CACM Law Seminar & Expo – Cheers to 30 Years!

“A Toast to…”

Thank you to everyone who stopped by our booth at the 2022 CACM Law Seminar & Expo.  We loved seeing you in-person after two long years and “toasting” with you to celebrate!

We hope you enjoy all of the toasts from our fellow colleagues… Cheers!

“Never cross-pollenating legal opinions” – Marybeth O. Green, Seabreeze Management Company  **WINNER**

“Here’s to you, here’s to me, here’s to Epsten for keeping HOA free (of lawsuits)” – Therese McLaughlin, Phonc Professional HOA Consultants, Inc. **WINNER**

“CACM” – Lisa C. Terry, TOTAL Property Management, Inc.

“Educated Managers & Management Companies” – Loni Peterson, Solera Oak Valley Greens Association

“Jon Epsten” – Mindy Dent, The Management Trust

“Kindness” – Karina Reta, Powerstone Property Management

“Everything good” – Amanda Nevarez, Powerstone Property Management

“A happy life” – Maxwell G. Cawthon, Weldon L. Brown Company, Inc.

“Covid because it brought out the best in people and it tested our strength” – Laura Hurtado, Meissner Commercial Real Estate Services

“End of the pandemic” – Shahla Agha, Powerstone Property Management

“To all the hard working managers” – Claudia Sitta, Professional Community Management

“Epsten, wishing you all the best” – Therese Chrzan, Castle Breckenridge

“Drinking!” – Megan Daniel, Powerstone Property Management

“My village” – Brianna Miers, Powerstone Property Management

“Being able to pivot!” – Devon Nichols, Powerstone Property Management

“Living in the moment” –  Aly Lopez, First Service Residential

“Good things to come in 2022” – Samantha Lacy, Powerstone Property Management

“Seeing everyone in person” – Steven M. Cammarata, Cammarata Management, Inc.

“Cheers to an amazing year” – Wendy Mullens, Balboa Management Group

“Happy Friday” – Marlena Martinez, The Management Trust

“Freedom” – Megan Daniel, Powerstone Property Management

“Lets continue to keep an open and honest outlook with everyone we meet” – Cheryl Weepie-Garcia, Huntington West Properties, Inc.

“All Managers” – Michelle Mata, The Management Trust

“Cheers! The pandemic is over!” – Joann Pucello, Phonc Professional HOA Consultants, Inc.

“May the road of happiness lead you to beautiful things!” – Linda Sanchez, Ross Morgan & Company, Inc.

“Another 30 years!” – Gerard K. O’Donnell, Interpacific Asset Management

“CACM may the next 30 years be as great as the last 30 years!” – Antoinette Stratton, Balboa Management Group

“Good riddens Covid-19” – Valerie Vanhorn, Walters Management

“New friends, starting all over, and all that attended today” – Cynthia Solis, Jenkins Real Estate and Property Management

“Boards, managers, and vendors all working together to achieve quality in the communities” – Laurel Dial, Consensys Property Management

“Emily and her amazing fam” – Meredith Leatherman, Albert Management, Inc.

“To CACM’s 30 years and to the next 30 years of great services and education” – Robert Muratalla, Professional Community Management

“Getting together after Covid” – Cari Burleigh, Seabreeze Management Company

“The resilience and courage of the American people” – Marina C. Masar, Dynamic Property Group

“Gathering again, mask free” – Roseanne Zemming, Cannon Management

“Friends, family & Jenkins” – Charla Duncan, Jenkins Real Estate & Property Management

“Happy 30th!” – Kaylynn Hudson, The Management Trust

“Life! It is too short, live it today before it is gone & smile” – Stephanie Schumann, The Management Trust

“Epsten!” – Brian C. Blackwell, West Coast HOA Management Firm, Inc.

“Finally being all together again” – Heather Panek, Cannon Management

“To old friends” – George Gallanes, Weldon L. Brown Company, Inc.

“It’s all going to be ok!” – Jessica Williams, The Prescott Companies

“Happy dirty 30!” – Paola Scrimsher, The Prescott Companies

“Health, love & happiness” – Dawn Livingston, GRG Management, Inc.

“To get rid of the Covid pandemic!” – Michelle Espinoza, Powerstone Property Management

“Positive happy today, tomorrow & always!” – Maria Miller, Niguel Shores Community Association

“49ers winning the Super Bowl” – Kelly Thompson, Action Property Management, Inc.

“Blessing of children” – Brenda P. Wesley, Weldon L. Brown Company, Inc.

