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New Legislation

Community Legal Advisors Inc actively monitors new legislation to help its clients understand and implement newly enacted laws. These are our notes on new laws and currently pending bills which we are monitoring:

AB 83(Feuer) Immunity from Personal Liability for Emergency Personnel
This law (Enrolled June 2009) expands and clarifies California’s “good samaritan” law, which provides immunities to folks who render emergence medical or non-medical care at the scene of an emergency in good faith. In Van Horn v. Watson (2008) 45 Cal.4th 322, the Second District Court of Appeal interpreted the old statute to apply only to those providing “medical care” and allowed suit against a woman who pulled a guy out of a burning car on the crystal clear logic that this was not “medical care.” The legislature made things right.

AB 142(Hayashi) Health studios: external defibrillator unit requirements
This bill attempts to build on existing law which required every health studio (as defined), to acquire, maintain, and train personnel in the use of automatic external defibrillator units and to have trained employees available to respond to an emergency that may involve the use of an automatic external defibrillator unit during normal operating hours. This bill would require partially staffed 24 hour health studios to provide, amongst other things, live video surveillance, and would require members, during times when the health studio is not staffed with a trained employee, to use a provided device that, when activated, contacts emergency services.

AB 300 (Caballero) Water Supply
This bill attempts to disallow development of new residential projects of greater than 500 units unless the local water district confirms adequate supply. The bill was sponsored by the BIA as a means of implementing certain water conservation and water use limitations in a manner which the Building Industry could operate under. BIA either pulled a bill or made it a two year bill, at the request of CACM and other parties, because a number of environmentalists wanted the HOA’s to take on water monitoring obligations –become water police – including inspecting and enforcing maintenance or removal water conservation measures which are within the separate interests. This is different from monitoring SWPPPs installed , it is enforcement of installations within the unit. This is important because it was sponsored by a local water agency attempting to pass its obligation to monitor off on the local HOA’s.

AB 313(Fletcher) Common interest developments: assessments
This bill is brought by the “Covenant” in Rancho Santa Fe, San Diego, which bases its annual assessments on a formula which is dependent upon the purchase price of a residence. As you know, Civil Code 1366(b) limits the percentage by which an association may increase regular and special assessments based on the amounts of those assessments in the preceding fiscal year. Because these two approaches sometimes conflict, the Covenant experiences legal challenges to collection of its assessments. This bill implements an exception to 1366(b) for associations which have historically levied assessments based on the tax value of the separate interests. The bill also provides that if an association is taxed on the common area, that the association would have the right to recover that tax from the separate interests.

AB 333 (Fuentes) Map Extensions
CBIA’s bill to extend expiring subdivision maps was signed into law by the Governor on July 15, exactly one year after he signed SB 1185 (Lowenthal) last year. Where 1185 was a one-year map-extension bill, AB 333 provides for an additional two year extension.

AB 473(Blumenfield) Solid waste: multifamily dwellings
This bill would require an owner of a multifamily dwelling, defined as a “residential facility that consists of 5 or more living units” to, beginning July 1, 2010, arrange for recycling services consistent with state or local laws or requirements, including a local ordinance or agreement, applicable to the collection, handling, or recycling of solid waste. The authors of this bill report that it is not intended to apply to a condominium or stock co-operative, but instead to multi-family apartments. CACM is presently attempting to obtain an amendment or side letter from the authors.

AB 474(Blumenfield) Contractual assessments: water efficiency improvements
A city or county can designate an area within which willing property owners may enter into contractual assessments and make arrangements to finance installation of renewable energy sources. This bill would expand these existing provisions to include installation of water conservation improvements. The bill increases record keeping requirements by the legislative body and requires additional disclosures to buyers of the properties which participate in the program.

AB 519(Duvall) California Consumer Bill of Rights for Towed Vehicles
Why was this bill introduced and who was the sponsor? Folks who had their cars towed believe tow company operators are being unreasonable by refusing to release a vehicle to anyone but the registered owner and by failing to release it immediately. The law requires a person requesting release of a vehicle present documentation establishing that he or she is entitled to possession of the vehicle and authorizes an inspection of the vehicle by the legal owner or lessor, or his or her agent within a specified time period after receiving a written demand for the inspection. This bill defines "documentation" and "agent" for these purposes and would also protects the tow company that releases a vehicle in compliance with specified provisions of law has no civil liability of any kind for any claim or dispute arising out of the release of the vehicle. Importantly, the bill requires the tow company to post the terms and conditions of recovering the vehicle, or face a fine. Assembly member Duvall introduced this bill What were the Governor’s comments, if any? None yet. If not signed into law, do we expect a follow-up Bill? Expect this to be signed. Application in Manager friendly terms? This bill may benefit managers by reducing the impact of towing on managers and board members by clarifying and facilitating the return of vehicles to those who have had their vehicles towed.

