(a) Except as restricted in Section 1940.45, no governing document shall limit or prohibit the display of one or more religious items on the entry door or entry door frame of the member’s separate interest.
(b) If an association is performing maintenance, repair, or replacement of an entry door or door frame that serves a member’s separate interest, the member may be required to remove a religious item during the time the work is being performed. After completion of the association’s work, the member may again display or affix the religious item. The association shall provide individual notice to the member regarding the temporary removal of the religious item.
Related Links
THOU SHALT NOT REMOVE THE MEZUZAH: California Legislature Enacts SB 652 to Protect Displays of Religious Items on Doors and Doorframes
Civil Code Section 1940.45. Display of Religious Items on Doors
(a) Except as otherwise provided by this section, a property owner shall not enforce or adopt a restrictive covenant or any other restriction that prohibits one or more religious items from being displayed or affixed on any entry door or entry door frame of a dwelling.
(b) To the extent permitted by Article 1, Section 4, of the California Constitution and the First Amendment to the United States Constitution, this section does not prohibit the enforcement or adoption of a restrictive covenant or other restriction prohibiting the display or affixing of a religious item on any entry door or entry door frame to a dwelling that:
(1) Threatens the public health or safety.
(2) Hinders the opening or closing of any entry door.
(3) Violates any federal, state, or local law.
(4) Contains graphics, language or any display that is obscene or otherwise illegal.
(5) Individually or in combination with any other religious item displayed or affixed on any entry door or door frame that has a total size greater than 36 by 12 square inches, provided it does not exceed the size of the door.
(c) As used in this section, the following terms have the following meanings:
(1) “Property owner” means all of the following:
(A) An association, as that term is defined in Section 4080.
(B) A board, as that term is defined in Section 4085.
(C) A member, as that term is defined in Section 4160.
(D) A landlord, as that term is defined in Section 1940.8.5.
(E) A sublessor.
(2) “Religious item” means an item displayed because of sincerely held religious beliefs.
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THOU SHALT NOT REMOVE THE MEZUZAH: California Legislature Enacts SB 652 to Protect Displays of Religious Items on Doors and Doorframes
Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance
[Amendments to CC&Rs; Court Petition] Voter apathy not a required showing in a petition to reduce approval requirements of CC&R amendment.
Parlow Law Office, Daniel M. Parlow; Slovack Baron Empey Murphy & Pickney LLP and Wendy S. Dowse for Objector and Appellant.
Green Bryant & French LLP, Jeffrey A. French; Berding & Weil LLP and Timothy P. Flanagan for Petitioner and Respondent.
OPINION
RAMIREZ, P.J.
Orchard Estate Homes, Inc., is a 93-unit planned residential development, governed by covenants, conditions, and restrictions (CC&R’s), supplemented by rules and regulations prohibiting short term rentals of units for durations of less than 30 days. When Orchard’s homeowners association attempted to enforce this rule against an owner who used a unit for such purpose, a lower court ruled the rule was unenforceable because it was not contained in the CC&R’s. Orchard put the issue to a vote to amend the CC&R’s. After balloting was completed, approximately 62 percent of the owner-members of the homeowners association voted to prohibit short term rentals, but the percentage was less than the super-majority required to accomplish the amendment.
Orchard then filed a petition pursuant to Civil Code section 4275 seeking authorization to reduce the percentage of affirmative votes to adopt the amendment, which was opposed by the Orchard Homeowner Alliance (Alliance), an unincorporated association of owner members, who purchased units for short term rental purposes. The trial court granted the petition and the Alliance appeals, arguing that the trial court erred in ruling that voter apathy was not an element of Civil Code section 4275. We affirm.
BACKGROUND
Orchard Estate Homes, Inc., (Orchard) is a homeowners association established in 2004 to manage a 93-unit development located east of Indio, California. The homeowners association and all member-owned lots are encumbered by CC&R’s, which may be amended by approval of owners representing 67 percent of the total members and 51 percent of eligible first mortgagees of the association.
In 2011, Orchard adopted rules and regulations prohibiting short term rentals, to supplement the CC&R’s. However, a vacation rental provider that owned one unit, successfully defended against enforcement of the rules, by arguing that the rules, adopted by Orchard’s Board of Directors and not by a vote of the owners, were not a valid amendment to the CCRs. Orchard therefore conducted an election to adopt an amendment to the CC&R’s to prohibit short term rentals of less than 30 days.
