Sign, Sign, Everywhere a Political Sign

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By Kieran J. Purcell, Esq.

As the 2020 political season gears up it is not uncommon to see political signs popping up in community associations which often leads to questions like: “Do homeowners have the right to display political signs?” “If so, where can they post political signs? “How soon after the election can we make them take down their signs?”  Chances are your association’s governing documents have a sign provision, and the city or county your association is located in likely has an ordinance governing political signs too.  However, the answers to these questions are found in your association’s governing documents and/or the California Civil Code.  Spoiler alert-you may not like the answers.

An Association May Prohibit an Owner From Posting Political Signs in the Common Area, But Not On or In Their Separate Interest Property. Generally, an association’s CC&Rs provide its board of directors has the sole and exclusive right manage and control the common area.  Some CC&Rs may also provide no signs may be erected or displayed in the common area without permission from the board. Or the CC&Rs may allow specific signs, e.g. one (1) sign of customary and reasonable dimensions offering a condominium for sale or lease.  If so, that means the board does not have to allow an owner to put political signs on the common area, right? And if an owner does place a political sign in the common area and refuses to timely remove it, the association can remove it, right? The answer to both questions is yes. Here’s why.

Civil Code section 4710 provides:

(a) The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.

(c) An association may prohibit noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than 15 square feet in size.

Therefore, a homeowner may post political sign(s) not larger than nine (9) square feet, made of the statutorily permitted materials in or on his or her separate interest property, but Civil Code section 4710 does not grant a homeowner the right to post signs-political in nature or otherwise-in the common area.

How Long Can a Political Sign Be Displayed Before/After An Election?  While CC&Rs rarely contain similar provisions, it would be reasonable for an association to adopt a rule with similar time limitations for owners to post political signs within their association, right?  Maybe. Many cities and counties have ordinances establishing time limits for when political signs may be posted, e.g. ninety (90) days before, and ten (10) days, after an election.  Civil Code section 4710 allows an association to prohibit the posting or displaying of noncommercial signs on an owner’s separate interest if the posting or display would violate a local, state, or federal law. Consequently, an association may be able to adopt rules which mirror the same time limitations set out in local ordinances.

Okay, So We Have To Let Someone Post a Political Sign, But Just One Right?

Maybe.  Civil Code section 4710(a) says governing documents may not prohibit noncommercial signs, posters, flags or banners, plural.  Unless prohibiting the sign(s), etc. protects public health or safety or if the posting or display would violate a local, state, or federal law.  Some examples of this would be: (a) if an owner displayed so many flags close to the street it impaired drivers from seeing other cars, (b) the city requires a permit for a flag pole over a certain height and the owner has no permit, or (c) the city limits how many signs can be displayed at one time on private property.

Census Taker Access

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By Jacquelyn E. Quinn, Esq.

It’s almost time for the 2020 Census to begin and associations may find census takers seeking access to the community or information regarding its occupants.  Households will receive an invitation to respond to the 2020 Census between March 12-20. If a household does not respond to the 2020 Census, a census taker may follow up in person to collect their response. This will occur between May-July.

Then comes the question – must associations grant census takers access to the community to gather information from occupants?  In short, yes.

13 U.S. Code Section 223 provides:

Whoever, being the owner, proprietor, manager, superintendent, or agent of any hotel, apartment house, boarding or lodging house, tenement, or other building, refuses or willfully neglects, when requested . . . to furnish the names of the occupants . . . or to give free ingress thereto and egress therefrom to any duly accredited [census taker] . . . shall be fined not more than $500.

An association is required to cooperate with census takers and cannot deny access into the community or giving the names of the occupants of the premises to any census taker who has shown proper identification.  Failure to grant access to the community or furnish names of occupants requested by a census taker may result in substantial fines.  The association may utilize whatever security measures it has in place (e.g., call resident and announce visitor).  It will be up to an individual resident if they choose to open their door or not.

Associations can and should require evidence that the person is an official census taker.  All census takers will be issued a census badge, which includes their name, photograph, Department of Commerce watermark, and an expiration date. Community Association Managers, patrol staff, or homeowners may ask to see a census taker’s badge. When in doubt, contact the nearest Regional Census Center to verify a census taker’s status. https://www.census.gov/about/regions/los-angeles/contact/identify.html

In order to comply with federal regulations, make sure your Community Association Managers, patrol staff, and gate and lobby attendants (if any) understand that access must be granted to census takers. They are allowed to knock on doors, ring doorbells, use call boxes, etc.  Also, census takers are within their rights to ask associations to verify occupancy information (e.g., name and address). While you’re not expected to supply the information immediately, you should provide the requested name and address within a reasonable amount of time.

Please be aware that there is no requirement to provide any information to a census taker over the phone.  If the association receives a phone call from a person claiming to be a census taker requesting occupancy information the association should not provide such information over the phone.

SB 323 and SB 754: Elections as of January 1, 2020

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This new law makes many changes to election laws, director qualification and records inspection and affects Civil Code §§ 5100, 5105, 5110, 5115, 5125, 5145, 5200 and 5910.  These changes include all of the following:

Timing and Distribution of Materials for Elections:

An election for the board of directors must be held at the end of each director’s expiring term and at minimum every four years.

  • At Least 90 Days Before the Election: Amend election rules (Section 5105(h))
  • 30 Days Before Deadline to Submit Nominees for a Director Seat: Give general notice of procedures and deadline for submitting a nomination for a Director seat (Section 5115(a)).
  • 30 Days Before Ballots are Distributed: Give membership general notice of the following (Section 5115(b)(1)-(4)):
    • The date, time and physical address where ballots are to be returned by mail or handed to inspector of elections.
    • The date, time, and location of the meeting at which ballots will be counted.
    • A list of all candidates who will appear on the ballot.
    • Prepare the candidate registration list and voter list and allow members to verify the accuracy of their information on both lists. (Section 5105(a)(7)). Any reported errors on the voter list must be corrected by the Inspector of Election within two business days.
  • 30 Days Before Election: Inspector of Election must deliver, or cause to be delivered, the following to each member (Section 5105(g)(4)):
    • The ballot(s).
    • A copy of the election operating rules. Election operating rules may also be delivered by posting them on internet website and providing members the website on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:___.”

Association Ability to Disqualify a Nominee for the Board:

An Association’s bylaws or election operating rules may only disqualify a nominee for the following reasons:

  • Nominee, if elected, would be serving on a Board at the same time as another person who holds a joint ownership interest in the same separate interest as the nominee and the other person is also a nominee for the current election or an incumbent director;
  • Nominee has been a member of the Association for less than one (1) year;
  • A nominee discloses, or the association is aware or becomes aware of, a past criminal conviction that would, if the nominee was elected, either prevent the association from purchasing the fidelity bond coverage required by Section 5806 or terminate the association’s existing fidelity bond coverage;
  • Nominee is not current in payment of regular and special assessments (does not include nonpayment of fines, fines renamed as assessments, collection charges, late charges, or costs levied by a third party). (If an Association requires a nominee be current in their payments, then it must also require a director be current in their payments.)  The nominee may not be disqualified for failure to be current in payment of regular and special assessments if either the following circumstances is true:
    • The person has paid the regular or special assessment under protest pursuant to Section 5658; or
    • The person has entered into a payment plan pursuant to Section 5665.

A nominee must be disqualified for not being a member of the Association at the time of the nomination.

An association shall not disqualify a person from nomination if the person has not been provided the opportunity to engage in internal dispute resolution.

If title to a separate interest parcel is held by a legal entity that is not a natural person, the governing authority of that legal entity shall have the power to appoint a natural person to be a member for purposes of being nominated as a candidate.