AB 899 (Torres) Common interest developments: disclosures
Why was this bill introduced and who was the sponsor? The bill has three goals: 1) The bill revised Civ. 1350.7(b)(3) regarding electronic delivery to require that, in order for electronic delivery to be valid, the owner or buyer must provide written permission to be contacted and receive such information electronically, as described in Section 20 of the Corporations Code. Section 20 of the Corporations Code requires such consent, in the corporate context, to meet the requirements of the consumer consent to electronic records set forth in the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec. 7001(c)(1)) which requires as follows:

(A) the consumer has affirmatively consented to such use and has not withdrawn such consent;

(B) the consumer, prior to consenting, is provided with a clear and conspicuous statement (i) informing the consumer of (I) any right or option of the consumer to have the record provided or made available on paper or in nonelectronic form, and (II) the right of the consumer to withdraw the consent to have the record provided or made available in an electronic form and of any conditions, consequences (which may include termination of the parties’ relationship), or fees in the event of such withdrawal; (ii) informing the consumer of whether the consent applies (I) only to the particular transaction which gave rise to the obligation to provide the record, or (II) to identified categories of records that may be provided or made available during the course of the parties’ relationship; (iii) describing the procedures the consumer must use to withdraw consent as provided in clause (i) and to update information needed to contact the consumer electronically; and (iv) informing the consumer (I) how, after the consent, the consumer may, upon request, obtain a paper copy of an electronic record, and (II) whether any fee will be charged for such copy;

(C) the consumer(i) prior to consenting, is provided with a statement of the hardware and software requirements for access to and retention of the electronic records; and (ii) consents electronically, or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent.

2) State law requires certain disclosures to be made during the purchase and sale process of real property, as well as annually to those who own property within an association, as to the financial status of that association. The information can be voluminous and is often disregarded. This bill creates an annual distribution of a specific “Disclosure Documents Index,” codified and depicted in Civ. 1350.7, to owners which indexes specific governing documents. (Add Illustration of Table)

3) This bill refines a methodology to make available documents electronically. This bill also revises subparagraph 7 of 1365.2.5(a) to include a specified statement regarding the interest rate earned on reserve funds and the assumed inflation rate applied to major component repair and replacement costs as follows:

“Based on the method of calculation in paragraph (4) of subdivision (b) of Section 1365.2.5 of the Civil Code, the estimated amount required in the reserve fund at the end of each of the next five budget years is $______, and the projected reserve fund cash balance in each of those years, taking into account only assessments already approved and other known revenues, is $______, leaving the reserve at ______ percent funding. If the reserve funding plan approved by the association is implemented, the projected reserve fund cash balance in each of those years will be $______, leaving the reserve at ______ percent funding.”

This bill was Introduced by Assemblywoman Torres, 61st District (Montclair, Ontario).

What were the Governor’s comments, if any? None yet
If not signed into law, do we expect a follow-up bill? Yes, but expect it to be signed.

Application in Manager friendly terms? This bill amends 1350.7 to clarify terms and conditions upon which electronic delivery of documents, including electronic delivery of a Disclosure Documents Index, may be provided - a written consent. The form and content of the consent to receive electronic records contains specific requirements which must be carefully followed. The bill also creates an additional annual disclosure requirement, called a Disclosure Documents Index, the form and content of which are called out by statutory language found at Civil Code 1350.7. Finally, the Assessment and Reserve Funding Disclosure Summary required in Civ. 1365.2.5 has been slightly modified this year, to include disclosure of the interest rate earned on reserve funds and the assumed inflation rate applied to major component repair and replacement costs.

