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HKC Submits Opposition To Subdivision Conversion Bill

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April 10, 2013  |  Blog  |   Mark Alpert

The California State Senate is once again considering a bill to amend the state mobilehome park subdivision conversion law, Government Code Section 66427.5. Senate Bill 510 would give local governments the ability to deny conversions which are not supported by a majority of tenants and to allow local governments to adopt their own “conversion ordinances.” If SB 510 passes, it could put an end or dramatically slow down the conversion of mobilehome parks to resident ownership. SB 510 is an affront to the property rights of park owners and will ultimately result in the dramatic loss of affordable housing.

Click Here to view the Hart, King & Coldren letter prepared in opposition to SB 510.

Click Here to view a sample letter to send to California State Senator Mark DeSaulnier, chair of the Housing and Transportation Committee in opposition to SB 510.

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Huntington Beach City Council Avoids a Contempt Trial

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March 27, 2013  |  Blog  |   Mark Alpert

The Huntington Beach City Council avoided the embarrassment of going to trial on contempt of court charges over their processing of Pacific Mobile Home Park’s subdivision conversion application by entering into a settlement which ended the dispute.

You might recall the City fought the subdivision “conversion” application of Pacific for years. Pacific had to file a lawsuit, which the City not only aggressively defended, even utilizing “strong arm” tactics, such as bringing a cross-complaint seeking immediate physical removal of homes owned by park tenants who were claimed to be “trespassing” in an unused City right of way. The City initially lost its battle over the subdivision in July 2012, when an Orange County Superior Court judge reversed the City’s denial of the application and ordered the City to reconsider the application. That prompted the City Council to approve the Application in November 2012.

In December 2012, a newly elected City Council, voted to reconsider the Application, purporting to rescind the prior approval, with no notice to the Park Owner. We succeeded in getting an emergency order not only invalidating the City Council’s vote, but also barring the City Council from reconsidering the Application. Later in the month the City Council voted to “re-affirm” the prior vote they had taken to reconsider the application, with only one City Council Member voting no. It was after that vote that Superior Court Judge Luis Rodriguez granted an order setting a contempt trial ― the City Council members would have to stand trial for criminal contempt of court for violating a court order.

The City Council abandoned reconsideration of the subdivision application rather than deal with a potential criminal trial. The effect of the vote was to finalize the approval of the subdivision. The City also entered into an agreement with Pacific to dismiss the cross-complaint.

The California State Senate is currently considering revisions to Government Code § 66427.5 in the form of SB 510, which would enhance the ability of local government to block mobilehome park conversions Judging by the actions of many local governments even without this authority, this change would be very bad news for park owners. The actions of the City of Huntington Beach are a prime example. While local governments have continued to fight the limitations of Government Code § 66427.5, this case illustrates that courts have enforced those limitations. Park owners should support the efforts of WMA, MHET and similar organizations to fight changes to the subdivision law.

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Keeping Your Litigation Costs Down By Arbitrating

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February 19, 2013  |  Blog  |   Daniel Rudderow

This article by Dan Rudderow originally appeared in the February 2013 issue of The Journal.
Posted with Permission

An unpleasant fact of life for any Community owner is that someday, somehow the Community may be the subject of a lawsuit. Whether the suit concerns a breach of contract claim, personal injury claim, rent control issue (the list goes on and on), the lawsuit is likely to require the Community owner to spend significant time, energy and resources (including attorneys’ fees and costs) to resolve. Even with liability insurance to cover legal expenses (assuming it is a “covered” claim), the Community business is still affected by the inevitable “down time” in having its executives and employees speak to lawyers, search and collect documents and other evidence, appear for depositions and attend hearings in court (which always seem to last longer than expected).

One way to help control and reduce the tangible and intangible costs associated with litigation is to have lawsuits resolved outside the court system through the process known as arbitration. The U.S. Supreme Court itself has noted the many advantages to arbitration, including that:

  • it is usually cheaper and faster than litigation;
  • it can have simpler procedural and evidentiary rules;
  • it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; and
  • it is often more flexible in regard to scheduling of times and places of hearings and discovery devices.(Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 280.)

So how do Community owners get their cases into arbitration? Here are a few tips:

Plan Ahead!

The first step is to plan ahead and incorporate the arbitration process into one’s contracts and residency documents. Whether it is a rental agreement, purchase and sale contract or other type of agreement, the Community owner (and his attorney drafting the document) should make sure that the wording of any arbitration provision in a contract is sufficiently broad to cover “any and all disputes” to ensure, to the extent possible, that most, if not all, of the many expected and unexpected business disputes that arise will be covered by the parties’ agreement to arbitrate.

