Jon H. Epsten and Mary M. Howell Recognized in the 2024 Edition of The Best Lawyers in America

Epsten, APC is pleased to announce that Jon H. Epsten, CCAL®, Shareholder and Founder of Epsten, APC, and attorney Mary M. Howell, CCAL®, have been recognized in the 2024 edition of The Best Lawyers in America within the category of Community Association Law. Best Lawyers is a highly regarded peer-review publication, spotlighting the exemplars of legal excellence.

We take pride in Jon and Mary’s remarkable accomplishments and lasting contributions to the Southern California Community Association industry”, said Susan M. Hawks McClintic, Managing Shareholder.”

This designation reflects the esteem earned by an attorney among its colleagues due to their high standards of professionalism, proficiency, and unwavering ethical conduct.

Spotlight on Elections

Spotlight on Elections

A Brief Summary of Two Recent California Court of Appeal Decisions

By Mary M. Howell Esq.,CCAL, & Pejman D. Kharrazian, Esq.

Two recent California cases, Takiguchi v. Venetian Condo. Maintenance Corp. and Lake Lindero HOA v. Barone, focus on the ever popular issue of achieving quorum.

Takiguchi v. Venetian Condo. Maintenance Corp.

In Takiguchi v. Venetian Condo. Maintenance Corp. (2023) 90 Cal.App.5th 880, a small group of owners held multiple units and had controlled the board with its nominees for many years.  In January 2021, as the association moved toward its annual meeting to elect directors, there were opposition candidates lined up to change the complexion of the board.  The existing board sent out statutorily-prescribed notices of meeting and ballots, and engaged a professional inspector of elections.

Then the fun began.  The governing documents prescribed a quorum of 51% of the voting power, with a provision for a lower quorum for an adjourned meeting should the association fail to meet quorum at the initial meeting.  The notice of meeting anticipated a failure to achieve quorum, and actually noticed a follow-up meeting to take advantage of the lower quorum requirement for an adjourned meeting. The notice stated that members could participate by mail in ballot, or by attending the meeting virtually, since COVID-19 restrictions were in effect. Ballots were duly mailed to homeowners by the inspector of elections, and the inspector of elections kept a log of which owners had returned their ballots.  Ostensibly, to save money and given a long history of failures to achieve quorum, the inspector did not attend the first meeting.

On the date of the first meeting, there was confusion as to whether quorum had been achieved; in determining that quorum had not been met, management relied strictly on the number of written ballots which had been received by the inspector, and did not include persons who attended online.

The failure to count for purposes of quorum those who had not actually cast a written ballot but who appeared via internet did not sit well with the opposition.  One homeowner took pictures of the participants who were only appearing virtually.  Despite some of those images being identified only by screen names, the opposition was able to persuade the court of the identities of those participating virtually, and counting those as well as the received ballots, it was clear quorum had been achieved at the first meeting.

To compound its problems, the holdover board next voted against holding the (already noticed) subsequent meeting with its lower quorum.

The opposition filed a suit pursuant to Corporations Code Section 7510, which allows a court to order a meeting be held if the corporation’s board had failed or refused to do so.  In granting relief to the owners, the court noted that, despite no minutes having been kept, there was sufficient evidence quorum had been achieved at the first meeting.  The court accepted the identification of owners who had not submitted a written ballot but participated virtually, and counted those participants toward the quorum. In fashioning its remedy, the court ordered that a new meeting be held for the purpose of counting the ballots which had been received at that first meeting.

A dissenting opinion questioned whether the statute actually supported this type of relief, or whether instead the court should have ordered a new meeting to be held.  While the dissent is well reasoned, the remedy prescribed by the court saved the association the not insignificant costs of conducting a second election.

Lake Lindero HOA v. Barone

The second case, Lake Lindero HOA v. Barone (2023) 89 Cal.App.5th 834, concerned a recall vote.  Defendant was a former director of the association, who had resigned his position in order to take a paid position as the chief executive officer of the association.

Homeowners sought to recall the entire board pursuant to a petition by 5% of the members.  Corporations Code Section 7511 requires an association, within 20 days of receipt of such a petition, to notice a member meeting to vote on the issue of recall.  The board failed to do so, so the petitioning members sent out their own notice of meeting, and duly conducted the meeting.  When this meeting failed to achieve quorum, as prescribed by the association’s bylaws, an adjourned meeting was convened by the same homeowners, resulting in a diminished quorum.  The recall was successful, and a new board elected.

Unfortunately, the recalled board refused to leave, contesting the right of the new board to govern, including instructing management to disregard instructions from the new board.  The new board and association then filed this suit, asking the court to declare the validity of the recall, and to validate the new board’s termination of Defendant’s contract.

Held: new board 1, old board 0.  The trial court’s decision was affirmed on appeal.

The old board made the following arguments: (1) the bylaws required a majority of owners to vote for removal, despite a statute that allowed removal by a majority of a quorum,

(2) the statutes do not permit a reduced quorum, even if the bylaws do, and (3) the Corporations Code only allows a court to determine the validity of “elections”, not “recalls.”  The court properly rejected all of these arguments.  First, the statute which discusses the percentage vote required for recall (§ 7222) specifically states that it will override any contrary language in bylaws.  Second, even though the recall statute doesn’t specifically authorize a lower quorum for adjourned meeting, another statute (§ 7512) specifically provides that bylaws may set a lower quorum for meetings.   As to the third point, the court found that Corporations Code Section 7616, which allows a court to validate election results, should be read broadly to permit a court to review recall votes as well.

