Issues for Inspectors of Election to Consider

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  1. Front of envelope – not signed in upper left corner

         Accept            Reject

  1. Front of envelope – signed but other identifying information not filled in

         Accept            Reject

  1. Front of envelope -ballot voted by proxy, but envelope not signed by proxy holder (owner’s signature or no signature)

         Accept            Reject

  1. Front of envelope – no identifying information or signature

         Accept            Reject

  1. Front of envelope – name is different than the name on Association’s owners list

         Accept            Reject           Female and first name is the same
(possible change in marital status)

         Accept            Reject           Unit owned by corporation

         Accept            Reject           Unit owned by trust (trustee)

         Accept            Reject           Alleged Power of Attorney

         Accept            Reject           None of the above – name just does not match

  1. Outer envelope has been opened

         Accept            Reject           Apparently opened after receipt by
management/Inspectors of Election

         Accept            Reject           Apparently just not sealed by voting owner

  1. Outer envelope sealed, but inner envelope not sealed

         Accept            Reject

  1. Some form of ballot other than Official Ballot put into double envelopes (e.g., directions to proxy holder, handwritten ballot, other) [1]

         Accept            Reject

  1. Ballots received not in double envelope system – only in one envelope

         Accept            Reject           Placed only in outer envelope

         Accept            Reject           Placed only in inner envelope

  1. Validity of ballot if placed in ballot box but not in envelope(s)
    1.   Accept            Reject           Signed (or identity of voter can be determined)
    2.   Accept            Reject           Unsigned (identity of voter cannot be determined)
  1. Ballot delivered to other than the meeting or the officially designated location on envelope

         Accept            Reject

  1. Two ballots received from same unit

         Accept            Reject           Earliest dated / First received

         Accept            Reject           Owner vote over proxy holder vote

  1. Ballots received after official close of the polls

         Accept            Reject

  1. Validity of ballot if faxed

         Accept            Reject

  1. If owner wants to revoke original ballot and re-vote, can they revoke ballot already cast?[2]

         Accept            Reject           Allow Revocation and re-vote

         Accept            Reject           Disallow revocation and re-vote

If allowed to re-vote, what is the latest point in time when this can occur?

                                                                                                                     

  1. When will polls officially close? (If not previously determined)                                

PROXY ISSUES (IF USED)

  1. Front of envelope – ballot voted by proxy, but not signed by proxy holder (owner’s signature or no signature)

         Accept            Reject

  1. Validity/priority if two proxies received from same unit

         Accept            Reject           Earliest Dated

         Accept            Reject           Latest Dated

 

Date:                                                                                                                           

Inspector of Election

Date:                                                                                                                            

Inspector of Election

Date:                                                                                                                           

Inspector of Election

 

[1] The Association’s election rules may prohibit counting unofficial ballots. Please confirm with Association’s election rules.

[2] The Association’s election rules may prohibit revoking or changing an original ballot. Please confirm with Association’s election rules.

SB800 and Governing Documents Checklist

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[Requirements usually found in the Association’s Bylaws and/or the CC&Rs]

Notice to Members and Informational Meeting

  • Notice to members required at least 30 days before filing a civil action against developer
  • Notice must include:
    • Time and place that a meeting will take place to discuss problems impacting association
    • Potential impacts to community, including potential financial impacts to association and its members. This can include impact of claims on sales; attorney fees, expert and other costs; raising funds through assessments and reserves
    • The options, including civil actions, that are available to address the problems
  • If the association has reason to believe an applicable statute of limitations will expire, it may give notice of this meeting within 30 days after filing of a civil action
  • Some governing documents may suggest a membership vote is required prior to initiating any legal action against a declarant entity. Generally, these provisions are void and unenforceable if drafted by the declarant. Such provisions may be enforceable if adopted by the non-declarant members of the association.

Information Typically Required for Meetings Through Governing Documents

  • Impact of claims on sale
  • Attorney fees, expert and other costs
  • Raising funds through assessments and reserves
  • Potential parties
  • Description of process to pursue claims

Documents to Have Prepared and Ready when Sending Notice to Builder

  • Meeting Minutes
  • Maintenance Manual reports
  • Maintenance Records
  • Budgets, reserve studies for 10 years
  • Communications with members?

