Outdoor Playgrounds Now Permitted to Open in Regions Under Stay Home Order

By Jacquelyn E. Quinn, Esq.

We can add this as another example of just how quickly things can change in the age of COVID-19.

Earlier this morning, December 9, the State updated its Regional Stay Home Order to allow outdoor playgrounds to remain open to facilitate physically distanced personal health and wellness through outdoor exercise.

The California Department of Public Health guidelines for open outdoor playgrounds can be found here.

As always, we seek to bring our clients the most accurate and up-to-date information on all relevant topics. Please visit the State of California’s COVID-19 website for more information on the State’s quickly evolving orders.

 

Keywords: COVID-19, Coronavirus

Southern California on Regional Stay Home Order Effective December 6, 2020

By Jacquelyn E. Quinn, Esq.

Late on Friday, December 4, the Southern California region, which includes San Diego, Riverside, San Bernardino, Los Angeles, Orange Imperial, Inyo, Mono, San Luis Obispo, Santa Barbara, and Ventura, triggered a Regional Stay Home Order because it dropped below 15% ICU capacity. Kern County, which is included in the San Joaquin Valley region, also triggered a Regional Stay Home Order.

Regions under a Regional Stay Home Order have 24 hours to comply. Meaning, the Southern California and San Joaquin Valley regions will have until 11:59 p.m. Sunday, December 6 to comply.

In any region that triggers a Regional Stay Home Order because it drops below 15% ICU capacity, the following must close and/or cease operations:

  • Indoor and outdoor playgrounds and tot lots
  • Indoor recreational facilities
  • Hair salons and barbershops
  • Personal care services, including nail salons and massage services
  • Restaurants closed for all dine-in. Take-out, pick-up, and delivery only
  • All private gatherings of any size

The following sectors may continue with additional modifications and 100% masking and physical distancing:

  • Outdoor recreational facilities: Allow outdoor operation only without any food, drink or alcohol sales. Outdoor pools, hot tubs, tennis, pickleball, and other outdoor recreational facilities may remain open with 100% masking (when not in the water) and physical distancing and following all other existing operational and cleaning/disinfecting guidance.
  • Retail, including libraries: Allow indoor operation at 20% capacity with entrance metering and no eating or drinking in the stores. Additionally, special hours should be instituted for seniors and others with chronic conditions or compromised immune systems.
  • Hotels and lodging, including short term rentals: Allow to open for critical infrastructure support only. No hotel or lodging entity in California shall accept or honor out of state reservations for non-essential travel, unless the reservation is for at least the minimum time period required for quarantine and the persons identified in the reservation will quarantine in the hotel or lodging entity until after that time period has expired.

The Regional Stay Home Order will be in effect for at least 3 weeks after the trigger and will continue until ICU availability projections for the region are greater than or equal to 15%.

Californians are instructed to stay at home as much as possible to limit the mixing with other households that can lead to COVID-19 spread. It allows access to (and travel for) critical services only and allows outdoor activities to preserve Californians’ physical and mental health.

To read more about the Regional Stay Home Order and the status of other regions please click here.

 

Keywords: COVID-19, Coronavirus

Immediate Action Required for California Employers: Cal/OSHA Adopts Emergency COVID-19 Safety Standards for California Employers

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By Mandy D. Hexom, Esq.

As of November 20, 2020, Cal/OSHA adopted temporary standards or regulations (effective immediately for 180 days unless further extended) that apply to most employees and workplaces in California related to COVID-19.

Who is covered by these new emergency regulations?

All employees in all places of employment including but not limited to association employees with the following exceptions:

  • Places of employment that only have one employee who does not have contact with other persons;
  • Employees that are solely working from home; and
  • Employees covered by Cal/OSHA’s Aerosol Transmissible Diseases standard (which does not apply to association employees and primarily applies to health care workers).

