Epsten, APC Coronavirus Update – April 6, 2021

San Diego, Riverside, San Bernardino and Imperial Counties
Move to Less Restrictive Orange Tier

As of April 6, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 3 – Moderate (orange) – Effective April 7th
  • Riverside County: Tier 3 – Moderate (orange) – Effective April 7th
  • San Bernardino County: Tier 3 – Moderate (orange) – Effective April 7th
  • Los Angeles County: Tier 3 – Moderate (orange) – No Change
  • Orange County: Tier 3 – Moderate (orange) – No Change
  • Imperial County: Tier 3 – Moderate (orange) – Effective April 7th
  • Kern County: Tier 2, Substantial (red) – No Change
As most of us recall, every county in California is assigned to a tier based on its positivity rate, adjusted case rate, and health equity metric. Counties must remain in a tier for at least 3 weeks before moving to a less restrictive tier. Counties must meet the next tier’s criteria for two consecutive weeks to move to a less restrictive tier. If a county’s metrics worsen for two consecutive weeks, it will be assigned a more restrictive tier. Read more about tier assignment rules.
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
Permitted services and activities may resume with required modifications according to your county’s assigned tier and subject to any additional restrictions required by local jurisdictions.
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.
***

The State guidelines on the various sectors are as follows:

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • 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 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 AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

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

MOVIE THEATERS

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

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor 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.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

OUTDOOR LIVE SEATED EVENTS & PERFORMANCES

All outdoor live events and performances must comply with the State’s Outdoor Seated Live Events and Performances Guidance. A permissible outdoor venue for live audience performances must either be a permanent and fixed facility, focused around a stage round, field court, or other central area designed primarily for viewing entertainment or athletics by an audience OR a defined and demarcated outdoor area.
If your association has a permissible outdoor venue, please consult with your association’s legal counsel regarding the various restrictions and capacity limitations based on your county’s tier assignment.

Beginning April 15th – More Indoor & Outdoor Gatherings and Private Events Will be Allowed with Restrictions

(MORE INFORMATION TO COME)

On April 2, the California Department of Public Health announced updates that will loosen COVID-19 restrictions on both outdoor and indoor gatherings and private events and meetings such as receptions and conferences. The updates will take effect beginning April 15 and will depend on each county’s respective tier assignment.

The State has not yet released detailed guidance on what modifications are required in order to hold permissible gatherings or private events. It is anticipated that such guidance will be released prior to April 15. Associations will be required to comply with all applicable guidance issued by the State and any local authorities before permitting or conducting any gatherings and private events in accordance with its county’s tier level.

Until such guidance is released, associations should review the State’s Guidance for Ventilation, Filtration and Air Quality in Indoor Environments to begin preparing for reopening facilities. All businesses and activities permitted to operate indoors must follow this guidance. Associations should also consider consulting with its other experts (janitorial, engineering, plumbing) in anticipation of the possibility of reopening facilities that have been shut down and inactive for prolonged periods.

GATHERINGS
social, informal gatherings with no defined guest list
or testing or vaccination verification requirements

Widespread (purple):
  • Outdoor: Maximum of 3 households.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum 25 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% and up to 3 households or 10 people.
Moderate (orange):
  • Outdoor: Maximum 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% or 25 people, whichever is fewer.
Minimal (yellow):
  • Outdoor: Maximum 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 50% or 50 people, whichever is fewer.

PRIVATE EVENTS
meetings/receptions/conferences

 

Mandatory in all tiers: defined guest list, seating chart/assigned seating, testing and vaccination verification can increase capacity limits, no intermingling of multiple private events.

Widespread (purple):

  • Outdoor: Maximum of 25 people, but if all guests are tested or show proof of full vaccination, capacity goes up to 100 people.
  • Indoor: Not permitted.

Substantial (red):

  • Outdoor: Maximum of 50 people, or 200 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 100 people.

Moderate (orange):

  • Outdoor: Maximum of 100 people, or 300 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 150 people.

Minimal (yellow):

  • Outdoor: Maximum of 200 people, or 400 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 200 people.

