robert Hillshafer | David Loewenthal Los Angeles, San Luis Obispo, Santa Barbara, Ventura 5700 Canoga Avenue, Suite 160 Woodland Hills, CA 91367 (866) 474-5529 • Fax (818) 905-6372 info@lhclawyers.net www.lhclawyers.net
THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco l Bay Area l LA l Orange County l San Diego l Inland Empire (800) 403-3332 rachel@constructiondefects.com www.constructiondefects.com THE NAUMANN LAW FIRM, PC Construction Defect Litigation Construction Defect Analysis William Naumann l Elaine Gower San Diego l Orange County l Los Angeles l Riverside l San Bernardino 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 (858) 522-0763 • Fax (858) 564-9300 elaine@naumannlegal.com www.naumannlegal.com PRATT & ASSOCIATES, APC Community Association Law Sharon Glenn Pratt Los Gatos, CA 634 North Santa Cruz Avenue Suite 204, Los Gatos, CA 95030 (408) 369-0800 • Fax (408) 369-0752 spratt@prattattorneys.com www.prattattorneys.com RAGGHIANTI FREITAS LLP Community Association Law, Construction Defects & Mediation David F. Feingold, Esq. Matthew A. Haulk, Esq. Serving Bay Area Communities Since 1986 1101 Fifth Ave., Ste. 100 San Rafael, CA 94901 (415) 453-9433 • Fax (415) 453-8269 dfeingold@rflawllp.com www.rflawllp.com RICHARDSON OBER DENICHILO LLP Community Association Law, General Counsel, Assessment Recovery Kelly G. Richardson, Matt D. Ober, Robert M. DeNichilo Throughout California (877) 446-2529 matt@rodllp.com www.rodllp.com
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2021 LEGAL DIRECTORY, Continued from page 17
SWEDELSONGOTTLIEB Community Association Law, Construction Defect, Assessment Collection David C. Swedelson, Esq. Sandra L. Gottlieb, Esq. Los Angeles | Orange County | Palm Desert | San Francisco l Ventura 11900 W. Olympic Blvd., Ste. 700 Los Angeles, CA 90064 (800) 372-2207 • Fax (310) 207-2115 slg@sghoalaw.com www.lawforhoas.com TINNELLY LAW GROUP Community Association Law Richard A. Tinnelly, Esq. Steven J. Tinnelly, Esq. Orange County | Los Angeles | Palm Desert | San Francisco | San Diego 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (949) 588-0866 • Fax (949) 588-5993 ramona@tinnellylaw.com www.tinnellylaw.com WHITE & MACDONALD, LLP COMMUNITY ASSOCIATION LAW, CONSTRUCTION DEFECT LAW Steven M. White, Esq., Rob D. MacDonald, Esq. James P. Hillman, Esq. COST EFFECTIVE SOLUTIONS BASED ON EXPERIENCE 1530 The Alameda, Ste. 215 San Jose, CA 95126 (408) 345-4000 • Fax (408) 345-4020 info@wm-llp.com www.wm-llp.com WHITNEY PETCHUL APC Community Association Attorneys Fred T. Whitney, Esq. l Dirk E. Petchul, Esq. From Inception To Build-Out And Beyond 27 Orchard Rd. Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 info@whitneypetchul.com www.whitneypetchul.com
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WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Community Association Law Michael W. Rabkin, Esq. 11400 W. Olympic Blvd., 9th Floor Los Angeles, CA 90064 (310) 478-4100 • Fax (310) 479-1422 mrabkin@wrslawyers.com www.wrslawyers.com
CONSTRUCTION DEFECTS
BERDING | WEIL Construction Defect Litigation Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust Walnut Creek, San Diego, Orange County, Sacramento 2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berdingweil.com FENTON GRANT MAYFIELD KANEDA & LITT, LLP Construction Defect Litigation & CID Education Charles R. Fenton, Esq. Joseph Kaneda, Esq. California & Nevada 2030 Main Street, Ste. 550 Irvine, CA 92614 (877) 520-3455 • Fax (949) 435-3801 cfenton@fentongrant.com www.fentongrant.com THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco l Bay Area l LA l Orange County l San Diego l Inland Empire (800) 403-3332 rachel@constructiondefects.com www.constructiondefects.com
ELECTION ADMINISTRATION THE INSPECTORS OF ELECTION Providing Superior Election Support for California HOA’s Since 2006 Kurtis Peterson Completely Independent Full-Service Election Provider 2794 Loker Ave. W., Ste 104 Carlsbad, CA 92010 (888) 211-5332 • Fax (888) 211-5332 kurtis@theinspectosofelection.com www.theinspectorsofelection.com
LIBERTY HOA ELECTION SERVICES, LLC Inspector of Election We Make Association Voting Management Easy 1900 Camden Avenue San Jose, CA 95124 (408) 482-9659 www.hoaelection.com
RESERVE STUDIES
ASSOCIATION RESERVES Reserve Study Firm Carol Serrano Reserve Studies for Community Associations 6700 Fallbrook Avenue, Suite 255 West Hills, CA 91307 (800) 733-1365 cserrano@reservestudy.com www.reservestudy.com THE HELSING GROUP, INC. Reserve Study Firm Ryan Leptien Serving All of California 4000 Executive Pkwy., Ste. 100 San Ramon, CA 94583 (925) 355-2100 • Fax (925) 355-9600 reservestudies@helsing.com www.helsing.com SCT RESERVE CONSULTANTS Reserve Study Firm Mike Graves, RS Finding Solutions, Maintaining Communication, and Providing Triage P.O. Box 890129 Temecula, CA 92589 (951) 296-3520 • Fax (951) 296-5038 info@sctreserve.com www.sctreserve.com
VENDOR COMPLIANCE
ASSOCIATION SERVICES NETWORK Vendor Compliance David Jeranko Vendor Compliance & Risk Management 24000 Alicia Pkwy., Ste. 17-442 Mission Viejo, CA 92691 (949) 300-3702 • Fax (877) 404-2008 davidj@asn4hoa.com www.asn4hoa.com
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