Community Association Transition to Owner Control Checklist Construction

  • Manufacturer warranties (HVAC, elevators, windows, lift gates, pool equipment, exterior cladding, key fobs, security)
  • Manufacturer recommended maintenance schedules and instructions
  • Building plans and permits; notices of completion or occupancy
  • Location of key components (water, gas, irrigation valves and shut off) and information concerning all fire safety and other emergency systems
  • Owner and Association Maintenance Manual
  • List of contractors and contact information
  • Inventory of Association real and personal property

Legal Documents

  • Everything recorded (CC&Rs, easements, maps), Bylaws, CC&Rs, Rules
  • Architectural requests, approvals, denials; meeting minutes
  • Insurance policies
  • Release of mechanics liens; lawsuit documents
  • Records from Department of Real Estate (or “BRE”)
  • Assessment and Construction Bonds
  • Leases
  • Senior Housing Compliance documents

General Timeline to Bring Claims

(Each case varies with the applicable facts)

For an association, the time to bring claims can begin to run from a number of different dates, including, the date of substantial completion of the building or building component (as defined by code) or the date the declarant relinquishes control over the decision to initiate a claim (this can have various meanings, including the date a homeowner becomes a director, the date homeowners become the majority on the Board of Directors, or some governing documents define a specific date based on the association’s annual meeting). Do not apply these time periods without consulting with counsel!

1 year          Irrigation systems, drainage, manufactured products, noise (from occupancy of adjacent unit)

2 years        Dryer ducts, landscaping systems, untreated wood posts

4 years        Exterior pathways, driveways, hardscape, sidewalks, patios, (certain) plumbing and sewer system issues, (certain) electrical systems, untreated steel fences

5 years        Paint, stain

10 years      Other components including decks, balconies, tiles, stucco, framing, foundations, (other) plumbing and sewer lines, roofs, soils, structural, windows

 

 

 

 

 

 

Epsten, APC Blood Drive

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WHAT: Epsten, APC is hosting a blood drive in partnership with San Diego Blood Bank.

WHEN: August 28, 2020 from 10:00 AM – 3:00 PM

WHERE: Epsten, APC, 10200 Willow Creek Road Suite, 100 San Diego, CA, 92131.

NOTES: Anyone 17 and older who weighs at least 114 pounds and is in good health may be eligible to donate blood. A good meal and plenty of fluids are recommended prior to donation. All donors must show picture identification. Donors are encouraged to schedule an appointment to donate, but walk-ins are welcome.

Sign Up/Schedule: https://www.mysdbb.org/donor/schedules/drive_schedule/67084

Donor Information: https://www.sandiegobloodbank.org/donors/blood-donor-requirements

For more information, visit www.sandiegobloodbank.org or call 1-800-4MYSDBB (1-800-469-7322).

Epsten, APC & CAI San Diego Joins the Fight to End Hunger in San Diego

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CAI is asking our community to help the Jacobs & Cushman San Diego Food Bank and their North County Food Bank chapter provide emergency food to vulnerable families affected by the COVID-19 Coronavirus pandemic. These Food Banks comprise the largest hunger-relief organization in San Diego County, and distribute food to those in need at 200 distribution sites across the county as well as through 500 nonprofits with feeding programs.

Monetary donations received by the North County Food Bank will be used to purchase food items to be given to those in need. Actual product mix and quantities purchased may vary. Donations are tax deductible to the extent allowed by law. The North County Food Bank is a chapter of the Jacobs & Cushman San Diego Food Bank which is a 501(c)(3) organization. Tax I.D. number: 20-4374795.

Sign ups for the August 8th volunteer shifts open on July 9th via sdfb.volunteerhub.com/account/signin using join code: cail

California Has Issued Updated Fitness Facility Guidelines

Yesterday, July 1, 2020, the State issued revised guidelines for gyms and fitness facilities. These revised guidelines can be found here.

One of the changes in the revised guidelines is that gym users must wear face coverings at all times while inside indoor fitness facilities. However, if people are exercising outdoors, then face coverings are optional so long as a distance of at least six feet from non-household members can be maintained.

Additionally, face coverings must be worn while at pool areas if maintaining a physical distance of at least six feet from non-household members is not feasible, but never while in the pool.