Takeaways from the two cases:

  1. Achieving a quorum at annual meetings is always difficult. Keeping an accurate list of ballots cast is essential, and if a virtual meeting is going to play a part in the proceedings, protocols to establish the identity of participants is essential.
  2. Minutes need to be kept. While the focus is often on board meeting minutes, annual meeting minutes are critical in determining quorum issues, notice issues, motions of adjournment, and the like.
  3. Any communication between the board, management, and inspectors of election on quorum issues needs to be memorialized in a writing, such as an email.
  4. Statutes and bylaws need to be read together. In some cases, statutes override contrary language in the bylaws.  In other cases, statutes provide that bylaws may differ from the code.  A firm knowledge of both the relevant statutes and the association’s specific bylaws (and election rules, though neither case referred to them) is essential in any election, whether the annual election of directors or a recall vote.
  5. You can’t stop your analysis with the Davis-Stirling Act. Despite the increasingly complex election protections written into the Act, neither of these cases referenced the Davis-Stirling Act.  Both were decided entirely by reference to the Corporations Code.

New Guidance from the California Department of Fair Employment and Housing on Harassment Prevention

By Mary M. Howell, Esq., CCAL

Some of you may recall HUD’s 2017 regulations indicating associations are responsible for intervening in neighbor v. neighbor disputes predicated on unlawful harassment (e.g., harassment arising from race, ethnicity, sexual expression, religion, etc.)  In June 2021, DFEH (the California agency charged with implementing state and federal anti-discrimination laws), issued its “Harassment Prevention Guide.”

The Guide emphasizes the following points:

  • Unlawful harassment is conduct “sufficiently severe or pervasive as to interfere with a person’s use or enjoyment” of a dwelling or housing-related services or facilities.
  • Harassing behaviors include verbal harassment, physical harassment, and visual harassment, coercion, intimidation, threats. It can also include revealing private information about a person without their consent.
  • Discriminatory harassment can occur either directly by an association, its managers or board members or indirectly, (e.g., by contractors hired by association).
  • Victims of discriminatory harassment include not just owners, but residents, and persons invited to the property, including guests or contractors working for residents.
  • A community association may have the power to correct and end discriminatory harassment under its CC&Rs. NOTE: A typical example of such power includes the nuisance prohibition found in nearly every set of CC&Rs, but occasionally CC&Rs also provide that any violation of state, federal and/or local law constitutes a violation of the CC&Rs, which provides further evidence that the association has the power to correct and end harassment.)

DFEH suggests that a housing provider such as a community association might consider pre-emptive action such as communicating that harassment is unacceptable within the community and training leaders of the community on how to investigate and deal with complaints of harassment.

Most community associations (and management companies) are not regularly trained in these issues.  At a minimum, the board, manager, or person hired by the association for this purpose should conduct a prompt, thorough interview of the complainant, to obtain as much relevant information as possible.  Certainly, the accused harasser should be given an opportunity to respond to the accusations as well.  If the accused harasser is a board member, consideration should be given to forming an executive committee comprised of other directors to investigate the allegations or outsourcing the investigation if that is not an option.  (NOTE:  Put the association’s D&O and CGL insurance providers on notice of claims of harassment, at the earliest possible moment.)

The Guide provides further helpful and detailed suggestions on how the investigation is to be performed, discussing whether an investigation is confidential, how quickly the investigation needs to begin and finish, how the investigator may assess the credibility of the complainant, accused party, and witnesses, and how the investigator should weigh the evidence yielded by the investigation.  See Harassment Prevention Guide, pages 9 and 10.

The Guide also discusses how an association or other housing provider should approach ending and correcting discriminatory harassment.  Depending on the gravity of the behavior, the degree of enforcement (in mild cases, a letter explaining the harassment violates governing documents and, possibly, the law as well, whereas in severe cases, harsher approaches such as imposing fines, issuing cease and desist notices, and where the activity appears to be a criminal act as well, reference to law enforcement). (NOTE:  The Guide does not answer one major question, which is whether the association is required to file an injunctive relief action to control the situation.  This issue should, as a matter of good business judgment, be discussed with association legal counsel early on.)

For questions or more information on this topic, please contact us.





How to Deal with a Lone Ranger Board Member

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By Mary M. Howell, Esq.

What do you do about a “director gone bad?” The director speaks abusively of fellow directors, disrupts Board meetings, repeatedly attempts to revisit issues already decided, discloses confidences, interferes with vendors… what can the rest of the Board do?

The Board’s options are limited, and there is very little statutory or case law to clarify what actions are permitted or prohibited.  Based on commentary (both California and from other states), the Board ought to be able to take the following actions, provided the director in question is given notice and a hearing before the discipline is imposed: private or public censure, removal from a particular office held by the director (such as president, vice-president, etc., but not from the Board, except in limited cases), or exclusion from executive session (where the director has disclosed confidential information).

If the bylaws include a provision making compliance with a stated code of ethics part of a director’s qualifications to serve, the Board may (after notice and hearing and a decision that the director is in violation of such a code) declare that director’s position vacant (that is, remove the director from the Board by Board action alone.)

The members of the association (as opposed to the Board) may recall the director in question (but beware, most attempted recalls are not successful, and if the director has any following within the community, a failed attempt to remove the director can severely divide the community.)

