TERMINOLOGY
Statutory Law. 
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 10 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 January 1 of the following year unless it contains an urgency clause (takes effect immediately) or specifies an effective date.
2021 BILLS
AB 468. Emotional Support Animals. Among other things, the bill prohibits a health care practitioner from providing documentation relating to an individual’s need for an emotional support dog unless the health care practitioner complies with specified requirements, including holding a valid license, establishing a client-provider relationship with the individual for at least 30 days prior to providing the documentation, and completing a clinical evaluation of the individual regarding the need for an emotional support dog. This bill does not restrict or change existing federal and state law related to a person’s rights for reasonable accommodation and equal access to housing. Defines “emotional support animal” and “emotional support dog” for the purpose of this new portion of the Health and Safety Code. [CHAPTERED]
AB 502. Election by Acclamation. Associations can declare candidates elected without the need for balloting if (i) individual notice of election and procedures for nominating candidates are given at least 90 days before the deadline for submitting nominations, (ii) a reminder notice between 7 and 30 days before the deadline for submitting nominations, and (iii) the election is uncontested. [CHAPTERED]
AB 611. Safe at Home Program. “Safe at Home” is a confidentiality program for victims of domestic violence, sexual assault, stalking, human trafficking, or elder adult. HOA must use an address designated by the Secretary of State as the participant’s substitute address for communications and redact information that would reveal the name, community property address, or email address of the person. [CHAPTERED]
AB 919. Construction Defect Statute of Limitations. Existing law specifies the requirements for actions for construction defects, which includes a statute of limitations that prohibits an action from being brought to recover under these provisions more than 10 years after substantial completion of the improvement but no later than the date the notice of completion is recorded. This bill would shorten the timeframe in which an action may be brought for underlying construction projects using a skilled and trained workforce to no more than 5 years after substantial completion of the improvement but no later than the date the notice of completion is recorded. [DIED IN COMMITTEE]
AB 1101. Funds; Insurance. Existing law requires a managing agent, at the written request of the board of directors of the association, to deposit funds the managing agent receives on behalf of the association into a bank, savings association, or credit union in the state if specified requirements are met. This bill would require funds accepted or received by a managing agent on behalf of the association, as specified, to be deposited in a bank, savings association, or credit union insured by the Federal Deposit Insurance Corporation, National Credit Union Administration Insurance Fund, or the Securities Investor Protection Corporation. Existing law prohibits transfers of greater than $10,000 or 5% of an association’s total combined reserve and operating account deposits, whichever is lower, without written approval from the board. This bill would instead prohibit transfers of $10,000 or greater without prior written approval from the board. Existing law requires fidelity bond coverage for directors, officers, and employees, and requires the fidelity bond coverage to also include computer fraud and funds transfer fraud and, if the association uses a managing agent or management company, coverage for dishonest acts by that person or entity and its employees. This bill would specifically require crime insurance, employee dishonesty coverage, and fidelity bond coverage, or their equivalent, for the association and its managing agent or management company and would require the protection against computer and funds transfer fraud to be in an equal amount. [CHAPTERED]
AB 1124. Solar Energy Systems. Amends Civil Code section 801.5 and Government Code section 66015. Existing law creates the right to receive sunlight, referred to as a solar easement, meaning the right of receiving sunlight across real property of another for any solar energy system. Existing law defines a “solar energy system” for this purpose to mean either any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating, or a structural design feature of a building, including a design feature whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. This bill revises the definition of “solar energy system” to mean either of the above-described solar devices or features that is designed to serve one or more utility retail customers on the same, adjacent, or contiguous properties, as specified, and is not designed for procurement of electricity by an electric utility, as defined. The bill includes any structural design feature by eliminating the provision that it be a feature of a building and specifies certain structural design features to be included in the definition, including solar racking, solar mounting, and elevated solar support structures, as specified, regardless of whether the feature is on the ground or on a building. [CHAPTERED]