In addition, the attorney drafting the agreement should specify the type of law (i.e., federal, state, local, etc.) that should govern enforcement of the arbitration provision should the provision be contested by a party resisting arbitration. Often times, attorneys consider federal law to be more “pro-arbitration,” and therefore state that interpretation and enforcement of the arbitration provision is to be governed solely by the Federal Arbitration Act (“FAA”). However, for the FAA to apply, the contract itself must involve “interstate or foreign commerce” (FAA, 9 U.S.C. §§ 1, 2). Accordingly, thought must go into analyzing how federal law might apply to the contract inorder to make the arbitration provision enforceable under the FAA. This should be discussed thoroughly with your legal counsel. Whatever the strategy, careful planning should involve identifying the appropriate law governing the enforcement of arbitration and then making sure that intention is made clear in the contract.

Don’t Wait Too Long!

Often times, in spite of the work done to make sure one’s contract includes a legally valid and enforceable arbitration provision (or a separate arbitration agreement if required by your State’s laws), one’s opponent (i.e., the guy who signed the contract with you but now says he doesn’t want to arbitrate per the contract’s terms) will attempt to bypass the arbitration process by going ahead and filing a lawsuit in court. When this happens, it is often necessary for the Community owner to file a motion with the court asking the judge to issue an order to “compel” the other party to go to arbitration. Once again, the likely success the Community owner will have in “compelling arbitration” will in large part depend upon the enforceability of the arbitration provision in the contract. Assuming the provision is drafted properly and clearly, the trial court should grant the motion. However, it is important not to wait too long before seeking such an order. If the owner waits too long to file the motion, or, worse yet, participates in any significant way in the court case, then the judge may deem the owner’s contractual right to compel arbitration has been “waived” even if the parties had a fully enforceable arbitration provision agreement. So acting promptly to enforce one’s rights to arbitrate is essential!

Keep the Case in Arbitration!

The arbitration process is intended to serve as a comprehensive alternative means of resolving disputes. The parties go through the “arbitration process” which normally culminates in an arbitration hearing and an arbitration award. The arbitration award may then be converted into an actual court judgment so as to be enforceable. Up until the judgment is issued, however, most of the arbitration is controlled and directed by an arbitrator who is often times affiliated with an arbitration company, such as the American Arbitration Association.1

Often times, while in arbitration, a party will receive some unfavorable ruling from the arbitrator and, being dissatisfied, will attempt to “go back to court” to have the court judge overrule the arbitrator’s decision. Such “appeals” back to the trial court are almost always procedurally improper and should be fully resisted. Indeed, just recently in November, the U.S. Supreme Court “scolded” the Oklahoma Supreme Court for improperly assuming an arbitrator’s role in determining whether a noncompetition agreement was legally valid, holding that it was for the arbitrator, not the state supreme court, to decide such issues. (Nitro-Lift Techs. v. Howard (2012) 133 S.Ct. 500, 503- 504.)

The bottom line is that although arbitration often times takes some planning and enforcement, the benefit to the Community owner is that the arbitration process is usually cheaper and faster than litigation, saving the business both time and money while the dispute gets resolved.

1 Arbitration also means that your case is not decided by a jury. Community owners often times fair worse before juries, and an arbitration provision may deter suits as plaintiffs’ attorneys specializing in suing Community owners might see the case less desirable to litigate without a jury.

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Good News for the Restaurant Industry!

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October 16, 2012  |  Blog  |   Andrew Kienle

Restaurants continued to add jobs at a robust pace in March, according to NRA economists’ analysis of Bureau of Labor Statistics data. Eating and drinking places added 26,500 jobs in March on a seasonally adjusted basis. It was the seventh gain in the last eight months for a total of more than 163,000 jobs. Overall, restaurant job growth has outpaced the national economy. In the 12 months ending March 2011, eating- and drinking-place employment increased 1.8 percent, compared to the 1 percent gain in U.S. employment.

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Restaurants expected to add 425,000 jobs this summer

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October 16, 2012  |  Blog  |   Andrew Kienle

Posted by NRA Staff on June 7, 2011 3:13 PM

Restaurants are expected to add 425,000 jobs this summer, boosting the industry’s workforce 4.6 percent above March 2011 levels, the National Restaurant Association projects.

This is the industry’s strongest summer employment projection since 2007.

“The restaurant industry has outperformed the overall economy when it comes to job creation for the past year, proving its role as a key driver to economic recovery and growth in America,” said Hudson Riehle, senior vice president of the research and knowledge group for the Association. “Seasonal employment is an important indicator of industry performance, as well as a stimulus for local economies across the nation.”

Eating and drinking places added 401,600 jobs (a 4.4 percent increase) during the 2010 summer season, 391,300 jobs (4.2 percent increase) during the 2009 summer season, and 352,900 jobs (3.7 percent increase) during the 2008 summer season.

