Champir v. Fairbanks Ranch Assn. CA4/1 ( 2021 )

Filed 6/22/21 Champir v. Fairbanks Ranch Assn. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHAMPIR, LLC, et al., D077384
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2018-
00028289-CU-NP-NC)
FAIRBANKS RANCH ASSOCIATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Gordon & Rees Scully Mansukhani, Thomas J. Stoddard and Casey
Shaw for Defendant and Appellant.
Nicholas & Tomasevic, Craig M. Nicholas and Ethan T. Litney for
Plaintiffs and Respondents.
INTRODUCTION
Champir, LLC (Champir), Daniel Javaheri, and Shiva Dehghani
(collectively, Plaintiffs) sued the Fairbanks Ranch Association (the
Association) to enforce the recorded covenants, conditions, and restrictions
(CC&Rs) of their planned development community. Upon resolution of the
litigation, both parties sought an award of attorney fees and costs as the
“prevailing party” under Civil Code section 5975, subdivision (c).1 The court
determined Plaintiffs were the prevailing party and entered judgment for
Plaintiffs with an award of $112,340 in attorney fees, plus costs of suit. The
Association appeals, asserting the court should have determined that it was
the prevailing party in the litigation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Plaintiffs’ Lawsuit
Champir owns a home in Fairbanks Ranch, a planned development
community in Rancho Santa Fe, California, where Javaheri and his wife,
Dehghani, reside. Javaheri is the manager and a member of Champir. The
Association is a non-profit homeowners’ association that governs and
oversees the common areas of Fairbanks Ranch pursuant to recorded CC&Rs.
Champir is a member of the Association with voting rights under the CC&Rs.
In June 2018, Plaintiffs sued the Association over a dispute arising
from the Association’s plan to install traffic signals at the entrance gates of
Fairbanks Ranch, one of which would be directly outside Plaintiffs’ home.
Plaintiffs alleged that in May 2008 the Association obtained majority
approval from its voting members to spend a little over $5.3 million for
improvements to the common areas, including installation of traffic signals at
two entrance gates to Fairbanks Ranch, Gates 1 and 6 (Gates Project). The
1 All further undesignated statutory references are to the Civil Code,
unless specified otherwise.
2
Gates Project was to be funded with money received from the Association’s
settlement of an unrelated lawsuit in 2000, totaling $3.2 million, and a
special assessment against the properties in Fairbanks Ranch for the
balance. In June 2017, the Association moved $390,470 of the funds
approved for the Gates Project into another fund called the San Dieguito
Road Safety Fund. The Association believed that amount represented funds
from the 2000 settlement that may have been improperly designated for
“ ‘purposes outside the scope of the settlement fund.’ ”
In October 2017, the Association informed its members that it had
obtained approval from the County Board of Supervisors for installation of
traffic signals at Gates 2 and 6, rather than Gates 1 and 6, as originally
approved by the members. Plaintiffs’ home is at the intersection of Gate 2,
“directly next to the proposed traffic signal.” Plaintiffs claimed that this was
the first time they learned of the Association’s intention to install a traffic
signal at Gate 2. In a written notice, the Association told members that
“ ‘[t]he Board worked through the administrative process quietly to avoid the
political hurdles [their] community encountered in past attempts to get speed
control on San Dieguito Road. That is the reason [homeowner members] may
not have been aware of this effort until now.’ ” A month later, the Association
informed its members that it was in the process of collecting bids and the
traffic signals would be completed within six months.
Plaintiffs alleged the Association breached the CC&Rs and exceeded its
authority in several ways. First, the Association failed to request a vote and
obtain approval from its members before entering into a contract to install
the traffic signals at Gates 2 and 6. Such a vote, according to Plaintiffs, was
required by the CC&Rs for any capital expenditure that exceeded five percent
of the Association’s annual budget for the year allocated, or $200,000 for the
3
relevant time period. Here, the contracted price for the project was estimated
to cost $430,000. Second, the Association improperly proposed to pay for the
traffic signals at Gates 2 and 6 with money previously approved by members
in 2008 for the Gates Project involving Gate 1, without a new vote
authorizing a different use of previously allocated funds. Third, the
Association planned to transfer operation and maintenance of the traffic
signals after construction to the County of San Diego, which Plaintiffs alleged
would be an improper transfer of Association funds to a third party, without
a prior vote or majority approval.
Plaintiffs asserted five causes of action, including claims for breach of
governing documents, trespass, nuisance, declaratory relief, and injunctive
relief. Plaintiffs claimed the proposed traffic light at Gate 2 would encroach
on their property and cause a nuisance as a result of “increased noise, traffic,
pollution, and light.” In addition to monetary damages, Plaintiffs sought to
enjoin the Association from construction of the traffic lights until a judicial
determination of the rights and responsibilities of the parties.
II.
The TRO and Preliminary Injunction
On June 14, 2018, the trial court granted Plaintiffs’ ex parte
application for a temporary restraining order (TRO) and enjoined the
Association from construction of a traffic signal at Gate 2, pending a hearing
on Plaintiffs’ motion for a preliminary injunction.