“Erin GoBragh! May the luck of o’ the Irish be with us for another 30 years!” – Janine Weston, Hammer Real Estate

“Live music” – Rebecca McDonald, Walters Management

“Live life like there is no tomorrow. Never know what tomorrow will bring” – Christina Mercer, Powerstone Property Management

“Family’ – Salle Yerumyan, LBPM Properly Managed

“Covid almost over!” – Hugo Herrera, LBPM Properly Managed

“Continuing zoom meetings” – Catie Contreras, Action Property Management, Inc.

“Ukraine” – Jenny Mucha, Lake Forest II Master Homeowners Association

“Life is beautiful and so are you!” – Julie Gould, Pernicano Realty & Management, Inc.

“Our friend of many years, we miss you Brenda!” – Nancy Blasco, Stone Kastle Community Management, Inc.

“For the next 30 years. Meow!” – Grace Babcock, The Management Trust

“Life!” – Christie Alviso, Stone Kastle Community Management, Inc.

“Cheers to waking up to another day” – Dee Rowe, Walters Management

“Happiness, health, love & life” – Deena Arvizu, Walters Management

“Unity & equality” – Leeann Polarek, Baldwin Real Estate Management

“Professionalism and growth in an amazingly important industry” – Kelly McGalliard, PGA West Residential Association, Inc.

“Peace and health for everyone!” – Angelica Chacana, LBPM Properly Managed

“Health & happiness for a better 2022!” – Carol Calhoun, Associa Desert Resort Management

“Being able to see all our colleagues again” – Jamie Kim, Walters Management

“The dog poop that will still be on the lawn on Monday” – Debbie Graffam, Next Step Community Management

“The house always wins!” – Alysia Dale, Powerstone Property Management

“Sun City Lincoln Hills!” – Staci Erksine, Sun City Lincoln Hills Community Association

“Cheers to learning zoom!” – Tiffani Santiago

“A great dress!” – Kara Wright, Powerstone Property Management

“Waking up!” – Robert E. Sides, Regatta Seaside HOA

“A successful and healthy year to all of our friends, family & business partners!” – Ashley Herrera, Powerstone Property Management

“Living life” – Kimberly Harrigan, Camco Condominium Association Management Company

“Getting together!” – Maria Grant, The Management Trust

“More business account money!” – Marinel Castillo, LBPM Properly Managed

“Good times to come in future years” – Marilyn Smith, Powerstone Property Management

“Love each other” – Nicole Villegas, GRG Management, Inc.

“Covid is behind us!” – Jerry C. Storage, Desert Princess

“The amazing people that work in this industry. You are the reason I am able to do my job…seriously” – Vanessa Silva, The Management Trust

“Good health” – Miguel Torres, Powerstone Property Management

“Continual Growth” – Linda Sok, CondoServices

“30 more years” – Pam Cooper, Accell Property Management

“Life. Life is precious. Cherish every moment” – Amethyst Schy, The Management Trust

“God bless Ukraine” – Jerry McDonald, Coronado Shores Landscape & Recreation

“Life” – Amy Yankauskas, The Management Trust

“MLB coming back. Go Angels” – Mallory Whalen, Associa Equity Mangement & Realty Services

“Civility & restraint” – Devon Nichols, Powerstone Property Management

“Cheers to 30 years” – Kari Martin, The Management Trust

“30 years to CACM” – Brenda Baker, Condominium Management Services

“Pivot through 2022 – soar for the sky! The Sky’s the limit” – Amelia Marques, Huntington West Properties, Inc.

“Where would I be without you!” – Sheryl Kaonis-Rochon, EBMC

“Taking life to the next level. Surpassing all my wildest dreams” – Claire Hosking, Summit Property Management, Inc.

“Me & you” – Ana Ryustem, Interpacific Asset Management

“To those I loved & lost. Till we meet again” – Kathleen Wright, North Coast Village HOA

“Being in person again!” – Alyssa Carle, Powerstone Property Management

Use of Association Technology by Members

By Rhonda R. Adato, Esq.

 

  • Does your community have a media room?
  • Does your community offer computers for use by residents?

If so, this article is for you! Stay safe and ensure your community has a record of who is using association technology and how.

Logging into Association-Owned Devices

Some community associations allow residents to access the internet on association-owned devices, such as tablets or computers located in a community clubhouse or business center. However, it is important for such associations to consider implementing safeguards to keep residents accountable for their online activity and restricting accessing to certain websites and content, or in some unusual cases completely restricting access to the internet.