The restaurant industry is usually the nation’s second-largest creator of summer jobs, ranking behind the construction industry.

States projected to add the most eating-and-drinking-place jobs in the 2011 summer season: New York (39,700), California (35,100) and Massachusetts (27,100). The largest proportional increases: Maine (31.1 percent increase), Alaska (23 percent increase) and Delaware (20.6 percent increase).

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Restaurant job growth rises

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October 16, 2012  |  Blog  |   Andrew Kienle

Restaurants job growth in February was the strongest it’s been in five months, according to NRA economists’ analysis of Bureau of Labor Statistics data. Eating and drinking places added 12,600 jobs in February on a seasonally adjusted basis. That followed gains of 11,400 in December and 1,700 in January. Overall, restaurants jobs have increased 130,000 since the recovery began, but remain down 236,000 jobs from a pre-recession employment peak.

In addition, restaurant job growth has outpaced the national economy. In the 12 months ending February 2011, eating- and drinking-place employment increased 1.4 percent. That’s up from the 1 percent gain in total U.S. employment in the same period.

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Restaurants benefit from boost in summer tourism

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October 16, 2012  |  Blog  |   Andrew Kienle

Consumers are spending more discretionary dollars on tourism and dining out this summer despite the economy’s sluggish recovery, restaurant and hospitality industry experts say.

“Tourism is doing better,” said Hudson Riehle, senior vice president, research and knowledge, National Restaurant Association. “It definitely is stronger in all three categories: business, leisure and international visitors. The trends are improving so that is good for restaurant operators.”

According to the U.S. Travel Association, business travel in 2011 is expected to rise 2.6 percent, while leisure travel is tracking growth of 1.6 percent and international arrivals are projected to increase 5.2 percent.

“If you look at lodging, hotels are upping their revenue projections somewhat for this year and into next,” Riehle said.

A recent study by PhoCusWright, a travel/hospitality marketing research firm in Sherman, Conn., corroborated Riehle’s findings. The study indicated that U.S. leisure travel is on the upswing, with 32 percent of respondents saying they would travel more this year, versus 14 percent who said they wouldn’t, and 29 percent claiming they’d spend more on vacations.

Riehle said same-store sales at restaurants have been helped by the increase in tourism, pointing out that $1 of every $3 of restaurant sales is tourism-related.

Jot Condie, president and chief executive of the California Restaurant Association, said June was a good month for restaurateurs in his state who told him it was the best they’d had in 10 years.

“June seems to be the month our industry is sensing some optimism, particularly where there is a lot of tourism, like San Francisco, Los Angeles, even Sacramento,” he said.

According to Condie, visitors to California in 2010 spent $23 billion on food and beverage. “That’s a big number of food-and-beverage spends from international and out-of-state travel,” he said.

He added that one trend contributing to the increase in tourism is California’s reputation as a culinary destination.

“Where people used to say they wanted to see the Golden Gate Bridge or Yosemite, now they want to go to the French Laundry and tour some wineries,” he said. “This trend seems to be growing, thanks to the popular culture being built around restaurants, the TV Food Network and food magazines.”

New York City’s restaurants also are benefiting from increased tourism, said Andrew Rigie, executive vice president of the New York State Restaurant Association’s New York City chapter.

“Our restaurants draw customers from around the world,” he said. “The industry makes New York City a top tourist destination.”

But, he added, extreme heat on the East Coast has challenged operators, too.

“The heat is one of the things I’ve heard about from restaurateurs,” he said. “Some who are usually enthusiastic about having sidewalk cafes have seen a decrease in business on extra hot days.”

On those days, operators try to attract customers with cold drinks and food items, he said. “The good sign is diners continue to go out, eat and have a nice experience.”

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Survey: Restaurant operators optimistic on 2012 sales

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October 16, 2012  |  Blog  |   Andrew Kienle

(reprinted from Nation’s Restaurant News – December 16, 2011)

Restaurant industry same-store sales remained flat in November, mainly because guest traffic tapered off from prior months, but operators remained bullish on sales outlooks for the next six months, according to the latest NRN-MillerPulse survey.

The December survey found that industrywide same-store sales rose 2.5 percent in November, in line with the 2.5-percent increase in October. However, sales did slow slightly on a two-year basis, rising 5.3 percent in November versus a 6.3-percent increase in October.

MillerPulse, an operator survey exclusive to Nation’s Restaurant News, polled around 70 restaurant operators in December regarding November sales, profit trends, performance and outlooks. Respondents cover all regions of the country and represent the quick-service, casual-dining, fine-dining and fast-casual segments. Those surveyed in December represented restaurants that booked about 17 percent of industry sales.