Epsten, APC Coronavirus Update – March 31, 2021

Los Angeles, Orange & Kern Counties

Move to Less Restrictive Tiers

As of March 30, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 2, Substantial (red) – No Change
  • Riverside County: Tier 2, Substantial (red) – No Change
  • San Bernardino County: Tier 2, Substantial (red) – No Change
  • Los Angeles County: Tier 3 – Moderate (orange) – Effective March 31
  • Orange County: Tier 3 – Moderate (orange) – Effective March 31
  • Imperial County: Tier 2, Substantial (red) – No Change
  • Kern County: Tier 2, Substantial (red) – Effective March 31
As most of us recall, every county in California is assigned to a tier based on its positivity rate, adjusted case rate, and health equity metric. Counties must remain in a tier for at least 3 weeks before moving to a less restrictive tier. Counties must meet the next tier’s criteria for two consecutive weeks to move to a less restrictive tier. If a county’s metrics worsen for two consecutive weeks, it will be assigned a more restrictive tier. Read more about tier assignment rules.
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
Permitted services and activities may resume with required modifications according to your county’s assigned tier and subject to any additional restrictions required by local jurisdictions.
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.
***

The State guidelines on the various sectors are as follows:

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • 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 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 AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

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

MOVIE THEATERS

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

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor 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.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

PRIVATE GATHERINGS

Widespread (purple): Outdoors only
Substantial (red)Moderate (orange) & Minimal (yellow): Indoor permitted, but strongly discouraged.
In all Tiers:
All private gatherings must comply with the State’s Private Gatherings Guidance.
Such private 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).

OUTDOOR LIVE SEATED EVENTS & PERFORMANCES

All outdoor live events and performances must comply with the State’s Outdoor Seated Live Events and Performances Guidance. A permissible outdoor venue for live audience performances must either be a permanent and fixed facility, focused around a stage round, field court, or other central area designed primarily for viewing entertainment or athletics by an audience OR a defined and demarcated outdoor area.
If your association has a permissible outdoor venue, please consult with your association’s legal counsel regarding the various restrictions and capacity limitations based on your county’s tier assignment.

Helpful Suggestions to Avoid Construction Contracting Mistakes

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* Originally Published in the CAI-CV April, 2021 Edition of Quorum Magazine

By Jon H. Epsten, Esq. CCAL
Founding Member and Co-Managing Shareholder at Epsten, APC

I have been fortunate to represent common interest developments for close to thirty-eight years.  At the onset of my career I became involved in assisting associations with contracting for repairs, including major renovations and many post litigation reconstruction projects in the millions of dollars.  The basic rules of contracting for this type of work have not changed much over the years. What has changed is the complexity of the work and the insurance issues.

Our cottage industry has expanded over the years from cookie cutter “stick-built” homes constructed over hundreds of acres to much smaller foot prints and to more vertical construction with complex and ever-changing construction methodologies integrated with construction materials that oftentimes equally complex to install and repair.

To assist community managers and boards of directors through the contracting process I have put together some issues for the Board to consider which address problems I have encountered over the years. These issues are not exhaustive but touch upon the obvious issues which are often over-looked and can result in even a simple project failing.  Not every project will go well no matter how much work is put into the selection of the contractor. The goal is to minimize risk and when things aren’t going well have a good exit strategy or resolution process in the construction contract.

Here is an analogy. I grew up working on boats in San Diego. I learned that the process of painting a boat is a monumental task. But, it’s not spraying the paint on the hull that is difficult, rather it is preparing the hull for the paint that takes the most work.  Planning and preparation for your construction project is the difficult part of the project not necessarily the actual work being performed.

One of the most common mistakes is not defining the scope of work in enough detail. The absolute key to a good contract is a solid definition of the scope of work. By way of example, it is prudent to have an arborist define the scope of tree trimming while it may be prudent to have an architect define the scope of a roof repair or replacement.  Attorneys do not define scopes of work. The scope should be defined by the professional in the discipline. For you do-it-yourselfers there are resources on the web that contain plans and specifications for work (e.g. asphalt paving, painting, landscaping and irrigation). No matter what methodology you undertake to arrive at the scope of work you must always have a clearly defined scope of work in the contract.

