Joseph A. Sammartino, Esq., Author at Epsten, APC

Solving Problems Early: Preventing Lawsuits While Building Community – Handling Homeowner Conflicts Without Lawsuits

Joseph A. Sammartino, Esq.

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Practices: Community Association Counsel | Construction Defect Litigation | Civil Litigation | Appellate Litigation

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Community associations often deal with upset homeowners. Sometimes the issues are small, like a neighbor’s barking dog. Other times, the problems are bigger, like unpaid assessments or rule violations. No matter the situation, if it is not handled well, it can quickly escalate and get worse—and even lead to a lawsuit, which will likely be expensive, as well as unnecessary, for everyone involved.

The good news is that there are tools that help calm people down and solve problems before they go too far. Bill Eddy, co-founder of the High Conflict Institute, has developed two simple methods that can help tremendously: BIFF and EAR. These tools are easy to learn and use, and they work well for both board members and managers who want to handle conflicts with homeowners in a respectful and effective way. This article explains how to reduce anger and de-escalate conflicts with homeowners with the ultimate goal of avoiding a lawsuit.

Clear and Respectful Communications to Calm Conflicts – BIFF and EAR

BIFF stands for Brief, Informative, Friendly, and Firm. It is a method for responding to upset or angry (i.e., high conflict) emails, letters, or conversations that keeps the conflict from growing. When someone is angry, it is very easy to get pulled into an argument. But a BIFF response avoids that.

A brief response gets straight to the point. Long replies often include unnecessary details that can trigger more arguments. A BIFF response keeps things short and simple, which helps calm the situation. Informative means sharing useful facts, not opinions or emotions. Instead of defending yourself or the association or blaming the other person, try explaining the relevant rules or what the association is doing about the issue. This approach should help the homeowner focus on the facts instead of their frustration. Friendly means using a respectful and kind tone, even if the other person is upset. A calm, polite tone shows that you are not there to fight; it builds trust and makes it easier to work to solve the problem. Firm means setting clear boundaries. You don’t need to argue or give in—you just need to clearly state the decision or next steps, without sounding angry. Firm doesn’t mean harsh. It means confident and steady.

EAR stands for Empathy, Attention, and Respect. It is a way to talk to people when they are upset – about anything. People in conflict often want most to feel heard and understood. EAR helps you do that without agreeing with everything they say.

Empathy means showing that you understand the person’s feelings. You do not have to agree with their complaint to show empathy. Simply saying, “I hear what you’re saying” and “I can see why you’re upset,” or “That does sound frustrating,” is a great start to the conversation. Attention means giving the person your full focus—listening without interrupting or getting defensive. Just listening calmly often helps people calm down on their own. When someone feels as if no one is listening, they often get louder and more upset. Respect means treating the other person with dignity, even if/when they are being rude. General rules of manners and politeness can go a long way. Saying “Thank you for sharing your concerns” or “I respect your point of view,” can show you care about the person, even when you disagree with what they are saying.

Using EAR often makes people feel safe enough to talk instead of argue and fight. It builds trust and shows that the association wants to solve problems, not just enforce rules.

Solving Problems Early: Preventing Lawsuits and Building Community

The earlier a problem is addressed, the easier it will be to solve. Small issues that are ignored can grow into big problems. When people feel ignored or disrespected, they are more likely to take legal action. That is why using BIFF and EAR early on can be important.

Another key tip is to keep good communication going, even when there are no problems. Send regular updates, newsletters, or friendly messages that show the board is active and cares about the community. When people feel informed and respected, they are more likely to come to the HOA with their concerns before they explode.

Associations can also stay ahead of conflict by teaching board members and managers these tools in training sessions. The more people who use BIFF and EAR, the stronger and calmer the whole community becomes. And that means fewer angry emails, fewer meetings that turn into arguments, and ultimately, fewer lawsuits.

Keep the Peace and Protect Your Community

Dealing with conflict is part of life in any community, but it does not have to lead to courtrooms and chaos. By using the BIFF and EAR methods, associations, board members, and community managers can calm angry homeowners, solve problems early, and build stronger relationships.

These tools are not hard to learn. They just take practice and a commitment to respectful communication. When you respond in a way that is Brief, Informative, Friendly, and Firm—and show Empathy, Attention, and Respect—you create a space where people feel heard and respected. That is how good communities stay strong.

For more information about BIFF, EAR, or the High Conflict Institute please visit the High Conflict Institute’s website at www.HighConflictInstitute.com.