Sometimes the director’s misdeeds can be cured by other means. If a director interferes with vendors, for example, inform the vendors specifically to disregard the director. If the director continues to harass or interfere with vendors, the association might be able to obtain a court order requiring the director to stop interfering. Such an order is enforceable by contempt proceedings.

And, if the issue is disclosure of confidential information, or dissemination of false information, the association may also be able to obtain a court order prohibiting the director from repeating the offense (this is problematic, because the court will usually frame its very narrow order only to prohibit something the director has done in the past, rather than issuing an open-ended prohibition on similar remarks and misinformation).

If the director disrupts Board meetings, consult the rules of parliamentary procedure. The Board should be able to declare the director “out of order” if the Board has adopted rules governing decorum within board meetings. Roberts’ Rules, for example, state that the speaker must confine remarks to the motion under consideration, refrain from attacking another member’s motives, and refrain from speaking adversely on a prior motion. Roberts’ goes on to add that during debate, no member should be permitted to disturb the assembly (such as by whispering to others, or physically disrupting the meeting). In the absence of specific rules prohibiting disruption, consider making a motion to recess the meeting (not adjourn), get a second on the motion, get the Board vote, and then recess for a limited period of time to allow for restoration of order to the proceedings.

Document Production Issues

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By Mary M. Howell, Esq.

Civil Code Section 5200

The references to financial documents in section 5200(a) can be translated from the legalese as follows:

5200(a)(1) entitles an owner to “any financial document required to be provided to a member in Article 7 (commencing with §5300) or in sections 5565 and 5810.”  The documents required to be produced by section 5300 et seq. are the annual budget and reserve study (§5300), and insurance and loan information (ibid.)  The document required by section 5565 is the summary of association reserves.  The document required to be provided by section 5810 is notice of any expiration of insurance policies.

5200(a)(2) entitles an owner to “any financial document required to be provided in Article 2 (commencing with §4525) of Chapter 4.”

“Article 2, commencing with section 4525” requires the production to an owner in connection with a pending sale of the owner’s dwelling of the items listed in section 5235 (viz., all governing documents [that is, Articles, Bylaws, CC&Rs, Rules], a statement if the age restrictions deviate from the Unruh Act, the section 5300 documents listed above, a statement of the amount of regular and special assessments, unpaid assessments on a requesting owner’s property, notices of violation on a requesting owner’s property, a copy of a construction defects list generated pursuant to section 6000, if any, other specified information regarding construction defects, a statement as to whether a change in the assessment structure is pending, rental restrictions and minutes for the last 12 months.

Section 5200(a)(3) requires production of “interim financial statements which contain a balance sheet, and income and expense statement, a budget comparison, and/or a general ledger…”

PRACTICE TIP:  Your governing documents may be broader than the statute.  Check.

Items commonly requested which are NOT required to be produced in response to an owner request include:

  • Correspondence
  • A request to identify “each and every document which pertains to …”
  • A “report” not otherwise prepared or submitted in final form to the board
  • Lists of vendors
  • Records of disciplinary actions (usually requested by an owner subject to discipline who demands records for actions “similar” to an owner’s alleged violation)

PRACTICE TIP:  Regarding manager salary information, the Code does require production of employee contracts (though it allows for redaction of personal information.)  If the manager is actually an employee of the association, the contract is required to be produced.  If the manager is, instead, an employee of the management company, salary information and contract details are not required to be produced (though an owner can make an educated guess based on a copy of the management company contract and/or the budget, both of which ARE required to be produced…)

Mechanics of Production

On site or elsewhere?

Section 5205(c):  “The association shall make the specified association records available for inspection and copying in the association’s business office within the …development.”

Section 5205(d):  “If the association does not have a business office within the development, the association shall make the specified … records available for inspection and copying at a place agreed to by the requesting party and the association.”

PRACTICE TIP:  It’s not a bad idea to have a staff person or director or manager present to inspect the inspection…

Section 5205(e):  “If the association and the requesting member cannot agree upon a place…or if the requesting member submits a written request directly to the association for copies of specifically identified records, the association may satisfy the requirement …by delivering copies of the …records to the member…”

  • Who gets to do the copying? Owner or agent (such as attorney) authorized by the owner in writing.   Civil Code section 5205(b).
  • What costs can be passed through?

Staff Search and Copy Time

Section 5205(f) allows “the direct and actual cost of copying and mailing…” (and the association shall inform the owner, and the owner shall agree to pay, before copying [and sending] the documents.”   It’s clear that the association may pass through the contracted (management company) cost for these actions; it’s not at all clear whether the association can charge an owner for the probable cost to have association employees perform these same tasks.

Attorney Time to Redact Records

“…an amount not in excess of …$10 … per hour, and not to exceed …$200…per written request…”  section 5205(g)

  • Can you require a form to be used? We recommend you DO develop a form and require use. DSCIDA does not say “yes, you can” or “no, you can’t” but from a corporate housekeeping point of view, it allows for better record production and for tracking costs.
  • Can you elect to email the documents? Not unless the owner consents to email (and the format must be non-alterable, e.g., pdf).  Section 5205(h)
  • Can’t meet the deadline? Send a letter or email outlining what you HAVE done, and when the owner may reasonably expect the remaining documents.  If you decline to produce documents, state why (e.g., privileged, not on the section 5200 list)

Duplicative/Abusive Requests

  • Keep a list (or copies) of documents you have produced to the owner. While everyone loses paperwork once in a while, asking for the same documents three months in a row is probably abusive.  A refusal to re-copy and send documents should probably be written (or reviewed) by counsel.