On November 10, 2016, Orchard sent notices of the election, along with ballots and other materials, to all owner-members of the homeowners association, and on December 13, 2016, when balloting was closed, 85 of the 93 members had cast votes, with the proposed amendment garnering 58 votes in favor, or 62 percent. On February 2, 2017, Orchard filed a petition pursuant to Civil Code section 4275, seeking judicial approval to reduce the percentage of affirmative votes required to amend the CC&R’s. The Alliance, a group of owners who purchased units for short term vacation rentals, opposed the petition, arguing that voter apathy had not been alleged or proven, precluding relief. After a hearing, the trial court granted Orchard’s petition. The Alliance appeals.
DISCUSSION
The Alliance argues that the trial court abused its discretion in granting Orchard’s petition by ruling that voter apathy was not a prerequisite to an order authorizing relief under Civil Code section 4275. We disagree.
Civil Code section 4275 (formerly section 1356) provides in pertinent part: “If in order to amend a declaration, the declaration requires members having more than 50 percent of the votes in the association, [. . .] to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment.” (Civ. Code § 4275, subd. (a).) “The purpose of [the statute] is to provide homeowners associations with the `ability to amend [their] governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures authorized by the declaration. [Citation.] . . .’ [Citation.]” (Mission Shores Assn. v. Pheil (2008) 166 Cal.App.4th 789, 794-795.)
The statute gives the trial court broad discretion in ruling on such a petition. (Mission Shores, supra, 166 Cal.App.4th at p. 795.) Accordingly, we review for abuse of discretion. (Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1139, citing Mission Shores, supra, 166 Cal.App.4th 789; Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 570.) The trial court is not required to make any particular findings when considering such a petition; instead, it is sufficient if the record shows that the court considered the requisite factors in making its ruling. (Quail Lakes Owners Assn., supra, 204 Cal.App.4th at p. 1140.)
The court may grant the petition if it finds all of the following: “`Notice was properly given; the balloting was properly conducted; reasonable efforts were made to permit eligible members to vote; “[o]wners having more than 50 percent of the votes . . . voted in favor of the amendment”; and “[t]he amendment is reasonable.”‘” (Quail Lakes Owners Assn. v. Kozina, supra, 204 Cal.App.4th at p. 1135, quoting Peak Investments v. South Peak Homeowners Assn., Inc. (2006) 140 Cal.App.4th 1363, 1366-1367; see also Civ. Code, § 4275, subd. (c).)
The Alliance does not complain that the evidence presented to the trial court fails to satisfy the above-described elements of subdivision (c) of Civil Code section 4275, nor does it claim the amendment would be improper for any of the reasons set forth in Civil Code section 4275, subdivision (e). Instead, the Alliance argues that voter apathy is an element of Civil Code section 4275, and that relief is not proper unless voter apathy has been established.
After reviewing the decisions on which Alliance relies for the assertion that voter apathy is an element of a Civil Code section 4275 petition, we conclude Alliance has incorrectly construed statements made in dicta in some authorities regarding the purpose of the statutory procedure. In Blue Lagoon Cmty. Ass’n v. Mitchell, the court stated, “Viewed objectively, the purpose of [former] Civil Code section 1356 [now 4275] is to give a property owners’ association the ability to amend its governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures authorized by the declaration.” (Blue Lagoon Cmty. Ass’n v. Mitchell, supra, 55 Cal.App.4th at p. 477; see also, Quail Lakes Owners Assn., supra, 204 Cal.App.4th at pp. 1134-1135.)
Similar statements of legislative purpose are found in Fourth La Costa Condominium Owners Assn. v. Seith and Peak Investments v. South Peak Homeowners Assn., Inc. However, none of the cases hold that voter apathy is an element that must be alleged or proven. It is well settled that an appellate decision is not authority for everything said in the opinion, but only for points actually involved and decided. (People v. Knoller (2007) 41 Cal.4th 139, 154-155; Santisas v. Goodin (1998) 17 Cal.4th 599, 620, citing Childers v. Childers (1946) 74 Cal.App.2d 56, 61.)
The doctrine of precedent, or stare decisis, extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in an opinion. (People v. Superior Court (2016) 1 Cal.App.5th 892, 903, citing Gogri v. Jack in the Box, Inc. (2008) 166 Cal.App.4th 255, 272.) Only the ratio decidendi of an appellate opinion has precedential effect. (Trope v. Katz (1995) 11 Cal.4th 274, 287.) The decisions relied upon by the Alliance refer to a supposed legislative purpose, but none of these authorities held that voter apathy is a requisite element of the statutory procedure, nor do any of them require proof of voter apathy as a precondition to relief from the supermajority provisions of the CCRs.
