CAN A HOMEOWNER ASSOCIATION LIMIT ACCESS TO OFFICIAL BULLETIN BOARDS?

By Donie Vanitzian

(c) 2001-20014  D.VANITZIAN. All rights reserved. The Associations and Common Interest Living articles and columns may not be reprinted or retransmitted in any form without the express written consent of the copyright holders. The author takes no position regarding any documents or accompaniments that may be enclosed with, attached to, or alongside said article reprints or distribution. Los Angeles Times, Real Estate Section, "Associations," September 2014  CAN A HOMEOWNER ASSOCIATION LIMIT ACCESS TO OFFICIAL BULLETIN BOARDS?  Donie Vanitzian, Special to The Times

-Association manager says official bulletin boards are 'only for information the board relays to the community'

-A homeowner association limiting access to official bulletin boards is illegal, and can get the board sued

QUESTION: Our homeowner association manager insists on having the only key and access to all four official association-owned locked glass bulletin board cases above mailboxes throughout the complex. Majority directors let her do whatever she wants. These glass cases are intended to post official board meeting minutes, announcements and information during the year.

At elections, she uses these glass cases to advocate for candidates she wants on the board. She says she's relaying information about the election. No opposing candidate views or information are allowed in those cases. She campaigns for her favorite candidates, giving them awards for things she makes up, like donating trees or canned goods to the community, and posts it in official glass cases.

She says that "all candidates can post their flyers at open bulletin boards throughout the complex," but open bulletin boards are used for rental ads and lost cat signs. I believe she's denying equal access to candidates other than the ones she wants on the board.

Owners believe and take seriously what's posted in official glass cases, and I've been refused access to them during elections. She says the official cases are "only for information the board relays to the community." Is this legal?

ANSWER: It's not legal, and it can get the board sued. In the California case Wittenberg vs. Beachwalk Homeowners Assn., there was a glass-enclosed community bulletin board controlled by the board of the Huntington Beach development. The board's newsletter was posted on the bulletin board, but non-board members were not permitted to post materials and were not invited to provide opposing viewpoints in the newsletter during a campaign.

Wittenberg plaintiffs, who were homeowners, alleged the association violated the law by permitting board members to advocate their point of view in an association newsletter and then refusing to permit opposing members to use the newsletter to express their point of view. Plaintiffs also contended they were denied free access to common areas as required by law.

In June 2013, California's 4th District Court of Appeal agreed with the plaintiffs: "If the Court created [a board-member exception] it would allow those in power the advantage of using association media to advocate a point of view to the exclusion of any opposing view. Such a construction would only further empower those individuals already in power, and would weaken those individuals not in power. Not only would [that] be fundamentally unfair, but it would facilitate rather than cure the evils intended to be remedied by the statute." The court held that "board members are treated as any other member."

Recognizing that elections prior to passage of Civil Code section 5105 (formerly section 1363.03) "had previously been contaminated by manipulation, oppression and intimidation of members, as well as outright fraud," the court adopted the plain English definition of "advocacy," stating it was "sufficiently broad to ensure one side of a debate cannot monopolize the use of association media."

In a gymnastic stretch of imagination, Beachwalk respondents argued: "The plain language of Civil Code section 1363.03(a)(1) provides that the equal access mandate is triggered only if a 'member' or 'candidate' is granted access to an association's media during an election. The statute clearly does not apply to communications made by an association.... Providing information to the membership about elections is consistent with a board's management duties imposed by [law]."

The court rejected Beachwalk's selective parsing of statutory languagecontending an association was exempt from advocacy while members and candidates must follow the law. It strongly rejected any conclusion that the board's "communications were purely informational and thus not advocacy."

Recognizing the board's refusal to publish an article opposing an advocacy article the board had published in the association's newsletter, the court held that "undisputed evidence shows the association failed its duty" by engaging in advocacy. The board was now bound by law to permit other members equal access to association media.

Justices headnoted: "The association violated Civil Code section 1363.03(a)(2)," proffering that "the association nominally enacted rules parroting [the statutory language and] … it was undisputed at trial that the board's policy was to not permit homeowners to publish advocacy pieces in the newsletter or the association website, nor to permit homeowners access to the association bulletin board."