Under the new regulations, association employers, unless one of the exceptions above applies, must have a written COVID-19 Prevention Plan that addresses the following:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Recording requirements for positive COVID-19 cases and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

Cal/OSHA has posted FAQs and a one-page fact sheet on the regulations, as well as a model COVID-19 prevention program. Employers are invited to participate in training webinars held by Cal/OSHA’s Consultation Services branch.

If you have questions or need assistance with workplace health and safety programs, you can also call Cal/OSHA’s Consultation Services Branch at 800-963-9424 or contact our office for further assistance.

 

Keywords: COVID-19, Coronavirus

Epsten, APC Hosts Virtual Blood Drive

Donate Blood. Save Lives.

Epsten, APC Virtual Blood Drive

November 9th – December 20th

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Epsten, APC is hosting a “virtual” blood drive November 9th – December 20th. Although The San Diego Blood Bank is currently unable to host blood drives at this time, we want to continue to save lives and give back to our community at this critical time.

If possible, please consider donating blood at one of the San Diego Blood Bank donor centers and mention your Group Code EAPC when you donate. Let’s save lives together!

Please visit www.sandiegobloodbank.org/GiveLife or call (619) 400-8251 to schedule an appointment and find a location near you.

PLUS…
All blood donated through December 31st will be tested for COVID-19 antibodies. Please note, this is NOT a diagnostic test and it will not detect active COVID-19 infections or recent exposure; however, may tell you if you had a past infection with the virus that causes COVID-19.

Please note:

  1. Appointments only. No walk-ins, but same day appointments available.
  2. For up-to-date information related to blood donation and COVID-19, including safety measures and exposure deferrals, please visit the San Diego Blood Bank website at sandiegobloodbank.org/COVID19.
  3. There is an opportunity to donate convalescent plasma if you have recovered from COVID-19. Your antibodies may help someone in critical condition. Visit sandiegobloodbank.org/donateplasma.

Thank you in advance for supporting your community and our community on behalf of all of us at Epsten, APC!

Coronavirus Update: San Diego County Goes Back to Purple Tier

San Diego County has been reassigned from the red tier to the most restrictive purple tier in California’s color-coded system of coronavirus-related tiers. As the most restrictive tier out of the existing four, Tier 1 mandates the following by Friday, November 13:

  • Close all indoor operations at gyms, restaurants and places of worship.
  • Impose stricter capacity limits for indoor retailers.

For additional information on how various facilities and activities within your community association may be impacted in each tier please refer to our updated article available via our website:

– Updated Guidance on All Tier Restrictions Issued by State –

The tier your county has currently been assigned will determine what reopening restrictions are imposed on various businesses and activities. Please be aware that no matter the tier, all applicable industry guidance issued by the State, your local county and city officials, and the CDC must continue to be followed.

As of November 10, 2020, the State has assigned these tiers to the following counties*:

  • San Diego County: Tier 1, Widespread (purple)
  • Riverside County (no change): Tier 1 – Widespread (purple)
  • San Bernardino County (no change): Tier 1, Widespread (purple)
  • Los Angeles County (no change): Tier 1, Widespread (purple)
  • Orange County (no change): Tier 2, Substantial (red)
  • Kern County (no change): Tier 2, Substantial (red)

For information regarding the tier assigned to your county visit the California COVID-19 Safer-Economy webpage.

Keywords: COVID-19, Coronavirus

Before You Hit “Send” on that Email, Make a Call?

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By Jon H. Epsten, Esq.

Many board members believe that when an email is sent to the association’s attorney, it is automatically a “privileged communication” and therefore not admissible in a legal proceeding.  That mistake has landed clients in hot water over comments which are not necessarily privileged and inadmissible.