AB 919(Nava) Mortgages: information and recordation
The county recorder acts as the gatekeeper as to what documents can be recorded against a property. This bill would require a mortgage or deed of trust that is secured by residential property to have an attached “Residential Mortgage Participant Rider form,” that identifies by name any appraiser, lender, loan originator, and real estate broker who were involved in the origination of the mortgage or deed of trust and his or her professional license number, if any. The bill would further prohibit the county recorder from accepting a mortgage or deed of trust for recordation if the Rider is not included

AB 920(Huffman) Solar and wind distributed generation
Why was this bill introduced and who was the sponsor? The existing Public Utilities Act imposes various duties and responsibilities on the Public Utilities Commission with respect to the purchase of electricity and requires the commission to review and adopt a procurement plan and a renewable energy procurement plan for each electrical corporation pursuant to the California Renewables Portfolio Standard Program. The program requires that a retail seller of electricity, including electrical corporations, community choice aggregators, and electric service providers, but not including local publicly owned electric utilities, purchase a specified minimum percentage of electricity generated by eligible renewable energy resources, as defined, in any given year as a specified percentage of total kilowatthours sold to retail end-use customers each calendar year.

Under existing law the governing board of a local publicly owned electric utility is responsible for implementing and enforcing a renewables portfolio standard that recognizes the intent of the Legislature to encourage renewable resources, while taking into consideration the effect of the standard on rates, reliability, and financial resources and the goal of environmental improvement. This bill would replace the definition of "electric distribution utility or cooperative" in existing law relative to private energy producers with a definition of "electric utility."

The bill would require the ratemaking authority, as defined, for the electric utility to adopt, by January 1, 2011, a net surplus electricity compensation valuation to compensate a net surplus customer-generator, as defined, for the value of net surplus electricity, as defined, generated by an eligible customer-generator and delivered to the grid that is in excess of the amount of electricity that is delivered from the grid to the eligible customer-generator. ( Commonly known as “Net Billing.”) The bill would require the electric utility to offer a standard contract or tariff to eligible customer-generators that includes compensation for the value of net surplus electricity.

The bill would require the electric utility, upon an affirmative election by the eligible customer-generator to receive service pursuant to this contract or tariff, to either: (1) provide net surplus electricity compensation for any net surplus electricity generated in the 12-month period, or (2) allow the eligible customer-generator to apply the net surplus electricity as a credit for kilowatthours subsequently supplied by the electric utility to the surplus customer-generator. The bill would, for an electric utility that is an electrical corporation or electrical cooperative, authorize the commission to adopt requirements for providing notice and the manner by which eligible customer-generators may elect to receive net surplus electricity compensation.

The bill would provide that upon adoption of the net surplus electricity compensation rate and the eligible customer-generator electing to receive net surplus electricity compensation, any renewable energy credit, as defined, for net surplus electricity belongs to the electric utility purchasing the electricity and that net surplus electricity counts toward the electric utility's renewables portfolio standard purchasing requirements. This bill contains other related provisions and other existing laws.

What were the Governor’s comments, if any? None yet
If not signed into law, do we expect a follow-up Bill? Unknown, see SB 542.

Application in Manager friendly terms? AB 920 was drafted to provide for “Net Billers,” “green” and alternative energy generators who have excess electricity and wish to supply it back to the grid.

The Legislature is requiring, amongst other things, that the electric “rate-making authority” establish what rate they are going to pay these Net Billers, be it in dollars or future free power back from the grid.

AB 927(Calderon, Charles) Common interest developments: construction defects
This CBIA-sponsored measure to extend the sunset date on the Calderon pre-litigation process for construction defect cases was signed into law. The Calderon process was put in place in 1995 – at the height of trial-lawyer-inspired construction-defect litigation – to test whether a meet-and-confer process could reduce the cost of lawsuits and expeditiously settle claims. AB 927 extends the law for another seven years.

AB 957(Galgiani) Residential real estate transfers: title insurance: escrow companies
This bill would enact the Buyer's Choice Act, which would prohibit, until January 1, 2015, a mortgagee or beneficiary under a deed of trust who acquired title to residential real property at a foreclosure sale from, as a condition of receiving offers or selling that real property to a buyer, requiring the buyer to purchase title insurance or escrow services in connection with the sale from a company chosen by the seller. A seller who violates these provisions would be liable to the buyer for an amount equal to 3 times all charges made for the title insurance or escrow services. This bill contains other related provisions.