Election Operating Rules Must Include:

  • A prohibition on denying a ballot to a member for any reason other than not being a member at the time when ballots are distributed;
  • A prohibition on denying a ballot to a person with general power of attorney for a member; and
  • A requirement the inspector or inspectors of elections deliver, or cause to be delivered, at least 30 days before an election, to each member both of the ballot and a copy of the election rules. Delivery of the election operating rules may be accomplished by posting the election operating rules to an internet website and including the corresponding internet website address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:” or Individual delivery.

Association Records:

  • Membership lists subject to inspection by members now include members’ email addresses.
  • “Association election materials” has been added to the definition of association records which must be retained by the Association. These materials include the returned ballots, signed voter envelopes (signed voter envelopes may be inspected but may not be copied), the voter list, voters to whom ballots were to be sent, proxies, and the candidate registration list.
  • The voter list must include the voter’s name, voting power, and either (a) the voter’s physical address of their separate interest, (b) the parcel number, or (c) both. The voter’s mailing address must also be listed if only the parcel number is used.

Inspector of Elections:

The inspector of elections may not be a person, business entity, or subdivision of a business entity that is employed or under contract to the association for any compensable services.  The election rules may no longer make an exception.

Election by Acclamation for Associations of 6,000 or More Units:

When the number of director nominees at the close of the nomination period is not more than the number of vacant director positions on the board, the director nominees may be considered elected by acclamation if all of the following is true:

  • The Association includes 6,000 or more units;
  • The association provided individual notice of the election and the procedure for nominating candidates at least 30 days before the close of nominations; and
  • The association permits all candidates to run if nominated, except those disqualified for not being a member of the association at the time of the nomination and those disqualified for other reasons specified in Civil Code Section 5100.

Legal Actions:

  • Existing law authorizes a member of an association to bring a civil action for declaratory or equitable relief for a violation of the election law requirements by the association within one year from the date the cause of action accrues. This new law sets the time limit to file the action at one year from the date that the inspector of elections notifies the board and membership of the election results or the date the cause of action accrues, whichever is later.
  • The new law requires the court, if a member establishes by a preponderance of the evidence that election provisions or operating rules were not complied with, to void the election results unless the association establishes, by a preponderance of the evidence, that the association’s noncompliance with the election provisions or operating rules did not affect the election results.
  • An association may not file a civil action regarding a dispute in which the member has requested dispute resolution unless the association has complied with internal dispute resolution procedures.

Records to Keep

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By Karyn A. Larko, Esq.

There are few laws that say exactly what records a community association should keep and for how long.  Some of these laws are clear and some are not. For this reason, much of this article is based on the author’s experience and opinions, with input from experts in other legal and financial disciplines. Please note, there are undoubtedly some categories of records not addressed in this article that may be as important as those addressed below.

Member Meeting, Board Meeting and Committee Meeting Minutes

An association’s minutes constitute the official record of its acts. Both incorporated and unincorporated associations must keep minutes and must allow members to inspect them (see Corp. Code § 8320 and § 8333; Civ. Code § 4950 (board meetings), § 5200 and § 5210).  The original minutes should be kept forever, including minutes of membership meetings, regular board meetings and executive sessions (kept separately from regular board meeting minutes). The same applies to minutes of any committee that is empowered to exercise any board powers. If you don’t have originals, keep what you do have, signed or unsigned.

Ballots, Outer Balloting Envelopes and Proxies

The law provides direction on the retention of candidate registration lists, voter lists, ballots, proxies, sign-in sheets, signed voter envelopes and other election records. For Board elections and member votes to amend the governing documents, increase regular assessments, impose special assessments, and grant the exclusive use of common area, Civil Code sections 5105, 5125, 5200 and 5210 require that candidate registration lists, voter lists, ballots, signed voter envelopes, proxies and sign-in sheets be stored by the inspector(s) of elections or at a location designated by the inspector(s) for one year from the date the cause of action accrues.  This can be a challenging date to identify.  Depending on the nature of the claim, the date of the cause of action can be prior to the date the ballots are opened and counted, the day the ballots are opened and accounted, or a later date. Thereafter, these records must be held by the association until a total of three fiscal years have elapsed.  (For example, if an association’s fiscal year is January through December and the election is held in June 2020, these records must be retained until January 2023.)

Remember to note the election results in the relevant meeting minutes (see Corp. Code § 8325).

Contracts

Civil Code sections 5200 and 5210, which became effective January 1, 2014, require associations to make executed contracts that are not privileged under law available to the owners (which is the same as saying they must “retain” these records) for the current and prior two fiscal years.  Having said this, an association should not destroy these documents at the end of this period.

California has a 4-year statute of limitations for lawsuits arising out of contracts or other written documents (Code Civ. Proc. § 337).  Therefore, even if you signed a contract more than four years ago, you should keep the document for at least 4 years after the contractual relationship ended.  For example, if you have an automatically renewing management or landscape maintenance contract, you should keep that contract for at least 4 years from the date the contract was terminated.

To keep track of contracts, you should keep a file or notebook containing all active contracts and a separate file for contracts that have expired or have otherwise been terminated.

Records Related to Taxes

Civil Code sections 5200 and 5210 also require associations to make many tax related records available to owners for the current and prior two fiscal years.  (The tax-related records subject to section 5200 include, without limitation, state and federal tax returns, invoices, statements, receipts, canceled checks, approved purchase orders, reimbursement requests and credit card statements.)  However, an association should not destroy these records at the end of this period.

We are informed that the IRS generally has a 3-year rule and that the California Franchise Tax Board has a 4-year rule for conducting tax audits (absent fraud). However, if a claim of loss from worthless securities is made or a deduction is taken for a bad debt, the statute of limitations (i.e., the timeframe within which the IRS can challenge the claim or deduction) is 7 years.  Furthermore, there is no limit on when these agencies can pursue a claim if a tax return wasn’t filed. We have had clients whose corporate status was suspended for allegedly not filing a tax return more than fifteen years before. If the IRS has no record of a tax return or the tax payments, it will be impossible to show that you filed or paid the taxes without the return and the canceled checks.  Using this knowledge, it would be wise to keep all original financial documents for at least 4 years after filing the tax return (7 years if the return included a bad debt deduction or claim of loss) and to keep the tax returns and any tax payment checks forever.

If the Franchise Tax Board has no record that you filed or paid taxes and you do not have the records to prove otherwise, your corporation can be suspended.  The state will not revive the corporation or allow you to terminate the existing corporation unless and until the Franchise Tax Board acknowledges that all returns have been filed and taxes paid.

A few publications from the IRS provide additional guidance on the retention of tax related records. Publication 17 (2014) “Your Federal Income Tax” and Publication 583, “Starting a Business and Keeping Records,” are both available on request or can be accessed and printed from the Internet at http://www.IRS.gov. Also, an article in Smart Money Magazine[1], citing an H&R Block tax specialist, gives suggestions for individuals.  The specialist suggests keeping all tax-related items for seven years. It should be noted that the suggestions for what not to keep seem more applicable to individuals than businesses.

Since we are not tax attorneys, our best advice is that you obtain the advice of your association’s CPA or a tax attorney before discarding any tax related records.

Employee Related Records

For associations with employees, retaining payroll and employment records is more difficult to address. There are different statutes of limitations for state and federal wage claims, age and sex discrimination claims, and benefit claims, etc.  Some run from the date of the first breach and others from the date of the last violation. Depending on the claim raised, you may need time cards, hourly rates and annual salary data paid to different employees, evaluations and other personnel file records, and employee manuals and amendments.  You should probably retain the records on an employee for at least six years after the employee’s employment with the association ends.  Certainly, you should retain all records for current employees for at least six years and you should retain all personnel file information including benefit information for at least six years after the employer/employee relationship is terminated.