Certain individuals are exempt from wearing a face covering pursuant to California Department of Public Health Guidance for the Use of Face Coverings.

 

Keywords: COVID-19, Coronavirus

Request To Inspect and/or Copy Association Records (Civ. Code § 5200, et seq.)

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By Rian W. Jones, Esq.

Homeowners associations are routinely faced with members and directors who request the right to inspect association records.  There are penalties prescribed for an association’s wrongful failure to timely and fully comply with the request.  While the Davis-Stirling Common Interest Development Act (“Act”) and the Corporations Code set forth specific requirements and procedures for responding to a request to inspect and copy association records, there are exceptions and limitations spelled out in the Code and in case law.  If there is litigation or potential litigation associated with the request, the association is well advised to immediately seek counsel from its attorneys before acting on any such request.

The following is a summary of the applicable code sections and procedures.

Documents Subject to Inspection

Absent different provisions in the governing documents, only “association records” may be inspected and copied.  The Act defines “association records” (Civ. Code §5200) as follows:

  • Financial documents (a summary of the association’s reserves, the reserve study, insurance and loan information, notices of expiration of insurance policies (if any), documents required to be produced in response to a seller’s request pursuant to section 5235, including notices of hearings for uncured violations (if any), a copy of construction defect notices (if any), notices of pending assessment changes (if any), the annual budget report, and financial statement reviews (if any));
  • Interim financial statement containing a balance sheet, income and expense statement, a budget comparison and/or a general ledger;
  • Executed contracts that are not privileged ;
  • Written board approval of vendor or contractor proposals or invoices;
  • State and federal tax returns ;
  • Reserve account balances and records of payments made from reserve accounts;
  • Agendas and minutes of meetings of the members, the board and committees appointed by the board, excluding minutes and other information from executive sessions of the board;
  • Membership lists, including name, property address, mailing address, and email address (but not records and/or information for members who have opted out pursuant to Civ. Code §5220). Note that a request for membership list requires a statement of the purpose for which the list is proposed to be used by the requester. (Civ. Code §5225.);
  • Association check registers;
  • The governing documents;
  • Reserve studies;
  • Enhanced association records. “Enhanced association records” means invoices, receipt and cancelled checks for payments made by the association, purchase orders approved by the association, credit card statements for credit cards of the association, statements for services rendered and reimbursement requests submitted to the association; and
  • Association election materials. “Association election materials” means returned ballots, signed voter envelopes, the voter list (including name, voting power, and either the physical address of the voter’s separate interest, the parcel number or both. The mailing address for the ballot must also be listed if it differs from the physical address of the voter’s separate interest or if only the parcel number is used.), proxies, and the candidate registration list. Signed voter envelopes may be inspected by may not be copied.

If there is a challenge to an election, members may also request to inspect ballots. (Civ. Code §5125.)

Time Limits for Keeping Records

The association must maintain records for the current fiscal year, plus two previous years. However, minutes of member board meetings, and meetings of committees with decision-making authority (such as architectural committees) must be kept permanently. (Civ. Code §5210(a).)

Time Limits for Providing Records

The association must produce records prepared during the current fiscal year within 10 business days following receipt of a written request. (Civ. Code §5210(b)(1).)

The association must produce any records prepared during the previous two years within 30 calendar days of a written request. (Civ. Code §5210(b)(2).)

Minutes (or a summary or proposed draft minutes) of board meetings must be produced within 30 days of the meeting. (Civ. Code §4950.)  Minutes of committees with decision-making authority (such as architectural committees) must be made available with 15 calendar days following approval of the minutes by the committee.

Membership lists must be produced within five days, unless the association elects to provide a reasonable alternative, such as agreeing to transmit the requester’s communication to the members directly. (Corp. Code § 8330.)

Withholding or Redacting Records

The association may withhold or redact information from a document if information in a document is likely to lead to identity theft of an individual or to any fraud in connection with the association such as:

  • Documents that are privileged or confidential (subject to attorney-client privilege, litigation, or confidential settlement agreements);
  • A release that is likely to compromise the privacy of a member;
  • Information that contains disciplinary actions taken against other members;
  • Collection activities or payment plans of other members, or any personal identification Information (i.e., social security number, tax identification number, driver’s license number, credit card number, bank account number or bank routing number);
  • Minutes and other information from an executive session;
  • Personal records;
  • Interior architectural plans of individual homes or units, including security features (Civ. Code §5215(a)).

