2019 New Laws

 

2019 New Laws 10/5/18, 4:03 PM

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2019 New Laws

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Topic

Description

Building Permits: Expiration period extended

A building permit remains valid despite changes in the building code as long as work is commenced within 12 months after issuance.

A provision of the California Building Standards Law specifies that a local ordinance adding or modifying building standards for residential occupancies, published in the California Building Standards Code, applies only to an application for a building permit submitted after the effective date of the ordinance and to plans and specifications for, and the construction performed under, that permit, unless, among other reasons, the permit is subsequently deemed expired because the building or work authorized by the permit is not commenced within 180 days from the date of the permit, or the permittee has suspended or abandoned the work authorized by the permit at any time after the work is commenced.

This new law instead provides that a permit would remain valid for purposes of the California Building Standards Law if the work on the site authorized by that permit is commenced within 12 months after its issuance, unless the permittee has abandoned the work authorized by the permit. The law also authorizes a permittee to request and the building official to grant, in writing, one or more extensions of time for periods of not more than 180 days

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per extension. It requires that the permittee request the extension in writing and demonstrate justifiable cause for the extension

Assembly Bill 2913 is codified as Health and Safety Code §§ 18938.5 and 18938.6. Effective January 1, 2019.

 

Building Permits: Issuance when original permit does not exist

Requires the adoption of a building standard to authorize a local enforcement official to determine the date of construction of a residential unit, apply the building standards in effect at that date of construction, and issue a retroactive building permit when a record of the issuance of a building permit for the construction of an existing residential unit does not exist.

Senate Bill 1226 is codified as Health and Safety Code §17958.12. Effective January 1, 2019.

Civil Liability:

Liability of real estate agents for sexual harassment expanded

Even if a business, service, or professional “relationship” does not presently exist, a real estate agent (and “investor” among other persons) may be liable for sexual harassment when he or she holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. This law eliminates the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship.

Existing law establishes liability for sexual harassment when the plaintiff proves specified elements, including, among other things, that there is a business, service, or professional relationship between the plaintiff and defendant and there is an inability by the plaintiff to easily terminate the

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relationship. Existing law states that a relationship may exist between a plaintiff and certain persons, including a real estate agent, and real estate appraiser.

This new law allows, as an element in a cause of action for sexual harassment, that the plaintiff may prove, among other things, that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party – as opposed to presently having an established professional relationship. Additionally, this law eliminates the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship. “Investor” is now included among those listed persons who may be liable to a plaintiff for sexual harassment.

Senate Bill 224 is codified as Civil Code § 51.9, and Government Code §§ 12930 and 12948. Effective January 1, 2019.

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Common Interest Developments: Financial review on a monthly basis and other anti-fraud precautions

This law requires HOA boards to review on a monthly basis the association’s accounts and reserves; requiresfidelity bond coverage for directors, officers, and employees to be maintained equal to three months’ reserves; and requires a manager to obtain written board approval before they may transfer association funds of $10,000 or more.

Existing law requires the HOA board to review financial documents and statements related to the HOA's accounts on at least a quarterly basis, unless the HOA's governing documents require more frequent review. This law changes the frequency of review required by law from at least once a quarter to once a month, and adds a requirement to review the check register, monthly general ledger, and delinquent assessment receivable reports. But it also provides some

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flexibility in this monthly review requirement by allowing an individual board member—for example, the treasurer—to review these financial documents so long as the board ratifies that review at the next board meeting.

This law requires the HOA to maintain fidelity bond coverage for its directors, officers, and employees in an amount equal to or more than the combined amount of the reserves of the HOA and total assessments for three months, unless the governing documents require greater coverage amounts.

This law prohibits a managing agent from transferring from a bank trust funds greater than ten thousand dollars ($10,000) or 5 percent of an association’s total combined reserve and operating account deposits, whichever is lower, without prior written approval from the board of the association.

Assembly Bill 2912 codified as Civil Code §§ 5501, 5502, 5380, 5500 and 5806. Effective January 1, 2019.

 

Consumer Protection: Data Privacy

Effective January 1, 2020

The California Consumer Privacy Act (“CCPA”) grants to consumers an array of rights regarding their personal information including the right to request that a business delete their personal information and prevent the sale of it. For-profit businesses that directly or indirectly collect consumers’ personal information must comply if they meet any of the following three criteria: 1. The business has $25 million or more in annual gross revenues 2. The business derives half or more of its revenues from the sale of consumer data or 3. The business annually buys, receives, sells or shares for its commercial purposes the personal information of 50,000 or more consumers. However, the CCPA prevents most

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private lawsuits, reserving enforcement action to the California Attorney General. This law becomes effective January 1, 2020.