Unfortunately, it is far more difficult to say how long you should keep these records to defend against claims that current employees might raise in the future.

When you discard employee records, be sure to shred them to prevent both identity theft and the access of personal and confidential information by unauthorized persons.

Association Records Subject to Owner Inspection Pursuant to California Law

Civil Code section 5200 specifically identifies a number of other association records that must be made available to owners for inspection (and therefore, must be retained) for the current and prior 2 fiscal years.  Excluding minutes, contracts and tax related documents, which we addressed separately, these records include: (1) all governing documents; (2) documents required pursuant to Civil Code sections 4525, 5300, 5305, 5310 and 5565; (3) interim financial statements which include a balance sheet, income and expense statement, budget comparison or a general ledger; (4) written board approval of contracts or vendor bills; (5) reserve account records and records of payments made from reserve accounts; (6) the agendas for membership meetings, board meetings and meetings of committees established by the board pursuant to Corporations Code section 7212; (7) membership lists; and, (8) check registers.

The retention period required by Civil Code section 5200 is the minimum retention period.  These records should be kept longer if another rule or category applies that mandates a longer retention period.

Legal Documents

Legal documents, especially those that are not recorded in the official records of the county the association is located in, including settlement and mediation agreements, releases and maintenance agreements should be retained indefinitely – or at least until the association’s legal counsel confirms that it is safe to destroy them.

Any time there is a dispute involving the association and either a claim is made or a lawsuit is threatened, all documents pertaining to that matter must be preserved until litigation has concluded or the matter has otherwise been fully resolved, and legal counsel has confirmed that is safe to destroy them.  Additionally, all electronically saved communications, documents and video related to that dispute must be preserved, including without limitation, all emails, facsimiles, website and blog postings, voice-mail and text messages.

Other Association Records

There are records that an association is not required by law to retain, but we recommend doing so (at least for a substantial period of time) as a matter of good practice.

Annual audits or reviews are among the most important association financial records. These documents, which typically come in a small booklet, summarize an entire fiscal year.  It seems reasonable to keep them indefinitely.

You should maintain an inventory list, at least for items having a significant value.  This list should include a description of each item purchased, the purchase date, the amount paid and the check number. If you have a casualty loss, you will need to provide the association’s insurance carrier with a copy of the applicable purchase invoice(s) or canceled check(s).  Accordingly, you should keep these documents for as long as you own the property.

If you have an uncollected judgment, it is good for an initial 10 year period and can be renewed for an additional 10 year period.  Judgments and recorded abstracts of judgment can pop up years later, usually when a former owner wants to pay off the judgment to obtain new credit.  While a copy of these documents may be available in court files or attorney records, they may have been archived or even destroyed.  Even if they can be obtained, it may take some time to obtain them from storage.  Therefore, it is wise to keep these records while the judgment is valid.

Liability claims and certain property casualty claims can arise years after the incident(s) leading to such claims occurred and the association may have changed carriers one or more times in in the interim. The association will need to find the applicable insurance carrier to obtain insurance defense. A file should be kept for each insurance carrier and its policy(ies).  Each year’s declarations page, as well as any changes and endorsements that take effect during the life of the policy, should be added to the file.

Most associations keep a file for each owner’s property containing all correspondence and other records relating to that property or its owners. If an owner changes, routine correspondence can be archived and probably discarded following the general guidelines at the end of this article. However, for the reasons described below, you should probably retain indefinitely those documents relating to the property itself, such as architectural applications and recorded maintenance and indemnity agreements.

If architectural applications and approvals are discarded, it becomes impossible for the association to confirm which lot alterations had been approved. It also become impossible to confirm which improvements had been owner rather than developer constructed.

There is another benefit to retaining architectural decisions. Prior architectural decisions can provide guidance to architectural committees and boards by providing a record of what alterations did and did not work in the past and why. These records can also assist an association in the event an owner challenges its approval for denial of a proposed alteration. (Courts have allowed associations to change their minds based on the lessons of experience.)

Civil Code section 4765 requires architectural decisions to be in writing, and if a proposed change is disapproved, the written decision must explain why. Although you may keep the originals in separate files for each separate interest, you may find it more helpful to have at least a summary of each decision well-indexed in one or more files or notebooks. The summary should identify the improvements proposed and the reasons why they were or were not approved. This summary should also identify any regrets or complaints that followed an approval.

A general rule would be to say that, apart from the discussion above, most records can be discarded after five years, with the exception of employee benefit data/records, which must be kept for six years. However, even a five-year guideline cannot be applied categorically, and once a unique document is discarded, it is gone forever. If you are in doubt, you probably should err on the side of keeping the document, or at least get specific advice from someone with special expertise in the area that may be affected by the disposal before deciding whether to discard it.

Effective Record Retention

Records seem to disappear over the years. Thus, it is a good idea to consider using either a professional document storage company or a commercial self-storage unit just for your association’s records.  You should also develop a numbering system for the boxes and keep an index of what is in each box so that you can readily find documents many years later.

Records that you plan to keep forever should probably be kept with like documents in date order to make locating them easier (e.g., tax returns). It also makes sense to keep all records in the association’s active files that are to be kept forever in a separate drawer or banker’s box marked “KEEP FOREVER” to reduce the risk of them being inadvertently discarded. If you do not separate out these records at the time of their creation or receipt, they will become commingled with other records that may later be inadvertently discarded.  Waiting until you are ready to discard records to separate out those that should be kept will likely be significantly more difficult and time consuming than filing them separately in the first place.

If you have large quantities of documents that you think you should keep, but you don’t have the room, you may consider storing the records in computer form, either with software data files or scanned images. While this will take far less physical space than paper, it is important that you develop a plan on how you will access the documents in the future. Just as floppy disk drives have disappeared, making it difficult to pull data stored on such disks, it is important to realize that technology commonly used today may become obsolete or fail.  Therefore, unless you are using the most common software and hardware available now to store your records, know that it may not be readable in 10 to 15 years.  In fact, even using the most common software and hardware available now will not ensure that you will be able to access your electronically stored records a decade or so from now.  Additionally, hackers, ransomware, malware and viruses have all become commonplace. As a result, the security and protection of electronically stored records is becoming increasingly challenging. Built in storage redundancy, frequent document backups, and the use of current virus and malware protection software can significantly reduce the risk of loss. However, these measures are not foolproof.  For these reasons, keeping paper records may still be the safest option.

 

[1] April 2000 edition, page 88.

Cheveldave v. Tri Palms Unified Owners Association

ALEX CHEVELDAVE, Plaintiff and Appellant, v. TRI PALMS UNIFIED OWNERS ASSOCIATION, Defendant and Respondent.

No. E066461.
Court of Appeals of California, Fourth District, Division Two.

Filed October 3, 2018.
APPEAL from the Superior Court of Riverside County, Super.Ct. No. PSC1600368, Harold W. Hopp, Judge. Reversed.

Law Offices of Leonard Cravens, Leonard Jack Cravens; Zimberoff Deutsch and Daniel E. Zimberoff for Plaintiff and Appellant.

Epsten, Anne L. Rauch, Joyce J. Kapsal and Rian W. Jones for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

OPINION

MILLER, J.

Tri Palms Unified Owners Association (the Association) is a group of homeowners in the Tri-Palms Estates.[1] There is a recreation facility adjacent to the Tri-Palms Estates, and homeowners pay a fee for that recreation facility. In 2014, in bankruptcy proceedings, Kort & Scott Financial Group, LLC (K&S) was the successful bidder on the recreation facility. The Association entered into a settlement agreement (the Agreement) with K&S. As a result of the Agreement, some members of the Association were required to pay an increased fee for the recreation facility.

