Silldorf and Levine Blog

Our law firm will have an exhibit booth at the upcoming CA Assocation of Community Managers Expo. If you are visiting the Expo on July 29-30, please stop by our exhibit booth (#212) for give-aways!

Can Homeowner Associations prohibit owners from smoking in their units and/or “exclusive-use” areas such as patios and balconies? Every condominium declaration contains a provision that prevents owners from activities that disturb their neighbor’s quiet enjoyment of their property. The cases across the country indicate a possible trend. Homeowner Associations may be liable for not strictly enforcing their CC&R’s when they allow owners to smoke in their units, and thereby cause a nuisance to other owners. Possible ways to address smoking include: amending the CC&R’s to restrict smoking in units; amending the CC&R’s nuisance provision to include secondhand smoke and/or; have the board of directors adopt a new rule prohibiting smoking in private units. In condos, where each unit is owned separately, addressing smoking problems can be especially challenging. The right approach is different for each Homeowner Association. If you are faced with owner disputes involving secondhand smoke and nuisance concerns, please contact us for a consultation that may shield your association from liability for a failure to enforce its CC&R’s.

Do you have the knowledge and understanding of the intricate laws related to employment in California? Learn from a practicing employment law attorney whether a position should be compensated hourly or via salary; when an employee is entitled to overtime pay; and meal and/or rest breaks. What happens when an employer fails to comply with the law? This course will help you learn the complicated rules of exempt versus non-exempt classification and how to negotiate the proper balance between your wages and hours. This course is suited for 1) Employees, 2) Those who want to be employed, 3) Those who are interested in starting a business with employees, and 4) Employers.

To register, please follow this link: http://extension.ucsd.edu/student/index.cfm?vAction=courseWKSP80019

Please contact Christina Ciceron (cciceron@silldorf-levine.com) at our office for a discount code for free course registration!

California Civil Code § 1365.1 requires homeowners associations to provide a “Notice-Assessments and Foreclosure” to each HOA member during the 60 day period before the beginning of the HOA’s fiscal year. This notice is meant to inform the homeowner of current assessments and foreclosures occurring in the upcoming fiscal year.
After a recent revision to the code section, this notice must also inform the homeowners of their right to pay disputed assessments amounts under protest and of the homeowner’s right to contest the disputed amount in small claims court. To adequately contest a disputed assessment, legal representation may be needed.

In July, the California Court of Appeal ruled that a decision made by the California Unemployment Insurance Appeals Board (the Board) decision had precedential effect in the plaintiff’s subsequent attempt to invalidate the Board’s ruling in the California Superior Court.

Plaintiff claimed the Board erroneously assessed unemployment insurance employer contributions and penalties against a particular employer because the employees involved were not employees but independent contractors. Plaintiff disagreed with the Board’s ruling that employee status and independent contractor status should be determined in this tax contribution case by the same factors established in previously decided worker’s compensation cases. Therefore, Plaintiff argued that the Board’s decision should not have been given precedential effect.

Both the Superior Court and Fourth Circuit Court of Appeals agreed with the Board and held that the common law factors for determining employee status from independent contractor status, despite their derivation from worker’s compensation cases, were binding in this tax contribution decision. Thus, the Board’s decision was given precedential effect and Plaintiff was denied declaratory relief.

The modern trend is to find employment when the work being done is an integral part of the regular business of the employer and the worker does not furnish an independent business or professional service relative to the employer. Improper classification can give rise to myriad claims by employees.

The Virginia Graeme Baker Pool & Spa Safety Act came into effect on December 19, 2008. The Act was passed to reduce the number of childhood deaths from drowning in pools. Associations must be aware of the Act because it requires every pool within a Common Interest Development (CID) to meet very specific standards outlined in the Act. The Act is a federal law, so this means CIDs in every state must comply with it regardless of the requirements set by the current laws in their state.

Although there are clearly good intentions behind the creation of the Act, compliance has been more difficult than anticipated. Confusion over the precise requirements of the Act and difficulty obtaining pool components which comply with the Act have led many Associations to miss the December 19, 2008 compliance deadline. If your Association believes it may have pools which still do not comply with the Act, prompt action should be taken.

It is essential for Associations to remain updated on important laws such as this one. Please contact Silldorf & Levine, LLP if you have questions about current laws which affect your CID.