Looking at the statutory language of Civil Code section 4275, we observe five elements required to be established to authorize a reduction in the required voting percentage to amend a provision of the governing CCRs. Those elements require the trial court to find that adequate notice was given; that balloting on the proposed amendment was conducted in accordance with the governing documents as well as the provisions of the Davis-Stirling Common Interest Development Act; a reasonably diligent effort was made to permit all eligible members to vote on the proposed amendment; members having more than 50 percent of the votes voted in favor of the amendment; the amendment is reasonable; and granting the petition is not improper. (Civ. Code, § 4275, subd. (c).) The statute does not include voter apathy among the list of elements that must be established.
Applying the rules of statutory construction, in the absence of an ambiguity, the plain meaning of the statute controls. (Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1143; Anderson Union High School Dist. v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262, 283.) Orchard was not required to plead and prove voter apathy under the plain language of Civil Code section 4275, and we are not empowered to insert what a legislative body has omitted from its enactments. (Williams v. Superior Court (1993) 5 Cal.4th 337, 357; Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099.) We therefore decline to imply an element that was not expressed by the Legislature.
The trial court did not abuse its discretion in granting the petition.
Disposition
The judgment is affirmed. Respondent is entitled to costs on appeal.
McKINSTER, J. and FIELDS, J., concurs.
Related Links
Voter Apathy Not a Required Showing in a Petition to Reduce Percentage of Affirmative Votes Required to Amend CC&Rs – Published on HOA Lawyer Blog (04/19)
Healy v. Tuscany Hills Landscape & Recreation Corp.
[Litigation Disclosure; Defamation] Facts alleged in litigation disclosure letter to HOA membership fell under the litigation privilege and could not support a defamation claim.
Neuland, Nordberg, Andrews & Whitney, Daniel A. Nordberg, Cynthia M. Hererra, and Kumar Raja for Cross-defendant and Appellant.
Kahdeman, Nickel & Frost and Richard J. Kahdeman for Cross-complainant and Respondent.
OPINION
MCKINSTER, Acting P. J.-
Plaintiff and cross-defendant Tuscany Hills Landscape & Recreational Corporation appeals from an order denying its special motion to strike a cause of action for defamation asserted by defendant and cross-complainant Gloria Healy. The trial court denied the motion based on its conclusion that Healy had demonstrated a reasonable probability that she would prevail on the defamation cause of action. We conclude that the allegedly defamatory publication comes within the scope of the litigation privilege and that there is therefore no possibility that Healy could prevail on her cause of action.
Following an unsuccessful motion to strike the first amended complaint, Healy filed a general denial and a cross-complaint. Her cross-complaint [4] alleged, as its first cause of action, that the association defamed her when its attorneys sent a letter to residents of Tuscany Hills referring to the access issue. As pertinent, the letter stated as follows: “Dear Affected Tuscany Hills Member: [¶] Please be advised that the law firm of Peters & Freedman, L.L.P., represents [Tuscany Hills] . . . in the above referenced matter, which involves a lawsuit. A copy of the disclosure letter is enclosed for your reference. [¶] The purpose of this letter is to inform you that the Association’s landscapers, Stay Green, will be performing city and county mandated weed abatement . . . . [¶] The Association is performing this weed abatement at an additional cost to the Association, primarily because of ingress and egress through the gate at the end of Villa Scencero is being prohibited by the owner of 6 Villa Scencero. Please note, normal weed abatement is a standard part of the landscape maintenance contract expense. However, where ingress and egress is changed and more difficult, a cost is charged. This cost has a direct impact on operating expenses and assessments.”
Healy alleged that the letter is false insofar as it states that her prohibition of ingress and egress through the gate at the end of Villa Scencero resulted in increased cost to the members of the association for weed abatement because it gave the false impression that there were no other areas where ingress and egress for weed abatement purposes exist or, that if they do exist, they provide more difficult and therefore more costly access. She alleged that the statements were understood by the recipients to mean that additional costs were being imposed as a result of her decision to prohibit ingress and egress through the gate at the end of Villa Scencero. She alleged that she suffered loss of reputation, shame, mortification and hurt feelings, to her general damage in the amount of $250,000. She also sought punitive damages.