In 2016, Alex Cheveldave and Richard N. Davis, who were members of the Association, sued the Association, K&S, and Shenandoah Ventures, L.P., arguing that the Association did not have standing to enter into the Agreement. The Association filed an anti-SLAPP motion (Code Civ. Proc.,[2] § 425.16), which the trial court granted. Cheveldave contends the trial court erred by granting the anti-SLAPP motion. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. PROPERTY
Tri-Palms Estates was a real estate development consisting of 10 separate housing tracts. Each housing tract had its own set of covenants, conditions, and restrictions (CC&Rs). There was a recreation facility adjacent to the housing tracts, which was a separately owned facility. Tri-Palms Estates’ various CC&Rs required homeowners to pay fees for the recreation facility.

The recreation facility had been in continuous operation since the early 1960s and consisted of an 18-hole regulation golf course, a nine-hole executive golf course, a 15,000-square foot clubhouse, a public restaurant, three large swimming pools, two spas, tennis courts, a shuffleboard complex, a pro shop, banquet facilities, a 1,000-square foot arts and crafts building, and offices. Throughout the years, there have been various owners of the recreation facility. In 2003, in a recorded “Master Declaration,” property owners within Tri-Palms Estates formed the Association for the purpose of communicating with the management of the recreation facility and for supervising compliance with the CC&Rs.

B. PRIOR TRIAL COURT CASE
In 2008, the recreation facility was owned by The Club at Shenandoah Springs Village, Inc. (Shenandoah). The Association and Karla Wilson, a homeowner within the Association, brought a class action against Shenandoah. The Association and Wilson alleged that Shenandoah received $3,700,000 per year in fees from members of the Association. The Association and Wilson accused Shenandoah of (1) allowing the general public to use the recreation facility for additional fees, thus depriving the homeowners of their exclusive use of the recreation facility; (2) charging homeowners unauthorized use and cleaning fees—in addition to the monthly fees already being paid; and (3) mismanaging the fees received from homeowners.

On June 18, 2012, following a trial, the Riverside County Superior Court found Shenandoah breached the governing documents by not maintaining the recreation facility in a reasonable manner and by charging fees in excess of those permitted by the governing documents. The court also found that the homeowners had a nonexclusive easement for the use and enjoyment of the recreation facility, and therefore, Shenandoah could permit the public to use the recreation facility.

The trial court issued a permanent injunction requiring Shenandoah to maintain the recreation facility in a reasonable manner and to hire and retain a professional management company to operate the recreation facility. The injunction prohibited Shenandoah from charging homeowners a greater amount of fees than those provided for in the governing documents. The trial court awarded the Association approximately $365,648.88 plus interest for attorneys’ fees.

C. BANKRUPTCY CASE
In May 2007, Shenandoah borrowed $15,000,000 from General Electric; the loan was secured by the recreation facility. On November 28, 2012, General Electric recorded a notice of default and election to sell under deed of trust against the recreation facility, alleging at least $11,486,181 was owed. A receiver was to be appointed on December 4. On December 3, Shenandoah filed a petition for Chapter 11 bankruptcy in the United States Bankruptcy Court, Central District of California, Riverside Division. The Association filed a claim as a secured creditor.

Shenandoah sought to increase the fees paid by homeowners. The CC&Rs permitted the fees to be recalculated based upon the consumer price index; however, such an increase had not occurred “for years.” The Association opposed Shenandoah’s recalculation of the fees. In January 2014, the Association and Shenandoah participated in a mediation concerning the increased fees, but the issue was not resolved. The Association then filed a demand for arbitration against Shenandoah.

In March 2014 Shenandoah sought the bankruptcy court’s permission to sell Shenandoah’s assets. Shenandoah hoped to sell the recreation facility to Inspire Communities for $15,000,000 with $850,000 used exclusively for improvements and repairs on the recreation facility. The Association was worried that the bankruptcy court would soon grant Shenandoah’s motion to sell the recreation facility, and therefore entered into a settlement agreement (the Agreement) with Inspire Communities. The Agreement required the Association to (1) withdraw its arbitration case, and (2) permit Shenandoah’s suggested fee increase, in exchange for Inspire Communities agreeing to (a) maintain the recreation facility as required by the state trial court’s 2012 injunction, and (b) not having the increased fees be retroactive to an earlier date

In May, the bankruptcy court held a hearing on Shenandoah’s motion for authorization to sell the recreation facility. The Association was at the hearing. The bankruptcy court granted the motion. The court approved K&S as the successful bidder and explained that K&S substituted into the Agreement for Inspire Communities. In the bankruptcy court’s order it wrote, “The Court approved K&S as the successful bidder at the hearing on the Motion in lieu of Inspire Communities, in part, based on K&S’ agreement on the record in open court to the terms and conditions of the Inspire Settlement Agreement.”

D. CURRENT CASE
1. COMPLAINT
In January 2016, Cheveldave and Davis (collectively, Plaintiffs) sued the Association, K&S, and Shenandoah Ventures, L.P. Cheveldave owned property within Tri-Palms Estates, and Davis also owned property within Tri-Palms Estates. Plaintiffs alleged there is no common property within Tri-Palms Estates, that Tri-Palms Estates is not a common interest development, and therefore the Association did not have the authority to enter into the Agreement on behalf of the homeowners. Plaintiffs asserted that the fee increase set forth in the Agreement was void because such an increase can only occur upon a vote to amend the CC&Rs.

Plaintiffs sought a declaration that (1) Tri-Palms Estates is not a common interest development; (2) the fee increase is a breach of the CC&Rs; and (3) “that [the] bankruptcy settlement agreement is void.”

2. ANTI-SLAPP MOTION
The Association filed an anti-SLAPP motion. (§ 425.16.) The Association asserted Plaintiffs’ complaint arose from protected activity because it concerns the settlement agreement that resulted from an arbitration proceeding, which was connected to bankruptcy proceedings. The Association asserted that the Agreement concerned the Association’s right to petition in a judicial proceeding. (§ 425.16, subd. (e)(1).)

The Association contended Plaintiffs did not have a probability of prevailing because the bankruptcy court’s judgment was final. The Association argued that the state trial court “lacks subject matter jurisdiction to adjudicate the claims and causes of action in Plaintiffs’ Complaint.” The Association further asserted that principles of res judicata caused Plaintiffs to be estopped from obtaining relief. The Association contended that Plaintiffs, as members of the Association, were in privity with the Association, and thus bound by the terms of the Agreement.

3. OPPOSITION
Plaintiffs opposed the Association’s anti-SLAPP motion. Plaintiffs asserted, “This lawsuit is a collateral attack on a void judgment because it excluded indispensable parties, i.e. the plaintiffs.” Plaintiffs contended, “If what [the Association] says is true, then in every case in which [a] plaintiff is seeking to collaterally attack a judgment, that collateral attack would be subject to a SLAPP motion. That is ridiculous.” Plaintiffs contended their complaint did not concern a public issue and did not concern the Association’s right to petition; rather, it concerned the Association unilaterally agreeing that homeowners’ fees could be raised.

Plaintiffs contended they had a probability of succeeding on the merits because the bankruptcy court’s judgment was open to collateral attack due to the bankruptcy court lacking jurisdiction or exceeding its jurisdiction. Plaintiffs argued res judicata did not apply because the bankruptcy court’s judgment is void. Additionally, Plaintiffs disputed that they were in privity with the Association. Plaintiffs contended the Association’s priority in the bankruptcy proceedings was receiving the payment for its attorneys’ fee award from the 2012 case. In order to secure its payment, the Association “sold the owners of the individual properties down the road.”

