HOA’s Should Not Fine for Water Conservation!

September 26, 2014 Leave a comment

In another year of severe drought, California faces a historic water shortage and wildfire danger. Matters are expected to worsen, as California’s rainfall and water supply has been dwindling. In response Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. Some residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, only to find themselves subject to HOA fines for failure to maintain their yards.

In partial response, in April Governor Jerry Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week. The California Legislature has also considered various bills to address the drought conditions and HOAs, and we will report on each of these bills in future law blog updates. For now, AB 2100 (Campos) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating watering of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought.  AB 2100 was approved by the Governor on July 21, 2014 and is effective immediately, and has amended Civil Code Section 4735 accordingly.  If you are involved in an HOA and have a legal issue, please feel free to contact us for a consultation.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

Architects owe a Duty of Care to Future Homeowners

July 7, 2014 Leave a comment

In Beacon Residential Community Assoc. v. Skidmore, Owings & Merrill (No. S208173), the California Supreme Court expanded the potential liability of architects who are the primary designers of a residential building, typically a condominium development.  The Supreme Court held that an architect owes a duty of care to future homeowners in the design of a residential building where, the architect is a principal architect on the project, that is, the architect, in providing professional design services, is not subordinate to other design professionals. The duty of care extends to such architects even when they do not actually build the project or exercise ultimate control over construction.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

9th Circuit Confirms that False Advertising is Distinct from Trademark Infringement

March 7, 2014 Leave a comment

In Wells Fargo Company USA v. v. ABD Insurance & Financial Services, Inc. (No. 13–15625) the 9th Circuit Federal Court of Appeals found an abuse of discretion when a U.S. District Court denied a request for a preliminary injunction. Held, the District Court abused its discretion when it did not separately consider the false advertisement claim. The District Court’s review was under the basis that it found false advertisement to be “derivative of Wells Fargo’s trademark infringement claim.” However, The 9th Circuit found that the two claims are in fact distinct, and require the application of separate tests.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

Smoke Detector Compliance Law Change

January 30, 2014 Leave a comment

Commencing July 1, 2014 under SB-745, all smoke alarms including combination smoke alarms, that are solely battery powered shall contain a nonreplaceable, nonremovable battery that is capable of powering the smoke alarm for at least 10 years. This is a slight extension as this change was going to be effective on January 1, 2014. There are also EXCEPTIONS: This section shall not apply to any smoke alarm or combination smoke alarm that has been ordered by, or are in the inventory of, an owner, managing agent, contractor, wholesaler, or retailer on or before July 1, 2014, until July 1, 2015. The amended law is in Health and Safety Code Section 13114.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

San Francisco’s Plastic Bag Ban Upheld on Appeal

December 13, 2013 Leave a comment

A unanimous California Court of Appeal upheld San Francisco’s expanded plastic bag ban, marking the latest in a string of victories for local laws phasing out single-use plastic bags. The case is Save the Plastic Bag Coalition v. City and County of San Francisco, No. A137056, decided in an unpublished opinion by the First Appellate District, Division Two. The lawsuit had disputed the procedures San Francisco used to expand its plastic bag ban in 2012 and the legality of banning plastic bags in restaurants. This is the first appellate court to consider the restaurant issue, and was being followed closely by local merchant groups. The ruling sets the stage for more cities to adopt and strengthen local laws phasing out plastic bags, and the decision is the latest in a series of failed legal challenges to plastic bag ordinances. In this action, the Court of Appeals found against the Coalition on their two primary points of appeal, (1) that it had not sufficiently countered the City’s claim of a categorical exemption from CEQA, and (2) it found that the local ordinance was not preempted by the state Retail Food Code.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

San Miguel v. State Farm finds No Duty to Defend Non-monetary Claims

October 22, 2013 Leave a comment

In the recently published case of San Miguel Community Assn. v. State Farm General Ins. Co. (October 1, 2013) (Cal.App.4th, No. G047738. Fourth Dist., Div. Three.), a Court of Appeals ruled that when an insurance company issues a liability policy, agreeing to indemnify its insured against a third party claim for damages covered under the policy, and to defend the insured against any such claim, the insurer does not have a duty to defend the insured against a third party lawsuit seeking only injunctive relief but no compensatory damages.  The insurer’s defense obligation requires it to provide the insured with a defense against a claim seeking damages potentially payable under the policy, not to defend the insured’s honor or otherwise assist it in resolving a non-monetary dispute which a claim for pure injunctive relief was.  It is important when tendering claims to your insurance carrier, to check that the claim has potential coverage and to engage experienced business and insurance law counsel to assist.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

MacDonald v. State affirms employees must exhaust Administrative Remedies before Suing

August 28, 2013 Leave a comment

In MacDonald v. State of California [No. C069646. Third Dist. Aug. 27, 2013] as just published, a Judgment for defendant-employer on plaintiff’s claim for retaliatory discharge was affirmed. The appeals court held an employee must exhaust the administrative remedy set forth in Labor Code section 98.7 before filing suit in superior court for retaliatory discharge in violation of sections 1102.5 and 6310. Labor Code Section 1102.5 is a whistle-blower statute, the purpose of which is to encourage workplace whistle-blowers to report unlawful acts without fearing retaliation. Though this whistle-blower statute does not itself have an administrative remedy, Labor Code Section 98.7 does reference one and the appeals court held that must be exhausted first, and prior to, filing a lawsuit for retaliatory termination.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

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