TERMINOLOGY
Ranking of Laws. The three sources of law are constitutional, statutory, and case law. The sources are ranked as follows: first, constitutional; second, statutory; and third, case law.
Laws & Ordinances. 
Bills (proposed changes to the law) are introduced into the legislature in Sacramento. Once a bill has been approved by both houses of the legislature (the Assembly and Senate) and signed by the Governor, a bill becomes a statute or "statutory law." The Davis-Stirling Act (Civ. Code §§ 4000-6150) is an example of statutory law. Regulatory laws are adopted by executive agencies based on statutes. Ordinances are passed by counties and cities.
Enrolled. A bill that passes both houses is sent for proofreading for consistency before being sent to the Governor for approval.
Transmitted to Governor. The governor must sign or veto legislation within ten days after transmittal, or it becomes law without his/her signature. For bills transmitted after session adjournment, the governor must act within 30 days after the end of the session, or the legislation becomes law without being signed.
Chaptered. A bill is "chaptered" once it is signed by the Governor. It becomes law on January 1 of the following year unless it contains an urgency clause (takes effect immediately) or specifies an effective date.
2023 BILLS
AB 478 – Wildfires: Insurance-For insureds 65 years of age or older, this bill would limit an increase in their yearly premium for a policy of residential property insurance by no more than 25 percent for insured property located in a high or very high fire hazard severity zone, as identified by the State Fire Marshal, as specified, and allow only one premium increase in a 5-year period. The bill would allow the increased premium to be paid over a 3-year period as part of the insured’s residential property insurance premium payments. This bill would additionally prohibit an insurer from canceling or refusing to renew a policy of residential property insurance based solely on the fact that the insured property is located in a high or very high fire hazard severity zone, as identified by the State Fire Marshal, if the insured is 65 years of age or older.
AB 572. Assessment Limitation. This bill would prohibit the increase of a regular assessment on the owner of a deed-restricted affordable housing unit that is more than 5% greater than the preceding regular assessment for the association’s preceding fiscal year.
AB 648. Virtual Meetings. This bill would authorize board and member meetings, except for meetings at which ballots are counted and tabulated, to be conducted entirely virtually without needing to designate a physical location.
AB 976. Accessory Dwelling Units. Existing law authorizes a local agency to impose an owner-occupancy requirement on an accessory dwelling unit, provided the Accessory Dwelling Units (ADU) was not permitted between 1/1/20 and 1/1/25. This bill would prohibit a local agency from imposing an owner-occupancy requirement on any ADU.
AB 1458. Adjourned Meeting Quorum. In the absence of a quorum, this bill authorizes an association or a CID corporation to adjourn a membership meeting to a date no less than 5 and no more than 30 days after the adjourned meeting at which time the quorum required for purposes of a membership meeting shall be 20% of the voting members present in person, proxy or by secret ballot.
AB 1661. ADUs. Existing law requires every residential unit in an apartment house or similar multiunit residential structure, condominium, or mobilehome park to be individually metered for electrical and gas. This bill would exclude ADUs from that requirement if the owner of the property has the electrical and gas metered through existing or upgraded utility meters located on the property.
SB 71. Small Claims Court. The bill raises small claims limits to $15,000 if brought by a natural person and increases the limit on the amount in controversy for an action or special proceeding to be treated as a limited civil case to $50,000
SB 477. Accessory Dwelling Units. This bill would make nonsubstantive changes and reorganize provisions in existing law related to the creation and regulation of Accessory Dwelling Units (ADUs) and Junior Accessory Dwelling Units (JADUs).
2023 CASE LAW
Case Law Defined. Case law is created by judicial decisions in California's appellate courts and supreme court. Statutory law demands or prohibits certain acts. Case law interprets statutory law. The cases also explain how the justices arrived at their particular conclusions. If published, their rulings serve as precedence for cases that follow.
Lake Lindero HOA v. Barone. This case concerned the validity of a recall election. The Board that was served with the recall petition did not participate in noticing the special membership meeting, mailing the election materials, appointing the IOE and conducting the election. Instead, the petitioners handled everything.Importantly, this case held the following: (1) The correct membership vote requirement for recalls in corporations of 50 or more members is a majority of a quorum. Corporations Code sections 7222, 5034 and 7151(e) take precedence over Bylaws that require recall votes to be approved by a majority of the total members – again this is for corporations of 50 or more members. (2) Corporations Code 7616 (Action to Determine Validity of Election) applies to recall votes.