If the predominate purpose of the communication is related to an attorney’s advice or opinions, the communication will most likely be protected and not admissible in a legal proceeding.  However, if the email is a communication to the attorney and copied to other board members, but the primary purpose of the email is, by way of example,  to tell all of the recipients the sender’s opinion of another person, it may very likely be discoverable.  Think about this scenario, a board member and the association’s attorney are discussing a contract and in that communication the board member calls the vendor, a liar and a thief.  After signing the contract, a dispute arises between the association and the contractor and the contractor subpoenas the board member’s emails.  A court may not allow the legal advice about the contract in that email to be admitted into evidence, but may allow the board member’s (potentially defamatory) comments about the vendor to be admitted.  Be mindful, this same type of partial admissibility might apply to executive session minutes, as to items discussed and noted in the minutes which are not properly the subject for an executive session.

Beware, too, of sending any emails to “reply to all.”  Take the time to check the actual recipients.  Don’t make the mistake and send a critical email, summarizing attorney advice, to an adverse party—by pressing: reply to all. Yes, this scenario really happens and it happens more frequently than you would expect.

Consider that most Board email communications concerning association business are severely limited by the requirement that normal business of the association is to be conducted only in noticed meetings, pursuant to a published agenda.  While it is still permissible to receive (and send) emails to counsel, any discussion of the subject matter, by a majority of the board, of the email is supposed to take place in a meeting (most likely an executive session).  While under limited circumstances, such as an arbitrary and urgent deadline, discussion via email can be proper, in many cases, it is not.

Remember too that the attorney-client privilege may be forfeited by including persons other than the attorney, the board, and in most cases management.  Whatever privilege may have existed is likely lost when the email is sent to somebody not entitled to assert a privilege (e.g., neighbor, friend, vendor, roommate).

When a privileged communication is inadvertently sent to an opposing party, it must be immediately “clawed back” by the sender.  A “claw back” means taking prompt, specified actions to notify the opposing party of the mistaken transmission.  If you need to claw back an email, it is wise to discuss the process with legal counsel.  Communications between board members are typically not privileged unless the attorney’s opinions or strategies are being shared.  In that case, always copy the lawyer.

Before you hit “Send,” ask yourself, “How would this email look to a judge or jury, or to the media?”  If you can see that the words might be problematic, or that the communication via email might violate the prohibition on communicating with board members via email in place of a duly-noticed meeting, DON’T hit “Send” but rather pick up the telephone and have a “conversation” with the proposed recipient.

 

Related articles of interest:

Email Policies for Community Associations

Emergency Board Meetings via Email

Email Do’s and Don’ts for Community Associations

2021 Community Association Law Resource Book Pick Up Dates

Current client board members and local community association managers may pick up a hard-copy of our 2021 Annual

Community Association Law Resource Book at one of our regional offices on the following dates and times:

  • Temecula Office Parking Lot – November 20th – 11am to 1pm
  • Indian Wells Office Parking Lot – November 23rd – 11am to 1pm
  • San Diego Office Parking Lot – November 30th – 11am to 1pm

Please note that quantities are limited. One book per manager/client board member.

Updated Guidance on All Tier Restrictions Issued by State (Updated Nov. 10, 2020)

As a reminder, the tiers (from most restrictive, 1 to least restrictive, 4) are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)

The tier your county has currently been assigned will determine what reopening restrictions are imposed on various businesses and activities. Please be aware that no matter the tier, all applicable industry guidance issued by the State, your local county and city officials, and the CDC must continue to be followed.

As of November 10, 2020, the State has assigned these tiers to the following counties*:

  • San Diego County (11/13): Tier 1, Widespread (purple)
  • Riverside County (no change): Tier 1 – Widespread (purple)
  • San Bernardino County (no change): Tier 1, Widespread (purple)
  • Los Angeles County (no change): Tier 1, Widespread (purple)
  • Orange County (no change): Tier 2, Substantial (red)
  • Kern County (no change): Tier 2, Substantial (red)

 

The State has updated its guidelines on the various sectors as follows:

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS & FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOT RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

OUTDOOR GATHERINGS

In all Tiers:
Some outdoor private gatherings are permitted. Read more details in the State’s Private Gatherings Guidance. Such gatherings must meet the following conditions:
  • Attendees must be from no more than 3 separate households, including hosts and guests.
  • Host should collect names of all attendees and contact information
  • Duration should be 2 hours or less.
  • Wear a mask, practice physical distancing, and wash your hands frequently
  • Do not attend if you have COVID-19 symptoms .
  • Do not attend if you are at high risk for serious illness from COVID-19 (seniors, those with certain medical conditions).