Directors’ Right of Inspection

  • Corporations Code section 8334 says the director “shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind …” Despite the language, “absolute” may not be so absolute.  Thus, in Chantiles v. Lake Forest II Master Association, the court refused to give a director access to ballots containing information on how other owners had voted.  The court noted that certain public policies, such as an owner’s reasonable expectation of privacy, may outweigh a director’s right to view documents.

PRACTICE TIP: Sometimes directors go rogue, and the rest of the board may worry about access to highly sensitive documents, fearing that the documents may be used against the association.  While it’s tempting to just declare documents “off limit”, this is a sensitive area, and legal counsel should be sought before routinely denying a sitting director access to such documents.  A court order may be advisable, and/or creation of a subcommittee (particularly when the director has sued or threatened to sue the association).

Membership Lists

Both the Corporations Code and the DSCIDA require production of a membership list.  Unlike other documents required to be produced, the requesting owner must state the purpose for which the list is requested, and it must be for a purpose “reasonably related to the [requester’s] interests as an [owner.]”  Things such as recalls and elections are clearly related to the owner’s interests, while commercial purposes are not.  What falls in between are things such as advising fellow owners about an issue outside the association (construction, non-association political campaigns) which is arguably of interest to many if not all associations.  Check your governing documents, and consider adopting a policy to define “reasonably related” purposes.  Further, if the association chooses to deny access, and the requesting owner challenges those reasons, it is up to the association to prove the requesting member would have abused access to the membership list.  Civil Code section 5225.

DSCIDA allows owners to “opt out” of the sharing of address information, BUT the association is still required to communicate in an alternative fashion.  See Civil Code section 5220.

Penalties for Violation


The owner may bring a court action, in small claims court or superior court, to enforce the owner’s inspection/copying rights.  If the owner wins, the court SHALL award the member costs, including “reasonable attorney’s fees” AND a civil penalty of up to $500 ” for the denial of each separate written request…”

Does that mean for each separate line item on a multiple item request?  Possibly, although the decision in Wittenberg v. Beachwalk Homeowners Association (which concerned election violations) suggests that the amounts should be capped for each written request as a whole–another good reason to insist on a form.


In a challenge based on production, the winning association can recover “costs” ONLY if the court finds the owner’s action to be “frivolous, unreasonable or without foundation.”  Civil Code section 5235.  That’s bad enough, but when you consider that the court usually defines “costs” as NOT including attorneys fees, the association may find itself losing even when it wins.


Defamation and the Association

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By Mary M. Howell, Esq.


What IS defamation?  Defamation is either “slander” or “libel.”  Slander is spoken; libel is written.  To plead and prove up an action for defamation, the victim must show:

  1.           Publication to a third party

–Comments solely between “defamer” and victim are not “published”

  1. Intentional publication

–If comments between the “defamer” and the victim are accidentally overheard by another, the action for defamation fails.  Haley v. Casa Del Rey Homeowners Ass’n. (2007) 153 Cal.App.4th 863.

  1. Statement of “fact” which is false

–Includes any “writing, printing, picture, effigy, or other fixed representation … that exposes any person to hatred, contempt, ridicule or obloquoy or that causes him or her to be shunned or avoided or that has a tendency to injure the person in his or her occupation.”  Civil Code 45.

–Must be a “provably false factual assertion,” that is, you have to be able to prove that the statement is false.  Often used to exclude “opinion” (see discussion of “opinion” infra at VII, Krinksy v. Doe 6.)

  1. Not privileged

–Defamation is a “disfavored tort” in the United States, meaning that the law has allowed defenses against the action to facilitate larger social concerns.  “Privilege” is a defense to defamation, which evolved out of America’s overweening adoration of the notion of “free speech.”  Briefly, “privilege” is the notion that one should be able to say anything, true or false, about someone if some social purpose is served.

–Privilege, absolute and qualified:

In some circumstances, statements are “absolutely” privileged.  That means, even if the statement in intentionally false, and made with malice, no damages may be awarded for the falsehood.

The publications which are absolutely privileged are statements made as part of an official duty, statements made before the legislature or in a judicial proceeding, reports to the legislature or complaints to a public official.   The basis for an “absolute” privilege is that the importance of the communication is so great that the law should not permit the speaker to be discouraged by the threat of civil liability.

In other cases, more relevant to association proceedings, a communication of “qualifiedly privileged” when it is made without malice, to a person interested therein.  CC 47(c).  The privilege may pertain to communications between persons who share a common interest, between persons in a ‘special relationship’, and by one who is requested by the interested person to give the information.  However, even statements made between these persons may be defamatory if the false statement is made maliciously.  “Malice” in this case is “ill will beyond the normal feeling toward a wrongdoer” or a statement made by a defendant who “knows the statement is false or has no reasonable ground for belief in the truth of the statement.”

  1. Causes damage

–Normally the victim must prove “special damage,” that is, that he has suffered some injury.  If, however, the statement is defamatory “on its face,” no proof of special damage is required.  To be defamatory “per se” (that is, defamatory on its face, without the necessity of explaining that it was defamatory or that it referred to the victim), the statement must be of a particular sort (for example, charges of criminal conduct,  or character defect , such as saying the person was unchaste, or incompetent in his chosen profession).  Epithets and derogatory suggestions that carry with the implication of acts of misconduct are actionable.

What is “invasion of privacy”?