4. HEARING ON THE ANTI-SLAPP MOTION
The trial court held a hearing on the Association’s anti-SLAPP motion. The court asked Plaintiffs if their lawsuit arose out of a protected activity. Plaintiffs responded, “It does. But what we have here is . . . basically a motion to undo a judgment. . . .” The trial court asked why Plaintiffs did not intervene in the bankruptcy case. Plaintiffs explained the bankruptcy case was closed by the time they learned of it.

In regard to the probability of prevailing, the Association said, “And I would argue that because this settlement was approved in bankruptcy court, that they don’t even have standing to object to it here in this court. Their remedy would be to go to Judge Houle in bankruptcy court and argue before him.”

Alternatively, the Association asserted that it had standing to represent the members of the Association in the Agreement, without naming the members or giving notice to the members. Plaintiffs argued that the Association did not have standing to represent them because Tri-Palms Estates is not a common interest development in that there is no common property. The Association contended common property is not a requirement for a common interest development, and that reciprocal easements are sufficient for a common interest development. The Association contended there were easements for the homeowners to use the recreation facility.

5. ORDER
The trial court granted the anti-SLAPP motion. The trial court found that plaintiffs’ complaint “obviously arises out of constitutionally protected activity. The complaint specifically references the settlement agreement made in the bankruptcy proceedings and seeks to challenge it.”

In regard to the probability of prevailing, the trial court explained that plaintiffs failed to address the reciprocal easement issue, i.e., that a common interest development can be based upon reciprocal easements. The court found that plaintiffs’ failure to address this issue meant that the Association had “the statutory authority to sue in its own name without joining all of its members (including plaintiffs) and the settlement agreement is not void for lack of naming plaintiffs as parties to the underlying litigation. [¶] Because the Court finds that plaintiffs have not and cannot meet their burden under the second prong of the analysis, it need not address the additional contention by [the Association] that any challenge to the settlement agreement may only be made in the bankruptcy court.” The trial court awarded the Association attorneys’ fees in the amount of $33,720.50 and costs in the amount of $1,505.77 for a total award of $35,225.77.

6. MOTION FOR RECONSIDERATION
Plaintiffs filed a motion for reconsideration. As to the first prong of the analysis, plaintiffs asserted a new case was published after the hearing on the anti-SLAPP motion, which required the trial court to consider the act underlying the cause of action. Plaintiffs argued the act at issue in this case was the raising of the homeowners’ fees; it did not concern speech. Plaintiffs explained, “In our case, the cause of action is to set aside a void judgment, not to silence [the Association] in any way. It is also not a matter of public concern, it is dispute between some homeowners and a HOA.”

As to the second prong, plaintiffs contended there were no reciprocal easements. Plaintiffs explained that homeowners have an easement to use the recreation facility, but the easement is not reciprocal because there is no right for the owner of the recreation facility to enter the homeowners’ properties.

7. HEARING ON THE MOTION FOR RECONSIDERATION
The trial court held a hearing on plaintiffs’ motion for reconsideration. The trial court said that plaintiffs’ argument concerning the lack of reciprocal easements was not a new fact. Plaintiffs responded, “If the Court can look at that—again, there is just no easement—Your Honor, there is just no easements, there is nothing, there is no common property.” Plaintiffs asserted that a reciprocal or mutual easement does not mean all the homeowners had access to the recreation facility, it meant the homeowners had access to the recreation facility and the owners of the recreation facility had access to the homeowners’ properties. The trial court said it was not persuaded by plaintiffs’ easement argument.

In regard to the first prong, plaintiffs asserted their lawsuit was about increased fees; it was not about petitioning activity. The trial court explained that plaintiffs framed their case as being about the Association’s lack of standing to enter into the Agreement, which arose from litigation, and therefore, plaintiffs’ case concerned petitioning activity. The trial court denied the motion for reconsideration.

DISCUSSION

I. ANTI-SLAPP MOTION
A. CONTENTION
Cheveldave contends the trial court erred by granting the anti-SLAPP motion.[3] (§ 425.16.)

B. LAW AND STANDARD OF REVIEW
The anti-SLAPP statute is designed to “encourage continued participation in matters of public significance” by stopping lawsuits that would otherwise chill a person’s public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determining if a lawsuit is designed to curb the defendant’s participation in matters of public significance.

The first step is examining the causes of action to determine if they arise from any act in furtherance of the defendant’s “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b).) The second step is determining whether the plaintiff has a probability of prevailing on his claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the defendant’s right of petition or free speech and the plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)

C. PROTECTED ACTIVITY
An “`act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes . . . any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).)

“In deciding whether the initial `arising from’ requirement is met, a court considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “`The mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.'” (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)

The act complained of in Cheveldave’s complaint is the Association’s entering into the Agreement, which resulted in increased fees for homeowners. Cheveldave asserts the Association did not have authority to agree to the fee increase, and he requests the fee increase be declared void and the Agreement be declared void as to the homeowners in the Tri-Palms Estate unit three development.

The fee increase clause of the Agreement provides, in relevant part, “Pursuant to the Fee Schedule attached hereto as Exhibit 2, and in order to resolve that Lawsuit, the Parties agree that K&S may charge increased Usage and Maintenance Fees for each Lot Owner (as defined in the Declaration) within each Tract.” The “Lawsuit” refers to the state trial court case for which a judgment was entered in 2012. At the time of the Agreement, an appeal and cross-appeal from the 2012 judgment were pending in this court. (Tri Palms Unified Owners Association, Inc. et al. v. The Club at Shenandoah Springs Village, Inc. (E056546) [dismissal order July 28, 2014].)

The Agreement further provides, “[The Association] shall file a Request for Dismissal with prejudice of its Cross-Appeal in its entirety as to all parties and claims with each Party bearing its own fees and costs within 15 business days after date of the Close of Escrow pursuant to the Purchase Agreement. [The Association’s] obligation to file a Request for Dismissal with prejudice of its Cross-Appeal is contingent upon the dismissal, with prejudice, of the appeal filed by the Debtor.”

The Agreement also provides, “[The Association] asserts certain claims against Debtor, and filed a proof of claim as a secured creditor in the Bankruptcy Action for the amount of $382,478.75 plus interest. . . . After a trial on June 8, 2012, a judgment was entered against Debtor in the amount of $365,648.88 plus interest and for a permanent injunction. Debtor then filed an appeal from the Judgment and [the Association] filed a cross appeal on July 31, 2012.”

The Agreement continues, “K&S shall not object to [the Association’s] secured claim of Three Hundred Eighty Two Thousand Four Hundred Seventy-Eight and 75/100ths Dollars ($382,478.75) plus interest, being deemed an allowed claim, which shall be paid from proceeds of the Sale Motion, and [the Association] covenants not to file another claim in the Debtor’s bankruptcy case. [The Association] shall cooperate in and support K&S’s purchase of the Purchased Assets pursuant to the Purchase Agreement and Sale Motion.”

In other words, the Association had a claim for $382,478.75 as a result of a judgment entered in the state trial court, and the Association hoped to have its claim paid within the bankruptcy proceedings. In connection with that $382,478.75 judgment, an appeal and cross-appeal were pending. Additionally, the Association had made a demand for arbitration against Shenandoah, in relation to the fee increase. In the Agreement, the Association agreed to (1) dismiss its cross-appeal, (2) dismiss its demand for arbitration, and (3) permit the fee increase, in exchange for (A) dismissal of Shenandoah’s appeal, and (B) an agreement that the $382,478.75 judgment would be paid.