Understanding the Fees and Costs of Superior Court Litigation

Joseph A. Sammartino, Esq.

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Practices: Community Association Counsel | Construction Defect Litigation | Civil Litigation | Appellate Litigation

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When a community association ends up in court, it can be a costly process. Sometimes community associations go to court to protect their rights and the rights of the community. Examples of these lawsuits are typically to enforce the governing documents or to enforce other contractual rights. Other times, community associations are brought into court because they have been sued. Regardless of the merits of the case and regardless of which side of a case the community association is on (plaintiff or defendant), fees and costs can add up very quickly.

The Process of Litigation

Litigation refers to the process of taking legal action in court. When a community association files a lawsuit, it is essentially asking the court to enforce a rule or decision a homeowner has violated. This can include things like unpaid dues, violations of the CC&Rs (such as illegal modifications to property or nuisances), or failure to follow community guidelines.

Litigation typically starts when the community association files a complaint in Superior Court, the court that handles major civil cases in California. Before going to court, the community association usually sends notices or warnings to the homeowner, letting them know that they are violating the rules. If a community association (or member) intends to file a lawsuit solely for declaratory or injunctive relief (asking the court to decide the rights and duties of the parties and/or seeking an injunction to compel the defendant to do, or refrain from doing, something) the potential plaintiff must first offer formal Alternative Dispute Resolution (“ADR”) which typically takes the form of mediation. If the homeowner doesn’t comply (or refuses to participate in ADR), the community association may move forward with a lawsuit.

Costs Involved in Litigation

There are several categories of costs involved when an association decides to pursue litigation. These can include:

Court Fees: To start a lawsuit in Superior Court, the plaintiff must pay a filing fee. This fee varies depending on the type of case and the amount of money involved, but Superior Court cases are typically around $500 or a little more. Each defendant in the case will owe a similar amount of money to the court as a first appearance fee. After the first appearance, each filing with the court – briefs, case management statements, ex parte applications, by way of a few of the more common examples – will have a filing fee, ranging from $20 to $100 or more.

Attorneys’ Fees: Probably the single biggest cost for a community association involved in litigation will be attorneys’ fees. Whether or the plaintiff or defense side of a case, a community association will probably need to retain a lawyer to represent it in court; the exceptions are small claims cases (attorneys are not allowed) and cases in which the community association is being sued and insurance defense counsel is provided by its insurance company. The lawyers’ job includes preparing documents, attending court hearings, propounding and responding to written discovery, taking depositions, attending mediation, negotiating settlements, and making legal arguments on behalf of the community association. Attorneys typically charge by the hour, and hourly rates depend on the lawyer’s experience, the complexity of the case, and the location where the association is located. In California, attorneys typically charge between $400 and $500 per hour or more.

While litigation can be expensive, under the Davis-Stirling Common Interest Development Act, in lawsuits involving the enforcement of governing documents, the winning party may recover its attorneys’ fees. If the community association wins a case against an owner to force compliance with a rule, the community association can ask the court for its legal fees. On the flip side, if the owner wins, they may be able to recover their legal fees from the community association. Attorney’s fees incurred in Alternative Dispute Resolution (“ADR”) can be included in the fees awarded even though it is typically before a lawsuit is formally filed.

In lawsuits that do not involve the enforcement of the governing documents, the general rule is that each side pays its own attorneys’ fees. There are a few exceptions to this rule, including breach of contract lawsuits in which the contract has an attorneys’ fees provision. Another exception are causes of action that have a specific right to attorneys’ fees under California law, such as some employment claims and bad faith lawsuits against insurance companies. The possibility of recovering – or not recovering – attorneys’ fees under is an important factor for parties to consider. It provides an incentive for owners to follow the rules, as they could end up paying the community association’s legal fees, as well as their own. It also gives community associations the ability to recover some of their costs if they need to go to court to enforce the rules. Owners should be aware that they could be held responsible for paying legal fees if they are found to be in the wrong. This can be a very significant financial burden, so it is important all parties understand their rights and responsibilities under the law.

Discovery Costs: Discovery is the process whereby both parties investigate the case as completely as possible on their own, and also request and exchange information from each other before trial. This is done by asking written questions that are answered under penalty of perjury, requesting documents, taking depositions (questions asked orally that are answered under oath), and investigating and gathering evidence. Discovery can be a time-consuming and expensive part of litigation, especially if there are a lot of documents to review or witnesses to interview. The community association may also need to hire experts or investigators to assist with the case, adding to the overall cost.