I recently had a contractor argue successfully that their scope did not include painting the siding after the siding installation. He understood when bidding that the association was painting the siding. He referred back to the scope of work and while not specifically excluded, painting was not specified in the contract. Spend time understanding the scope, read and re-read the scope and incorporate all the scope documents (plans and specifications) into the contract and consider incorporating illustrative diagrams or photographs into the scope that show the site conditions. The scope needs to clearly define what is being repaired, the locations, the means and methods of repair and the material specifications, including warranties.

A very basic and old school approach to contracting is to interview contractors prior to selecting a contractor to perform work. This basic rule can bring out a lot of issues and calm nervous board members concerns.  That said, interview with a purpose. Just recently, I suggested to a board they interview a plumbing contractor.  I was not asked to attend. I called the manager the next day and asked how the interview went and she replied, the board only had two questions and they weren’t even sure what to ask. Take interviewing the contractor seriously.

  • A list of questions should be developed so you are always comparing apples to apples when interviewing a contractor for the job.
  • Check out their references.
  • Speak to other association boards of directors of similar sized communities the contractor has performed similar work for in the past.

I have found that a board interviewing contractors and taking the time to speak to other communities who used the same contractor(s) yields good information to make informed decisions. Do not just speak with the associations on the contractor’s reference list. They have typically been chosen because they will give the contractor a glowing review. Use your industry contacts to see if there are other projects not on the contractor’s list and get their input too. For example, when a problem arose on the project did the contractor deny responsibility or did it acknowledge the issue and work with the association to find a solution.

Many of us have to visually observe things to understand them. For me, it is no different with construction. By way of example, I need to see the paint colors, how the flashing will lay up against the fascia, and how the new windows compare to the windows that remain in place. I encourage my clients when possible, to have the contractor perform prototype repairs or illustrative mock-ups. Mock-ups and prototype repairs allow the board to better understand the work, adjust the work prior to formally committing to it and use the prototype or mock-up to explain the work to the owners or other contractors who may have to integrate their work with others.

Prior to starting work it is important to communicate with the owners and residents about what they can expect. Ideally, the contractor will assign a liaison to assist management and the board with communications with the residents and owners.  Good communication leads to a successful project. Regular communications between the contractor and the board is also important. Consider inviting the contractor to your regular board meetings to answer owners’ questions and address the board on the progress of the work.

Your Community Association Manager is your consultant, but do not assume the manager has the time and/or expertise to handle a construction project. These projects can be time consuming and can take away from day to day association issues that need to be addressed. Always discuss with your manager their role in any construction project; set expectations early. It is possible you may need to hire a third party to administer the work. If the management of the work is being delegated to a committee make sure the members are knowledgeable in construction or willing to learn about the work to be performed – don’t take the first volunteer who raises their hand.

I am often asked, does an attorney need to review the construction contract? Answering, yes, appears self-serving, but in fact oftentimes these contracts are fraught with poison pills such as antiquated insurance provisions, indemnity language and limitation of liability provisions. Those provisions need to be reviewed by counsel and understood by the board. Another key consultant is your association’s insurance agent. Make sure your agent reviews the insurance provisions in the construction contract.

It’s difficult for me to conclude this article when I have so much more to say! Let me leave you with some closing thoughts.

  • Take the time you need to get the contract that gets the work done properly.
  • Don’t overly complicate or delay the process.
  • Use professionals, and board members remember, what you may do if you were the contracting party is not necessarily what the association should do (e.g. offering cash incentives to a contractor).
  • And lastly, always keep in mind that price variances in bids are a signal that bidders may not be bidding the same scope.

 

Agenda Setting: Who, When, and How?

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By Jillian M. Wright, Esq. & Dea C. Franck, Esq.

Setting the agenda for a board meeting is an important parliamentary protocol as the agenda establishes what will be discussed at the upcoming meeting. Though an agenda is required by the California Civil Code, California law does not specify how to set the agenda and association governing documents are often silent on the issue.

California’s Open Meeting Act (“Act”) (Civ. Code §4900 et seq.) was established with the intent of increasing transparency of the conduct of board business in common interest developments in an effort to keep owners involved and aware of board business. The Act prohibits boards from discussing or acting on an item of board business outside of a board meeting (Civ. Code §4910(a)). Civil Code section 4930 also prohibits boards from discussing any board business which was not previously placed on the agenda prior to the meeting with some exceptions outlined in Civil Code section 4930 (b) through (d) and discussed below.  Thus, agendas are more than just a loose guide for meetings; they restrict what boards can discuss and act on. If an item of business is not on the agenda, then generally a board cannot act on that item unless certain criteria are met.