Thus, the Association’s act of agreeing to the fee increase resulted in the dismissal of an appeal and cross-appeal that were pending before this court, and the resolution of the Association’s creditor claim that was pending before the bankruptcy court. When the bankruptcy court issued its order, it wrote, “The Court approved K&S as the successful bidder at the hearing on the Motion in lieu of Inspire Communities, in part, based on K&S’ agreement on the record in open court to the terms and conditions of the Inspire Settlement Agreement.” Thus, the terms of the Agreement were part of the bankruptcy court’s decision to select K&S as the successful bidder.

In sum, the Agreement led to the settlement of the Association’s creditor claim in the bankruptcy court and the appeal and cross-appeal in the state appellate court. The Agreement was also used by the bankruptcy court as a reason to select K&S as the successful bidder after the terms of the Agreement were discussed in open court.

Given that the Agreement affected a number of issues before the courts, the Agreement constitutes a “written . . . statement . . . made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(2).) Accordingly, the Association’s act of entering into the Agreement is a protected activity.

Cheveldave contends the Association’s act of entering into the fee increase portion of the Agreement is not a protected activity because the Association did not have authority to enter into that section of the Agreement. Cheveldave’s argument pertains to the merits of the case, i.e., whether the Association had the authority to enter into the fee increase portion of the Agreement. Cheveldave does not cite to the anti-SLAPP statute and explain how an alleged lack of authority means the statement was not made in connection with an issue pending before a court. (§ 425.16, subd. (e)(2).) Accordingly, because Cheveldave’s argument appears to pertain to the merits of his complaint, we find his contention to be unpersuasive.

D. PROBABILITY OF PREVAILING
1. Law
If a cause of action arises from the defendant’s protected activity then the plaintiff must show he has a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Navellier v. Sletten, supra, 29 Cal.4th at p. 95.) The plaintiff must establish that his case has “minimal merit” by presenting a “`”prima facie showing of [evidence] to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”‘” (Navellier, at pp. 88-89, 93.)

2. Davis-Stirling Act
When a development contains a common area, then the Davis-Stirling Act applies. (Civ. Code, § 4201.) The Davis-Stirling Act confers standing on a homeowners’ association to pursue legal claims in its own name without joining the individual members. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 241; Civ. Code, § 5980.) A “common area may consist of mutual or reciprocal easement rights appurtenant to the separate interests.” (Civ. Code, § 4095, subd. (b).) A reciprocal easement arises when adjoining landowners impose corresponding restrictions or rights upon each of their properties. (Whelan v. Rosseter (1905) 1 Cal.App. 701, 704; see also Redevelopment Agency v. Tobriner (1989) 215 Cal.App.3d 1087, 1091, fn. 1.)

An example of a reciprocal easement is a small condominium building with a common driveway. Each condominium owner may grant a reciprocal easement to the other condominium owners that allows each owner to drive anywhere on the driveway and preventing any owner from erecting a barrier. (See Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764,775-776; see also Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 129; see also Baccouche v. Blakenship (2007) 154 Cal.App.4th 1151, 1555; see also Redevelopment Agency v. Tobriner, supra, 153 Cal.App.3d at pp. 370-371; see also Fobbs v. Smith (1962) 202 Cal.App.2d 209, 211; see also Civ. Code, § 4505, subd. (a).)

The 2003 Master Declaration provides, “Every Member of the Association shall have a non-exclusive easement for use and enjoyment of the Recreational Facilities and any improvements thereon or open space areas therein, which shall be appurtenant to and pass with title to each Lot, subject to all of the easements, covenants, conditions, restrictions and other provisions contained in the Declarations and this Master Declaration.”

The Master Declaration does not create a reciprocal easement because there is not a shared burden. The members’ properties are not burdened by an easement—only the recreation facility is burdened by an easement. Based upon the current evidence, there is not a shared burden, and therefore, there are not reciprocal easements.

A mutual easement has the same meaning as a reciprocal easement: “[A] general plan of real estate development can give rise to mutual equitable servitudes only when both the grantor and grantee intend that the land conveyed is to be restricted pursuant to a general plan, that intent appears in the deed, the parties’ agreement shows that the parcel conveyed is subject to restrictions in accordance with the plan for the benefit of all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit.” (Terry v. Jones (1977) 72 Cal.App.3d 438, 442.) Thus, mutual easements are defined by a “mutuality of obligation.” (Welsch v. Goswick (1982) 130 Cal.App.3d 398, 405.)

As explained ante, there is not a mutuality of obligation. Rather, there is a single obligation. The recreation facility, alone, bears the burden of an easement. The homeowners’ properties do not have the burden of a mutual obligation. As a result, based upon the current evidence, there is not a mutual easement. Because the evidence reflects there is not a reciprocal easement or a mutual easement, Chevldave has established minimal merit regarding his allegation that there is not a common area, and thus that there is not standing pursuant to the Davis-Stirling Act.

The Association contends the unit three declaration created easements on homeowners’ lots for the installation and maintenance of drainage facilities, and thus, there is a common area. The “Declaration of Restrictions and Charges for Tri-Palm Estates Unit Three” provides that Mobilife of California, Inc. created easements on the homeowners’ lots. Specifically, the unit three declaration provides, “Easements for the installation and maintenance of utilities and drainage facilities are reserved, as shown on the recorded map or plat, over the rear and side of each lot and parcel of land. Within these easement areas, no structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities. The easement areas of each lot and parcel of land, and all improvement in it, shall be maintained continuously by the owner of said lot and parcel of land.”

The foregoing easement is not mutual or reciprocal because the easement runs in only one direction—the burden is only on the homeowner. There is not a shared burden. The utility companies have not granted an easement to the homeowners, such that the utility companies are burdened. Accordingly, because the easements are not reciprocal or mutual, we are not persuaded that the easements create a common area.

The Association contends it owns an office, and the office constitutes a common area. In support of this contention, the Association cites to Cheveldave’s attorney’s argument in the opposition to the anti-SLAPP motion. Because the Association (1) does not provide evidence of its ownership of the office; and (2) does not provide an explanation as to how owning the office constitutes a common area for homeowners, we find the Association’s contention to be unpersuasive. (Central Valley Gas Storage LLC v. Southam (2017) 11 Cal.App.5th 686, 694-695 [provide relevant analysis].)

3. Master Declaration
The Association contends that if, under the current evidence, the Davis-Stirling Act could be found to be inapplicable, then the Association had standing to authorize the fee increase pursuant to the recorded 2003 Master Declaration.

The Master Declaration provides, “The Association may do all other acts and things that nonprofit mutual benefit corporations are empowered to do, which may be necessary, convenient or desirable in the administration of its affairs and in order to carry out the powers and duties described in this Master Declaration, including those powers described in Section 374 of the California Code of Civil Procedure and (to the extent not inconsistent herewith) those powers described in Section 1350 et seq. of [the] California Civil Code, as those sections may be amended from time to time.”

The Master Declaration was executed in 2003. In 2003, section 374 provided that a minor under 12 years of age, accompanied by a guardian ad litem, “shall be permitted to appear in court without counsel for the limited purpose of requesting or opposing a request for” a protective order or an injunction to stop harassment or violence. The fee increase did not arise from a case involving a protective order or injunction related to harassment or violence. Accordingly, we do not rely upon section 374.

In 2003, Civil Code section 1350 et seq. was the Davis-Stirling Act. (Former Civ. Code, § 1350.) The Master Declaration provides, “The Association may do all other acts and things that nonprofit mutual benefit corporations are empowered to do . . . including . . . (to the extent not inconsistent herewith) those powers described in Section 1350 et seq. of [the] California Civil Code, as those sections may be amended from time to time.”