Other Related Expenses: In addition to filing fees, there likely will be other costs, such as charges for having subpoenas served on third parties, copying costs for records that are produced, and documents served personally on other parties. There also will be court reporter fees both for court hearings and for depositions. These costs quickly add up, especially if the case is lengthy or complicated.

Appeals: If either party is unhappy with the court or jury’s decision, they may appeal. Appeals can be costly because they involve additional legal work, including preparing legal briefs and attending appellate court hearings.

Considerations Before Litigating

Because of the potential costs involved, community associations should carefully consider whether litigation is the best option. Pursuing a court action should typically be a last resort after most, if not all, other attempts to resolve the issue have failed, including sending letters, holding hearings, Internal Dispute Resolution (“IDR”) and ADR. If a dispute does go to court, even if the community association wins, the process can still be expensive and time-consuming, even if attorneys’ fees are recoverable. Lawsuits can be divisive within community associations because the parties live (owners) and work (management) near each other. Additionally, witnesses and others who may become tangentially involved may feel unintended awkwardness or pressures.

It is not feasible to predict with any certainty how much a lawsuit will cost because it depends largely on how the other side prosecutes (or defends) the lawsuit. Some litigants and their attorneys can be very aggressive and run up costs.

Conclusion

Litigating in Superior Court can be a costly process for community associations. Some of that cost may be offset through the possible recovery of attorneys’ fees. To minimize costs, both community associations and owners should carefully weigh the costs and benefits of pursuing litigation and explore all options for resolving disputes before going to court. By understanding the costs and fees as well as the process involved, everyone can make more-informed decisions about how to handle disputes in their communities.

Dubac v. Itkoff (2024) 101 Cal.App.5th 540

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Joseph A. Sammartino, Esq.
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Pejman D. Kharrazian, Esq.
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Emily A. Long, Esq.
Senior Attorney

Dubac sued Itkoff and Diamond, claiming that they had sent defamatory emails accusing Dubac of various wrongdoings, including being a pathological liar, committing perjury, and causing problems within the association. These emails were shared with other members of the community, adding to the allegedly public nature of the conflict. In response, Itkoff and Diamond filed a motion to strike the lawsuit under California’s anti-SLAPP statute.

In analyzing the anti-SLAPP issue, the court evaluated whether the statements made by Itkoff and Diamond were part of a public issue or a matter of public interest. The trial court ruled that some statements were connected to a public issue and others were not. Thus, Dubac’s lawsuit continued.

On appeal, the court agreed that the majority of the statements made by Itkoff and Diamond did not meet the criteria for being protected speech under the anti-SLAPP statute. The court emphasized that while some statements involved matters of interest to the association, and therefore were public, not all personal disputes within a private organization rise to the level of public concern, particularly when the number of people affected in an intrabuilding dispute were “minute.”

TAKEAWAY: Defamation claims can be very complex, particularly in the context of community association disputes. The anti-SLAPP statute has limitations when it comes to distinguishing between public and private matters.

Dubac v. Itkoff (2024) 101 Cal.App.5th 540

Morris v. W. Hayden Ests. First Addition Homeowners Ass’n (2024) 104 F.4th 1128

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Joseph A. Sammartino, Esq.
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Pejman D. Kharrazian, Esq.
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Emily A. Long, Esq.
Senior Attorney

The Morrises hosted a public multi-day Christmas festival to raise money for charity at their home in the association. They had previously hosted a similar festival at a prior home before purchasing in this community. The Morrises informed the board prior to purchase of their intent to host a similar large Christmas festival.

At the festival, they had 30 staffed volunteers and a very elaborate decorations display, including an estimated 200,000 Christmas lights and a live nativity scene. A reported 1,000 visitors attended the event.

After two years of hosting the Christmas festival with no enforcement taken by the association, the Morrises filed a lawsuit in federal court accusing their association of discriminating against them because of their Christian faith by discouraging them from purchasing a home in the community, interfering with their practice of faith by opposing the Christmas festival, and selectively enforcing the HOA’s rules, in violation of the Fair Housing Act (42 U.S.C. §§ 3601-3631). The association countersued against the Morrises asking the court to enjoin the Morrises from holding their Christmas program again.