AB 1410. Rent Restrictions; Ethics Course; Landscaping; Violation Hearings. This bill would prohibit governing documents from restricting a homeowner’s right to rent or lease a portion of the homeowner occupied separate interest for 30 days or more. It prohibits any restrictions on discussions critical of the association. It requires every director and full-time employee of an association to complete a course in ethics and harassment prevention. It prohibits an association from taking any enforcement action regarding landscaping of a homeowner’s separate interest during a declared emergency. It also requires any physical evidence used in determining a violation of the governing documents has occurred be made available to the member accused of violating the governing documents. [CHAPTERED]
AB 1466. Discriminatory Restrictions. This bill makes it easier to delete discriminatory provisions in recorded documents by authorizing a title company, escrow company, county recorder, real estate broker, real estate agent, or other person to record a “Restrictive Covenant Modification” to delete such provisions. The necessary forms are required to be provided in certain situations, starting July 1, 2022, including when a homeowners association delivers a copy of recorded CC&Rs which are believed to contain such provisions. This bill would require the county recorder of each county to establish a restrictive covenant program to assist in the redaction of unlawfully restrictive covenants. [CHAPTERED]
AB 1584. Housing Omnibus Bill – Discriminatory Provisions and Rental Restrictions. Omnibus bills contain changes to numerous areas of the law. This bill makes minor changes to the Davis-Stirling Act related to Accessory Dwelling Units. In addition, this bill requires a common interest development board, without approval of the members, to amend any declaration or other governing document no later than July 1, 2022, to conform any rental restrictions with the requirements of last year’s AB 3182. The bill would require a board to provide general notice of the amendment at least 28 days before approving the amendment and would require any decision on the amendment to be made at a board meeting, after consideration of any comments made by association members. [CHAPTERED]
SB 9. Lot Splits in Residential Communities. This bill requires a city or county to ministerially approve duplex units and/or the or the subdivision of one lot into two lots, in spite of contrary residential zoning (i.e., R1) requirements. This could lead to up to four homes where one currently sits. Fortunately, the bill does not apply to common interest developments. In a letter dated August 30, 2021 to the Senate Journal, Senator Atkins, the author of the bill, clarifies, “SB 9 would not override CID or HOA restrictions. Specifically, SB 9 is silent on the issue, meaning the bill contains no provisions that supersede HOA or CID governing documents. As we have seen with other housing legislation, SB 9 would have to contain an explicit and proactive provision to override those rules. This bill does not.” (See August 30, 2021 letter.) [CHAPTERED]
SB 10. Housing Developments in Residential Communities. This bill would authorize a city or county to pass an ordinance to zone any parcel for up to 10 units of residential density, if the parcel is located in a transit-rich area, jobs rich area or an urban infill area, as defined in the bill, in spite of contrary residential zoning (i.e., R1) requirements. At one point, the bill included language overriding a common interest development’s governing documents, but that language was deleted. [CHAPTERED]
SB 391. Emergency Powers and Procedures. This bill establishes teleconferencing procedures for a board and membership meetings if the association is in an area affected by a federal, state, or local emergency. If approved, the bill takes effect immediately as an urgency statute. [CHAPTERED]
SB 392. Document Delivery; Email; Website Requirement. Effective January 1, 2022, this bill allows member to establish their "preferred delivery method" for notices (mail or email or both). On and after January 1, 2023, associations deliver according to the preferred delivery method and various defaults if information is not provided. Associations can satisfy general delivery requirements by posting documents on their website. [CHAPTERED]
SB 432. Term Limits & Recall Elections. This bill amends Civil Code §5100 to allow associations to adopt term limits for directors. The bill also amended the Corporations Code to extend the time for scheduling recall elections to not less than 35 nor more than 150 days. [CHAPTERED]
2021 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.
Brown v Montage at Mission Hills. An individual bought a condominium, which she consistently rented for short terms. Sixteen years after her purchase, the association amended its governing documents to prohibit renting properties for less than 30 days. We agree with the owner that she was exempt from this prohibition under Civil Code 4740(a). That provision provides that an owner of a property in a common interest development “shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of” the owner’s property unless that document or amendment “was effective prior to the date the owner acquired title” to the property.
C. L. v. Del Amo Hospital, Inc. (9th Cir.). Service dogs cannot be required to have a certification. the ADA prohibits certification requirements for qualifying service dogs for three reasons: (1) the ADA defines a service dog functionally, without reference to specific training requirements; (2) Department of Justice regulations, rulemaking commentary, and guidance have consistently rejected a formal certification requirement; and (3) allowing a person with a disability to self-train a service animal furthers the stated goals of the ADA, for other training could be prohibitively expensive.