Same-store sales for quick-service restaurants, which include both fast-food and fast-casual brands, increased 3.4 percent in November, compared with 3.6 percent in October, and sales for full-service restaurants, which include both fine-dining and casual-dining brands, remained consistent with a 1.6-percent increase in November, compared with a 1.4-percent uptick in the prior month.

The modest same-store sales numbers are a reflection of a dip in guest traffic, which increased just 0.1 percent during the Thanksgiving month, compared with a 1.4-percent increase in October. The biggest concern was a traffic decline in the full-service category, said Larry Miller, restaurant securities analyst at RBC Capital Markets in Atlanta and creator of the monthly MillerPulse surveys and research.

To read entire article, please go to Survey: Restaurant Owners Optimistic on 2012 Sales

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Restaurants to outpace national job growth, reach record sales in 2012

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October 16, 2012  |  Blog  |   Andrew Kienle

(reprinted from the National Restaurant Association – February 1, 2012)

Posted by Annika Stensson on February 1, 2012 12:11 PM

Despite sluggish recovery by the nation’s economy, the restaurant industry is projected to expand in 2012, according to the National Restaurant Association’s 2012 Restaurant Industry Forecast released today.

Total restaurant industry sales are expected to reach a record high of $632 billion in 2012 – a 3.5 percent increase over 2011. In addition, overall restaurant industry employment will reach 12.9 million in 2012, representing 10 percent of the total U.S. workforce.

“As our nation slowly recovers from the economic downturn, restaurants continue to be a vital part of American lifestyles and our nation’s economy,” said Dawn Sweeney, president and CEO of the National Restaurant Association.

“We expect the nation’s nearly one million restaurants to post sales of $632 billion this year. Combine that with the fact that restaurant job growth is expected to outpace the overall economy for the 13th straight year, and it’s clear that the restaurant industry is once again proving to be a significant economic stimulant and strong engine for job creation,” she added.

In 2012, the National Restaurant Association expects the restaurant industry to add jobs at a 2.3 percent rate, a full percentage point above the projected 1.3 percent gain in total U.S. employment. The industry is expected to gain back all of the jobs lost during the recession by early 2012, while the overall economy isn’t expected to be back at pre-recession employment levels until 2014.

While the industry is expected to grow in 2012, the top challenges cited by restaurateurs are food costs, building and maintaining sales volume, and the economy.

“Because about one-third of sales in a restaurant go to food and beverage purchases, food prices are a crucial component for operators,” said Hudson Riehle, senior vice president of the National Restaurant Association’s Research and Knowledge group.

“Last year, we saw wholesale food prices post their strongest annual increase in more than three decades. In 2012, we will see continued increases in the cost of some commodities, while price pressures will ease for others,” Riehle said.

However, opportunities are also present for operators to be successful by understanding and leveraging consumer trends to attract new guests and make current ones come back. The good news is, there is substantial pent-up demand for restaurant services, with 2 out of 5 consumers saying they are not using restaurants as often as they would like. With the right incentives, that demand can translate into sales.

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Restaurant Industry Sales Grow After 3 Years

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October 16, 2012  |  Blog  |   Andrew Kienle

After three tough years, some good news for restaurant owners was announced recently. According to the National Restaurant Association, “the restaurant industry is on track for its best year since the economic downturn. Sales and job creation are expected to increase, according to the Association’s 2011 Restaurant Industry Forecast” – Download the Forecast for free. Welcoming news indeed!

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Another Thought on Rent Control

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June 20, 2012  |  Blog  |   C. William Dahlin

Mobilehome park owners in California sometimes believe they are almost the only victims of the price fixing known as rent control. The specter of rent control has, however, also impacted other states in unique ways. For example, in the City of New York, rent control and “rent stabilization” have been in existence in various forms since World War II. Tens of thousands of apartments in New York City are subject to price fixing. A recent article in the Real Property Journal of the New York State Bar Association discusses how the “temporary” fix of rent control enacted during World War II has lasted seventy years. A link to the article discusses the vagaries of rent control and offers thoughts on potential future challenges to government imposed price fixing.

Hart, King & Coldren has incorporated some of the article’s thoughts into selected writ petitions and tort claims against municipalities. There have been no decisive wins or losses on these various theories in California based litigation. However, the very idea that an exigency that is alleged to support the need for rent control is seventy years old is, itself, compelling evidence that there is no exigency. Perhaps the biggest detriment to this argument succeeding in judicial proceedings is the convenient assumption by many in the judiciary that property rights are not “fundamental” and that prices can be regulated and controlled absent an “emergency.” I hope you find the article of interest.