Wittenberg plaintiffs continually requested use of common areas during the campaign, but their requests were denied, prompting the court to state "the association's legal obligation … was to ensure access to the common area meeting space … to all members advocating a point of view … for purposes reasonably related to the election. The board did not fulfill its obligation."

Note that although a court may void any election results and impose penalties if election procedures were not followed, the statute does not automatically void those results.

Wittenberg justices held that while in the midst of an election, the board must either give equal access to opposing viewpoints or forego the use of association media to advocate its viewpoint; this includes official glass bulletin boards. Beachwalk Homeowners Assn. appealed to the California Supreme Court but was denied review.


Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

http://www.latimes.com/business/realestate/la-fi-associations-20141026-story.html

ATTORNEYS:

Schiffer & Buus, Newport Beach,Eric M. Schiffer and William L. Buus for Plaintiffs and Appellants.  (Homeowners)

Adams Kessler, Mary E. Gram, Aide C. Ontiveros and Adrian J. Adams, Los Angeles, for Defendant and Respondent.   (Association).   

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San Clemente Bliss Clothing Boutique Shooting Investigated as Murder-Suicide

San Clemente Bliss Clothing Boutique Shooting Investigated as Murder-Suicide  

Posted by CotoBlogzz

Rancho Santa Margarita, Calif.  – On Saturday, October 25, 2014 at approximately 2:01 p.m., Orange County Sheriff’s deputies responded to reports of a shooting at Bliss Clothing Boutique located at 167 Avenida Del Mar according to OCSD spokesperson Lt. Jeff Hallock.

Responding deputies were contacted by an employee of the Bliss Clothing Boutique who indicated a shooting was occurring inside the business.  Based on information provided to deputies that an active shooter was inside the business, the Sheriff’s Special Weapons and Tactics (SWAT) team and Crisis Negotiations Team (CNT) was requested.

At approximately 2:40 p.m., specially trained deputies assigned to the Critical Incident Response Team (CIRT) made entry and discovered an adult male and female deceased inside the business. Based on evidence obtained from the scene and information received from witnesses, investigators suspect the male deceased in what is being investigated as a murder-suicide.  A handgun believed to be used in the murder-suicide was recovered from the scene.  

The identities of the deceased are pending official confirmation and next of kin notification. 

Anyone with additional information is asked to call the Orange County Sheriff’s Department at (714) 647-7000.  Anonymous tips may also be submitted to Orange County Crime Stoppers at 855-TIP-OCCS (855-847-6227) or at occrimestoppers.org.

Kristen Roush, teacher at La Paz Intermediate School arrested for lewd act with child student

Kristen Roush, teacher at La Paz Intermediate School arrested for lewd act with child student

Posted by CotoBlogzz

Rancho Santa Margarita, CA – According to Orange County Sheriff' Department (OCSD) Lt. Jeff Hallock, on Friday, October 24, 2014, OCSD investigators arrested Kristen Roush, 34, Aliso Viejo, following a several month long investigation involving an inappropriate relationship she had with a male juvenile student.  Roush, an eighth grade teacher at La Paz Intermediate School (Mission Viejo), was arrested at her residence in the city of Aliso Viejo.

In July 2014, Orange County Sheriff’s Department investigators were contacted after the male juvenile victim’s parents became concerned over what they perceived as an inappropriate relationship between their juvenile son and Roush.  Several witnesses were interviewed and evidence was obtained from both the victim and teacher’s cell phone.  Based on information obtained from various methods of communication, investigators believe Roush had an inappropriate relationship with the student victim.

Roush was arrested for lewd and lascivious acts with a child and booked into Orange County Jail.  She is being held on $50K bail and is expected to appear in court on Monday, October 27, 2014.    

Anyone with additional information is asked to call the Orange County Sheriff’s Department at (714) 647-7000.  Anonymous tips may also be submitted to Orange County Crime Stoppers at 855-TIP-OCCS (855-847-6227) or at occrimestoppers.org.