Agenda Setting Protocols – Determining The Who, When and How

Who May Set and Place Items on the Agenda?

Your association’s governing documents may expressly provide who may place items on board meeting agendas and how. However, if your association’s governing documents are silent on these issues, your board should consider adopting an agenda setting protocol. Such a protocol should provide which director sets the agenda (generally we see board presidents handling this task), who may place an item of business on the agenda, how that is accomplished, and any requisite deadlines.

Regarding who may place an item of business on the agenda, California law does not provide any guidance on this issue. However, Corporations Code section 7211(a)(1) states that meetings of the board may be called by the board president, vice president, secretary, or any two directors. If the Corporations Code gives these individuals the power to call a board meeting, then by analogy the board president, vice president, secretary, or any two directors should have the power to place an item on the agenda for that meeting. Therefore, we generally recommend that agenda setting protocols provide that the board president, vice president, secretary or two or more directors may place items of board business on the board meeting agenda. Non-board member owners should not be given the power to place matters on the agenda.

Agenda item requests may be emailed to the association’s community manager or the designated board member responsible for setting the agenda. Whatever method is used to set the agenda, be careful not to violate the Open Meeting Act by having a quorum of the board discussing or debating what to place on the agenda. Simply emailing a request for an item to be added to the agenda does not violate the Open Meeting Act.

When Must the Agenda be Finalized and Posted?

Agendas must be included with the notice of the meeting. Associations must give general notice of the meeting at least four days before a regular (open) session board meeting and at least two days before an executive session board meeting. (Civ. Code §4920). In order to meet these deadlines, the board adopted protocol should provide that requests for items to be added to the proposed agenda be sent to the person designated to prepare the agenda at least 24-48 hours prior to when the notice and agenda will be posted.

How Can Agenda Items be Added to an Agenda at a Meeting?

There are some instances where a board can add an agenda item at a meeting:

  1. If the board determines that an emergency situation exists (i.e., there are circumstances that could not have been reasonably foreseen by the board, which require immediate attention and possible action by the board which make it impracticable to provide requisite notice), then the board may add that emergency issue to that meeting’s agenda by a vote of the majority of the board. (Civ. Code §4930(d)(1).)
  2. If the board determines that there is a need to take immediate action on issue and that need for action came to the attention of the board after the agenda was posted, the board may, by a vote of two-thirds of the directors present at the meeting (or if less than two-thirds of the total membership of the board is present at the meeting, then my unanimous vote of the directors present), add that item to that meeting’s agenda. (Civ. Code §4930(d)(2).)
  3. If the item appeared on the agenda for a prior meeting that occurred not more than 30 days before the date of the current meeting and at that prior meeting action on that item was continued to the current meeting. (Civ. Code §4930(d)(3).)

If the proposed agenda item does not meet one of the above, then that item cannot be added to the agenda at the meeting. However, the board can direct the community manager or director designated to set the next meeting agenda to add that item to the agenda for that future meeting.

If the proposed agenda items meet a Civil Code section 4930 exception, then the board should first vote to add the item to the agenda. Once the board votes to add the item to the agenda, then further board discussion and action may be taken on the agenda item.

In sum, if your governing documents do not address the who and how of setting board meeting agendas, your board should consider adopting a protocol in order to clearly provide a procedure as to how board meeting agendas are handled.

Be forward-thinking and consider preparing and adopting such a protocol to prevent future unnecessary strife amongst board members. Please contact our office if your association needs assistance in preparing an agenda setting protocol.

2021 Legislative Update Webinars

Missed our Annual Legal Symposium? Have questions about recent updates to legislation? Don’t worry!

Epsten, APC Senior Attorney, Pejman Kharrazian is hosting complimentary 1-hour accredited webinars for local community management offices to discuss recent changes to the law.

Now scheduling for Tuesdays and Fridays
12:00 p.m. to 1:00 p.m.