Tuscany Hills filed a special motion to strike the defamation cause of action. It asserted, among other things, that the litigation privilege stated in Civil Code section 47, subdivision (b), afforded it a complete defense to the defamation cause of action because the letter sent by its attorney was in connection with the lawsuit it had filed against Healy.
The court denied the motion, finding a reasonable probability that Healy would prevail on the defamation cause of action. Tuscany Hills filed a timely notice of appeal.
Section 425.16 applies when the challenged cause of action arises from “any act . . . in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .” (§ 425.16, subd. (b)(1).) The statute defines acts in furtherance of the constitutional right to petition to include “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . .” (§ 425.16, subd. (e)(2).) This includes statements or writings made in connection with litigation in the civil courts. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).) The statute does not require any showing that the matter being litigated concerns a matter of public interest. (Id. at pp. 1117-1118, 1123.) Thus, an action for defamation falls within the anti-SLAPP statute if the allegedly defamatory statement was made in connection with litigation. (Id. at pp. 1109, 1123.) In addition, statements which come within the protection of the litigation privilege of Civil Code section 47, subdivision (b), are equally entitled to the benefits of section 425.16. (Briggs, at p. 1115.) Civil Code section 47, subdivision (b), provides that a publication is privileged if it is made “in” any judicial proceeding. (Civ. Code, § 47, subd. (b)(2).)
Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193; see § 425.16, subd. (a); Briggs, supra, 19 Cal.4th at p. 1119.) Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has “‘some relation'” to judicial proceedings. (Rubin v. Green, supra, 4 Cal.4th at p. 1193.)
[2] The allegedly defamatory statements in the letter unquestionably come within the litigation privilege. The letter expressly refers to the litigation arising from Healy’s prohibition on ingress and egress for weed abatement purposes and refers to an enclosed disclosure letter. (The record on appeal does not include the disclosure letter.) Because one purpose of the [6] letter was to inform members of the association of pending litigation involving the association, the letter is unquestionably “in connection with” judicial proceedings (§ 425.16, subd. (e)(2)) and bears “‘some relation'” to judicial proceedings. (Rubin v. Green, supra, 4 Cal.4th at p. 1193; see Civ. Code, § 47, subd. (b)(2).)
Because Tuscany Hills met its burden of making a prima facie showing that the letter came within the litigation privilege, the burden shifted to Healy to demonstrate the existence of facts which would, if proved at trial, support a judgment in her favor. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) She asserted that she could prevail because the association would not be able to show that her refusal to allow access through her property resulted in any increased weed abatement cost. Even if this is factually correct, however, it is irrelevant because the statements in the letter are absolutely privileged, even if they were defamatory. (Rubin v. Green, supra, 4 Cal.4th at pp. 1193-1194.)
Richli, J., and King, J., concurred.
FN 1. All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
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“Requesting HOA Enforcement Held to be Constitutionally Protected Activity” – Published on HOA Lawyer Blog (January 2018)
AB 670 (Friedman) Common interest developments: accessory dwelling units.
Would encourage the construction of affordable accessory dwelling units and junior accessory dwelling units that are owner-occupied and that are used for rentals of terms longer than 30 days.
Current Status: Chaptered
FindHOALaw Quick Summary:
Existing law prohibits the governing document of a common interest development from prohibiting the rental or leasing of any separate interest in the common interest development, unless that governing document was effective prior to the date the owner acquired title to their separate interest.
This bill would add Civil Code Section 4751 to make a provision in a common interest development’s governing document void and unenforceable if it prohibits the construction of accessory dwelling units or junior accessory dwelling units, as specified. The bill would authorize an association to adopt a provision of a governing document or an amendment to a governing document that impose reasonable restrictions on the construction of an accessory dwelling unit or junior accessory dwelling unit, as provided.
View more info on AB 670from the California Legislature's website
SB 326 (Hill). Common interest developments.
Would require the inspection of any load-bearing components and associated waterproofing elements of the buildings by a licensed structural engineer or architect at least once every nine years.
Current Status: Chaptered
FindHOALaw Quick Summary:
Existing law sets forth the duties and responsibilities of the association and the owners of the separate interests with regard to maintenance and repair of common and exclusive use areas, as defined. Unless otherwise provided in the declaration, the association is generally responsible for maintaining, repairing, and replacing the common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to that interest.
This bill would add Civil Code Section 5551 to require the association of a condominium project to cause a reasonably competent and diligent visual inspection of the load-bearing components and associated waterproofing systems at least once every nine (9) years to determine whether the exterior elevated elements are in a generally safe condition and performing in compliance with specified standards. The bill would require the inspector to submit a report to the board of the association providing specified information, including the current physical condition and remaining useful life of the load-bearing components and associated waterproofing systems.