DUI Enforcement Operations In Alison Viejo, Laguna Hills, Laguna Nigel and Laguna Woods this Weekend

Posted By CotoBlogzz

Rancho Santa Margarita, CA  – according to Emily Osterberg, Orange County Sherif's Department (OCSD), Public Relations Manager, Deputies from the OCSF, DUI Task Force will be deploying this weekend to stop and arrest alcohol and drug-impaired drivers in the department’s ongoing traffic safety campaign.  

DUI Saturation Patrols will deploy on Friday, October 24 at 7:00 p.m. and continue until Saturday, October 25 at 3:00 a.m. in the cities of Aliso Viejo, Laguna Hills, Laguna Niguel and Laguna Woods.

After falling dramatically for five straight years, figures for 2012 increased to 802 deaths because someone failed to designate a sober driver. Over the course of the past three years DUI collisions in areas contracted by the Orange County Sheriff’s Department have claimed 21 lives and resulted in 497 injuries of our friends and neighbors.

DUIs can impact the economy in addition to the pain and suffering of those immediately affected. Conservatively, a fatality has a $1.4 million impact, an injury $70,000 and a crash that only damages property averages nearly $9,000. 

Funding for this program is from a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration. Report Drunk Driv

Saddleback College Announces Appointments to the Angels for the Arts Board of Directors

Posted By CotoBlogzz

Rancho Santa Margarita, CA - The Angels for the Arts at Saddleback College announced this week the following appointments to the Angels for the Arts Board of Directors:

Gabby Jackson, of Mission Viejo, has been voted in as the Student Representative to the Board. Jackson is in her second year at Saddleback College, majoring in the arts with a minor in sociology. She has been heavily involved in the music and theater programs, previously appearing in roles in Metamorphoses, Best Little Whorehouse in Texas, Hello, Dolly! andGodspell, and performing in the student operetta and the Commercial Music Ensemble.

Amy Hunter, of Mission Viejo, has been voted in as the Secretary to the Board. Hunter has served as a non-voting member of the Board for over a year and is currently working for the Division of Fine Arts & Media Technology at Saddleback College. Hunter has extensive experience in event planning and management. 

Nina Welch, of Mission Viejo, has been voted in as a member of the Board. Welch has served on the Angels for the Arts Board as a non-voting member for nearly a decade and is currently working as the Fine Arts Public Information Officer in the Division of Fine Arts & Media Technology at Saddleback College.

The Angels for the Arts is a fundraising and support organization for the Performing and Visual Arts at Saddleback College.  Angel members donate their time and talent to raise funds and assist with a variety of arts events on the campus.  The group is led by a volunteer advisory board of directors. Angel members believe in the importance of offering a full spectrum of arts to the community, with the college as the focal point.  These events bring together Orange County residents from all walks of life, for the purpose of enlightenment, entertainment, and inspiration. The Angels also provide support for scholarships for students in Visual & Performing Arts, MainStage Kids Productions, master classes with professional artists, hospitality for guest artist performers and crew, enhancements for arts patrons, such as the tram, and the annual Big Band Swing Thing fundraiser.

Located in Mission Viejo, Saddleback College provides quality higher education and training to the greater south Orange County community.  Having served more than 500,000 students since 1968, Saddleback College offers over 300 degree and certificate programs to help students reach their personal, career, and educational goals.  For more information, please visit www.saddleback.edu

Coto de Caza 3-car collision and HOA Proposed Rule Changes Regarding Promoting Traffic within the community

Posted by CotoBlogzz

In the Proposed Rule Change Regarding Group Use of Association Property for Events dated September 15, 2014 the CZ Master Association’s board of directors gives property owners notice that it is considering a policy to permit use of the associations’ common areas  for group events. 

The direct consequences of such a policy is to increase traffic in the community and data collected for more a decade, indicates the traffic accidents in the community will keep going up and so will the probability of the fourth traffic fatality in Coto de Caza.  This comes at a time when the  Coto de Caza Accident  Rate is at all time high and CHP patrol is down 25% from lawsuit

The board made a similar argument to support the Coto Polo Arena as described in the piece Coto De Caza Subsidies Qualify as Bellisimos.  In that instance, the CZ board  argued that the Polo Arena would NOT increase traffic in the community – it was wrong then

The board also compromised public safety when it implemented the new online registration process making  it available to people outside the community, while the  Coto de Caza’s website gets a Failing grade from Qualys for its security protocols