To plead and prove an action for “invasion of privacy” the victim must prove (a) public disclosure of private (although true) information about the victim or (b) statements which tend to paint the victim in a false light, and (c) damage.  The damage which must be proved is different from defamation: in privacy actions, the damage is “mental and subjective.  It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury.”  Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 86.

The action is subject to the same privilege defenses as defamation.

What is “intentional infliction of emotional distress”?

To plead and prove an action for “intentional infliction of emotional distress,”  the victim must prove (a) outrageous behavior, which (b) results in severe emotional distress [“emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western Nat. Life Ins. Co. (1970) 01 Cal.App.3d 376.]  The conduct must be intentional or reckless, and directed primarily at the victim.

The action is subject to the same privilege defenses as defamation.

Anti-SLAPP motion

An “anti-SLAPP” motion (SLAPP = “strategic lawsuit against public interest”) is a motion brought by a defendant immediately after a lawsuit is filed, which attempts to persuade the court to dismiss the lawsuit because it was brought to chill the defendant’s First Amendment rights.  In order to win an “anti-SLAPP” motion, the defendant must first show that the challenged cause of action is based on protected speech, either (a) before or in conjunction with legislative, executive or judicial proceedings, or (b) in a public forum in connection with a public issue.  If defendant succeeds in this regard, the burden then shifts to the plaintiff, who must demonstrate probable success on plaintiff’s claim.  If plaintiff persuades the court that he will likely succeed, then the action may continue.

In the association context, many if not most of the defamation cases are disposed of by means of an anti-SLAPP motion.  In the association context, statements made at board meetings are made “in a public forum'” (Damon v. Ocean Hills Journalism Club, infra.).  Further, statements made about management of the association is a matter of “public interest,” especially when a large, powerful organization may impact the lives of many individuals…”  (Ibid.)  Accordingly, in most cases where a manager or director brings an action for defamation, he/she can anticipate an anti-SLAPP motion, and will have to demonstrate the probable success of his suit at a very early stage in the proceedings, before any discovery has taken place.

See also Healy v. Tuscany Hills., infra [attorney’s statement to all homeowners that plaintiff-homeowner’s denial of access for maintenance has necessitated costly litigation held privileged and therefore unlikely to succeed]; Damon v. Ocean Hills Journalism Club, infra [libel suit based on criticism of manager published to homeowners and others was “public forum” speech, subject to an anti-SLAPP motion]; Ruiz v. Harbor View Community Ass’n., infra [defamation suit based on Association’s attorney’s letters to homeowner subject to anti-SLAPP motion].

Can a director or manager successfully sue a homeowner for defamation?

It’s difficult.  In Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, a former manager sued an association club, and homeowners and directors, for alleged defamation arising from articles critical of him which were published in the club’s newsletter, and statements made by the directors in annual and member meetings.  The defendants responded with an “anti-SLAPP” motion and prevailed.  The court held that the statements in the newsletter (though it was not the official association newsletter) and the statements made in the meetings were statements “in a public forum” and concerned a matter of “public interest.”  Interestingly, however, the court did not address the other provision of the anti-SLAPP statute, viz., that after the public forum/public interest prong is satisfied, the plaintiff may still continue with the action if plaintiff can show a likelihood of prevailing at trial.

Can a director or manager proceed against an “anonymous” web poster?

The answer appears to be “yes”, procedurally (see, e.g., Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, and Tendler v. (2008) 164 Cal.App.4th 802), however, discovery proceedings directed at the ISP to ascertain the true identity of the poster  may be fruitless in light of a first Amendment right to speak anonymously on the internet.  In Krinsky, a director of a corporation who was “flamed” on an internet chat room sought to subpoena from Yahoo the identity of the “flamer.”  The court articulated a standard which, if satisfied by the victim, can result in mandating disclosure of the identity of the flamer.  Essentially the victim must show that the posting was “mixed opinion”, that is, not merely an “irrational, vituperative expression of  contempt,” or “juvenile name-calling.”  A reasonable reader must take the statements seriously.

Can a homeowner successfully sue a director or manager for defamation?

Possibly, but the homeowner will have to show all the elements of defamation, including the absence of any privilege.  In Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456, the homeowner (an attorney) sued the Association and its attorney for libel, based on two letters the attorney had written to the homeowner.  The Association and its attorney filed an anti-SLAPP motion.  After the trial court granted the motion, the appellate court ruled that one of the letters was potentially libelous (because it had accused the attorney of unethical behavior), but that there was no evidence that the letter had been published to the public.  As to the second letter, which said the homeowner was “seeking a Shakespearian pound of flesh”, “making cockamamie document requests” and that he was “virtually stalking” the directors, the letter was comprised of  “rhetorical hyperbole, epithets, and figurative statements” (and therefore, not libel.)

In Healy v. Tuscany Hills Landscape & Recreation Corp (2006) 137 Cal.App.4th 1, the homeowner sued the Association for libel after the association’s attorney sent a letter to all residents of the association, telling them that the homeowner’s refusal to allow access to her property for maintenance purposes had resulted in a lawsuit, which was costing the association’s residents money.  The homeowner claimed the statements were false, because it gave the impression there was no other way to access the maintenance area.  The Association filed its anti-SLAPP motion, and after the trial court denied the motion, the Association appealed.  The DCA reversed, indicating that the statements, even if false, were privileged because the letter “expressly refer[s] to the litigation arising from [the homeowner’s] prohibition on ingress and egress for weed abatement purposes…”  The court reasoned that the purpose of the letter was to inform residents of pending litigation involving the Association, it was circulated “in connection with” judicial proceedings and therefore privileged.  Since this meant the homeowner could not succeed on her libel claim, the DCA reversed, granting the anti-SLAPP motion (and exonerating the Association.)