River’s Side at Washington Square v. Sup. Ct. This construction defect action is brought by an HOA for a planned development. The appellate court held that the HOA lacks standing to sue for defects in the individual units (separate interests) under the Right to Repair Act (Civil Code section 945). The HOA could not meet the standing requirements of Civil Code Section 5980 because none of the defects identified in the complaint involved either the common areas or separate interests that the HOA was obligated to maintain or repair. Plaintiff may have standing to allege defects in the individual units in causes of action for breach of contracts, nondisclosure, misrepresentation, if it can meet the requirements for bringing a representative action under Code Civ. Proc. § 382.
Takiguchi v. Venetian Condominiums. A father and son controlled a 3-member board and perpetuated their power by failing to hold regular annual elections. The father owned 18 units and was elected to the board in 2008. In 2009 he appointed his son to the board. They then controlled the board from 2009 through 2021 and repeatedly failed to hold annual elections, either due to the absence of a quorum or for other reasons. In addition, they targeted opposition candidates by fining them and trying to exclude their candidate statements from ballot packets. The association was sued and the trial court ordered the board to conduct an election pursuant to Corp. Code 7510. The board appealed and the Court of Appeal affirmed the lower court’s decision.
UNPUBLISHED CASES
The following cases are unpublished opinions and are not binding precedents. However, they give insight into how future courts might deal with similar issues.
Aaronoff v. Olson. The parties to this action converted an apartment building into a condominium, and then each resided in the building. Olson served as president of the HOA. Aaronoff filed various claims and complaints against Olson, including a civil harassment restraining order. At the conclusion of a four day hearing on her restraining order petition, the trial court determined that Aaronoff had failed to demonstrate clear and convincing evidence of harassment. Aaronoff alleged that Olsen had embarked on a campaign through third-parties to force her out of the building, that Olson had confronted her angrily, that Olson had looked at and photographed her through her windows, that her unit had been surveilled by strangers, that her window and door lock were damaged, and strangers escorted by the HOA’s general contractor were behaving suspiciously. Witnesses’ testimony did not support Aaronoff's claims that Olson was harassing her or that other third parties were harassing her on behalf of Olson.
Doss v. Brehaut. The CC&Rs limit the use of certain easements to “landscaping purposes.” The term “landscaping” is not defined in the CC&Rs; thus, a dispute ensued. The dictionary definition of “landscaping” should have been used, not an interpretation based on the CC&Rs as a whole or how they are used in the industry. The Association’s approval of an architectural application to build a “sister” fence on an easement was improper because building a fence is not within the dictionary definition of “landscaping,” and the fence burdened the dominant tenement.
Fairly-Haze v. Whitesails Cmty. Ass'n. An owner’s request that the Association create an accessible parking space in an underground parking structure was properly denied. The HOA did not have the authority to reassign deeded parking spaces which would have been necessary to create the space. Alternatively, the owner would be granted exclusive use of an accessible space outside the garage in exchange for one of his other spaces.
Gorenberg v. Emerson Maint. Ass'n. A peremptory writ issued under CCP 1094 for association records to be produced to an owner, could be enforced under CCP 1097 on individual directors of an association. CCP 1097 allows for imposition of a fine up to $1,000 and persistent refusal to obey can be subject to imprisonment. In so holding, the COA said: “Today we reaffirm a bedrock principle of corporate law; "the simple reality that an entity acts through its board and/or agents[.]" (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 124, 82 Cal. Rptr. 3d 389 (Ritter).)”
Groth v. Park III. Condo HOA Owners and their tenant who sued their HOA and its board president for civil rights violations and defamation defeated an Anti-SLAPP motion to strike because they presented sufficient evidence that racist and defamatory letters were authored and distributed by the board president. The HOA’s Anti-SLAPP motion was also denied because the board president’s acts are imputed to the HOA under the doctrine of respondeat superior.
Haghnazarzadeh v. Suntree Townhomes Owners' Association. Haghnazarzadeh owns property adjacent to the HOA’s common area. Haghnazarzadeh alleged that he had an easement for ingress along the border of the common area and when the HOA built a wall along the border, the wall prevented Haghnazarzadeh’s use of his easement. Haghnazarzadeh sued the Association and the Association cross-complained for quiet title. The HOA tried to vacate the dismissal arguing that (1) the HOA’s members were indispensable parties without whom the settlement was not effective; and (2) only the full board, not one board member, and all the members have the authority to settle the matter. The court disagreed that the HOA members were indispensable parties to the suit and settlement agreement because (1) the Association’s cross-complaint alleges that it is the authorized representative of the individual homeowners; (2) the Association did not join the individual owners as parties to its quiet title action; and (3) although the Plaintiff filed doe amendments naming all individual owners, they were not served. The court found that the board member had ostensible authority to act on behalf of the HOA based on evidence of representations by the Association’s counsel that the board member had authority and the Association’s actions ratifying the settlement agreement.