One method of monitoring and restricting access is requiring each resident to log in to association-owned devices using a unique, association-assigned username and password. This will make it easier for the association to track the activity of each resident, if needed. The association may also want to consider blocking specific residents from using its devices at all. For example, certain residents may be barred from accessing the internet as a result of prior criminal activities.

Our firm is not an expert in cybersecurity or information technology (“IT”). Therefore, we recommend consulting with a qualified expert regarding securing an association’s devices, implementing resident log-in requirements, restricting access to undesirable websites, etc. We also recommend consulting with association counsel regarding the type of digital safeguards each community is authorized to implement.

Finally, associations may want to consult with their insurance broker and legal counsel to ensure they’re adequately protected from potential liability in connection with a homeowner’s misuse of an association-owned device.

Here’s to (safely) surfing the Web!

Use of Timers to Stay on Schedule During Board Meetings

By Tiffany L. Christian, CDMP, PCM

One of the key components to running an efficient board meeting is to start on time and end on time. Easy enough, right? Well, we know that is not always the case.

Although most of us are meeting experts, the one challenge many of us face is when discussion goes on too long. Whether it’s discussion on an agenda item, homeowner forum or otherwise – it is difficult to interrupt someone when they are passionate about their topic and wont allow you or anyone else to get a word in edgewise.

So, here is an age-old pro-tip, with a techy twist… Use a (web) TIMER!

Meeting virtually? Even better! Open your web browser, search “Google Timer,” (or any other web browser you like), enter your time limit for the discussion at hand, click on the full-screen icon and share your screen via the virtual meeting platform.

As long as you notify your participants in advance that timers will be used to stay on schedule, you are golden. When the timer goes off their time is up.

If the meeting is virtual and they continue to speak, give them a courtesy 5 seconds and then take advantage of the “mute” audio feature.

You’re welcome. We are always here to help!
– Epsten, APC

Reservation of Rights Letters: What are They and What Should You Do if Your Association Receives One?

By Jack S. Fischer, Esq. & Lindsay J. Anderson, Esq.

Your Association gets sued by a homeowner. You reach out to your insurance company to let them know about the lawsuit then you sit back and relax because insurance is going to cover everything, right? Do not get too comfortable!

Insurance companies may not cover everything, or anything, that you believe they should. How do you know what the carrier is going to cover during the course of this particular lawsuit? Look no further than the reservation of rights (“ROR”) letter. Your insurance company is required by law to provide you, as its insured, with a reservation of rights letter detailing all possible limitations on coverage that the insurer may rely on in connection with adjusting the claim or suit.

Basic Definitions

Before we can understand what the insurance company is saying in its ROR letter, we need to understand the jargon that’s typically included in the letter. The following definitions provide the basics.

  • Duty to Defend: Used to describe an insurer’s obligation to provide you with a defense to claims made under an insurance policy. As a general rule, an insurer’s duty to defend you arises when there is potential for coverage under a policy.
  • Duty to Indemnify: Used to describe an insurer’s obligation to pay the claim, by funding a settlement or paying a judgment against the insured. Unlike the duty to defend, which is typically determined at the outset of the litigation, the duty to indemnify arises when the facts establish that there is a covered loss under the policy.
  • Tender: Under the terms of your insurance policy, you must give your insurance carrier notice of any claim or suit being made against the Association. Such notice includes a demand for defense (i.e., duty to defend) and indemnity (i.e., duty to indemnify) under the policy.
  • Trigger or Coverage Trigger: Refers to the event that must occur before a liability policy applies to a given loss.

What is a Reservation of Rights Letter?

The ROR letter will be a letter from your insurance company which notifies you of the carrier’s coverage position, including any limitations on coverage that may act as a complete or partial bar to coverage. The ROR letter also affords the insurer an opportunity to undertake a more thorough factual investigation into the claim without waiving its rights to deny or limit coverage at a later date.

ROR letters vary in form depending upon the insurance company but, in general, include a summary of the factual background surrounding the current claim, a detailed analysis of the applicable insuring agreement and applicable exclusions (i.e., intentional acts, breach of contract, no monetary damages being sought) and endorsements which may impact coverage, a reservation of rights, and, in some instances, a denial of coverage for some or all of the claims. Since ROR letters may be long and winding with insurance terms and phrases peppered throughout, they are difficult to understand.

What are the Insurance Company’s Duties (Refer to Definitions Above)?