Can the association successfully sue for defamation of its manager or director?

The answer is, generally, “no.”  In Palms Springs Tennis Club v. Rangel (1999) 79 Cal.App.4th 1, the association brought an action for defamation based on statements of a homeowner which were critical of board members.  The association alleged that the statements were false, and exposed the association to “hatred, contempt, ridicule and obloquy,” reflected poorly on the association and its board, and concerned the performance of the directors in their official capacity, and finally, had a deleterious effect on the association’s ability to attract qualified board members.  Nevertheless, the court (after agreeing that corporations may bring actions for defamation) concluded that, “if language written about a corporate officer cannot be interpreted as saying anything about the way that officer performs his or her duties and responsibilities as an officer of the corporation, so as to have a natural tendency to affect the corporation disadvantageously in its business, the corporation has no right of action.  Stated another way, words written about a corporate officer give no right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation.”

Can the association sue someone for defaming the association?

Generally, the answer is “no.”  A corporation can sue for defamation, but it must show that the statement has a tendency to injure its “business reputation.”  A nonprofit corporation can sue for defamation provided it can show that it relies on the public for financial support   An HOA cannot normally show such losses.

Can you sue the ISP who fails to police the chat room?  Again, the answer appears to be “no.”  ISP’s are protected from this type of liability by the federal “Communications Decency Act” (47 USC 230;) in Barrett v. Rosenthal (2006) 40 Cal.4th 33, the California Supreme Court construed that federal statute to protect providers and users of an interactive computer service from liability for defamation, reasoning that to do so would tend to chill online speech.

Relief to prevailing party?

  1. If you win, is there insurance?

Possibly not as to the homeowner.  In Stellar v. State Farm Gen’l Ins. Co. (2007) 157 Cal.App.4th 1498, plaintiffs had tendered to State Farm (the issuer of their homeowners’ policy) the defense of an action against them for defamation.  The complaint alleged that the false statements were made “willfully’ and “intentionally.’  State Farm rejected the tender, based on the policy’s definition of a covered occurrence as “an accident.”  On appeal, the court agreed that the policy did not extend to defense of a defamation claim:

” Relying on the definition of “accident” as construed by the California courts, the court in Allstate Ins. Co. v. LaPore (N.D.Cal. 1988) 762 F. Supp. 268 held that an insurer owed no duty to defend its insured in a defamation action because the insured’s allegedly defamatory statements were not accidental. The court explained: “Defamation, which includes libel and slander, is [an] intentional tort which requires proof that the defendant intended to publish the defamatory statement. [Citation.] The very nature of defamation precludes the conclusion that it can occur ‘accidentally.’ ” (Id. at p. 271, italics omitted; see also Tradewinds Escrow, Inc v. Truck Ins. Exchange (2002) 97 Cal.App.4th 704, 714 [citing Allstate Ins. Co. v. LaPore, supra, 762 F. Supp. 268 with approval in ruling that a defamation claim would be excluded from coverage because such a tort cannot occur accidentally].) … On the basis of this authority, the trial court properly ruled that State Farm owed no duty to defend appellants.”

As to an association, the association’s D&O policy will frequently cover alleged defamation by directors, managers, etc.  Thus the Farmers D&O policy (the “Personal and Advertising Injury” portion of the policy) typically defines such injury as including “oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services…”    Please note, however, that there is an exclusion when the oral or written publication is done “by or at the direction of an insured with knowledge of its falsity.”

  1. Generally, a victim cannot get an order enjoining future speech.

“An order prohibiting a party from making or publishing false statements is a classic type of unconstitutional prior restraint. [citation omitted]  ‘While [a party may be] held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.’ [citation omitted]  The California Supreme Court recently recognized this fundamental principle, but held the rule does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory.  Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156.”  Evans v. Evans (2008) 162 Cal.App.4th 1157.

Thus, in general, before a victim of defamation can obtain an order restraining such speech, a court must rule that defamation has occurred, and any order must be limited to the specific items found to be defamatory at trial.

In the Evans case, husband and wife were in the midst of divorce proceedings.  Wife posted “confidential information” about husband on the internet, in addition to accusing husband of child abuse and physical abuse of the spouse.  Husband sued for defamation and in that suit, asked for a restraining order against further disclosures and postings.  Although the trial court granted the restraining order, the appellate court overruled the grant of the restraining order.   The appellate court noted that as to the allegation wife had posted “confidential information” on the internet, it might be appropriate to issue a restraining order, but that husband had failed to show that what was posted was confidential in nature.

The appellate court remanded the matter back to trial court, directing it to reevaluate husband’s request, and to determine whether the information husband sought to keep private was sufficiently confidential, such that his right to privacy outweighed wife’s right to free speech.  The court noted that a “compelling reason” to hold material was confidential ‘includes, but is not limited to, facts showing the disclosure of information would jeopardize the personal safety of [husband] or his family and/or would lead him to fear for his of his family’s personal safety.”

Can a victim obtain a restraining order based on harassment, as opposed to defamation?