Harris v. Dollar Point Association (2023). Owners of a residence that abutted a strip of land owned by their HOA, failed to establish adverse possession rights over the land (“Encroachment Area). The fact that the Owners watered and tended grass on the Encroachment Area, and at one point installed irrigation, bushes, trees and rocks to obstruct others from using it, was not enough to establish exclusive possession or that their possession was hostile to the HOA. Further, over the years, the Owners’ interactions with the HOA reflected their continuous acknowledgment and respect for the HOA’s ownership of the Encroachment Area, including complaining to the HOA about foot traffic through the Encroachment Area and relying on the HOA to trim tree branches in the Encroachment Area.
Lachtman v. Ocean Terrance Condominium Association. HOA and its management company were sued by a resident who was attacked by another resident while using the common area hot tub. The HOA and management company prevailed on summary judgment because the court determined they had no prior knowledge that the attacker had a history of violence; therefore, the incident was not foreseeable. There were complaints of the attacker having loud and raucous parties, but that did not make it foreseeable that he would be violent. The court dismissed plaintiff's contentions that issuing warnings to the attacker regarding the parties would have prevented the attack as speculation and conjecture.
Ladera Ranch Maintenance Corp v. Tinsley. Even though an association, as prevailing party in litigation, may be entitled to recover attorneys' fees, the fees must be reasonable relative to the claims and the complexity of the case. Although an attorney fee analysis must begin with the lodestar method, the lodestar figure may be further adjusted based on factors specific to the case, such as the nature of the litigation, the complexity of the issues, the dollar value of the claims, the skill required to handle the case as well as the skill employed, and the time spent on the case. The appeals court found nothing in the trial record to suggest that the amount of time spent by 11 lawyers was necessary to prosecute simple rules violations and defend against equivalent complaints.
Mascaro v. Brown. This case is a neighbor to neighbor dispute over trees that block the plaintiffs’ view in the Bridlewood Planned Unit Development. The CC&Rs require owners to trim trees to prevent obstruction of other owners’ view. Defendants trimmed their trees on numerous occasions at the request for the HOA but the Plaintiffs complained of inadequate trimming. The Plaintiffs filed suit pleading only one cause of action, nuisance. The court ruled in favor of the defendants granting them over $130k in attorneys fees. Plaintiffs appealed the attorneys award arguing that the complaint was based solely on the tort of nuisance and not based on the CC&Rs; therefore, under the American rule, each party pays their own attorneys fees. The court disagreed holding that the complaint was based on the CC&Rs; therefore, attorneys fees were warranted. The court noted that (1) the complaint sought a permanent injunction to not violate the CC&Rs in the future; and (2) the theory of nuisance was based on a view easement created by the CC&Rs.
Noel v. Collier-Key. A board member and her husband sued a member for defamation and defeated the member’s anti-SLAPP motion to strike. The Anti-SLAPP statute protected the posts even though the defamatory statements were posted to a private social media group. Accusations that the board member was getting kickbacks from vendors, tampering with Association mail, and that her husband was a woman-beater were identifiable crimes, not opinion, hyperbole, metaphorical insults, or vague. Although insults were “colorful figurative language” and not defamatory, they were evidence of the speaker’s malice toward the board member supporting her defamation claims.
Palos Verdes Homes Association v. Avedon. This case arose out of a neighbor to neighbor dispute over a plan by one neighbor to plant trees that would allegedly block the plaintiffs’ ocean view in the Palos Verdes Estates development. Both properties have ocean views with the Plaintiffs’ property on a higher elevation that overlooks the rear of the Defendants’ property. In 2021, Defendants sought HOA approval of a new plan to plant numerous trees on their property for privacy. Plaintiffs did not submit any objections to the plan submitted to the HOA, and the HOA ultimately approved the landscaping plan. The Plaintiffs then filed for preliminary injunction alleging that new trees would exceed the height allowed in the existing agreements/order and the trees would block the Plaintiffs’ ocean view. The Defendants argued that the height limitations in the agreements/orders did not apply to future landscaping, but only then existing landscaping. The trial court disagreed and applied the height limitations in the agreement/orders to the defendants’ landscaping plan and ordered a preliminary injunction prohibiting the planting of trees known to mature to a height prohibited by the agreement/orders. The Plaintiff appealed arguing that his landscaping plan only needed Association approval, which he received, and did not need to comply with the parties agreements/orders. The parties’ agreement stated that the decision of the Association regarding defendants’ landscaping would be “binding and non-appealable, but shall be interpreted and enforced through this agreement by [the arbitrator].”