On June 29th, the California Supreme Court gave employees an alternative route to challenging their employer’s violations of the Labor Code. For employees seeking civil penalties from their employers under the Labor Code Private Attorney General Act of 2004 (PAGA), there is no longer a need to obtain class certification. Class certification is needed when there is a large group of employees suing their employer for similar Labor Code violations in a lawsuit called a “class action.” Class certification had been a significant obstacle for plaintiffs in many lawsuits filed against employers. In an area of law where traditionally employers have the upper hand, this ruling is extremely helpful to employees seeking to recover lost wages and penalties from their employer. Examples of a few Labor Code violations include: unpaid overtime, withholding of meal and rest breaks, and failure to pay final paychecks in a timely manner after employee termination.
The Supreme Court simultaneously ruled, however, that employees attempting to bring Unfair Competition Lawsuits, another common claim against employers, must obtain class certification. This ruling is more advantageous to employers because the ruling allows employers to dismiss a lawsuit based on the lack of class action qualification.
In sum, employees were dealt a significant advantage against employers for Labor Code violations. Averting the class certification process may prevent an employee’s lawsuit from being dismissed. In our opinion, this ruling is a major victory for the employees we represent.

The Board of Directors of a homeowner’s association may hold both regular meetings and executive sessions. At a regular meeting, any member is permitted to attend and speak. Executive sessions, however, are usually limited to Board members and are called to discuss litigation, contract matters with third parties, member discipline, or upon a member’s request regarding the member’s payment of an assessment.
For a regular board meeting, an agenda of the topics and issues to be discussed must be provided to the members of the association. The Board cannot discuss, decide, or act on any issue that is not included in the agenda. An association member who is not on the Board may, however, raise an issue that is not on the agenda. If an association member does raise an issue not on the agenda, the Board has a few options: 1. briefly respond to statements or questions posited by the speaker; 2. ask a question for clarification; 3. make a brief announcement; or 4. draft a brief report on his or her own activities to respond to the speaker.
There is an exception to this rule that allows the Board to make a decision on an issue not included on the agenda. If a majority of the Board in attendance at the meeting (two-thirds is considered a majority) determines that the issue raised is: 1. an emergency, 2. the emergency was unforeseeable by the Board, and 3. that the emergency requires immediate action, the Board can make a decision or take action on the issue.
As for an executive session, the current statutory language is equivocal as to whether an agenda is required. To avoid possible litigation for violating the governing statute, a Board of Directors should err on the side of caution and create an agenda for an executive session. If an agenda is not drafted, the Board can also follow the emergency procedures listed above to ensure compliance with the governing statute.
If there are any questions or concerns involving Board of Director meetings and an association member’s right to be heard, feel free to contact Silldorf & Levine.

Once you realize that your home has a construction defect, such as leaky windows or cracks in the walls, you may wonder if it is really worth your time to file a lawsuit to recover money to get the defect fixed. While the litigation process can be long, there are several positive factors of the process to keep in mind. For example, California’s laws are more “pro-homeowner” than the laws in most states. These laws hold the developer of your home accountable for any defects in your home.

There are several causes of action for construct defect claims, including “strict liability,” which applies when there is damage resulting from the defect. This means plaintiffs do not have to prove that the developer was guilty of any lack of due care or that it was engaged in acts of intentional misconduct.

As long as your case is not barred by any statutes of limitations and your home has a construction defect, you have a very high chance of recovering damages. Developers are aware of this fact, and the vast majority of all construction defect cases are settled before trial. Therefore, you probably will not have to go through the whole litigation process.

Lastly, you should know that your case might be taken on a contingency fee basis, which means you will not pay your lawyer anything unless your lawyer recovers money for you. You do not have much to lose by filing a construction defect lawsuit, but you certainly have a lot to gain. If you have a construction defect in your home and would like more information, do not hesitate to contact Silldorf & Levine, LLP.

If so, you may want to attend our “HOT Downtown Issues” Free Legal Seminar on July 11, 2009 at 9:30 a.m.

Location: The Vault Room at the Courtyard Marriott

530 Broadway

San Diego, CA 92101

Reserve Now- Space is Limited

Please RSVP to Christina Ciceron, Esq. at:      (858) 625-3900 x 602

Some of the topics addressed will include:

· Foreclosures & Delinquencies

· Better HOA Budgets & Reserves and the Relationship to Construction Defects

· Water Intrusion & Leaky Garages

- Reconstruction After Construction Defects

Refreshments will be provided

Hope to see you there!