AB 985(De La Torre) Real property: discriminatory restrictions
A county recorder, title insurance company, escrow company, real estate broker, real estate agent, or association that provides a copy of a declaration, governing document, or deed to a person who holds an ownership interest of record in property to also provide a Restrictive Covenant Modification form with specified procedural information to that person. The bill would authorize a title insurance company, escrow company, real estate broker, real estate agent, or other person to record a Restrictive Covenant Modification, in addition to the owner of record, and would require the requester to provide a return address in order for the county recorder to notify the interested party of the action taken by county counsel on the respective property. The bill would require the county counsel to make its determination whether the original document contains an unlawful restriction within a reasonable period of time, not to exceed 3 months, as specified, and would authorize the county counsel to compile a list of phrases identified as unlawfully restrictive language for the purpose of expediting that determination. The bill would require the county recorder to make Restrictive Covenant Modification forms available to the public onsite in an appropriately designated area, and would permit multiple submissions on behalf of different homes and for processing homes in batches with respect to a modification document that affects multiple homes or lots.

AB 1020(Emmerson) Public swimming pools: anti-entrapment devices and systems
This bill extends the federal Virginia Graeme Baker (pool drain/ filter) Act (VGBA) to the state level. The State law apparently differs from the federal act in its language embracing whichever anti-entrapment ASME/ANSI or ASTM performance standards are most recently in effect. As of this writing, those standards do not differ from that used for the VGBA.

AB 1061(Lieu) Common interest developments: water-efficient landscapes
We are in a drought. This bill makes any provision in the governing documents of a CID void and unenforceable to the extent that such provision prohibits, or includes conditions that have the effect of prohibiting, the use of low water-using plants, or if it has the effect of prohibiting or restricting compliance with a local water-efficient landscape ordinance or water conservation measure

AB 1328 (Salas) Common interest developments: contracts
This bill makes any provision in the governing documents of a CID void and unenforceable to the extent that such provision prohibits, or includes conditions that have the effect of prohibiting, an association from entering into a contract for a water or energy efficiency program, not to exceed 5 years in duration , if the board reasonably anticipates that the contract will result in verifiable savings to the association and the supplier is not an entity that the subdivider has a direct or indirect interest in.

Why was this bill introduced and who was the sponsor?
This bill was passed to allow all associations to benefit from long term energy contracts so as to minimize the waste and inefficiency of short term contracts. This bill was introduced by Salas, and sponsored by CACM.

What were the Governor’s comments, if any? None Yet

If not signed into law, do we expect a follow-up bill?
CAI would like this bill to be a two year bill. The legislature is supposed to be on recess until September 15th. We should expect a follow up bill if this does not pass.

Application in Manager friendly terms?
Associations will be able to broker better contracts, containing more generous benefits at lesser cost to their members without consequence for conflicting with one year limitations on contract contained within CCRs or Bylaws.

AB 1108(Fuentes) Electric and gas utility service: master-meter customers
Why was this bill introduced and who was the sponsor? This bill provides additional protections mobile home and manufactured housing users of master metered services and provides for a methodology for the utility company to take over the private operation of such master metered systems.

What were the Governor’s comments, if any? None yet.
If not signed into law, do we expect a follow-up Bill? Unknown

Application in Manager friendly terms? If you have a master-meter system in a condo or stock co-op, this bill does not change the law, but it does provide a nice primer on how the PUC intends the system to work. The Public Utilities Commission has regulatory authority over public utilities, including electrical corporations and gas corporations. Existing law requires that, when gas or electric service is provided by a master-meter customer to users who are tenants of a mobilehome park, apartment building, or similar residential complex, the master-meter customer charge each user at the same rate that would be applicable if the user were receiving gas or electricity directly from the gas or electrical corporation. Existing law additionally requires the electrical or gas corporation to establish uniform rates to master-meter customers at a level that will provide a sufficient differential to cover the reasonable average costs to master-meter customers of providing submeter service, except that these costs shall not exceed the average cost that the corporation would have incurred in providing comparable services directly to the users of the service (“master-meter discount”). Existing law provides that every master-meter customer is responsible for the maintenance and repair of its submeter facilities beyond the master-meter.

This bill, then, adopts separate provisions that are applicable to a master-meter customer that provides submetered service to tenants of a mobilehome park or manufactured housing community. If you are managing a mobilehome park or manufactured housing community, these provisions would authorize the Commission, if it finds that a master-meter customer has failed to maintain or repair its sub-meter facilities beyond the master-meter, to order the master-meter customer to maintain or repair those facilities and would authorize the commission, in addition to the commission's authority to make or enforce orders pursuant to the Public Utilities Act, to order that certain moneys received as a result of the master-meter discount be held in trust to be expended for maintenance and repair of the sub-metered facilities of the mobilehome park or manufactured housing community.