If information is withheld or redacted, the association must provide a written explanation of why the information is being withheld or redacted. (Civ. Code §5200.) The association may charge a fee for the cost of redacting enhanced association records, in any amount not in excess of $10 per hour, and not to exceed $200 total per written request., . (Civ. Code §5205(g).)

Note that the association may not withhold or redact information concerning compensation paid to employees, vendors, or contractors (except as provided by the attorney-client privilege). However, information regarding compensation paid to employees shall be set forth by job classification or title, not by the employee’s name, social security number, or other personal information. (Civ. Code §5215(b).)  Note that where an association contracts with an outside management company to provide management services, the manager and other related employees are the employees of the management company, not the association.

Member/Owner Rights To Inspect

A member or any member’s designated representative may inspect an association’s records.  (Civ. Code § 5205(a).)  Records and minutes may only be inspected for a purpose reasonably related to the member’s interest as a member. (Civil Code section 5200(a)(9).)

A member also has a right to request the email addresses of other members who have not opted out. (See Worldmark, The Club v. Wyndham Resort Dev. Corp. (2010) 187 Cal.App.4th 1017; the Court held that “address” was broad enough to include e-mail addresses if the corporation routinely used email addresses to communicate with its members.)

Director Rights

A director has the “absolute” right, at any reasonable time, to inspect and copy all books, records, and documents of the association. (Corp. Code §8334.) This “absolute right” is subject to a director’s fiduciary duty to act in the best of interests of the association to restrain directors from exercising these rights for personal gain, or to further interests contrary to the interests of the association. (Corp. Code §7231(a).)

The courts have carved out exceptions to this “absolute” right.  The individual privacy rights of members of the association trump the director’s right to inspect ballots cast in an election.  “We hold that homeowners association members have a constitutional privacy right in their voting decisions, even when conducted by proxy ballot. A homeowners association director’s statutory right to inspect the records of the association must be balanced against this privacy right”. (Chantilles v. Lake Forest II Master Homeowners Association (1995) 37 Cal.App.4th 914, 926.)

A director who is a party to litigation with the association does not have the right to inspect records in order to “advance the director’s personal interest in obtaining damages against the corporation.” (Tritek Telecom, Inc. v. Superior Court (2009) 169 Cal.App.4th 1385, 1391.)  “Although corporate directors have an ‘absolute right’ to ‘inspect and copy all [corporate] books, records and documents of every kind’ (Corp. Code §1602), including documents protected by the attorney-client privilege, we conclude that a corporate director does not have the right to access documents covered by the attorney-client privilege that were generated in defense of a suit for damages that the director filed against the corporation.” (Id. at 1387.)

A director does not have the right to inspect records if that director’s stated purpose for inspecting those records is to breach his fiduciary duty (e.g., by disclosing attorney-client privileged documents).  The absolute right, however, is subject to exceptions and may be denied where a disgruntled director announces his or her intention to violate his or her fiduciary duties to the corporation. (Havlicek v. Coast-to-Coast Analytical Services, Inc. (1995) 39 Cal.App.4th 1844, 1852.)

Documents May Be Inspected In Person, Copied, or Produced Electronically

In-Person Inspection:  Inspection or copying of records may be done at the association’s business office within the association or at a place agreed to by the requesting member and the association. (Civ. Code §5205(c) and (d).)

Paper Copies:  If a written request is made, the association may deliver copies to the member in lieu of an inspection. (Civ. Code §5205(e).)

Electronic Copies: The member requesting the inspection can request that he/she receive records by electronic transmission or machine-readable storage media so long as the records can be transmitted in a redacted format that does not allow the records to be altered. The association can charge for this cost. (Civ. Code §5205(h).)

Costs Associated With A Request For Documents

Copying and Mailing: The association may bill the requesting member for the actual cost of copying and mailing. The association shall inform the member of the actual amount and this must be paid prior to copying and mailing. (Civ. Code §5205(f).)