As explained ante, the Davis-Stirling Act applies when there is a common area. (Civ. Code, § 4201.) The law specifically provides that the Davis-Stirling Act does not “apply to a real property development that does not contain [a] common area.” (Civ. Code, § 4201.) Arguably, it would be inconsistent to apply the Davis-Stirling Act to the Association because there is evidence reflecting Tri-Palms Estates does not have a common area. Because it is arguably inconsistent, one could reasonably argue that, under the Master Declaration, the authority granted by the Davis-Stirling Act does not apply in this case. The argument would be as follows: the Master Declaration allows the authority of the Davis-Stirling Act to be exercised by the Association “to the extent not inconsistent herewith,” but it is inconsistent in this case because there is no common area, and thus, no authority may be exercised under the Davis-Stirling Act. Because such an argument can reasonably be made, we conclude there is minimal merit to Cheveldave’s case.

4. Proper Fees
The Association contends that even if it lacked authority to agree to the fee increase, the increase itself was proper. In other words, the Association’s lack of authority is harmless in that K&S could have increased the fees in the same manner, without any agreement by the Association, because there is no error in K&S’s fee calculation.

It may be that the result of Cheveldave’s lawsuit is that the Agreement is declared void and then nothing of substance changes because the fee increase was properly calculated and could have been unilaterally imposed by K&S. If it is declared that the Association did not have the authority to enter into the Agreement, then that declaration could affect similar issues in the future between the Association and the homeowners. This lawsuit may ultimately be more about procedure, than a decrease in fees, but it could clarify the rights between the Association and the homeowners. Therefore, there is minimal merit to Cheveldave’s case.

5. Deference
The Association contends Cheveldave’s case does not have minimal merit because deference is given to decisions made by the governing board of a community association. The Association relies upon the following quote: “`Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.'” (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 264.)

If Cheveldave’s complaint concerned the merits of the fee increase, then the foregoing rule might be applicable. However, Cheveldave is disputing the Association’s authority to enter into the Agreement. The quote that the Association relies upon is not relevant to determining whether the Association had the authority to enter into the Agreement; rather, it would be relevant if we were examining if it were a good decision to enter into the fee increase portion of the Agreement. Accordingly, we find the Association’s argument to be unpersuasive.

6. Collateral Estoppel
a. Law
“The doctrine of collateral estoppel is one aspect of the concept of res judicata.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. 3.) “Collateral estoppel, or issue preclusion, `precludes relitigation of issues argued and decided in prior proceedings.'” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)

Collateral estoppel has five requirements: “First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) We apply the de novo standard of review. (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.)

b. Bankruptcy Court
The Association contends the bankruptcy court’s order was final and on the merits, and therefore Cheveldave’s case is barred by collateral estoppel. The issue before the bankruptcy court was Shenandoah’s debts. There is nothing in the record indicating that the bankruptcy court decided whether the Association had the authority to agree to a fee increase. Because the issue raised in Cheveldave’s case is not identical to the issue raised in the bankruptcy court, collateral estoppel does not apply.

c. The Agreement
The Association contends the Agreement is a final decision on the merits and therefore Cheveldave’s case is barred by collateral estoppel. The Association relies upon Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065, which provides, “The settlement agreement, as incorporated into the judgments in the Kelly and federal court actions, meets the first requirement of res judicata that there was a final decision on the merits.”

The bankruptcy court did not incorporate the Agreement into its order. In its order, the bankruptcy court wrote, “The Court approved K&S as the successful bidder at the hearing on the Motion in lieu of Inspire Communities, in part, based on K&S’ agreement on the record in open court to the terms and conditions of the Inspire Settlement Agreement.” The Agreement was a reason for the bankruptcy court selecting K&S as the successful bidder, but the court did not order K&S to comply with the terms of the Agreement. Because the terms of the Agreement are not part of the bankruptcy court’s order, the Agreement does not constitute a final decision on the merits. Therefore, Cheveldave’s case is not barred by collateral estoppel.

d. Small Claims
The Association contends that Davis, who is no longer a party to this appeal, is barred by collateral estoppel from pursuing this case because he previously litigated the same issues in small claims court. Because Davis is no longer a party to this appeal, we deem this issue to be moot. (Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th 780, 791 [an issue is moot when the court cannot provide further relief].)

E. CONCLUSION
Cheveldave has established that his case has minimal merit. Accordingly, the trial court erred by granting the anti-SLAPP motion.

II. ATTORNEYS’ FEES
The Association contends it should be awarded attorneys’ fees on appeal if this court affirms the trial court’s order. We deny the Association’s request because we are reversing the trial court’s order. Further, because the Association is not the prevailing party on the anti-SLAPP motion, the trial court’s award of attorneys’ fees must be reversed. (§ 425.16, subd. (c)(1).)

We note that Cheveldave’s notice of appeal did not expressly include the award of attorneys’ fees. In the trial court’s May 18 order granting the anti-SLAPP motion, the trial court explained that the Association was the prevailing party and cited to the subdivision mandating an award of attorneys’ fees (§ 425.16, subd. (c)). The exact amount of attorneys’ fees was awarded on May 26. Cheveldave’s notice of appeal reflects he is appealing from the May 18 order and the July 11 denial of his motion for reconsideration. Because the trial court’s May 18 anti-SLAPP order included a citation to the law for a mandatory award of attorneys’ fees, and Cheveldave is appealing from the May 18 order, we conclude the issue is within our jurisdiction. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997; Chodos v. Cole (2012) 210 Cal.App.4th 692, 697-698, 706.)

III. MOTION TO DISMISS
The Association filed a motion to dismiss Cheveldave’s appeal due to Cheveldave no longer residing within Tri Palms Estates. The Association explains that Cheveldave’s home was foreclosed upon, and in March 2018 ownership of Cheveldave’s home was transferred to the Association. The Association was listed as the creditor in the foreclosure.[4] The Association asserts that because Cheveldave is no longer a homeowner within Tri Palms Estates, he lacks standing to pursue the instant appeal.

“Any party aggrieved may appeal.” (§ 902.) “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c)(1).)

Because the Association was the prevailing party on the anti-SLAPP motion, the trial court awarded the Association attorneys’ fees in the amount of $33,720.50 and costs in the amount of $1,505.77, for a total award of $35,225.77.[5] Because Cheveldave was required to pay an award of $35,225.77, he was aggrieved. Because attorneys’ fees are required for a prevailing defendant on anti-SLAPP motion, the only means of addressing the attorneys’ fee award on appeal was to argue that the trial court erred in granting the anti-SLAPP motion. Accordingly, because Cheveldave was aggrieved by the trial court’s order, he could properly appeal. (§ 902.) Therefore, we deny the Association’s motion to dismiss.

DISPOSITION

The judgment of dismissal is reversed. The orders granting the anti-SLAPP motion and awarding attorney’s fees are reversed. Cheveldave is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

McKINSTER, Acting P. J. and CODRINGTON, J., concurs.

[1] In the record, respondent’s name and the real property development are sometimes written as “Palms” (plural) and, at other times, as “Palm” (singular).

[2] All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.

[3] Davis requested the appeal be dismissed only as to him. This court granted Davis’s request. Thus, Cheveldave is the sole appellant.

[4] The Association requests this court take judicial notice of the “Sheriff’s Deed County of Riverside, State of California Under Writ of Execution,” that was recorded by the Riverside County Clerk-Recorder, against Cheveldave’s property. This court grants the request as required by law. (Evid. Code, §§ 452, subd. (c), 453; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)

[5] The trial court calculated the total award as $35,225.77. However, it appears the total amount should be $35,226.27.

Record Retention: Meet the New Board, Same as the Old Board

By David A. Kline, Esq.