The bill would require a master-meter customer to separately bill tenants of a mobilehome park or manufactured housing community for gas or electric service, or both, and rent, and would prohibit the master-meter customer from charging a user of electricity or gas any late charge for nonpayment or delayed payment of rent. The bill would require that any late charge imposed by a master-meter customer for nonpayment or delayed payment by a user for gas or electric service at a mobilehome park or manufactured housing community be in an amount that does not exceed that which the electrical or gas corporation would charge for nonpayment or delayed payment for electric or gas service. This bill contains other related provisions and other existing laws.

AB 1312(Swanson) Defibrillators
Existing law, until July 1, 2012, requires every health studio, as defined, to acquire an automatic external defibrillator, provides immunity for use or nonuse of the devices, except as specified, and establishes standards for the devices, including, but not limited to, maintenance and staff training regarding proper use. This bill would extend the application of these provisions to July 1, 2014. The bill would require that records of a readiness check on a defibrillator be maintained for 2 years after the check. The bill would also, beginning July 1, 2010, apply these requirements and this immunity to golf courses and amusement parks, as defined.

SB 120(Lowenthal) Residential tenancies
Existing law governs the obligations of tenants and landlords under a lease or tenancy. This bill would authorize a tenant or occupant who has made a payment to a public utility or publicly owned utility to deduct the amount of the payment from the rent when due, as specified. This bill contains other related provisions and other existing laws

SB 127(Calderon) Mortgages
Existing law governs the transfer of an interest in property in the case of a default on a mortgage. Existing law requires a mortgagee, trustee, or other person authorized to record the notice of default or notice of sale to make specified disclosures after recording the notice of default or notice of sale and prior to the date of sale. A notice of sale must be recorded with the county recorder at least 14 days prior to the date of sale. This bill would revise that provision by deleting the qualification that the information be in regards to the nature and amount of the default, as specified, and would additionally exempt the trustee from liability for any good faith clerical error the trustee makes in performing acts required pursuant to the provisions described above and other related provisions governing mortgage defaults with respect to recording the notice of sale . This bill contains other related provisions and other existing laws.

SB 259(Benoit) Common interest developments: elections
WWhy was this bill introduced and who was the sponsor? This bill was enacted to resolve the question as to whether, if a court determines that a board member was invalidly appointed or elected to the board, the decisions made by the board while that board member was seated, are valid. This bill was sponsored by:

What were the Governor’s comments, if any? None yet.
If not signed into law, do we expect a follow-up Bill? Yes.

Application in Manager friendly terms? The Civil and Corporations codes impose specified requirements with respect to elections for the board of directors of an association. Existing law provides that, upon a finding that specified election procedures, or the adoption of and adherence to certain rules, were not followed, a court may void any results of the election. This bill would provide that, if a court voids any results of an election for one or more board members under the above provisions, the court shall not invalidate a decision of the board that was reached after the board was seated pursuant to that election unless the court finds that the action of the board was contrary to law or the governing documents.br />
SB 542(Wiggins) Solar energy and energy efficiency programs
As discussed above, under existing law, the Public Utilities Commission (PUC) has regulatory authority over public utilities, including electrical corporations, as defined. A decision of the PUC adopted the California Solar Initiative. Existing law requires the PUC to undertake certain steps in implementing the California Solar Initiative.

Existing law establishes a surcharge on all natural gas consumed in the state and upon electricity distributed by the state's three largest electrical corporations, to fund certain low-income assistance programs, cost-effective energy efficiency and conservation activities, and public interest research and development. This bill would require the PUC, by July 1, 2010, to develop and implement a strategy to expand the participation of multiunit residential and commercial rental properties in utility energy efficiency and solar energy programs and to prepare and submit a report on the program to the Legislature by that date. The bill would require the PUC to ensure that the strategy implemented does not result in any additional ratepayer surcharges, is funded through existing programs or the American Recovery and Reinvestment Act of 2009, and is cost effective for utility customers.r />
The bill would require the PUC to consider, in developing the strategy, whether synergies exist between its energy efficiency programs and the solar energy programs of the California Solar Initiative, that, in the determination of the PUC, can make energy efficiency and solar investments cost effective for utility customers in multiunit commercial and residential rental properties. This bill contains other related provisions and other existing laws.
 
 
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