Complete Article

Tebow’s Name Ignites War Between Nike and Reebok

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March 30, 2012  |  Blog  |   David Baker

According to Homer, Helen of Troy’s beauty was so great that it led to her abduction by Greek warrior Paris which then sparked a backlash from the other Greek states and the whole Trojan War thing. Now, thousands of years after the Greeks used the Trojan Horse ruse to sack Troy and recover Helen, Tim Tebow’s larger-than-life personality and name have sparked a similar war between the titans of professional posts apparel, Nike and Reebok.

For anyone who doesn’t follow the NFL or American professional football, Tim Tebow is the wannabe wunderkind who played quarterback for national-title winning Florida University before gaining even more notoriety playing the same position for the NFL’s Denver Broncos. Tebow is outspoken in crediting his creator (God, not his parents) for his (ahem) “talent” and he has had very brief, checkered playing time in the NFL marked by very erratic performances. Loved by some, hated by others, and fascinating to many, Tebow was traded from the Broncos to the New York Jets when veteran quarterback Peyton Manning unexpectedly found himself on the market and agreed to a multi-million dollar deal with Denver.

So, how did this lead to war between Nike and Reebok? Well, Reebok has been the official provider of team uniforms and sports apparel to the NFL for many years, but the NFL recently negotiated a new contract with rival Nike that was set to go into effect April 1, thereby bumping Reebok from very lucrative sales. Not to be outdone, Reebok took advantage of the timing and released Jets jerseys emblazoned with Tebow’s name after the trade was announced and before the Nike-NFL contract went into effect.

Nike was not amused and so, last week, Nike, Inc. filed a lawsuit against Reebok International Ltd. (a subsidiary of the Adidas Group) alleging that Reebok used Tebow’s name on Jets apparel without express permission from Nike or Tebow’s consent. Of course, the lawsuit seeks unspecified monetary damages and states that demand for Tebow Jets gear was abnormally high during the short sales window before Nike took over. It also alleges that the unauthorized Reebok jerseys will compromise the sale of authorized Nike jerseys in the future.

While it’s doubtful any cities will be razed or that Tebow will carried back to Denver on a chariot, it should be an interesting case to watch unfold.

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The Death of Redevelopment Agencies

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March 12, 2012  |  Blog  |   C. William Dahlin

As almost any tax paying person in California is well aware, the state has been embroiled in budgetary woes for many years.  The current Governor, Jerry Brown, sought to find a new revenue source to address the ongoing deficits.  Governor Brown turned to the Redevelopment Agencies that exist within almost every City and County within the State of California.  A proposal was made whereby some of the tax funds received by the Redevelopment Agencies would be contributed to the State for use in paying its general obligations.  The Redevelopment Agencies reacted with a universal “no way” and a political and legal battle was joined.

The Governor, in conjunction with the overwhelming Democratic majority within the State Legislature, adopted two (2) pieces of legislation.  The first piece of legislation literally disbanded every Redevelopment Agency within the State.  The second piece of legislation offered what the Brown Administration believed was an olive branch.  Specifically, it offered the Redevelopment Agencies the ability to continue to exist and pursue various projects provided they would share a portion of their revenue with the State. 

The Redevelopment Agencies again reacted with a uniform “no way” and filed suit.  On December 29, 2011 the California Supreme Court issued its opinion in the matter entitled California Redevelopment Association  v. Matosantos, the Director of the State’s Finance Department.  The litigation filed by the Redevelopment Agencies asserted that the disbanding of the Redevelopment Agencies was illegal and that the demand for payment of a portion of their proceeds was similarly unconstitutional. 

In a closely watched opinion, the California Supreme Court, in a six to one decision, reached two (2) conclusions.  First, the California Supreme Court ruled that the legislation disbanding all Redevelopment Agencies was valid and constitutional.  The majority’s reasoning was simple:  the legislature had the authority and exercised that authority to create Redevelopment Agencies and gave them the authority to undertake their “redevelopment” activities.  The Court reasoned that the very ability to create such agencies necessarily included the ability to simply reverse course and disband such agencies.  In simple terms, what the legislature has provided, the legislature can take away.

Thus, the California Supreme Court concluded that the legislature had every legal authority needed to simply disband Redevelopment Agencies and compel such agencies to go about the process of orderly winding up their business.  That ruling became effective February 1, 2012.  In the months following, we will observe how the various redevelopment projects are moved forward to liquidation and completion.  The legal and economic ramifications of the disbanding of the Redevelopment Agencies is still unknown.  The impact upon how cities and counties react to future development plans and requests, with the disbanding of such agencies, will be an issue to be closely watched in the coming months and years.  This author would certainly submit that many municipalities that utilized Redevelopment Agencies in an aggressive fashion to control how and when certain parcels were developed will now need to make decisions based upon what the private sector can and will support.