Often I hear members and directors distinguish between events that took place “under the old board” and those that take place “under the new board.” The implication of this distinction is that the election that brought in “the new board” somehow wiped the slate clean or that a new entity was somehow formed.  In reality though, a community association is a single entity that continues despite changes in its membership, officers, directors and management.

There is no legal distinction between decisions made by “the old board” and those made by “the new board.” Rather, the business and affairs of community association are conducted by one body – the board.

Although the board may change its mind from time-to-time, it is important to recognize that decisions made by the board may continue to affect the association into the future, regardless of any changes that may occur in the composition of the board or management.

A recent decision by a Federal District Court in Florida illustrates the problems that can occur when a community association fails to recognize decisions made by “the old board.” (Peklun v. Tierra Del Mar Condo. Ass’n, 2015 U.S. Dist. LEXIS 163554 (S.D. Fla., Dec. 7, 2015), “Tierra Del Mar.”)

In February of 2015, Sergey Peklun took his own life. He had been living with his dog, Julia, at Tierra Del Mar Condominium Association in Boca Raton, Florida. In 2011, he received a notice from the association that his dog’s presence violated the association’s pet restrictions.  He responded to that notice explaining that his doctors recommended keeping Julia as an emotional support animal due to his anxiety and depression. His assertion that Julia was an emotional support animal was supported by letters from two doctors. In September of 2011, the association’s board of directors granted Mr. Peklun a reasonable accommodation to keep his emotional support dog. Then, the composition of the association’s board changed and the association changed management companies.  Can you see where this is headed?

A neighbor complained about the dog’s presence and the association demanded that Julia be removed from the premises. When Mr. Peklun asserted that Julia was a service dog, the association sought evidence of the dog’s certification as such. In 2013, when Mr. Peklun failed to provide that evidence, the association denied Mr. Peklun’s request to keep his dog and demanded its removal.  Importantly, the board focused its attention on whether the dog was trained to provide a service for Mr. Peklun rather than on whether he continued to need the dog as an emotional support animal.

Meanwhile, the complaining neighbor sued Mr. Peklun for an injunction ordering the dog’s removal. The judge issued that injunction based on an affidavit from the association’s president stating that there was no record the board of directors had ever granted Peklun an accommodation. Mr. Peklun took his own life on the day he was to appear in court on a contempt motion for his willful disregard of that court order.

Mr. Peklun’s widow and son sued the association, its president, and the neighbor for intentional infliction of emotional distress and for violations of the Fair Housing Act, among other causes of action. The Court refused to grant the association’s motion for summary judgment on the Fair Housing Act claim. The Court explained that the association was within its rights to inquire whether Mr. Peklun continued to need his dog as a reasonable accommodation.  However, the Court continued, “Because knowledge of the 2011 accommodation…was imputed to [the association’s] current board and also brought to its attention again in 2013, it had an obligation to open a dialogue regarding Julia’s purpose before denying the request.” (Tierra Del Mar, at 48.)

The above case is just one example of the problems that can occur when a community association fails to retain adequate records through a change in management.

  • Are your association’s records maintained in a way that would alert future directors and managers of decisions the board makes today?
  • Does your document retention policy adequately ensure that minutes will not be destroyed?
  • Does your association maintain minutes in a format that is easily searchable?
  • If a new management company has taken over, were the old records reviewed and incorporated into the association’s current files? Or, were they placed in a file box and stored in archives without a second thought?
  • When corresponding with a homeowner, what steps do you take to ensure that the association’s “institutional memory” is as good as that homeowner’s? Does your association maintain an individual file for every unit or lot?

When associations change management companies, it is understandable that emotions may run high.  Rather than simply transferring disorganized boxes from one office to another, it is well worth the association’s efforts and expense for the old management company to index its files and records and to meet with the board and the new management company to explain how those records are organized.

  • What could the Tierra Del Mar board have done in 2011 to ensure that its decision in 2011 would be known by the board in 2013?
  • If you were the old manager, how would you have ensured a smooth transition of association records?
  • If you were the new manager, how would you have incorporated the association’s old records into your own records-management system?

If you have suggestions or best-practices that you would like us to share in our next newsletter, please e-mail us.

Bus. & Prof. Code §22954. Hosting Platform Notice Requirement

California Business and Professions Code  >  Bus. & Prof. Code §22954. Hosting Platform Notice Requirement

(a) The notice required by Section 22592 shall be in a font size that is equal to or greater than 100 percent of the standard font size of the other paragraphs on the hosting platform’s Internet Web site or equal to the default font size on the hosting platform’s Internet Web site.

(b) The notice shall be provided immediately before the offeror lists each real property on the hosting platform’s Internet Web site, and shall require the offeror to interact with the hosting platform’s Internet Web site to affirmatively acknowledge he or she has read the notice. This affirmative acknowledgment may be accomplished by the inclusion of a statement in the notice described in Section 22592 that the offeror acknowledges reading this notice before proceeding to list a real property with the hosting platform’s Internet Web site. [2017]

Bus. & Prof. Code §22592. Hosting Platform Listing Requirements

California Business and Professions Code  >  Bus. & Prof. Code §22592. Hosting Platform Listing Requirements

A hosting platform shall provide the following notice to an offeror listing a residence for short-term rental on the hosting platform:

(a) If you are a tenant who is listing a room, home, mobilehome, condominium, or apartment, please refer to your rental contract or lease, or contact your landlord, prior to listing the property to determine whether your lease or contract contains restrictions that would limit your ability to list your room, home, mobilehome, condominium, or apartment. Listing your room, home, mobilehome, condominium, or apartment may be a violation of your lease or contract, and could result in legal action against you by your landlord, including possible eviction.

(b) You should review any restrictions on coverage under your homeowners’ or renters’ insurance policy related to short-term rental activities to ensure that there is appropriate insurance coverage in the event that a person sustains an injury or loss for which you are responsible, a person damages or causes loss to your personal or real property, or a claim or lawsuit is made against you or otherwise arises out of activities related to this hosting platform. [2017]

Bus. & Prof. Code §22590. Hosting Platform Defined

California Business and Professions Code  >  Bus. & Prof. Code §22590. Hosting Platform Defined

As used in this chapter, a “hosting platform” means a marketplace that is created for the primary purpose of facilitating the rental of a residential unit offered for occupancy for tourist or transient use for compensation to the offeror of that unit, and the operator of the hosting platform derives revenues, including booking fees or advertising revenues, from providing or maintaining that marketplace. “Facilitating” includes, but is not limited to, the act of allowing the offeror of the residential unit to offer or advertise the residential unit on the Internet Web site provided or maintained by the operator. [2016]

Health & Saf. Code §1597.543. Fire Marshall Standards

California Health & Safety Code  >   Health & Saf. Code §1597.543. Fire Marshall Standards

*New statutes and amendments effective January 1, 2020 are shown in bold, underline italics. [ ] indicates an amendment of deleted text only.

(a) The State Fire Marshal shall update the building and fire standards necessary to implement the sections of this chapter relating to life and fire safety, including, but not limited to, Sections 1597.455 and 1597.46, and shall publish the updates in the California Code of Regulations (CCR) in the next Title 19 and Title 24 CCR adoption cycle.
(b) Prior to the publication of the updates required by subdivision (a), but not later than January 1, 2021, the State Fire Marshal shall issue guidance on implementing the sections listed in subdivision (a).
(c) The State Fire Marshal shall update the regulations at least every three years to conform to changes in this chapter. The State Fire Marshal may issue guidance on implementing this chapter annually in the years in which the regulations are not updated in Title 19 and Title 24 of the CCR. [2019]