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social_media-e1532558044753*Unpublished Opinion

With increasing frequency, homeowners associations are confronted with members publishing content related to their association and its operations, whether on Facebook, blog posts, or other various online forums. Sometimes these publications are critical of the association board of directors, misrepresent important information and facts, or fraudulently purport to be official association publications. The various potential issues associated with member publications are seemingly endless, but California courts periodically provide clarity regarding issues that can arise in the context of member/association publications. The recent unpublished opinion of Kulick v. Leisure Village Association (2018) arose out of the publication of such member content and provides insight into how courts view and address some of these issues.

The Kulick case involved two separate lawsuits between a homeowner (“Kulick”) and his homeowner’s association (“Association”), the Association’s board of directors (“Board”), and the Association’s attorneys. Kulick, a long-time resident with a history of conflict and grievances against the Association, anonymously published and circulated newsletters (“Newsletters”) within the community in violation of the Association’s rules and regulations prohibiting anonymous publications. Kulick’s anonymous Newsletters were frequently critical of the Association Board.

The Association successfully filed suit against Kulick for intentional interference with Association insurance coverage. In response to the Association’s lawsuit, Kulick levied accusations against the Board in one of his anonymous Newsletters. In defense of Kulick’s claims, the Association (through counsel) prepared and circulated a letter (“Letter”) to each community member addressing Kulick’s specific allegations by denying Board misconduct and inviting the membership to view court filings in the pending matter. The Letter described Kulick’s most recent missive as a “reckless communication” containing “unfounded, inaccurate, and spiteful allegations” against the Association, Board, and the Association’s attorneys. It also contained details regarding the then-pending matter and the Association’s success in their preliminary injunction against Kulick. After the Letter was circulated, Kulick brought a lawsuit against the Association for defamation arising out of the Letter to the membership, among other causes of action.

The trial court dismissed Kulick’s case after the Association brought an Anti-SLAPP motion against the defamation claim (“SLAPP” stands for Strategic Lawsuits Against Public Participation; such motions are designed to protect defendants who have been sued for acts in furtherance of a constitutionally protected right of free speech or petition). On appeal, the court found that the Letter constituted “protected activity” as a public writing (i.e. circulated to all members throughout the community) in connection with an issue of public interest – the ongoing controversy of the then-pending lawsuit between the Association and Kulick. Additionally, the court found that Kulick could not demonstrate a likelihood of success on the merits because “expressions of opinion that do not include or imply false factual assertions do not constitute actionable defamation,” among other reasons. For these reasons, the appellate court upheld the trial court’s ruling against Kulick.

While the Kulick case did not ultimately address the anonymous nature of Kulick’s publications or the validity of the Association rule prohibiting them, Kulick raises important issues for associations to consider when confronted with homeowner publications, or association responses to them. While it is unclear to what extent associations can restrict member publications, such as the regulation of anonymous publications, the court in Kulick signaled an association’s ability to address specific member allegations in the public forum of the community. However, when addressing such claims, associations should be mindful of the content of these responses as certain communications are not permissible (e.g. false assertions of fact, etc.). Conversely, an association has rights against defamation published by its members and should address any member publications that defame the association, its board of directors, managing agent, or employees.

Additionally, associations should be vigilant regarding member publications that purport to be official association publications, or publications that are circulated that contain patently false information. Such publications can cause significant disruption in an association’s affairs if allowed to exist and perpetuate. Ultimately, while the line between permissible and actionable content is by no means clear and varies case by case, associations should be alert for member publications that contain clearly false assertions of fact or publications that purport to be official association communications. If you have concerns regarding member publications or appropriate association responses to them, association counsel should be contacted to review the material and discuss potential remedies to the extent they are available.

California HOA lawyers Although Kulick is an unpublished opinion, it provides an indication of how a future court may rule in a similar situation.  When confronted with member publications, homeowners associations should consider whether the published content violates any association rules and regulations, whether it contains false assertions of fact, or whether the content purports to be or could be reasonably construed as an official association publication intended to mislead the recipients and/or members.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

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Villa-MadeiraWe are proud to announce that Villa Madeira Property Owners Association, Inc. has selected Tinnelly Law Group as their association’s legal counsel.

Villa Madeira is a 55+ senior community located in Escondido.  Residents enjoy a community clubhouse, library, swimming pool, spa, and monthly activities.

hoa laws Our HOA attorneys and staff look forward to working with Villa Madeira’s Board and management.

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BrightonWe are proud to announce that Brighton Homeowners Association has selected Tinnelly Law Group as their association’s legal counsel.

Brighton is a brand new condominium community by Taylor-Morrison.  Residents enjoy the opportunity for outdoor activities and recreation in Livermore and the surrounding areas.  With hiking trails, skate parks, dog-friendly play areas and downtown art walks, there is something for everyone.

hoa laws Our HOA attorneys and staff look forward to working with Brighton’s Board and management.

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bustingthemyths1-1-300x197Congratulations!  You’ve just been elected to your Board of Directors – now what?  Or maybe you’ve been serving as a volunteer director for some time and you just aren’t sure which way is up.  If you have been dazed and confused but still have a passionate heart to do the right thing in the best interest of your community, then there may be some myths that need to be debunked. Navigating through conflict, financial tough spots, working with your service providers, noncompliance issues, homeowner requests, day-to-day operations, and strategic planning can be overwhelming.  Changing the way you do business can take you from volunteer Board member to community leader.