In general, the answer is “no.”  While Code of Civil Procedure Sections 527.6 and 527.8 allow the victim or the association as “employer”, respectively, to obtain various types of restraining orders, both are of limited use in the situation where only verbal abuse has taken place.  Section 527.6 allows an individual who has suffered “harassment” to obtain a restraining order, and harassment includes “a knowing and willful course of conduct that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”   And, while the “course of conduct” includes “making harassing telephone calls to the victim, sending harassing correspondence to the victim, or faxing or emailing the same, ” the section goes on to add “Constitutionally protected activity is not

included within the meaning of ‘course of conduct.'”  Section 527.8 describes “harassment” in similar terms, and also defines “employee” to include “a volunteer …who performs services …” and “members of boards of directors of private … corporations…”  However, as with Section 527.8, this section states that it does not permit a court to issue an injunction ‘prohibiting speech or other activities that are constitutionally protected, or otherwise protected by …any other provision of law.”

Also, the application for a restraining order is subject to the same anti-SLAPP protections afforded actions for defamation and invasion of privacy.  Thomas v. Quintero (2005) 126 Cal.App.4th 635

Note that if the speech is “private”, that is, “between purely private parties, about purely private parties, on matters of purely private interest,” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1409) injunctive relief may be appropriate, even if the victim is not entitled to stop the same statements made to other homeowners.


Lone rangers (Le Parc), anonymous posts, unofficial websites, chat room flame fests and ugly letters–and no relief in sight?  Consider:

Giving the defamer enough rope to hang himself, packing the pews

Reporting threats to the police

Keeping track of where the statements go, who sees them

Response?  Maybe not?


Mary M. Howell, Esq. becomes Of Counsel to Epsten, APC

August 1, 2017 – Epsten Grinnell & Howell, APC (“EG&H”) is pleased to announce the transition of Senior Shareholder Mary M. Howell into her new role as Of Counsel to the firm effective January 1, 2018.   After 25 years at EG&H, in Mary’s new role she looks forward to sharing with the firm’s attorneys and staff her decades of knowledge, insight and expertise as a mentor and resource behind the scenes.

Mary has been practicing law since 1976, joined EG&H as a shareholder in 1992 and was inducted into the College of Community Association Lawyers (CCAL) in October of 1996.

Jon Epsten, EG&H founder, and Susan Hawks McClintic, Co-Managing Shareholder are proud to work with the finest community association lawyers who will continue offering the best in innovative, practical and efficient legal counsel to community associations.  They are supported by the firm’s attorneys and their unique, multidisciplinary skills and experience including general association representation, developer transition, civil litigation, civil engineering, construction and construction defects, appellate counsel and advocacy, and employment law.

In addition, the firm is proud to maintain its contributions and services to the improvement of the industry through its attorney and staff involvement on several legislation action committees and industry organizations throughout Southern California.


To read the full press release, please click here.

10 Lessons for Community Association Directors

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By Mary M. Howell, Esq.

Over the last 40 years of representing associations, I have had many occasions to counsel boards in the midst, or right on the edge, of association meltdowns.
Here are 10 lessons I have shared with directors over the past:


  1. If you think it could land you on the 6 o’clock news, think again.
  2. Every homeowner confronted with a breach of the CC&Rs is convinced the board is ONLY pursuing him/her, not the neighbors who are doing the same thing…
    Your job is to let that owner know that the board is prepared to pursue all violators. Particularly if names and addresses are provided… and then to explain patiently that you are not going to share the prurient details with one and all.
  3. Directors, don’t have private conversations with members.  
    One or both of you are going to hear and remember selectively, and possibly incorrectly.
  4. No good turn goes un-stoned. 
    If you lean over backwards to help someone, that’s going to be misinterpreted as unfairly favoring one homeowner over another.
  5. “Transparency” for the sake of transparency isn’t always a good idea.  
    Some aspects of association governance are SUPPOSED to be confidential, usually to protect the association from getting sued for something. It is no secret that crowds cannot keep one.
  6. Avoid conflict.  
    The wise man always does, until the insult cannot be borne at risk of damage to all. A soft word turns away wrath. Don’t stoke the fires of dissent. Make peace, not war.  Those are all ways of saying, ‘Litigation is not healthy for children and other living things.’ PS, it’s ALWAYS, ALWAYS, ALWAYS expensive and should be regarded as a last resort.
  7. Always curtsy, it gives one time to think. 
    Borrowed loosely from Lewis Carroll. The idea is this: no one, not even highly paid professionals, come up with the perfect riposte while under fire. You won’t serve yourself or your community very well if you open mouth before engaging brain.Just say, “a serious accusation/question/concern such as this deserves an equally serious response. We will investigate the matter carefully and advise you of our findings.”
  8. It takes TWO to tango.  
    You have to know how and when to engage. Don’t be provoked into a nasty or heated reply just because the speaker gets carried away, because you will not win. Let the speaker finish. If you can reply briefly and effectively, with facts to document your answer, then do so. Otherwise, DON’T engage. Simply note, at the end of a tirade, “Obviously we disagree. I’ll respond at length shortly. Let’s move on.”
  9. If a meeting is getting out of hand, recess briefly, and LEAVE THE ROOM.  
    After the recess is over, if the meeting is STILL nasty, consider a motion to adjourn.  You’re a volunteer, for Pete’s sake.  Neither law nor fiduciary duty requires you to put life and limb at risk.
  10. Remember what it’s about: Service.  
    Service to the entire community, given freely and responsibly.  Not ego, not proving something (or proving someone else is wrong.)  Service always comes at a cost, by the way. Too often, the only thanks you will get is found under “T” in the dictionary.  But that’s what you signed on for. The people worth helping in the community will know the truth of the matter.There’s a saying in my husband’s country: ‘A good horse kicks up dust.’ If you have provoked the naysayers in your association to protest, it’s because you were brave enough to take a stand. The satisfaction of knowing that might not do away with the nastiness you endure, but who ever said doing the right thing would be easy?