A 2015 letter from the association became a key piece of evidence related to efforts made by the Morrises prior to purchasing their property, wherein the Morrises met proactively with the association’s board several times in January-February 2015 to discuss the plan for their Christmas event. The association responded in writing to the Morrises stating that the Christmas program would likely violate the HOA’s rules. The association’s 2015 letter stated in relevant part, “some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up…,” among other statements. There was also an earlier version of the draft letter exchanged via email between board members with more specific comments concerning the rights of atheists and non-Christians in the community.

The court found under Sections 3604(b) and (c) of the FHA, that there was no unlawful discrimination, seeing as how the association took no enforcement action against the Morrises and the Morrises could not point to a concrete adverse impact suffered because of the association’s conduct. Similarly, the court of appeal found that the association was not responsible for any neighbor-to-neighbor harassment that occurred against the Morrises.

However, the court found evidence of “coercion, intimidation, or interference” with a person’s rights protected by the Section 3617 of the FHA, in that the Morrises’ right to purchase and enjoy their home free from religious discrimination was affected by the board’s actions (in the form of the 2015 letter written by the board and other actions taken by the board). The court found there was sufficient evidence for the jury verdict concluding that the board interfered with the Morrises’ right to purchase and enjoy their home, at least in part, because of their religious expression, despite the evidence of significant nuisance activity at the Morris home.

TAKEAWAY: Courts scrutinize how associations, as housing providers, handle discrimination claims. Be very careful in written communications that touch on any owner’s right to purchase and enjoy their home free from unlawful discrimination based on a protected class. Associations should also avoid meeting with prospective purchasers or providing an opinion as to the enforcement of governing documents with individuals who are not yet owners.

Morris v. W. Hayden Ests. First Addition Homeowners Ass’n (2024) 104 F.4th 1128

Pickleball and Associations

Joseph A. Sammartino, Esq.

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Practices: Community Association Counsel | Construction Defect Litigation | Civil Litigation | Appellate Litigation

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Pickleball is one of the fastest growing sports in the United States. It offers a plethora of benefits and adds significant value to associations, in the ways described in this article. By introducing pickleball, associations can enhance the quality of life for their residents, foster community spirit, and boost property values. The sport’s accessibility, social benefits, and health advantages make it an ideal addition to any residential community.

First and foremost, pickleball is highly accessible and inclusive. It combines elements of tennis, badminton, and ping-pong, and it is played on a smaller court with a lower net, making it less physically demanding than other racket sports. This accessibility allows individuals of all ages and fitness levels to participate, from children to seniors. The ease of learning the game ensures that new players can quickly pick up the basics and start enjoying themselves, which encourages widespread participation within the community. Additionally, the relatively low cost of equipment—primarily a paddle and a few balls—makes it an affordable option for all residents.

The social benefits of pickleball are substantial. The sport naturally lends itself to doubles play, promoting teamwork and interaction among players. By providing a shared interest and a gathering place, pickleball courts can help break down social barriers and foster new friendships among neighbors. Regularly scheduled games or tournaments can create a sense of tradition and camaraderie within the community, enhancing the overall social fabric. These interactions are particularly valuable in an association setting, where fostering a strong sense of community can lead to a more harmonious living environment.

Health benefits are another significant advantage of incorporating pickleball into a community. The game provides a full-body workout, improving cardiovascular health, coordination, balance, and agility. Regular physical activity is crucial for maintaining a healthy lifestyle, and pickleball offers an enjoyable way to achieve this. For older adults, in particular, the sport provides a low-impact exercise option that can help improve mobility and reduce the risk of chronic diseases. The social nature of the game also contributes to mental well-being, reducing stress and promoting a positive outlook.

From an economic perspective, the installation of pickleball courts can enhance property values within the community. Prospective homeowners often look for amenities that support an active and engaging lifestyle, and the presence of pickleball courts can be a significant selling point. Well-maintained recreational facilities reflect positively on the community, suggesting that the association is invested in providing a high quality of life for its residents. This perception can make properties more attractive to potential buyers, thereby increasing demand and property values.

Furthermore, pickleball can serve as a versatile amenity in community event planning. Association boards can organize clinics, leagues, and tournaments, providing structured opportunities for residents to engage with the sport. These events can attract participation from various demographic groups within the community, promoting inclusivity and ensuring that everyone feels welcome to join in the fun.

The Arguments Against Pickleball

On the other hand, while pickleball has gained popularity for its accessibility and social benefits, there are reasons some people argue it should be banned from community associations, primarily due to noise and other nuisance related complaints. Some of those reasons may be compelling.