Contact us to schedule a webinar for your office and managers!

Click here for the informational flyer

California Ends Regional Stay Home Order in All Regions

On January 25, 2021, California announced the immediate end of the Regional Stay Home Order in all regions. Counties will now return to restrictions according to their tier in the Blueprint for a Safer Economy.

Nearly all counties exiting the Regional Stay Home Order are in the most restrictive purple/widespread tier.

As a reminder, the tiers are:

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

Permitted services and activities may resume immediately with required modifications according to your county’s assigned tier, and subject to any additional restrictions required by local jurisdictions. See below and the State’s website for more information on the status of activities open in each county.

As of January 25, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 1, Widespread (purple)
  • Riverside County: Tier 1 – Widespread (purple)
  • San Bernardino County: Tier 1, Widespread (purple)
  • Los Angeles County: Tier 1, Widespread (purple)
  • Orange County: Tier 1, Widespread (purple)

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

***

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 AND FITNESS CENTERS

Widespread (purple):

Substantial (red):

Moderate (orange):

Minimal (yellow):

LIBRARIES

Widespread (purple):

Substantial (red):

Moderate (orange):

Minimal (yellow):

OUTDOOR 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

Earthquake Casualty Insurance For Community Associations

Insurance for “The Big One”

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By Jon H. Epsten, Esq. & Anne L. Rauch, Esq.

Although California is known for its easy lifestyle and climate compared to the snow and flood regions of the country, the Golden State is not without its calamity risks.  California is the land of wildfires and earthquakes.  The specter of a catastrophic earthquake naturally leads to the question of whether community associations should purchase earthquake insurance.  Given the notoriously high cost of the premiums, this is a big dilemma for many governing boards — especially for those communities along the major earthquake faults.

Must, may, or should an association buy earthquake insurance?

The purpose of this article is not to answer this ultimate question for all community associations. Whether and what insurance is appropriate is going to be different for each association. Instead, this article summarizes generally the law governing the question about an association’s rights and duties to obtain (or not obtain) earthquake coverage.  We also propose questions boards may wish to direct to their insurance brokers to fully understand the various earthquake insurance products available. This article helps guide boards through the important process of deciding what to do about earthquake insurance – and, we are here to help you through it.

Check Your Governing Documents!

To understand whether an association must or may purchase earthquake insurance, the first place to look is the association’s governing documents.  Most associations have comprehensive sections in their CC&Rs (less often in the Bylaws or Articles of Incorporation) specifying the type of insurance the association must purchase.  If the governing documents specify that the association must purchase earthquake insurance (rare), then that arguably creates a duty for the board to buy that insurance and include the premiums as part of the association’s annual budget and assessment structure. The alternative would be to obtain membership approval to delete the requirement from the CC&Rs.  However, most CC&Rs only require fire and casualty, liability, and “director’s and officer’s” coverage – either remaining silent about earthquake coverage or stating the association may purchase it. A careful review of the association’s governing documents is the first place to start.

What Does The Law Say?

The Davis Stirling Act (the “Act”) does not require community associations to purchase earthquake insurance.  In fact, the Act merely encourages, without requiring, associations to purchase other insurance and is completely silent about earthquake insurance.  Under Civil Code section 5047.5(e) and 5800, the Davis Stirling Act incentivizes associations to buy liability insurance and directors and officers coverage by providing a qualified immunity to the directors for buying policies with limits of either $500,000 or $1,000,000, depending on the size of the association.  Civil Code section 5806 requires an association to maintain fidelity bond coverage for its directors, officers, and employees.  That’s it for insurance under the Act!  Earthquake insurance is not contemplated by any of these provisions.

However, just because earthquake insurance is not mandated by the association’s governing documents or the Davis Stirling Act does not mean an association cannot, and arguably in some regions along the fault lines should, at least consider purchasing earthquake coverage.  What is clear is that each year the association must disclose to its homeowners the full extent of its insurance portfolio, whatever it includes.  Civil Code section 5300, subdivision (b)(9) requires disclosure of a summary of the association’s property, general liability, earthquake, flood, and fidelity insurance policy as part of the association’s annual report to members.