Redacting:  The association may bill the member requesting an enhanced record up to $10.00 per hour, not to exceed $200.00 per written request, for the time involved in redacting an enhanced record. The member making the request must agree to pay these costs before the redaction is done. (Civ. Code §5205(g).)

Remedy For Failure to Produce Records

If the association fails to comply with a valid request from a member to produce association records, the member has the right to sue the association to force compliance.  That member may hire an attorney and sue the association in Superior Court to obtain a mandatory injunction ordering the association to produce the records.  If the member prevails in this lawsuit and the court finds that the association unreasonably withheld the records, the court must award the member his/her reasonable costs and expenses, including attorney’s fees, and may assess a $500 penalty for each denial of a written request to inspect/copy records.  (Civ. Code §5235(a).)  If the association prevails, it is not entitled to recover its attorneys fees and can only recover its costs of litigation if the court finds the member’s lawsuit to be frivolous, unreasonable or without foundation. (Civ. Code §5235(c); see also Retzloff v. Moulton Parkway Residents’ Association (2017) 14 Cal.App.5th 742.)

The member may also elect to bring suit in small claims court and the small claims court has jurisdiction to issue a mandatory injunction ordering the association to produce the records as well as award the statutory penalty ($500) for each denial of a written request, up to the jurisdictional limits of the court ($10,000).  No attorneys fees are awarded in a small claims case, but the court can award other reasonable costs such as filing fees and costs of serving the summons and complaint.  (Civ. Code §5235(b).)

San Diego Small Claims Court Re-Opening

By Jillian M. Wright, Esq. & Dominique M. Morrow

The San Diego courts are reopening however, associations should expect delays, especially in Small Claims Court.

We are informed there are currently no Small Claims Court hearings going forward at this time. The Small Claims Court is tentatively looking into rescheduling the hearings that were set for March (when the court closed), beginning in August and then keep scheduling out from there. As an example, hearings originally set in April 2020 would now be for September 2020 and so on.

Associations can still submit brand new small claims filings but they will be set far out (possibly not until the end of this year) as they will have to be scheduled behind all the rescheduled hearings.

In addition, there are currently no walk-ins at the Small Claims Court business offices so in order to file a small claims complaint associations will have to mail the following items in, to the Clerk of the Small Claims Court:

  • the original signed complaint,
  • a copy of the complaint,
  • a self-addressed envelope, and
  • filing fees.

Our firm is assisting clients with any inquiries they may have regarding the preparation or filing of small claims complaints.

 

Keywords: COVID-19, Coronavirus

City of Chula Vista Social Distancing and Sanitation Protocol for Businesses

All businesses (including Community Associations) operating in Chula Vista must prepare, distribute, and post a Social Distancing and Sanitation Protocol.

The Social Distancing and Sanitation Protocol must be prepared online, distributed to all employees, posted at all entrances to the business, and implemented by the business. A Social Distancing and Sanitation Protocol must be prepared on the city website and supersedes Social Distancing and Sanitation Protocols required by the County of San Diego.

Keywords: COVID-19, Coronavirus

Got Emergency Rules? Read this if you want to keep them!

By Gordon A. Walters, Esq.

As we approach the three month mark since Governor Newsom issued the Stay at Home order on March 19, 2020, please remember that any emergency rules that were enacted are only effective for a maximum of 120 days, and may not be readopted under the emergency rules procedures.

If your association adopted emergency rules shortly after the Stay at Home order was issued and you wish to keep those rules in place, you should begin the process of notifying members and scheduling a meeting to adopt the rules.

The Civil Code requires a minimum of 28 days’ notice to members, so you likely will need to begin this process quickly to meet the deadlines.

Our article, Emergency Rules – Discretionary or Not Discretionary? That is the Question from our April 3, 2020 newsletter contains additional information. Should you need further information or assistance with this process, our attorneys are able to assist you upon request.

Keywords: COVID-19, Coronavirus

COVID-19 Waivers

By Dea C. Franck, Esq.

If your community association is interested in either:

1. Utilizing liability waivers for the users of open (and soon to be reopened) common area facilities to sign, or
2. Posting assumption of risk notices at common area facilities,

…please be aware that there are pros and cons to both options.

We are happy to consult with you regarding both options and on the best way to accomplish this in your particular association. Just let us know.

Keywords: COVID-19, Coronavirus