The primary issue with pickleball in communities is the noise generated during play. The distinct “pop” sound of the ball hitting the paddle can be surprisingly loud and persistent to some residents. Given that pickleball games often last 60-90 minutes and are usually played as doubles, the noise can become a disruption to some. Residents living near pickleball courts often report disturbances, especially when games are played early in the morning or late into the evening. It is reasonable to argue that such noise disturbances may lead to stress, interrupted sleep, and a general decline in the quality of life for nearby residents.

Additionally, the noise nuisance can exacerbate tensions within a community. Disputes over pickleball noise can lead to conflicts between resident players and non-players, fostering division rather than unity. The very presence of pickleball courts can become a contentious issue at association meetings, consuming valuable time and resources that could be better spent addressing other community concerns.

Moreover, the nuisance extends beyond noise. Increased traffic and parking congestion around pickleball courts can disrupt the normal flow of the community. The solution to all of these problems is thoughtful rule-making with lots of input from the community. Enacting reasonable, concise operating rules, including putting in place limits on hours of play, types of paddles allowed to be used, and guest use of courts can significantly (and at no cost to the association) eliminate most potential issues or concerns.

Conclusion

In conclusion, the incorporation of pickleball by an association into a community offers numerous benefits that enhance the overall living experience for residents. Its accessibility and affordability make it an inclusive sport suitable for all ages, while its social and health benefits contribute to a stronger, healthier community. Economically, the presence of pickleball courts can boost property values and attract prospective homeowners. By fostering community spirit and providing a versatile recreational amenity, pickleball may prove to be a valuable addition to a community, promoting a vibrant, active, and cohesive living environment. While some boards may be tempted to ban pickleball outright, all of the benefits discussed above may certainly outweigh the potential for complaints regarding the noise nuisances pickleball allegedly creates.

The decision about whether or not to permit pickleball is not a one size fits all solution and should be considered by each board on a community-by-community basis. To avoid as many issues and complaints as possible, and rather than banning pickleball completely, boards should perform a reasonable inquiry into the benefits and possible detriments of adding pickleball to their communities. To perform such an inquiry, a board should consult with its management team, legal counsel, and other relevant experts to determine whether permitting pickleball is within the best interest of the association. If the board determines that pickleball is a worthwhile investment for their association, the association should follow an open, input-driven rule-making process to help ensure that pickleball play remains in harmony with the community. If the board decides that pickleball should not be allowed in the community, the board should work closely with legal counsel on the implementation of its ban.

The Importance of Having All the Facts at the Outset of Representing a Client in Litigation

Joseph A. Sammartino, Esq.

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Practices: Community Association Counsel | Construction Defect Litigation | Civil Litigation | Appellate Litigation

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In the intricate and high-stakes world of litigation, thorough preparation is a cornerstone of effective legal representation. Central to this preparation is the necessity of gathering absolutely all the facts about a situation at the outset. This comprehensive understanding is crucial for several reasons: it informs the development of a robust legal strategy, ensures ethical conduct, enhances the credibility of the attorney, and ultimately increases the likelihood of a successful outcome for the client.

Developing a Robust Legal Strategy

A well-informed legal strategy is built on a foundation of complete and accurate facts. At the outset of representing a client, obtaining all necessary information allows an attorney to assess the strengths and weaknesses of the case comprehensively. To initiate the fact-finding process in a new case, the client must promptly share with the attorney all of the facts about the dispute, regardless of how old, indirectly related, or seemingly insignificant those facts may be. When in doubt err on the side of overinclusion, and let your attorney determine whether a fact is or is not relevant.

This initial fact-finding phase is essential for identifying the key legal issues, potential defenses, and the most compelling arguments to present. It enables the attorney to foresee possible challenges or weaknesses of the case and to plan accordingly, avoiding certain pitfalls that could arise from unforeseen evidence or aspects of the case.

Moreover, a detailed understanding of the facts aids in the effective allocation of resources to litigate the case. It helps the legal team decide where to focus investigative efforts, which expert witnesses to consult, and what evidence needs to be meticulously scrutinized or gathered. By having a clear picture from the beginning, an attorney can work more efficiently and strategically, ensuring that no critical detail is overlooked.

Ensuring Ethical Conduct

Ethical considerations are paramount in legal practice. An attorney is ethically bound to represent their client zealously while also maintaining integrity and honesty. Having all the facts of the case at the outset ensures that the attorney can provide candid advice to the client, outlining both the strengths and weaknesses of the case. This transparency is vital for managing the client’s expectations and for making informed decisions about whether to pursue litigation, negotiate a settlement, or explore alternative dispute resolution methods.