The California Supreme Court also addressed the issue raised by the Redevelopment Agencies that the companion legislation demanding that the Agencies “share” a portion of their proceeds, in order to exist, was unconstitutional.  Ironically, the California Supreme Court ruled in favor of the Agencies and concluded that the demands of the legislature to extract money from the Agencies were invalid.  Thus, while the Redevelopment Agencies prevailed as to the claim that the legislature could not take a portion of their funds, which the Agencies asserted were theirs in perpetuity, they, in reality, won a battle but lost the war. 

This office represents many developers, builders and property owners throughout the state.  We will certainly keep our clients advised as to the “real world” ramifications of the disbanding of local Redevelopment Agencies.

New ADA Rules: Ready or not, here they come!

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February 24, 2012  |  Blog  |   Chris Elliott

The New ADA Rules Become Mandatory.

The new Americans with Disabilities Act (or “ADA”) rules become mandatory March 15, 2012. This is the first revision of the ADA rules in over 20 years. The new ADA rules adopt the 2010 ADA Standards for Accessible Design which have been retooled to be more “user-friendly” in order to clarify numerous ADA issues which have arisen over the last two decades. Many were confused last year when these same rules went into effect on a voluntary basis on March 15, 2011. Effective this March 15, they become mandatory.

Expect New Lawsuits in California.

Under Federal ADA laws, an ADA plaintiff generally is entitled to injunctive relief requiring the correction of an accessibility issue. If the accessibility issue is corrected, any Federal claims filed in court will be dismissed. However, under equivalent California laws, an ADA plaintiff can recover penalties and attorneys’ fees even if the accessibility issues are corrected and the Federal claims have been dismissed. This has complicated ADA compliance and enforcement in California.

For example, in 2009, the California Supreme Court ruled in Munson v. Del Taco 46 Cal. 4th 661 that there is no distinction between a $1,000 “non-intentional” violation and a $4,000 “intentional” violation. As a result, many of our clients have seen a significant increase in ADA lawsuits because an ADA plaintiff in California is now entitled to a $4,000 penalty for any violation. Coupled with the new ADA rules, there is the potential for a slew of new lawsuits by “full-time” ADA plaintiff’s who essentially earn a living from this process.

What Can You Do?

The obvious answer is to comply with the ADA Rules. One often overlooked option is to have your property inspected by a “certified access specialist” pursuant to California Civil Code sections 55.51 et.seq. Once your property has been “CAS inspected”, you will have certain rights, including the right to an initial stay of any ADA litigation and an early evaluation or settlement conference. While you may not be able to completely prevent an ADA lawsuit, this process may deter ADA plaintiffs or may allow you to settle the action early with minimal attorneys’ fees. Of course, should you have a more complicated situation, you should always consult legal counsel well versed in this area of the law.

Avoiding the End of Times
Protecting Your Intellectual Property Before a Key Employee Leaves

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January 17, 2012  |  Blog  |   David Baker

Intellectual property (or “IP”) is the lifeblood of most businesses and the departure of a key employee, on good terms or bad, can stress even the best IP protection protocols. Key employees often have unlimited access to confidential company information and trade secrets, including client and prospect lists, parts and pricing lists, business protocols and procedures, and other proprietary information.  Ideally, preparation for the departure of key employees should begin long before they leave.

1. Listen! When an employee expresses dissatisfaction with his job, listen carefully.  Employees who are unhappy at work often will talk to co-workers and sometimes even upper management about their plans for the future.  Often times, these comments take the form of seemingly simple griping but other times there are nuggets of truth which reveal actual plans which may include the possibility of opening a competing business. 

2. Know your IP.  The first step in protecting IP is to know IP exists and what is most important to your business.  Any organization that does not know what information is most important to it cannot construct or implement proper safeguards. 

3. Implement reasonable security measures. Some of the most obvious preventive measures can be the most effective.  Locks on doors, encrypted passwords on computers and limited handling of confidential hardcopies are easy, cost-effective steps to take to protect the integrity of IP.  A good IT professional can establish and enforce protocols that will monitor the use of information, routinely store and back up information, and limit any destructive intent by a departing employee.

4. Don’t be fooled by ethical obligations.  Most industries follow ethical standards to protect sensitive client information such as credit card numbers, the identity of minors, etc.  However, those standards offer no protection to the unwary business and sometimes as even the most trusted employees succumb to temptations.

5. Know exactly what information your employees can access.  Even at the highest management level, someone must know what everyone in the organization can access through computers and other data collection systems.  This simple information allows management to control that access and evaluate attacks against its integrity.