The California Consumer Privacy Act (“CCPA”) grants consumers an array of rights regarding their personal information including:

Right of Access: a consumer has the right to request that a business disclose the categories and specific pieces of personal information the business has collected.

Right of Deletion: a consumer has the right to request that the business delete any personal information that was collected. The consumer would have the right to prevent the sale of personal information as well.

Right to know to whom the personal information was sold:a business must release information about how the consumer’s personal information was sold and to whom it was disclosed.

The CCPA applies to for profit businesses that directly or indirectly collect consumers’ personal information and meet the following thresholds:

Has annual gross revenues in excess of $25,000,000. Alone or in combination, annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of 50,000 or more consumers, households, or devices.

Derives 50 percent or more of its annual revenues from selling consumers’ personal information.

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The “collection of personal Information pertaining to a consumer” is broadly defined. “Consumer” includes more than just individual customers. It also includes employees, independent contractors and vendors. “Personal information” applies to all data capable of being associated with an individual or household, not only electronic information.“Collecting” means obtaining, receiving, or accessing personal information by any means.

The CCPA provides for its enforcement by the Attorney General. However, it also creates a private right of action in connection with certain unauthorized access and exfiltration, theft, or disclosure of a consumer’s nonencrypted or nonredacted personal information, as defined. The law prescribes a method for distribution of proceeds of Attorney General actions.

A waiver of a consumer’s rights under the CCPA’s provisions is void.

Minor changes to the CCPA were introduced in a clean-up bill, Senate Bill 1121, only three months after the original bill was signed.

Assembly Bill 375 and Senate Bill 1121 are codified as Civil Code §§ 1798.100 et seq. The effective date is January 1, 2020. For provisions of this law that supersede local laws, the effective date is January 1, 2019.

 

Deeds: Revocable Transfer on Death Deed – FAQ Not Required to be Recorded

The Revocable Transfer on Death Deed no longer requires the statutory FAQ to be recorded as part of the deed. This law is effective retroactively to January 1, 2016.

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Effective Retroactively to January 1, 2016

Existing law establishes a statutory form of revocable transfer on death deed that requires along with the deed recordation of subsequent pages of that form that includes the statutory FAQs.

This new law provides that recordation of the pages of the statutory form that include the statutory FAQs about the use of the form is not required, and a failure to record those pages does not affect the effectiveness of a revocable transfer on death deed. These provisions are applicable to revocable transfer on death deeds executed before, on, or after the effective date of the original passage of the law.

AB 1739 is codified as an amendment to Probate Code § 5626. This law is effective retroactively to January 1, 2016.

 

Employment: Discrimination and harassment

Prohibits an employer from requiring the execution of a release or non-disparagement agreement in exchange for any condition of employment. Broadens the definition of harassment to include any type of harassment, not merely sexual, for which an employer may be responsible when committed by a nonemployee. Explains in detail the legal standards constituting sexual harassment by citing and affirming various court cases.

With certain exceptions, this law prohibits an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual

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harassment. This law provides that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.

Under existing law, FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

This law instead makes the above provision apply with respect to any type of harassment – sexual or otherwise -- prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.

This law also authorizes an employer, at its option, to provide bystander intervention training to their employees that includes, among other things, information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors

This law explains in detail the legal standards constituting sexual harassment by citing and affirming various court cases:

(a) The Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace

 

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harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” (Id. at 26).

(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine.”

(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

 

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(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.”

Senate Bill 1300 codified as Government Code §§ 12940, 12965, 12923, 12950.2, and 12964.5. Effective January 1, 2019.

 

Employment: Inquiry of Salary Expectation OK

Employers may inquire into an applicant’s salary expectation for the position being applied for. Employers may make compensation decisions based upon an employee’s current salary as long as any wage differential resulting from that compensation decision is justified by specified factors including seniority or merit.

Existing law prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant. Moreover, existing law requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant applying for employment.

This new law clarifies that an employer is not prohibited from asking about an applicant for employment’s salary expectation for the position being applied for.

Existing law prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working

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