A recently decided case held that the California Occupational Safety and Health Act (Cal-OSHA) did not impose on a Homeowners Association (HOA) any duty to an independent contractor who was injured in a fall while servicing AC units on rooftops at the HOA complex.

In Iversen v. California Village Homeowners Association, 2011 WL 1034261 ("Iversen"), an independent contractor brought premises liability and negligence causes of action against a HOA seeking damages for injuries he sustained in a falling from a ladder while servicing the HOA's AC units. The independent contractor alleged that the HOA failed to provide a ladder that complied with Cal-OSHA regulations--a set of provisions that are "intended to assure safe and healful working conditions" for workers in California. The HOA moved for summary judgment by contending that it was not required to comply with Cal-OSHA because the plaintiff was an independent contractor and could not establish that the HOA owed him a duty of care or breached a duty of care.

The requirements of Cal-OSHA are traditionally used in proceedings against employers for the purpose of maintaining and enforcing employee safety. However, the court in Iversen was forced to address the unsettled issue of whether the provisions of Cal-OSHA can be used by an independent contractor in a tort action where there is no formal employment relationship.

In making its final determination, the court looked to the provisions of Cal-OSHA, as well as its legislative history and evolution through California caselaw, to underscore a subtle but important distinction between an "employee" and an "independent contractor". The court ultimately held that the provisions of Cal-OSHA should not apply to the HOA because an "independent contractor is not a member of the class of persons that Cal-OSHA was created to protect." The absence of a formal employment relationship meant that the independent contractor could not use Cal-OSHA to establish a negligence per se cause of action against the HOA.

Engaging contractors/vendors to perform certain jobs throughout an Association can open an Association up to significant liability in the event of injury to persons or property. Association contracts should be reviewed to ensure they clearly define the scope of the contractual relationship and contain the appropriate liability and indemnity provisions where necessary.

A recently decided case underscores the fact that speaking out against the action of a HOA's Board of Directors, agents and/or management is a constitutionally protected activity. In Country Side Villas Homeowners Association v. Susan Ivie, 2011 DJDAR 4358 ("Country Side"), a homeowner ("Ms. Ivie") was upset at the Association's newly elected Board and newly hired Attorney for their new interpretation of a maintenance provision in the CC&Rs concerning balconies. Ms. Ivie was concerned about the lack of funding for the new maintenance obligation and also that the decision was being made by the Board for self-serving reasons. The case ultimately went to trial where the Association sought a judicial determination as to the interpretation of the CC&Rs and also sought damages in the form of attorneys' fees from Ms. Ivie.

The most interesting aspect of the holding is that the appellate court ultimately affirmed the trial court's granting of Ms. Ivie's anti-SLAPP motion.  "SLAPPs" ("Strategic Lawsuits against Public Participation") are civil complaints or counterclaims in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the US Constitution. California has an anti-SLAPP statute (Civil Procedure Section 425.16 ) that provides for a special motion to strike a complaint where the complaint arises from conduct that falls within the rights of petition and free speech.

The decision in Country Side to grant Ms. Ivie's anti-SLAPP motion was based on the rationale that Ms. Ivie's action--the petitioning of the Association's Board and the requests to inspect the Association's financial documents--arose from constitutionally protected activity. Protected activity under Section 425.16 includes instances where the action arises out of "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." �425.16(e)(4).

Public comments concerning the competence of an HOA manager are recognized under California case law as speech connected with an issue of public interest within the meaning of Section 425.16. Damon v. Ocean Journalism Club ,(2000) 85 Cal.App.4th 468, 479-480. In ruling that Ms. Ivie's conduct in critizing the Association's action was similarly a matter of public interest within the meaning of Section 425.16, the court used the rationale from Damon that Section 425.16 "has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." Damon, at 429.

This case is an example of how HOAs can be seen as unique forms of quasi-governmental entities. Most HOAs in California are organized as various forms of private corporations. However, because HOAs often carry out functions similar to those of a governmental or municipal body, California law has treated them as such in certain limited scenarios.

TINNELLY LAW GROUP has prevailed in an Architectural Control suit for one of our clients--a HOA in Dana Point, California. The Defendant homeowner installed a window in the second floor bedroom of his residence which overlooked his neighbor's bathroom, patio and kitchen. Our client's Architectural Control Committee ("ACC") had already rejected two previous applications for the window; however, in 2008 the Defendant homeowner installed the window anyway without informing the HOA or submitting an application to the ACC.

As part of its evaluation process, the HOA's Board of Directors ("Board") conducted a hearing at which both the Defendant homeowner and his neighbor presented their cases. The Board then performed an on-sight inspection of both residences and concluded that the window did violate the neighbor's privacy and, as a result, the Board denied the window application. The Board suggested in its denial that the Defendant homeowner submit another application with a modified window which takes the neighbor's privacy concerns into consideration. When the homeowner refused, the lawsuit was filed and the bench trial was heard on March 10 and 11, 2011.

The trial court ultimately ruled that: (1) the HOA acted within the authority granted to it by its CC&R's, (2) the HOA's denial was made after a reasonable investigation, (3) the HOA's denial was made in the best interests of the community, and (4) the HOA's denial was made in a non-arbitrary manner. The court ordered that the window be removed and the wall of the residence be returned to its original condition. The court then found that the HOA was the prevailing party and that it was entitled to recover its attorney fees and costs.

We congratulate Bruce Kermott on securing another success in court.

"Bruce Kermott did an excellent job and is to be commended on his thoroughness, marshaling of the records and evidence, and presenting our case to the Judge" - (Client Board Member)

TINNELLY LAW GROUP strives to resolve its clients' disputes through non-judicial means wherever possible. However, when issues do result in litigation, our clients take comfort in knowing that our attorneys provide the highest quality representation available.