6. Document as much as possible.  It is relatively unusual for a disgruntled employee to destroy or take vast quantities of sensitive data or information. However, there are almost always behaviors that begin to appear when an employee is expecting to leave. These signs should be documented and reported to management so that they can take appropriate action quickly.

7. At termination, lock down all access.  While obvious, it is important to change passwords and keys to locks, as well as seek the return of cell phones, laptops, pass cards, and parking permits, etc.  Cancellation of all memberships in industry organizations should be done as soon as possible. Soon-to-be former employees should not be allowed access to computer systems or hard copies of files.

8. Damage control.  Following termination, it is important to contact clients to inform them about the transition and to make it as seamless and painless as possible.  Revisions to the company website, updates to profiles such as LinkedIn or Facebook, and press releases to local and industry publications should also be considered. 

There is no magic wand to wave to prevent a key employee from abusing their access to IP.  However, a business with proper checks and balances can minimize any detrimental effect from the departure of a key employee.  The end of an employment relationship does not have to be the “end of times.”

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Landlords – you may have to review your “no smoking” policy and either send out notices or amend rules or rental agreements

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October 12, 2011  |  Blog  |   Robert Williamson

SB 332 (Padilla): (signed 09/06/2011) – Codifies the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any dwelling unit. Requires every lease entered into on or after January 1, 2012 for residential real property where the landlord has prohibited smoking to include a provision specifying the areas where smoking is prohibited. For leases entered into prior to January 1, 2012, a prohibition against smoking on any portion of the property in which smoking was previously permitted shall constitute a change of terms of tenancy requiring adequate notice, as specified. This bill states that a landlord who exercises the above authority shall be subject to state and local notice requirements governing changes to the terms of rental agreements that are in existence at the time the policy is adopted.

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Useful Insurance Tip

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September 16, 2011  |  Blog  |   C. William Dahlin

Mobilehome park owners naturally want to have their parks fully insured when outside parties are performing services. Many parks also require residents to name the park as an additional named insured in the individual tenant’s homeowner insurance policy.

However, many park owners are under the mistaken belief that simply being provided a certificate of insurance by a contractor or a resident is sufficient. Beware! A certificate of insurance is NOT identical with being provided documentation that the park is, in fact, an additional named insured. Frequently a certificate of insurance is nothing more than confirmation that the contractor or resident has insurance. When asking for proof of insurance, please review the documentation provided carefully to be sure it actually sets forth that the park is an additional named insured.

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Mobilehome Rent Review Commission Approves a Large Increase – and the Residents Don’t Appeal

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August 26, 2011  |  Blog  |   Mark Alpert

It is hard to say what is more surprising, that the Yucaipa Rent Review Commission approved a large rent increase for Yucaipa Village – a total increase of about $93.00 per month – or that the residents did not appeal.    The residents of Yucaipa Village were represented by YMRA (the Yucaipa Village Mobilehome Residents Association), which has been led for years by Len Tyler.  Len Tyler actually lives in Yucaipa Village, which makes it even more surprising YMRA did not appeal.   Then again, Mr. Tyler was keenly aware of the results of prior appeals he has pursued on behalf of other parks.  The appeals were denied or, if approved, reversed by the Courts, ultimately resulting in a larger rent increase to compensate the park owners for the cost of the appeal.

YMRA once again hired an attorney and accounting expert to represent the residents at the hearing, no doubt at substantial expense.  It was to no avail.  In fact, we convinced the Rent Review Commission to make rulings excluding from any consideration much of their expert’s opinions, as well as Mr. Tyler’s “expert” testimony.   Some of the residents of Yucaipa may be wondering whether the contribution to YMRA is serving them well.   In difficult economic times, it may be that the citizens of Yucaipa will start to wonder whether rent control serves them well.

The increase of $93.00 for 82 spaces translates to an increased annual net operating income for the Park of about $91,500, which equates to over 1.3 million added park value,  assuming a 7 percent capitalization.  Not a bad cost-benefit decision particularly since the park owner was allowed to recover the costs of the application.  Yucaipa Village was represented throughout the hearing process by Mark Alpert of Hart, King & Coldren.

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Follow our new group “California Mobile Home Park Owner Industry Members” on LinkedIn!

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August 10, 2011  |  Blog  |   Staff

Hart, King & Coldren is proud to announce they have created a new group on LinkedIn called “California Mobile Home Park Industry Members.” Our group is committed to furthering beneficial discussions for California mobile home park owners, managers and industry members with relevant information regarding legal issues, new laws, rent control, residency documents, subdivisions, failure to maintain and other issues facing the industry.

If you are a current LinkedIn member, please join us and discuss hot topics with fellow industry members.

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Mobilehome park owners in Chula Vista can declare victory!