Now, consider that for more than a decade, Coto the Caza has exhibited the Peter Pan Syndrome – the idea that adults refuse to grow up. Perhaps the three car collision that occurred at Coto de Caza Drive and Vista del Verde on 10/14/2014 supports not only the Peter Pan Syndrome but also the consequences of a high traffic accident rate

According to San Juan Capistrano California Highway Patrol (CHP) Public Information Officer Aaron Rothberg a white female, approx. 65, was driving a gray Mazda southbound on Coto De Caza Dr and stopped her vehicle at Alta Dr (just north of Vista Del Verde).  A white male, approx. 55, was driving a silver Lexus behind the white female, came to a stop behind the Mazda.  A white Mercedes, driven by a white male, approx. 60, rear-ended the silver Lexus and suffered minor lacerations to his arms.  While nobody was transported after the collision and alcohol or drugs is not suspected at this time, the incident shows that the community is sitting on a time bomb.

THE ORANGE COUNTY SHERIFF’S DEPARTMENT RECEIVES GRANT FOR SPECIAL TRAFFIC ACCIDENT PREVENTION

Posted by CotoBlogzz

Rancho Santa Margarita , Calif. (October 22, 2014) –  according to the Orange County Sheriff’s Department's (OCSD) spokesperson Emily Osterberg, the OCSD has been awarded a $330,620 grant from the California Office of Traffic Safety (OTS) for a year-long program of special enforcements and public awareness efforts to prevent traffic related deaths and injuries. 

After falling dramatically between 2006 and 2010, the number of persons killed and injured in traffic collisions saw slight increases in 2011 and 2012, and particular, the recent increases in pedestrian and motorcycle fatalities and the dangers of distracting technologies. This grant funding will provide opportunities to combat these and other devastating problems such as drunk and/or drugged driving and speeding.

The Orange County Sheriff’s Department will be using these and other resources to reach the vision we all share – Toward zero deaths, every 1 counts.”

Activities that the grant will fund include:

·         Educational presentations

·         DUI checkpoints

·         DUI saturation patrols 

·         Motorcycle safety enforcement

·         Distracted driving enforcement

·         Seat belt and child safety seat enforcement

·         Speed, red light and stop sign enforcement

·         Warrant service operations targeting multiple DUI offenders 

·         Compilation of DUI “Hot Sheets,” identifying worst-of-the-worst DUI offenders

·         Specialized DUI training such as Advanced Roadside Impaired Driving Enforcement (ARIDE)and Drug Recognition Evaluator (DRE)

·         Court “Sting” operations to cite individuals driving from DUI court after ignoring their license suspension or revocation

·         Stakeout operations to observe repeat DUI offender probationers with suspended or revoked driver licenses

Funding for this program is from the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

Martial Arts Expert Arrested for Outstanding Warrant

Posted by CotoBlogzz

Rancho Santa Margarita, Calif. –according to Orange County Sheriff departments Lt. Jeff Hallock, today Orange County Sheriff’s deputies arrested Jason Nicholas Miller, 33, Mission Viejo, on an outstanding felony arrest warrant for domestic violence, stalking and violation of a court order as well as obstructing/delaying a peace officer resulting from today’s incident.

At approximately 10:00 a.m. this morning, deputies attempted to serve the outstanding arrest warrant on Miller in the driveway of the residence located at 26262 Avenida Calidad.  Miller fled on foot and retreated into the residence where he remained barricaded for approximately four hours.  Numerous commands and directives were made to Miller in an attempt to gain his compliance and surrender to deputies. 

As a result of Miller barricading himself in the residence and failure to comply with deputies’ directives to exit the residence, the Orange County Sheriff’s Department’s Special Weapons and Tactics (SWAT) Team and the Crisis Negotiations Team (CNT) responded.  After several unsuccessful attempts to establish verbal communication with Miller, SWAT and Hazardous Device Squad (HDS) investigators conducted a remote breach of the front door as a means of compromising the door locks.  Immediately following the remote breach, Miller exited the residence through a rear door and surrendered to deputies by lying on the ground with his hands exposed.  Miller was taken into custody uninjured during the incident.