Keywords: Coronavirus, COVID-19

Riverside County Purple Tier Restrictions

As you may be aware the State’s Department of Public Health assesses indicators weekly (including each county’s rate of new cases and positivity) on Mondays and releases updated tier assignments on Tuesdays for each of its counties, as part of its “Blueprint for a Safer Economy.”

As of October 20, 2020, the State has assigned these tiers to the following counties*:

  • San Diego County (no change): Tier 2, Substantial (red)
  • Riverside County: Tier 1 – Widespread (purple)
  • San Bernardino County (no change): Tier 1, Widespread (purple)
  • Los Angeles County (no change): Tier 1, Widespread (purple)
  • Orange County (no change): Tier 2, Substantial (red)

Riverside County has been reassigned from the red tier to the purple tier and affected businesses must change operations by Friday, October 23.

  • How does this reassignment to the purple tier affect community associations located in Riverside County with respect to amenities that must now be closed?
  • What can remain open?

Riverside County
Community Associations are subject to the following guidance while in the purple-tier:

GYMS AND FITNESS CENTERS

RESTAURANTS

  • Restaurants may serve patrons outdoors only.
  • If associations have reopened indoor dining within restaurants with limited occupancy, they must now be closed. Associations must follow all applicable provisions of the State’s Industry Guidance for Restaurants providing outdoor dining, takeout, drive-through and delivery.
  • Bars where no meals are provided must remain closed.

LIBRARIES

HAIR SALONS

OUTDOOR POOLS

  • Outdoor pool operations may remain open. Outdoor spas/hot tubs must remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools/Aquatic Venues” found in State’s Industry Guidance for Fitness Facilities.

OUTDOOR RECREATIONAL FACILITIES

*There are four (4) tiers which include Widespread (the most restrictive), Substantial, Moderate and Minimal (the least restrictive). For information regarding the tier assigned to your county please visit https://covid19.ca.gov/safer-economy/.

Keywords: COVID-19, Coronavirus

AB 3182 Q&A

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On September 28, 2020, Governor Gavin Newsom signed into law Assembly Bill 3182 (“AB 3182”). AB 3182, among other things, amends Civil Code section 4740 and adds new Civil Code section 4741. AB 3182 may substantially change the way in which community associations address rentals. These changes take effect on January 1, 2021.

The ultimate effects of AB 3182 are currently unknown and the community association legal community is grappling with how to interpret this new law and its impacts.

Our firm, however, endeavors to provide timely information on such important legal matters impacting community associations so we are sending this update now although the full implications of this new law are presently unknown.

As such, we have prepared the below Q&A as an educational tool only. Please note:

  • Nothing below should be construed as legal advice.
  • Discussions surrounding AB 3182 are ongoing and as our understanding of this new law evolves the answers below are subject to change.
  • Contact your community association’s legal counsel for further information.

Q1.  If my community association has a minimum rental period of 30 days or less in its governing documents, what must we do in light of the new law?

A. Nothing. A minimum rental period of 30 days or less does not violate the new law. Section 4741(c) specifically states, “This section does not prohibit a common interest development from adopting and enforcing a provision in a governing document that prohibits transient or short-term rental of a separate property interest for a period of 30 days or less.”

Q2. If my community association has a minimum rental period of more than 30 days in its governing documents, does the new law require us to amend our governing documents?