Overview of Available Earthquake Products and Questions for Insurance Broker

What earthquake insurance products should a board consider, and what questions should the board ask its broker?   The main earthquake insurance products presently available fall into three basic categories:

Master Earthquake Policy:  Purchased by the association to cover the entire project (with certain exclusions and exceptions).

Individual Owner Policy: California Earthquake Authority (“CEA”):  Purchased by the individual owners through carriers approved by the CEA to cover the (sometimes large) deductible an association might have to pay through a special assessment and other gaps between the association’s master policy limits and the cost to rebuild.  Often, these policies include owner relocation costs during reconstruction.

MOTUS: Association “Mini” Master and Individual Owner Enrollments:  This product is newer, and might require some additional homework.  The association purchases a “mini” (limits of $10,000.00) master policy, allowing the owners the opportunity to enroll individually to purchase coverage roughly equal to what a special assessment would be for an uninsured catastrophic earthquake loss.  Some brokers describe the MOTUS as designed to be supplemental to a full Master policy – make sure your broker explains this!

The main questions to ask an insurance broker are:

  • What are the premiums?
  • What exactly does the “master” policy cover versus the individual CEA policy, and how does that compare to a MOTUS product with the association as insured under a “mini” ($10,000 limit) master policy, with individual owner enrollments?
  • What is the association’s deductible (often a percentage of the loss)?
  • What are the policy limits?
  • What is the estimated cost to rebuild the entire project in the event of a catastrophic loss?

The premium for a master policy is tied to the policy limits and the amount of a deductible the association chooses in the event of a catastrophic event.  An important fact for boards to understand about their project, in evaluating the adequacy of a proposed master policy, is what is the actual estimated cost to rebuild the project?  Understanding this is important to assessing how close to complete coverage the proposed policy would yield in the event of a total destruction of the building(s).  The MOTUS model of insurance is an interesting concept, but it relies almost exclusively on individual owners to enroll and most brokers explain that even with 100% owner participation the MOTUS does not replace the value of a full coverage Master policy. Moreover, if only a few owners enroll in the MOTUS, the policy is not going to do much for the community in the event of the Big One.  Another useful comparison is to consider what the total cumulative premium cost is for all owners to enroll in a MOTUS, and that compares to the total premium for a traditional association master earthquake policy?  It may be less expensive overall, with better coverage, for the association to simply purchase a master policy with limits sufficient to cover the reconstruction, passing the premium on to the owners through the assessments.  But a MOTUS is sometimes viewed by some as better than nothing, and it does provide the association an opportunity to educate owners on options which are available.

Membership Involvement in the Decision.

In most cases, the board makes all the arrangements and final decisions for the association’s final insurance profile.  However, when it comes to earthquake insurance there are many reasons why membership input (or vote) is either a good idea and in some cases required. If your association does not already have earthquake insurance built into its budget and assessment structure, the decision to purchase earthquake coverage might require membership approval as a practical matter because of the significant increase in revenue needed to cover the premium.  It might require an increase in regular assessments beyond the discretionary increase the board may make each year without membership vote.  If your governing documents require earthquake insurance, but the premium is deemed by the board cost prohibitive, an amendment to delete the requirement might help mitigate a breach of duty claim for failing to obtain the insurance.  If your governing documents are silent or permissive on the question of earthquake insurance, and boards wish to confirm the membership has had an adequate opportunity to participate in this important decision, a vote to clarify the governing documents (to expressly state earthquake insurance is not required) might help protect boards against claims they did not meet a duty in the event an uninsured catastrophic loss occurs.  All of these amendments would require membership vote, and that process is a useful one in which the pros and cons of earthquake insurance can be the subject of homeowner discourse and education.  Short of a membership vote, an advisory “straw” poll of members as to whether they wish to pay the premiums through a master earthquake policy purchased by the association or face an uninsured catastrophic loss through an earthquake can also be a useful and informative process.  Overall, getting membership input on these important issues can be extremely helpful in the overall education of the community and potentially to mitigate claims that the boards breached any duty by failing to get earthquake insurance in the event of the Big One.  Hindsight is often 20/20 in lawsuits, and the more board members can do to educate themselves and solicit, where appropriate, membership input, the better in defense of a breach of duty claim.

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