The bill would add Civil Code Section 4770 to require the developer of a condominium project to submit a complete set of architectural and structural plans and specifications to an association for any buildings containing exterior elevated elements.
Existing law provides that an association has standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings in its own name as the real party in interest and without joining with its members in specified matters, including enforcement of the governing documents.
The bill would add Civil Code Section 5986 to require the board to make the determination of whether and when an association may commence legal proceedings against a declarant, developer, or builder of a common interest development, except as specified. The bill would, with certain exceptions, prohibit an association’s governing documents from limiting a board’s authority to commence legal proceedings against a declarant, developer, or builder of a common interest development. The bill would make these provisions applicable to governing documents and claims initiated before the effective date of this bill.
View more info on SB 326from the California Legislature's website
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SB 652 (Allen) Entry doors: display of religious items: prohibitions.
Would prohibit the governing documents from prohibiting the display of religious items on the entry door of a member’s separate interest.
Current Status: Chaptered
FindHOALaw Quick Summary:
Existing law prohibits the governing documents of a common interest development from prohibiting the posting or displaying of noncommercial signs, posters, flags, or banners on or in an owner’s separate interest, except as specified.
This bill would add Civil Code Section 4706 to prohibit the governing documents from prohibiting the display of religious items, as defined, on the entry door of a member’s separate interest.
View more info on SB 652from the California Legislature's website
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AB-1795 (Kamlager-Dove) Civil actions: unlawful detainer: court records.
Would prohibit the court clerk from allowing public access to the records of an unlawful detainer action.
Current Status: Dead
FindHOALaw Quick Summary:
Existing law provides summary proceedings for obtaining possession of real property in specified cases, including a case in which an owner of real property seeks to displace, on the ground of unlawful detainer, a tenant or lessee of accommodations that the owner has withdrawn from rent or lease. Existing law requires the clerk of the court to allow access to the records of those summary proceedings.
This bill would amend Section 1161.2 of the Code of Civil Procedure to prohibit the clerk from allowing access to the records of an unlawful detainer action described above, except as specified. The bill would require the owner in such a case to identify the type of unlawful detainer action in the caption of the owner’s complaint.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings that, “In order to protect the reputation and ability to access housing of a responsible tenant or lessee who is displaced, through unlawful detainer proceedings, from accommodations withdrawn from rent or lease by an owner, it is necessary to restrict public access to the records of those proceedings.”
from the California Legislature's website
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SB 234 (Skinner) Family daycare homes.
Would require a large family daycare home with up to 14 children to be treated as a residential use of property.
Current Status: Chaptered
FindHOALaw Quick Summary:
Under existing law, a small family daycare home, which may provide care for up to 8 children, is considered a residential use of property for purposes of all local ordinances. Existing law authorizes a city, county, or city and county to either classify a large family daycare home, which may provide care for up to 14 children, as residential use of the property or to provide a process for applying for a permit to use the property as a large family daycare home.
This bill would amend Health and Safety Code Section 1596.78 to require a large family daycare home to be treated as a residential use of property for purposes of all local ordinances.
Existing law makes void every provision in a written instrument entered into relating to real property that purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family daycare home for children and every restriction or prohibition in a written instrument as to the use or occupancy of the property as a family daycare home.
This bill would add Health and Safety Code Section 1597.41 to also make void an attempt to deny, restrict, or encumber the conveyance, leasing, or mortgaging of real property for use or occupancy as a family daycare home and a restriction related to the use or occupancy of the property as a family daycare home. The bill would prohibit a property owner or manager from refusing to sell or rent, or refusing to negotiate for the sale or rental of, or otherwise making unavailable or denying, a home to a person because that person is a family daycare provider. The bill would require the department to notify applicants for family daycare home licenses that specified housing discrimination remedies are available to a family daycare home provider, family daycare home provider applicant, or person who is claiming that any of these protections have been denied.
View more info on SB 234from the California Legislature's website
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AB 1516 (Friedman) Fire prevention: defensible space and fuels reduction management.
Would require a person in a very high fire hazard severity zone to utilize more intense fuel reductions in the defensible space between 5 and 30 feet around the structure, and to create a noncombustible zone within 5 feet of the structure. A person violating these provisions would be subject to a civil penalty of up to $500.
Current Status: Dead
FindHOALaw Quick Summary:
from the California Legislature's website