A. Section 4741(c) is ambiguous on this point. The community association legal community is currently split as to how to interpret this provision. The most conservative reading of subsection (c) is that minimum rental periods longer than thirty (30) days are unenforceable. If your community association’s governing documents contain a provision which has a minimal rental period longer than 30 days, please contact your legal counsel for additional guidance.

Q3. What if my community association has a rental cap of less than 25% of the separate interests?

A. If your community association’s governing documents place a limit on the total number of separate interests that may be rented at one time, and the limit is less than 25% of all separate interests, then that governing document must be amended to comply with the new law. If the document is not amended, the rental cap would be completely unenforceable.

Q4. What if my community association has a rental cap of 25% or more of the separate interests?

A. If your community association’s governing documents place a limit on the total number of separate interests that may be rented at one time, and the limit is 25% or more of all separate interests, then that governing document complies with the new law and no amendment is necessary.

Q5. If my community association has a percentage rental cap, does a rented ADU or JADU count towards the rental cap?

A. No. The rental cap refers to “separate interests” which section 4741(d) makes clear does not include ADUs or JADUs. This means that if an owner resides in either the primary residence, ADU, or JADU none of these may be counted as rented or leased for purposes of the community association’s rental cap (Civil Code section 4741(e)).

Q6. If my community association’s CC&Rs do not comply with the new law, do we have to amend the CC&Rs?

A. Amending the CC&Rs is the most conservative approach. However, there is a split in the legal community as to whether adopting a rule to comply with the new law would suffice (see question 9 below for further discussion on this point). Please contact your legal counsel for additional guidance.

Q7. If my community association must amend its CC&Rs in light of the new law, does that amendment require a membership vote, or can our board record a CC&R amendment without the consent of the members?

A. If our firm prepared your community association’s restated CC&Rs, it is possible those documents already include language that permit a board to record CC&R amendments to comply with the new law without the consent of members. However, in the absence of such language in your CC&Rs giving the board the power to make amendments, we believe the members would have to vote to approve the CC&R amendments.

Q8. If a membership vote is held to approve CC&R amendments, what happens if the members and/or lenders (if required) reject amendments to the CC&Rs to conform with the new law?

A. Under certain circumstances a community association may seek court approval of those proposed amendments through Civil Code section 4275 or Corporations Code section 7515 based on the actual outcome of the vote (although, seeking court approval might not be necessary). Civil Code section 4741(g) states, “A common interest development that willfully violates this section shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000).” If a community association puts the matter up for a vote of the members and the members do not approve it, arguably the association will not have willfully violated the law. If a community association does not seek judicial approval of the amendment, see #9 below for a possible option.

Q9. Could my community association simply adopt rules that comply with the new law instead of amending the CC&Rs?

A. It’s unclear. It would appear that existing rental provisions which violate the new law would become unenforceable under the new law. There is an argument that the board could simply enact a rule to clean up the existing provisions to regulate rentals in compliance with the new law, however, section 4741(g) states that an amendment is required. We believe boards should attempt a membership vote to approve any required CC&R amendments. Then, if that fails, boards could enact rules that comply with the new law. Whether a rule is sufficient to comply with the law is questionable. There is a body of law that suggests that members must vote on the issue of rental restrictions, so a rule might not be sufficient (and the association could not enact new rental restrictions without member consent). Further, existing law (Civil Code section 4740(a)) might make those new rental restrictions inapplicable to existing members.

Q10.  If members approve amendments to conform with the law, which members are bound by the amended provisions?

A. It’s unclear. The answer to this question may depend upon whether language in the current document “prohibits” or “unreasonably restricts” rentals in violation of either Civil Code section 4740 or 4741. If an existing rental provision (e.g., a cap of 25% or less) is construed as either a prohibition or an unreasonable restriction, it would be unenforceable and an amendment would be necessary to conform to the new law. In that case, it is possible the amendment may only apply to new purchasers after adoption of the amendment. Hopefully, the Legislature will adopt clean-up legislation next year to address this issue. In the meantime, please contact your legal counsel for additional guidance.