SB 269: ADA Issues Revisited

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By Mary M. Howell , Esq.

In 2012, the California legislature was incensed by unprovoked attacks on small commercial operations by drive-by “disability activists” who, after eye-balling the complex for ADA violations would sue, and then settle for attorney fees and a few dollars more…In response, the legislature enacted a defense for such businesses, Civil Code 55.3, 55.53.  .  In relevant part, these provisions required a potential plaintiff to give notice to the owner, before a suit is filed, of the owner’s rights and obligations under the disability protection laws.    The legislation further allowed the owner a chance to reduce damages by using the services of a “CAsp”, a California certified access specialist.  (A list of CAsp’s is found at  The specialist could inspect the premises, prescribe changes to comply with the law, and if done within 30 days of any complaint, the owner could stay the action, and limit damages for each claim.  Civil Code 55.54.

SB 269 expands the defenses available to the property owner.  It lists certain technical violations (e.g., interior signage, lack of some types of exterior signage, such as location of accessible pathways, and the color and condition of parking lots and striping…) of the act and establishes a presumption that these violations do not result in damage to the plaintiff-disabled person.  The bill also protects small business (as defined) from statutory damages if changes are made during the 120 day period after the owner obtains an inspection of its premises by a CAsp.

The impact for associations?  Probably little for wholly residential associations which do not open their facilities to the public at large.  The ADA (and its state analog, Cal. Civil Code 54) do not, as a rule apply to residential associations, unless and until they open their facilities to the public.  But commercial associations need to be aware of these defenses, and most particularly, of the favorable effect of consulting with CAsp’s and taking regular, pre-litigation steps to assure that the premises comply with accessibility guidelines (as those owners have a continuing duty under the law to comply with current guidelines, including a duty to upgrade and improve premises.)

Sadly, the CAsp defense is not generally recognized in federal courts.  The 2012 enactment led to a virtual stampede headed in the direction of federal courts.   While the possibility of recognizing the defense continues to be debated at the federal trial court level, for the most part these statutes will protect against state law claims only.  Stay posted!

No Fun in the Sun: Swimming Pool Specifics

By Mary M. Howell, Esq.

What kinds of pool rules may an association have? 

How may “health and safety” issues be
legally addressed?

In US v. Plaza Mobile Estates (2003 U.S. Dist. Ct. Cal.) 273 F. Supp.2d 1084, the government sued operators of several mobilehome communities, alleging their recreational use rules violated the federal Fair Housing Amendments Act of 1988.  The rules fell into 3 categories: they either absolutely denied access to facilities to children, imposed an “adult supervision” requirement, or limited the hours children could use the facilities.  The park owners argued that the rules were intended to guard the health and safety of the children.  The court was not persuaded:  “As with [] absolute prohibitions [based on age], these adult supervision requirements are [] not the least restrictive means to achieve [] health and safety objectives… [T]here is nothing magical about the age of 18 or 14 years old if defendants’ concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles.  Such concerns could be addressed with the use of rules.  Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement…”

To most of us, it is simply not feasible to administer swimming proficiency tests to all children wishing to use the pool, and even if an association were to do so, it would invite suits against the association should a “certified proficient swimmer” come to harm.

So how to approach the valid concern of “health and safety”?   What IS the “least restrictive” way to approach the problem?  You might also require the parent of the child to confirm in writing that the child is proficient in terms of swimming (which seems to accord with the judge’s suggestion, above.)  And if the real concern is less “safety” than noise and boisterous behavior, have a rule which focuses on behavior, not on age.  (Even octogenarians can be disruptive: shocker!)

Is the Association required to alter common areas in response to a disability-based claim? 

Another pool issue revolves around disability-based requests.  How should the Association handle requests to install pool lifts, or (for example) to allow pool flotation when rules prohibit it?  With regard to the pool lift, remember an association is not subject to the Americans with Disabilities Act (“ADA”) unless its facilities are open to the public at large.  Instead, the association is governed by the Fair Housing Amendments Act (“FHAA”) which has similar but not identical requirements.  The FHAA provides the cost of a disability-based modification is to be borne by the applicant, not the association.  With regard to the pool flotation device example, the Act requires the association to suspend enforcement of rules where necessary to afford a disabled resident an equal opportunity to use and enjoy the premises.  Many similar questions are answered by HUD, in two documents available online: the 2004 “Joint Statement on Reasonable Accommodations” and the 2008 “Joint Statement on Reasonable Modifications.”

What happens if the association (or its manager) are accused of unlawful discrimination?  Can the association be liable for discrimination by its manager?

Since many D&O policies exclude defense of claims based on discrimination, the association may have to pay the cost of defending the claim, and is likely to be required to defend the accused manager also.  Because an association can be liable for discriminatory acts by a manager, promptly investigate complaints about questionable behavior.  Check your D&O  policy carefully, and try to select a policy which does not exclude such claims.  And, if the manager is accused, the association may have to consider a further agreement with the management company, allowing for defense of the claim, but reserving the right to seek reimbursement from the manager and management company if the manager is ultimately found to have intentionally discriminated.


Reprinted with permission from California Association of Community Managers, Inc. (CACM) Law Journal (Copyright, 2015, CACM). For additional information on CACM visit