Miller was booked into Orange County Jail on the outstanding arrest warrant and obstructing/delaying a peace officer.  He is currently being held on $200K bail and expected to appear in court on Tuesday, October 14, 2014.   

Nellie Gail Ranch Burglary Suspects Arrested

Posted By CotoBlogzz

Rancho Santa Margarita, Calif. – According to  Orange County Sheriff's Department's  Lt. Jeff Hallock,  on Wednesday, October 8, 2014, Orange County Sheriff’s deputies arrested Harold Nathaniel Reese, 28, Los Angeles; Antwain Travon Smith, 28, Los Angeles; Raven Samone Queen, 19, Compton and John Smith, 24, Los Angeles, in connection with a residential burglary that occurred in the Nellie Gail Ranch community of Laguna Hills.

                                

On October 8, 2014 deputies were conducting saturated patrols in the area of the Nellie Gail Ranch community following multiple residential burglaries over the last several months.  During the course of saturated patrol effort, deputies observed a vehicle occupied by four subjects, believed to be connected to a recent residential burglary.  Deputies initiated a traffic stop of the vehicle on Oso Parkway; however, the vehicle failed to yield and a pursuit ensued onto the northbound Interstate 5 freeway.   

Deputies continued to pursue the suspect vehicle northbound on the Interstate 5 freeway.  The suspect vehicle exited El Toro Road and travelled onto several streets in the cities of Lake Forest and Irvine before getting onto the northbound 55 freeway.  The suspect vehicle transitioned back onto the northbound 5 freeway and terminated with a collision near the Main Street exit. Three of the four suspects were taken into custody at the pursuit termination point; one suspect fled on foot but was taken into custody several minutes later in a parking lot adjacent to the nearby Main Place mall.

Each of the four suspects were arrested for residential burglary and conspiracy.  They were booked into Orange County Jail and are being held on $50K bail.  Reese, the driver of the vehicle, was also arrested on charges of evading a police officer and is being held on $100K bail.  All four suspects are scheduled to appear in court on Friday, October 10, 2014.

Gernot Zepernick, a real estate investor from Concord, Calif., pleads guilty to bid rigging and fraud at public foreclosure auctions

Posted by CotoBlogzz

Rancho Santa Margarita, CA:  according to the Department of Justice, Gernot Sebastian Zepernick, a real estate investor from Concord, Calif., agreed to plead guilty to bid rigging and fraud at public foreclosure auctions. To date, 47 individuals have agreed to plead or have pleaded guilty, as a result of the department’s ongoing antitrust investigations into bid rigging and fraud at public real estate foreclosure auctions in Northern California.

According to court documents, beginning as early as November 2008 until about January 2011, Zepernick conspired with others not to bid against one another, and instead to designate a winning bidder to obtain selected properties at public real estate foreclosure auctions in Contra Costa County.  Zepernick was also charged with conspiring to use the mail to carry out a scheme to fraudulently acquire title to selected Contra Costa County properties sold at public auctions, to make and receive payoffs, and to divert money to co-conspirators that would have otherwise gone to mortgage holders and other beneficiaries by holding second, private auctions open only to members of the conspiracy.  The department said that the selected properties were then awarded to the conspirators who submitted the highest bids in the second, private auctions.  The private auctions often took place at or near the courthouse steps where the public auctions were held.    

The department said that the primary purpose of the conspiracies was to suppress and eliminate competition and to conceal payoffs in order to obtain selected real estate offered at Contra Costa County public foreclosure auctions at non-competitive prices.  When real estate properties are sold at these auctions, the proceeds are used to pay off the mortgage and other debt attached to the property, with remaining proceeds, if any, paid to the homeowner.  These conspirators paid and received money, according to the court documents, that otherwise would have gone to pay off the mortgage and other holders of debt secured by the properties, and, in some cases, the defaulting homeowner.

These investigations are being conducted by the Antitrust Division’s San Francisco Office and the FBI’s San Francisco Office.  Anyone with information concerning bid rigging or fraud related to public real estate foreclosure auctions should contact the Antitrust Division’s San Francisco Office at 415-934-5300, or call the FBI tip line at 415-553-7400.