Champir LLC v. Fairbanks Ranch Association. Plaintiffs sued the association over a dispute arising from the association's plan to install traffic signals at the entrance gates of Fairbanks Ranch, one of which would be directly outside Plaintiffs' home. Plaintiffs contended that the association breached the CC&Rs by failing to obtain a vote of the members prior to installing the traffic signal. Plaintiffs successfully obtained a temporary restraining order and preliminary injunction stopping the construction. After the TRO and preliminary injunction was issued, the association obtained approval of the membership to install the traffic signal. The court granted the association’s request to dissolve the preliminary injunction. Once the preliminary injunction was dissolved, plaintiffs dismissed the remaining causes of action. Plaintiffs and the association filed motions seeking reimbursement of their attorney’s fees and costs. The court deemed plaintiffs to be the prevailing party because they achieved their litigation objection, which was to have the association hold a vote of the members to approve the traffic signal installation. The court of appeal affirmed.
Dickson v. Century Park East. The Federal district court (Central District of California) granted summary judgment motions brought on behalf of the association and its legal counsel, Swedelson and Gottlieb and Attorney Brian Moreno. Plaintiff, a homeowner within the association, became delinquent in the payment of a special assessment that was imposed by the association. The association’s legal counsel, Swedelson Gottlieb and Brian Moreno filed suit, seeking collection of the delinquent assessment. Plaintiff filed this suit in Federal court alleging that the association and its legal counsel violated California’s debt collection Rosenthal Act and further alleged that legal counsel violated the Federal Fair Debt Collection Practices Act (FDCPA). In ruling in favor of the association and its legal counsel, the court determined the special assessment was not a “consumer credit transactions” for purposes of the Rosenthal Act and that the Association and its legal counsel could not be “debt collectors” under the Rosenthal Act. The court reasoned that assessments do not involve a loan or credit to members of the association, like Plaintiff. Nor do the assessments involve the acquisition of a product or service by a homeowner for family or household use. The court concluded “Therefore, neither the regular assessment nor the special assessment is a “consumer credit transaction” for the purpose of the Rosenthal Act.” With regard to the alleged violations of the FDCPA, the court noted that the definitions of “consumer” and “debt” in the FDCPA are different than the definitions under the Rosenthal Act and do apply and that association assessments have been deemed to be a debt for purposes of the FDCPA. However, Plaintiff failed to show that either Swedelson and Gottlieb or Brian Moreno is a “debt collector” as defined under the FDCPA because she did not prove they regularly collect or attempt to collect debts.
Issakhani v. Shadow Glen HOA. Plaintiff visited a condo complex. All the guest spaces were taken so she parked her car on the far side of a five lane street. Rather than use the crosswalk, she jaywalked (at night), was struct by a car, and sustained a traumatic brain injury. As part of the condo's development, the City required 34 guest parking spaces. At the time of the accident, only 6 parking spaces were marked as visitor spaces. Plaintiff sued the association for negligence and premises liability claiming that the failure to maintain the number of parking spaces required by the ordinance created a foreseeable risk of harm for the association’s guests. The trial court granted the association’s motion for summary judgment on the grounds that the association owed plaintiff not duty under the common law or under the ordinance. The appellate court affirmed. "We conclude that a landowner’s common law duty of care does not encompass a duty to provide onsite parking for invitees in order to protect them from traffic accidents occurring off site as they travel to the premises. The court stated: “Imposing a duty to provide sufficient onsite parking for all invitees would also impose an unacceptably heavy burden, as every business and every multifamily residential dwelling complex would be required to provide parking for every guest, or else face liability for damages incurred when those guests cannot find onsite parking and are injured when trying to access the property from off site.”
Kracke v. City of Santa Barbara. In 2015 the City started enforcing municipal code requirements for hotels against short term rentals and required registration of short term rentals, obtaining a business license and paying the 12% transfer occupancy tax. This effectively banned short term rentals in the coastal zone. The court determined that the City’s action in enforcing the municipal code constituted a “development” under the Coastal Act which needed a coastal development permit. The court relied heavily on the 2018 Greenfield v. Mandalay Shores case which came to the same conclusion for an association that sought to impose a ban on short term rentals.
