Community Association Update

Community Association Update: Issue # 36

- Updating Your Association's CC&Rs

- The NLRB had a Change of Heart on Joint-Employer Liability

- Should an Association Retain Photo ID Cards?

- Attorney's Fees and Costs are not Available to a Moving Party who Secures Interim Injunctive Relief

This Community Association Update is part of our commitment to providing the highest quality legal services to our clients and industry partners. If your company or Association would like to see a topic or issue covered in future editions, feel free to call our offices, email us, or submit a question online!

Sincerely,

Steven Tinnelly, Esq.
Tinnelly Law Group

Updating Your Association's CC&Rs

*Asked & Answered

Asked - Our documents were created in 1981 and have not been updated since that time. I imagine that we are out of legal compliance with some of the items listed within both documents. The HOA membership does not want to pay to have them rewritten and brought up to the codes and I am not sure what the implications are if we do nothing.

Answered - This a common question asked by many of our clients, especially those with governing documents that look like they were typed on a typewriter and digitally stored on microfiche. However, it is important to note at the outset that just because your documents are old, does not mean that it is necessary to amend/restate them. Nevertheless, there are several reasons why an association may want to update its documents.

The National Labor Relations Board had a Change of Heart on Joint-Employer Liability

Previously, we wrote on a decision published by the National Labor Relations Board ("NLRB") wherein the NLRB concluded that, where a contracting party has reserved the authority to exercise control over the employees of another, said contracting party will be found to be the "joint employer" of the other entity's employees. In the case of Browning-Ferris Industries of California, Inc. (2015) NLRB No. 672 ("BFI"), BFI retained the services of Leadpoint Business Services ("LBS") to provide staff to one of BFI's recycling facilities. Although the contract between BFI and LBS recognized that the personnel staffed by LBS were the employees of LBS, BFI retained some control over the employees. As such, the NLRB concluded that as long as a company retains (e.g., through the execution of a contract) the authority to control the employees of another, said company will be given joint-employer status. (Id. at p. *2.)

The BFI decision caused quite a stir in the realm of common interest developments. As discussed in our prior post, many associations retain a community management firm to facilitate the duties of the association (e.g., solicit bids for common area maintenance and repair). And while the community managers were historically viewed as the employees of the management firm, the BFI case raised some questions with respect to the nature of the relationship between the employees of a management firm and the association.

Should an Association Retain Photo ID Cards?

*Asked & Answered

Asked - Our HOA makes us take a photograph which they put on an ID card to use at the various amenities on site. Upon move out, they make us turn in the IDs. I found out that they don't destroy the cards that have our name and photograph and what unit we are in. The HOA keeps it in the "unit file" in perpetuity. I don't feel comfortable with this, but I turned mine and my husband's in to avoid paying $25 each for not handing them in. My step-daughter has lost hers and I'm being charged $25. In finding out the fee does not go to defray any costs incurred by the board. This does not sound legal/in-line with privacy laws. Suggestions?

Answered - The HOA's practice of retaining photo ID cards does not violate the law; however, the ID cards do not contain information that HOA's are required to retain as HOA "records" such as copies of the HOA's governing documents, minutes, financial records, and litigation files. There is no arguable reason for the HOA to retain photo ID's of past members, so it would be our recommendation that rather than retain the photo ID cards the HOA shred them once they are surrendered, thereby preventing any opportunity for misuse of the information and photographs contained in the cards.

Attorney's Fees and Costs are not Available to a Moving Party who Secures Interim Injunctive Relief

*New Case Law

Preliminary injunctions are temporary court orders requested by one party that prevents another party from pursuing a particular course of conduct until the conclusion of a trial on the merits. A preliminary injunction is proper where the moving party proves the following two factors: (1) the likelihood that the moving party will ultimately prevail on the merits at the time of trial; and (2) that relative interim harm to the parties from issuance of the injunction weighs in that party's favor.

Occasionally, HOAs seek preliminary injunctions as a means to enforce the HOA's governing documents. Among other reasons, the purpose behind that request for judicial relief is to restrain homeowner actions or omissions when such conduct potentially poses a threat of harm or risk to Association Property or the Association's Members. Examples include a homeowner's unauthorized alteration of structural common area components (e.g. removal of a bearing wall within a condominium unit; unapproved building activities on common area property).

Under the Davis-Stirling Common Interest Development Act ("Act"), at the conclusion of a trial on the merits, the prevailing party shall be awarded reasonable attorney's fees and costs in an action to enforce the HOA's governing documents ( Civil Code Section 5975). Historically, there has been some question as to whether a moving party may recover statutory attorney's fees and costs if the court grants a preliminary injunction in a HOA enforcement action. In January 2018, the California Court of Appeal addressed that issue in the case of Artus v. Gramercy Towers Condominium Association (19 Cal.App.5th 923).

FIRM NEWS

New TLG Attorney! Welcome Sarah A. Kyriakedes, Esq.

Tinnelly Law Group is proud to announce the addition of attorney Sarah A. Kyriakedes, Esq. to the firm.

Ms. Kyriakedes received her undergraduate education from Ohio University. She graduated summa cum laude from the E.W. Scripps School of Journalism with a Bachelor of Science in Journalism and a Minor in Political Science. She obtained her Juris Doctorate from the University of Cincinnati College of Law, where she was awarded the Stanley M. Chesley & Hon. Susan J. Dlott Award in Litigation for receiving the highest G.P.A. in litigation-related courses. Mrs. Kyriakedes was also awarded First Place at the 15th Annual Herbert J. Wechsler National Criminal Law Moot Court Competition, during her tenure on the Moot Court Honor Board. Mrs. Kyriakedes was also an active member of the Trial Practice Competition Team throughout her three years of law school.

Prior to joining our firm, Ms. Kyriakedes was employed as an Assistant District Attorney in Charlotte, North Carolina for three years. Upon moving to California, she worked at a firm where she litigated white-collar criminal defense cases and administrative licensing matters. In both positions, Ms. Kyriakedes gained extensive litigation and trial experience.

We are thrilled to welcome Sarah to our team of exceptional attorneys. In addition to her litigation prowess, her energy and personable approach to the practice of law is directly aligned with our firm's culture. We know she will be a tremendous asset to our firm and our growing family of HOA clients throughout California.

New TLG Attorney! Welcome Andrew M. Jun, Esq.

Tinnelly Law Group is proud to announce the addition of attorney Andrew M. Jun, Esq. to the firm.

Mr. Jun has been a member of the California State Bar since 2017. He received his undergraduate education from the University of Southern California. He graduated cum laude in 2013 from the Marshall School of Business with a Bachelor of Science in Business Administration, with a concentration in finance and law. He obtained his Juris Doctorate from Chapman University's Dale E. Fowler School of Law in 2017, where he acquired a Business Law Emphasis Certificate through the law school's Business Law Program.

During law school, Mr. Jun successfully completed an externship with the United States Bankruptcy Court for the Central District of California, where he clerked for the Honorable Catherine E. Bauer, gaining invaluable knowledge of courtroom procedures and business litigation.

Prior to joining Tinnelly Law Group, Mr. Jun worked in a civil litigation firm where he obtained significant transactional and litigation experience.

Andrew is another strong addition to our team of exceptional attorneys. In addition to his legal training, his accomplishments and education in business matters will add unique value to our HOA clients.

Welcome New TLG Clients!