Additionally, complete knowledge of the facts prevents ethical breaches such as the inadvertent presentation of false or misleading information to the court. It also safeguards the attorney against potential conflicts of interest and ensures the attorney’s compliance with the duty of candor towards the tribunal.

Enhancing Credibility

An attorney’s credibility is a critical asset in litigation. Judges and juries are more likely to be persuaded by an attorney who demonstrates thorough knowledge of the case and presents well-substantiated arguments. Complete mastery of the facts at the outset allows the attorney to argue more confidently and persuasively. It also minimizes the risk of being caught off-guard by opposing counsel, which could undermine the attorney’s credibility and, by extension, the client’s position.

When an attorney is well-prepared and knowledgeable, it fosters trust not only with the court but with the client as well. Clients are more likely to have confidence in their legal representation when they see that their attorney has a deep understanding of their case and is prepared to advocate effectively on their behalf.

Increasing Likelihood of a Successful Outcome

Ultimately, the goal of litigation is to achieve a favorable outcome for the client. Having all the facts at the outset significantly enhances the chances of success. It allows the attorney to craft a coherent and compelling narrative, anticipate and counter opposing arguments, and present evidence in the most favorable light. Comprehensive preparation reduces the likelihood of surprises during the litigation process, such as unexpected testimony or newly discovered evidence that could adversely affect the case.

Conclusion

The importance of having all the facts at the outset of representing a client in litigation cannot be overstated. It is fundamental to developing a sound legal strategy, ensuring ethical conduct, enhancing the attorney’s credibility, and increasing the likelihood of a successful outcome. Thorough fact-finding at the beginning of a case sets the stage for effective advocacy and is a hallmark of professional and competent legal representation.

What Duties Does an Association Have to Maintain Video Recordings?

Victor Valley Union High School District v. Superior Court (2022) 86 Cal. App. 5^th940.

What Duties Does an Association Have to Maintain Video Recordings?

By Joseph A. Sammartino, Esq.

Technology is advancing at an ever-increasing pace. The cellphones in our pockets are not just phones, — they take pictures, send email and text messages, provide GPS navigation, play music, run hundreds of apps that do almost everything, and they have better higher resolution video capability than movie studios had in the 1990s. As technology improved and shrunk (and became much less expensive), video cameras for security surveillance have become so commonplace that most people do not notice them and go about their daily lives as if the cameras were not there. But what happens when one of those cameras – in one of our communities – records activity that leads to an inquiry that does not get resolved which turns into a dispute and ultimately becomes a lawsuit? What duties does an association have to maintain those video recordings or face possible sanctions under the Code of Civil Procedure for spoliation of evidence?

On December 22, 2022, the Fourth District Court of Appeal issued its opinion in the case of Victor Valley Union High School District v. Superior Court (Doe). The court, in a different context, set forth the most current guidance on maintaining video recordings and other potential evidence. The facts of the Victor Valley case are tragic and hopefully extraordinarily rare: two male high school students took a third male student, who was unsupervised, but who typically had full-time adult supervision both in and out of the classroom, from the cafeteria into a bathroom where they sexually assaulted him. The school had video cameras in the cafeteria, and the assistant principal and a security officer reviewed the footage from the cafeteria cameras from a three-day period. The third day of video included the recording of the two students taking the third student from the lunch table toward the locked bathroom. Fourteen days later, because no one took any steps to preserve the video because each thought the other was saving it, the video was recorded over and lost forever.

Importantly, the court set forth the rules clearly and concisely: the safe-harbor provision of the California Code of Civil Procedure section 2023.030, subdivision (f), “shields a party from sanctions for the spoliation [meaning the loss or destruction] of electronic evidence only if the evidence was altered or destroyed when the party was not under a duty to preserve the evidence, and the duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.”

While the court’s words are clear, they leave an important practical question unanswered: when is litigation likely to arise from an incident or dispute and instead of being a mere possibility? That is a question that could be argued and debated before courts for decades without a clear, simple answer. From a lawyer to a client, the simplest and best answer to that question is the age-old advice: better safe than sorry. If there is video footage (or other evidence) that relates to any incident, issue, or dispute, it would be much better to take the steps necessary to preserve that evidence until final resolution is reached rather than to take the chance that an appellate court might decide years later that litigation was likely to arise and, therefore, to impose monetary sanctions against an association for destroying evidence that should have been preserved.