Smart Corner Owners Association v. CJUF Smart Corner LLC (2021) 64 Cal.App.5th 439. Plaintiff association filed a construction defect action against defendants. In 2019, the trial court granted defendants’ motion for summary judgment because the association did not obtain approval of a majority of the members before filing suit as was required by the CC&Rs. After the association filed a notice of appeal, Civil Code section 5986 was enacted which renders prelitigation member vote requirements null and void. The association sought reversal of the summary judgment motion because the claims had not been resolved through a final judicial decision on the merits when section 5986 became effective and is entitled to the benefits of the new legislation. The court agreed and determined that the statute did not encompass a judgment that was not final on appeal as of the statute’s effective date. The court also found the member vote requirement in the CC&Rs to violate state public policy. The judgment for the defendants was reversed.
UNPUBLISHED OPINIONS
The following cases are unpublished opinions and are not binding precedent. However, they give insight on how future courts might deal with similar issues.
Clayton v. Bigelo. The court in this case denied Plaintiff’s application for a temporary restraining order seeking to stop defendant’s construction of a two-story home. Defendant’s property is located within the La Jolla Foothills Community and subject to a recorded Declaration of Restrictions. The CC&RS contained a provision stating that no buildings could be erected on the lots until plans and specifications were approved by a Committee. The provision further stated that if there was no Committee then approval is not required so long as any structure is in harmony with similar structures in the tract. The provision further provided that no structure or building of more than one story in height could be erected without the prior approval of the Committee. At the time defendant began building the two-story home, there was no Committee. The community had 37 homes and 9 of them were two-story. Plaintiff argued that defendant was prevented from building a two-story home based on the language of the CC&Rs. The court disagreed, finding that the CC&R provision didn’t preclude constructing a two-story home even though there was no Committee. Rather, the court interpreted the provision to say in the absence of a Committee, a two-story home could be built if it was in harmony with similar structures in the tract. The court further held that the CC&Rs did expressly protect views or the right to air and light. Finding that plaintiff had a low likelihood of prevailing on the merits of their lawsuit, the ex parte application for a temporary restraining order was denied.
Country Glen Oak Park Homeowners Association v. Garrett. In this case, the homeowners submitted an architectural plan to install a pool in their backyard. The backyard was adjacent to common area slope that also contained a wrought iron fence. When construction began, the Garrett’s neighbor noticed that the fence was removed, dirt was pushed towards the slope and a part of the backyard was regraded. It also appeared that the pool equipment would encroach on the common area. After unsuccessfully addressing the matter with the Garretts, the neighbor contacted the association’s community manager. The community manager sent several letters to the Garretts, including that they cease and desist the improvements that were not part of the approved application. In response, Mr. Garrett contacted the community manager by telephone and was angry and verbally abusive. After inspecting the Garretts’ property, the board met in executive session. The Garretts were not invited to the initial executive session meeting. The Garretts continued to construct their backyard improvements and were invited to attend a meeting with the board. At that meeting, Mr. Garret was hostile and angry and walked out. Mrs. Garrett initially agreed to reimburse the association if their expert determined the pool equipment was over the property line. However, after that meeting, she retracted her agreement. At a subsequent meeting, the Garretts agreed to allow an expert retained by the association to inspect and survey their property, but later refused to allow the expert access to their property. The association sued, seeking an injunction to have the Garrets remove the pool equipment and pad from the common area. The trial court granted the injunction and issued a restraining order against Mr. Garrett enjoining him from confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any member of the Association, its agents or employees of its contractors, including its management agency. The association was awarded over $300,000 in attorneys fees as the prevailing party. The Garretts claimed the injunction was void under Civil Code section 5855, arguing that the board’s efforts to get them to comply with the CC&Rs was “discipline” within the meaning of section 5855(a). The court of appeal rejected this argument, stating that discipline involves the imposition of a punishment or sanction. The court also found that the association substantially complied with section 5855’s notice requirements because the Garretts had been given plenty of opportunity to meet with the board and revoked agreements they had with the board to allow an expert onto their property. The court upheld the restraining order, finding that “Mr. Garrett engaged in a calculated campaign of intimidation of all whom he perceived to be obstacles to him getting what he wanted.” The court also rejected the argument that the association was not entitled to attorneys fees since it had refused to mediate before commencing litigation. Evidently, the parties could not agree on a mediator and the court stated the association was not required to accept the free mediation service the Garretts proposed. The court further upheld the attorneys fees award, finding the principal issue was the pool equipment encroachment onto the common area.