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July 28, 2011  |  Blog  |   C. William Dahlin

Thought you may find this article interesting. You should be proud of what you have accomplished. There is a referendum pending in Oceanside that pertains to its new full vacancy decontrol ordinance.

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Governor Signs CalChamber Supported Land Use Bill

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July 26, 2011  |  Blog  |   Robert Coldren

(July 20, 2011) Governor Jerry Brown recently signed a California Chamber of Commerce-supported bill that extends the life of active tentative subdivision maps and parcel maps for an additional two years.

AB 208 (Fuentes; D-Sylmar) facilitates the smooth recovery of the housing market by extending the life of active tentative subdivision maps and parcel maps for a period of two years. As an urgency measure, the bill took effect immediately upon being signed.

CalChamber believes that AB 208 will help California’s economy as well as local economies by legislatively extending the expiration date of existing and unexpired tentative tract and parcel maps, including approximately 2,500 tentative maps, containing nearly 330,000 housing units. These maps represent hundreds of construction projects, thousands of construction jobs and significant revenue to the state.
This measure is necessary so that when the economy recovers, the housing sector and construction industry will be poised to recover as well, providing new affordable housing for California’s working families.

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You must act by August 2nd
New Mobilehome Park Regulation

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July 12, 2011  |  Blog  |   Robert Coldren

Don’t shoot the messenger!  The Feds are at it again with new requirements for our industry. An operator of a master meter gas or small propane system, such as those used at mobilehome parks, must develop and implement a written plan that addresses the integrity of gas and propane pipeline systems by August 2, 2011. Inspectors from the California Public Utilities Commission (CPUC) will review begin to review said plans during routine inspections of your gas pipeline system.

The plan must include several elements:
A. Knowledge of System Infrastructure
B. Identify Threats to Pipeline
C. Evaluate and Prioritize Risks to Pipelines
D. Identify and Implement Corrective Actions to Minimize Risks
E. Measure Performance, Monitor Results and Evaluate Effectiveness of Plan
F. Periodic Evaluation and Improvement
G. Report of Results

Park owners may want to contact your utility service provider for assistance in developing this written plan. Park owners can also call the CPUC at 213-576-7020 for more information how this program impacts your park or feel free to give Rob Coldren of HKC a call at 714-432-8700.

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Hundreds of Copyright Cases May be Rendered Moot by Ruling

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June 23, 2011  |  Blog  |   Staff

In a surprise ruling, earlier this week, U.S. District Court Judge Roger L. Hunt dismissed Righthaven LLC from a District of Nevada copyright infringement case it had filed against political website Democratic Underground LLC on the grounds that the company never had standing to sue. Righthaven had sued Democratic Underground and hundreds of other defendants in separate pending lawsuits for infringing on copyrights to articles published in the Las Vegas Review-Journal and another Nevada newspaper. However, Righthaven failed to disclose that it is co-owned by Stephens Media LLC, the owner of the newspapers, and that its rights were limited to the right to sue for copyright infringement.

Citing 9th U.S. Circuit Court of Appeals precedent set forth in Silvers v. Sony Pictures Entertainment, Judge Hunt ruled that the agreement between Righthaven and Stephens Media and its non-disclosure rendered the Righthaven claims “disingenuous, if not outright deceitful.” The Democratic Underground counterclaim based on the fair use doctrine survived the ruling, but, if the ruling stands, Righthaven’s 200+ other cases now face closer scrutiny and possible dismissal as well.

The ruling could also have serious consequences for other companies which are often formed simply for the purposes of pursuing copyright infringement claims.

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Chula Vista Mobilehome Park Receives Welcomed News

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June 23, 2011  |  Blog  |   C. William Dahlin

The owners of Brentwood Mobilehome Park, in Chula Vista, received welcomed news this week which they hope will lead to an additional $51.00 per space per month rent increase. The Superior Court granted the writ petition of the park owner challenging the irrational decision of the City’s rent review commission. Full vacancy decontrol, worth millions, may also be on the way due to a new perspective by the City council.

The writ petition was filed after the City granted the park less than half of the monthly rent increase requsted for a multi-million renovation of the park. The owners requested a $96.00 per month per space rent increase, to be phased in over three years. The City allowed only $45.00, phased in over three years. The court reviewed the entire administrative record and granted the writ petition because there was no rational reason, or evidence, to support the City’s conclusion. The matter will be referred back to the rent review commission for a rehearing with instructions to actually follow the law and evidence this time. The City’s staff had recommended the requested rent increase be granted, finding that the capital expenses of the park owner were warranted, reasonable, and completely substantiated by the documentation. If you have new capital investment questions, please call to ask how to best position your outlay for reimbursement.

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