Saks v. Landi. Two condominium owners had a verbal altercation when the plaintiff parked in defendant's parking space and refused to move his car. The altercation ended with the defendant hitting plaintiff in the face. The defendant happened to be on the board of directors of the HOA. The injured owner was denied a permanent restraining order against defendant because he could not show a high probability that future harm was likely to occur. The court found substantial evidence that the incident was a "one time" event and not likely to reoccur. The court based its opinion on: (1) that the two men had lived in the same building for six years without incident; (2) defendant admitted to losing his control, was sorry for his conduct, and called the police himself; and (3) the chances of the two men interacting in the future was reduced by the fact that defendant had a dedicated elevator in and out of his unit, and the plaintiff did not currently reside in the building. The court was not persuaded by the fact that a few weeks before the incident, the defendant confronted plaintiff about his refusal to wear a mask in the elevator and again confronted plaintiff about it prior to hitting him. The court was also not persuaded by defendant's criticism of plaintiff as antagonistic toward the HOA's contractors, or that defendant was upset with plaintiff because he had pending lawsuits against the HOA.
Schuchmacher v. Rockpointe Homeowners Ass'n. A rented condominium suffered damage from a fire. It was in foreclosure at the time of the fire. The HOA’s insurer covered the claim, but the Owner, Schuchmacher, failed to pay the $10,000 deductible necessary to receive the insurance proceeds from the HOA. Shortly thereafter, the lender foreclosed and the unit was sold. The tenant continued to reside in the unit and began to repair the fire damage herself. The tenant sought reimbursement for her repairs from the HOA out of its insurance proceeds. For various reasons, the HOA refused to give the insurance proceeds to the tenant or the contractor who did the repair work, so the tenant, contractor and Schuchmacher sued the HOA and board members for breach of fiduciary duty, breach of CC&Rs, conspiracy and conversion. (The board president ultimately purchased the unit and repaired it using insurance proceeds.). The court further reasoned that because the foreclosure terminated Schuchmacher’s membership in the HOA, it terminated the contractual relationship between the HOA and Schuchmacher and any duties the HOA had to Schuchmacher. Pursuant to the CC&Rs, the HOA had a duty to repair damaged units, which it did not do. The alleged wrongdoing of the board and HOA occurred after the unit was sold in foreclosure.
WCST Enters., LLC v. Ling. Two neighbors in a condominium complex disagreed over who had the right to use a detached two-car garage and the CC&Rs, the developer's grant deeds, the condominium plan and maps all indicated different and conflicting answers. The trial court concluded that the starting point of its analysis is the developer's grant deed to the original unit owners as it is the "property interest conveyed at the inception of the common interest development" and not the condominium plan or CC&Rs. The appellate court disagreed with the trial court's method of analysis. It held that the condominium plan map, took priority over the other documents to determine who held the property and use rights to the parking spaces. Because of the discrepancies between the documents, the trial court concluded that the garages were exclusive use common area and that one owner had somehow transferred their interest in the garage to the other owner. The appellate court would not uphold this finding because the trial did not fully explain its reasoning or cite to supporting evidence. The matter was remanded for further proceedings by the trial court.
Young v. Schultz. An HOA Member who discovered that the board president and her friends were running several "internet churches" without parishioners threatened to release the information to authorities if she did not resign. He told them their church-related behavior raised red flags for possible fraud and/or money laundering. The Board president and her friends sued the Member for extortion, intentional infliction of emotional distress and other claims. The Member’s anti-SLAPP motion to strike was granted. His threat was protected speech because it related to a matter of public concern and not extortion because he did not ask for money. The board president failed to establish a probability of prevailing on her claims, because: the Member’s statement was opinion, not fact; he only sent letters to the board member and her friends, which does not constitute a "publication"; and his threat did not “shock the conscious.”
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.