First and foremost, association directors must recognize that they have the same fiduciary duties as boards of large corporations.  Each director has a duty of loyalty to the association and its members.  He or she must act in the best of the association, accepting that a decision of a majority of a quorum of the board is a decision of the whole board. Volunteer directors are shielded from personal liability, provided they have acted in accordance with their fiduciary duties.

Board members must also act in accordance with the “business judgment rule.”  They must act in good faith and in the best interest of the association; not according to self-interest or the interests of a particular group within the community.  They must act only after reasonable inquiry, consulting with experts when it is prudent to do.  And, they must act as an ordinarily prudent person in a like position would do, minimizing risks where they can be reasonably avoided.  Keeping these two criteria in mind, let’s debunk a few myths of volunteer board service.

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Arbor-RealWe are proud to announce that Arbor Real Homeowners Association has selected Tinnelly Law Group as their association’s legal counsel.

Arbor Real is a condominium community located in the city of Palo Alto.  Residents enjoy a large swimming pool, barbecue area, playground, and greenbelts.

hoa laws Our HOA attorneys and staff look forward to working with Arbor Real’s Board and management.

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HeritageWe are proud to announce that Heritage at Vista Del Verde Homeowners Association has selected Tinnelly Law Group as their association’s legal counsel.

Heritage is a luxury townhome community located within the master planned community of Vista Del Verde in Yorba Linda.  Adjacent to the 18-hole championship, Black Gold Golf Club, residents enjoy opulent common areas, pool and barbecue area.

hoa laws Our HOA attorneys and staff look forward to working with Heritage at Vista Del Verde’s Board and management.

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defibrillatorThe issue of whether or not a homeowners association is required to install and maintain an automated external defibrillator (“AED”) on-site is a question that has not been directly addressed by California courts. As a result, many community members and Board of Directors (“Board”) seek legal guidance and clarity as to the same. In particular, associations that maintain common area facilities and accommodations such as a gym, basketball court, tennis court, or swimming pool, feel the need to maintain an AED due to the rising number of lawsuits that are being filed against businesses and corporate entities for failing to maintain same.

The main cause of action named in these lawsuits is one of negligence, wherein plaintiffs claim the landowner has breached its duty of care by failing to maintain an AED on-site; chief among these cases is Verdugo v. Target Corp. (2014) 59 Cal.4th 312.  In this case, Verdugo, age 49, suffered a sudden cardiac arrest while shopping at Target and died despite the paramedics’ attempts to revive her. There was no AED in the store. Verdugo’s family members filed the suit against Target claiming that it breached its duty of care to its invitees (i.e., business guests) by failing to maintain an AED in the store. However, the Court ruled in favor of Target holding that it did not owe a statutory or common law duty to maintain an AED.

The Court found that Target did not owe a statutory duty of care under California Health and Safety Code (“CHSC”) §1797.196 because it only imposes obligations on an entity or person that maintains an AED; the statute does not require them to maintain same. More importantly, the Court reasoned that while Target owed a reasonable duty of care to provide assistance to a patron in medical need, maintaining an AED exceeded the scope of duty. The Court looked at two factors: (1) the degree of foreseeability that the danger will arise on the business’s premises and (2) the relative burden that providing a particular precautionary measure will place upon the business.

In its evaluation of the two factors, the Court found that there was no reason for Target to foresee that shopping within its premises would increase the risk or cause an invitee to go into cardiac arrest. Secondly, the burden of regularly maintaining an AED (in accordance with all federal and state regulations) and trained personnel on-site was not minor or minimal, outweighing the need for same.

Although Verdugo dealt with a for-profit corporation, it appears to support the position that homeowners associations are not required to maintain an AED. Like Target, a homeowners association does not have any reason to foresee an increased risk of cardiac arrest within its premises from the mere fact an individual—whether it is a homeowner, guest, or tenant—is occupying a unit within the community or visiting.

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Park-VistaWe are proud to announce that Park Vista Maintenance Association has selected Tinnelly Law Group as their association’s legal counsel.

Park Vista is part of the Woodbridge Village Association in the City of Irvine.  Residents enjoy tennis courts, green parks, association pools and spas, and use of the lagoons and clubhouses.

hoa laws Our HOA attorneys and staff look forward to working with Park Vista’s Board and management.

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We are proud to announce that Lucent II Homeowners Associations has selected Tinnelly Law Group as their association’Lucent-IIs legal counsel.

Lucent II is a brand new condominium community by Shea Homes. Located in San Diego, Lucent brings the feel of a luxury hotel to the Civita community, much like a Manhattan loft on the edge of Central Park. Once inside, wide-open floor plans are graced by glass on three sides and wrap around balconies to flood the interior with sunlight and expansive city lights.

hoa laws Our HOA attorneys and staff look forward to working with Lucent II’s Board and management.

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hoa-water-damage-claims*New Library Article!

Many condominium associations face problems due to a misunderstanding of how their association’s policies of insurance operate and should be utilized—especially in connection with property damage emanating from broken pipes or plumbing fixtures. Those problems include, among others: (a) denying owners the benefit of the insurance coverage to which they are entitled; (b) having the association assume broader repair responsibilities than what it legally must or should; and (c) failing to adopt policies to allow for losses to be resolved in consistent, equitable and cost-efficient manners.

Our HOA attorneys have authored a new article to address these problems by dispelling some of the confusion at their core. In doing so, we provide recommendations as to how condominium associations should approach water damage claims with the assistance of their HOA legal and insurance professionals. Those recommendations include what we believe every condominium association should adopt as part of their operating rules: a “Water Loss Policy.”

hoa laws The article, entitled “Water Damage Claims in Your Condo Association,” is available for download from our firm’s library. You can access the article by clicking here.