Davis v. Irvine Terrace Community Assn. Plaintiffs sued for allowing a neighbor to rebuild or modify their existing home in a manner that blocked plaintiffs’ views. Plaintiffs failed to establish that the Association’s CC&Rs guaranteed a right to an unimpaired view. The recitals state the purpose of the CC&Rs is to enhance and protect the value, desirability and attractiveness of the tracts. The section on architectural control states that alterations to lots must be in harmony with surrounding structures. A provision on landscaping gives the ARC the right to require any member to remove, trim, top, or prone any tree or shrub which in the opinion of the ARC unduly impedes or detracts from the view of any lot. The court determined the preamble protected the community as a whole, not individual owners. It noted that architectural guidelines are "guidelines" and by their nature have a subjective component to them and ARCs have discretion to decide what designs are in harmony with the community. The court ruled that, under both California law and the governing documents, plaintiffs did not have a valid claim regarding their views or the criteria the Association used to approve the project.
Friedel v. Sun Communities, Inc., Park Place Community L.L.C., No. 20-12275 (11th Cir. Aug. 24, 2021). A resident of a mobile home park, George Friedel, suffered from chronic physical and mental impairments and major depressive disorder. He kept an aggressive golden retriever, Maggie, with a propensity for biting. Maggie bit a dog living in Park Place. After the attack -- which was not the first time Maggie displayed aggressive behavior and injured another dog in the community. The park ordered Freidel to remove the dog. He sued claiming the park was obligated by the federal Fair Housing Act to allow him to keep the dog as an emotional support animal. The court disagreed, the risk to the community outweighed his claim for reasonable accommodation as a disabled resident.
Kelly v. St. Denis Homeowners Association. The Court of Appeal affirmed the trial court’s decision to grant a preliminary injunction stopping the association from removing trees in a planter outside plaintiff’s unit. The association sought to remove the trees because they were in planters that were leaking and causing damage to the common are garage below. Plaintiff sought the preliminary injunction, claiming the association was in breach of the CC&Rs because removal of the trees constituted a “capital improvement” and required a membership vote. She also claimed removal of the trees would cause a nuisance and she also alleged the board’s decisions to remove the trees were wrongfully conducted in executive session. Although the trial court found the board had fulfilled the Lamden requirements (acted consistent with the CC&Rs, pursuant to a reasonable investigation, in good faith and in the best interests of the members), the court determined that the interim harm caused by allowing the trees to be removed outweighed the harm in not removing the trees. The court also determined that Lamden is not a defense to claims that the board violated the open meeting act so plaintiff met the burden of showing a reasonable likelihood of prevailing on the merits.
Loeffler v. Trabuco Highlands Community Association. The court found that the phrase: “Assessments shall be assessed equally and uniformly” to mean that the method of assessment must be equal and uniform, not the amount of the assessment.
Sunset Greens HOA v. Spagenski. The association sought a court order to permanently remove a German Shepperd dog from the development after it attacked and injured other dogs (including one fatal attack) and injured people during the attacks. The association’s CC&Rs prevented owners from keeping a pet “which interferes with, or has a reasonable likelihood of interfering with, the rights of any Owner or other occupant of a Lot to the peaceful and quiet enjoyment of the Lot.” The association was granted its motion for summary judgment, finding there were no triable issues of fact concerning the dog’s attacks and the association’s ability to seek an injunction prohibiting the dog from the community. The court of appeal upheld the ruling.
Winchester Community Association v. Perrotta. The court of appeal upheld the trial court’s determination that the association was the prevailing party in an action seeking to enforce the terms of a settlement agreement regarding submission of landscape plans by homeowners. The association was awarded its attorney’s fees and costs.
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