The duties of an insurance company are set forth in the Insuring Agreement section of the policy. Typically, an insurer has two distinct duties – the “duty to defend” and the “duty to indemnify.” In California, the duty to defend is “triggered” when there is any possibility, no matter how remote, that the claim would be covered under the policy. Where your carrier defends an entire action where only a portion of the claims are covered, the carrier may seek reimbursement from you for any defense fees and costs incurred in defending the non-covered claims.

Under the typical scenario where an insured is faced with a third-party claim for monetary damages, the carrier is obligated to defend the action if, under the facts known, there is a possibility of coverage under the policy. Once a carrier’s defense obligations have been “triggered”, the carrier is obligated to hire counsel, retain experts, investigate the claim, pay defense costs, and defend the case through disposition.

The duty to indemnify is the insurance company’s duty to pay any monetary judgment (i.e., damages) rendered against an insured for a covered loss. A carrier’s indemnity obligations are limited by the terms of the insurance contract and should be detailed in the ROR letter.

Why is an ROR Letter Important?

California’s insurance regulations require an insurance company to provide you with a written response to a request for defense and/or indemnity. That response typically comes in the form of the ROR letter which puts you on notice of any limitations or exclusions to coverage. Knowing what is, and more importantly what is not, covered under the policy is crucial to making strategic decisions regarding the handling of the claim. By way of example, the ROR letter can assist the Association and its defense counsel in evaluating a settlement demand and determining whether or not it is in the Association’s best interests to settle a claim. However, it is worth noting that the decision to settle typically rests entirely with the insurance company.

The ROR letter is also how an insurance company reserves its rights to either deny or limit coverage under the policy and to recover defense fees and costs expended in connection with the defense or settlement of uncovered claims. Under California law, the carrier’s coverage defenses may be waived where the insured relies upon the carrier’s failure to specifically reserve its rights under the policy.

What Should You Do if Your Association Receives an ROR Letter?

Receiving an ROR letter from an insurance company may feel intimidating. However, knowing what to do and what to look for when you receive an ROR letter are crucial in getting a handle on the carrier’s coverage determination.

  1. Your first step when you receive an ROR letter should be to share it with your attorney.
  2. The next step is to carefully review the policy exclusions and endorsements and discuss them with your insurance professional so that you can work within your budget to buy the broadest coverage available.

Suspended Status with Secretary of State

All businesses, including common interest developments must register via the Secretary of State (SOS), file tax returns and pay their taxes, and submit a Statement of Information every two years. Failure to properly comply with these requirements will result in a “suspended status” with the State.

When a corporation is suspended, the corporation can take very few actions other than becoming reinstated. Once suspended, legal counsel is unable to assist the association with any legal needs other than reinstating the corporate status to active. Generally speaking, a suspended association cannot prosecute or defend litigation matters in its own name until reinstated.

It is critical to the Association’s operations that the corporation remain in good standing. Check your association’s status here. If you need assistance in getting reinstated, we can help.

Potential Liability for Non-Employee COVID-19 Infections: See’s Candies, Inc. v. Superior Court

By Christina S. Saad, Esq.

Employers may be held liable for COVID-19 (“COVID”) infections of non-employees, as evidenced by a recent California Court of Appeal decision.

In the recent case of See’s Candies, Inc. v. Superior Court, (Dec. 21, 2021, No. B312241) [2021 Cal. App. LEXIS 1076], the California Court of Appeal, Second District, found that an employer that has not taken adequate measures to prevent the spread of COVID in the workplace may be held liable if an employee contracts COVID at work and spreads it to a third-party, such as a spouse, if the third-party suffers a resulting injury. The court did not resolve the extent to which the employer’s duty of care reaches, however.

In See’s Candies, Matilde Elk caught COVID in March 2020 from working in close proximity to others on a packing line for her employer, Elk quarantined in her home, where her husband resided. Her husband subsequently caught COVID and died a month later.

Elk and her daughters sought wrongful death damages, including for loss of love and care. Elk claimed her husband’s death results from her employer’s failure to implement adequate safety measures, such as social distancing in the packing line room and restrooms.

Under the California Worker’s Compensation Act, Labor Code §§ 3200-6002, an employer’s liability for an employee’s workplace injury is generally limited to worker’s compensation. California courts had long established that this restriction on workplace injury remedies also applies to injuries collateral to or derivative of a workplace injury. See’s Candies argued that this rule, known as the “derivative injury doctrine,” should therefore limit its remedies to Ms. Elk’s family members to worker’s compensation, rather than open the door to widespread civil liability and remedies.

The court disagreed with See’s Candies. The court paralleled the circumstances in this case to a 1997 California Supreme Court Case, Snyder v. Michael’s Stores, Inc. (16 Cal. 4th 991) in which a minor with cerebral palsy and other disabling conditions claimed such conditions were a resulting injury of her exposure to toxic levels of carbon monoxide while in utero. This exposure occurred because her mother, while pregnant, was working as an employee at Michael’s when an incident involving carbon monoxide occurred. The Court found that the derivative injury doctrine did not remove the company’s civil liability to the baby because the harm to the baby was not dependent on, or derivative of, the harm to the mother. Rather, the harm to the baby was a result of her own exposure to carbon monoxide as a fetus.

In See’s Candies, the appellate court held that the derivative injury doctrine only applies when the third-party’s injury is derivative of the employee’s injury in the purest sense, meaning the injury to the third-party would not have happened in the absence of the injury to the employee. The court explained that, like the mother in Snyder, Elk merely served as a conduit of a pathogen and whether she had been harmed by the pathogen itself was irrelevant to the claims of her family members.

What Does this Mean for Your Association?
This case serves as a reminder that the best way your Association can protect itself from COVID liability is to follow the applicable governmental orders designed to help prevent the spread of COVID. As we all know, these orders change from time to time.

If you have any questions regarding the current orders or how to implement them, please contact us. We are here to help!

Term Limits are Back in Vogue

By Rhonda R. Adato, Esq.

Everyone has a change of heart sometimes, including, it seems, the California Legislature. By now, most people in the community association field are familiar with Senate Bill 323 (“SB 323”). SB 323 was chaptered into law in October 2019. It significantly amended Civil Code sections 5100, et seq., which govern community association elections. Among other things, SB 323 revised the law to only permit community associations to impose a few, specific qualifications on candidates running for an association’s board of directors. Term limits were not included among them, meaning that associations were effectively prohibited from disqualifying board candidates who had termed out.

That has now changed. The Governor signed Assembly Bill 502 (“AB 502”) into law in October 2021, which took effect on January 1, 2022. This new law added Section 5103 to the Civil Code, which permits elections by acclamation, provided certain requirements have been met. These requirements include:

(d) (1) The association permits all candidates to run if nominated, except for nominees disqualified for running as allowed or required pursuant to subdivisions (b) to (e), inclusive, of Section 5105.
(2) Notwithstanding paragraph (1), an association may disqualify a nominee if the person has served the maximum number of terms or sequential terms allowed by the association.
(3) If an association disqualifies a nominee pursuant to this subdivision, an association in its election rules shall also require a director to comply with the same requirements.

(Emphasis added.)

Section 5103(d)(2) effectively reintroduced the concept of permitting director term limits. Arguably, associations may now impose term limits on director candidates, so long as such term limit is clearly set forth in the association’s Election Rules.

This raises a question as to whether term limits only apply in elections by acclamation. It is curious that the Legislature reintroduced the concept of imposing term limits in the context of elections by acclamation, rather than simply stating that associations may impose this candidate qualification in all elections. Hopefully, the Legislature will clarify this issue with some clean up legislation in the coming years.

Another question is whether term limits in Bylaws are now enforceable again. We believe they likely are, but the association’s Election Rules will need to be amended accordingly.

Please reach out to your community association counsel if you have any questions regarding imposing term limits in your association’s board elections, the enforceability of term limits in Bylaws, or the procedure to amend Election Rules.

Update to Epsten, APC Resource Book: Civil Code §5200 (Hard Copies distributed before January 21, 2022)

Bills proposing new legislation are often written with language that addresses changes to the same laws as other pending bills and contain language to explain which new law applies if both bills are adopted during the same legislative session. This was the case with Senate Bill 432 and Senate Bill 392 regarding Association Records and Enhanced Association Records. The legislative counsel finalized the 2022 changes to the law on January 1, 2022 and interpreted which new language went into effect differently than we did when we published our 2022 Community Association Law Resource Book.

The correct language for Civil Code section 5200 has been updated on our website, the Digital Version of our Resource Book and the hard copies we have in our office pending distribution. However, if you received a hard copy version of our 2022 Community Association Law Resource Book on or prior to January 21, 2022, please download and print the updated statute from Civil Code §5200 to replace page 90 in your hard copy publication.

Download pdf

Download the Correct Version of Civil Code section 5200
Formatted to print on letter size, 8.5×11 labels.