The Association filed a request to modify the TRO to enjoin it from
construction of “any part of the Gate 2 traffic signal on Plaintiff[s’] property”
only. It presented evidence of a professional land survey to show construction
of the traffic signal would not encroach on Plaintiffs’ property. On June 21,
2018, the trial court modified the TRO to allow the project to proceed on “non-
4
plaintiff land” but enjoined the Association from construction of any part of
the traffic signal on Plaintiffs’ property.
On September 7, 2018, Plaintiffs filed a motion for a preliminary
injunction against the Association, seeking to enjoin it from construction of
the traffic signal at Gate 2 and further expenditure of funds for the traffic
signal at Gate 2. On October 5, the court granted Plaintiffs’ motion in part
and issued a preliminary injunction enjoining the Association from
proceeding with construction of the traffic signal at Gate 2 during the
pendency of the lawsuit. The court specifically found that “Plaintiffs have
established a reasonable probability of success on the merits of their claim for
breach of the Association’s governing documents and that Plaintiffs will
suffer irreparable injury if the injunction is not issued.”
On November 20, 2018, the Association requested the court dissolve the
preliminary injunction due to a “material change in the facts.” After the
preliminary injunction was issued, the Association had requested a vote and
obtained written consent from a majority of its members to proceed with
construction of the traffic signal at Gate 2, even if expenditures exceeded 5
percent of its budgeted expenses for the year. The Association argued it
would, therefore, be acting within its authority under the CC&Rs to install
the traffic signal at Gate 2. On December 14, the court ordered the
preliminary injunction dissolved, finding a material change in facts based on
the Association’s evidence showing that it “recently obtained the written
consent of a majority of the Association’s members to proceed with the
installation of a traffic signal at Gate 2.” Accordingly, the court concluded
“the evidence no longer support[ed] restraining the Association” from
constructing the traffic signal at Gate 2.
5
III.
Prevailing Party Fee Award
After the preliminary injunction was dissolved, Plaintiffs voluntarily
dismissed their causes of action for trespass and nuisance on May 1, 2019
and the remaining causes of action on September 17, 2019.2 Plaintiffs and
the Association then filed respective motions for attorney fees, each claiming
to be the prevailing party under section 5975, subdivision (c). The
Association also requested attorney fees pursuant to the CC&Rs, which
provided that the Association would be entitled to reimbursement of its legal
expenses if a member sued it and the Association was “ ‘successful or
sustained in its position in such suit.’ ”
On November 5, 2019, after a hearing, the trial court determined
Plaintiffs, and not the Association, were the prevailing party. The court
awarded Plaintiffs their attorney fees in the amount of $112,340 and denied
the Association’s motion for attorney fees. On December 6, the court entered
judgment for Plaintiffs. The Association appeals, asserting the trial court
should have found that it was the prevailing party.
2 Plaintiffs had previously moved on May 14, 2019 for an order
dismissing the entire action “for mootness” and a determination that they
were the “prevailing party” entitled to attorney fees. The court denied
Plaintiffs’ motion because it was not persuaded the statute cited by Plaintiffs
authorized dismissal and stated Plaintiffs may seek dismissal of their
remaining claims under Code of Civil Procedure section 581, subdivision (b).
The court also denied Plaintiffs’ request for a determination of prevailing
party as premature because judgment had not been entered.
6
DISCUSSION
I.
“Prevailing Party” Under Section 5975
The Davis-Stirling Common Interest Development Act (Davis-Stirling
Act or the Act) governs an action to enforce the recorded CC&Rs of a common
interest development. (§§ 4000−6150 [formerly sections 1350−1376].) Section
5975 provides that CC&Rs may be enforced as equitable servitudes, unless
unreasonable, and “[i]n an action to enforce the governing documents [of a
common interest development], the prevailing party shall be awarded
reasonable attorney[ ] fees and costs.” (§ 5975, subds. (a), (c).) The prevailing
party is entitled to attorney fees “ ‘as a matter of right’ ” and the trial court is
“ ‘obligated to award attorney fees[ ] whenever the statutory conditions have
been satisfied.’ ” (Salehi v. Surfside III Condominium Owners Assn. (2011)
200 Cal.App.4th 1146, 1152 (Salehi) [construing former section 1354],
quoting Hsu v. Abarra (1995) 9 Cal.4th 863, 872 (Hsu).)
The Act does not define “prevailing party.” However, it is well
established that “[t]he analysis of who is a prevailing party under the fee-
shifting provisions of the Act focuses on who prevailed ‘on a practical level’ by
achieving its main litigation objectives[.]” (Rancho Mirage Country Club
Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260 (Rancho
Mirage), citing Heather Farms Homeowners Assn. v. Robinson (1994) 21
Cal.App.4th 1568, 1574 (Heather Farms); Villa De Las Palmas Homeowners
Assn. v. Terifaj (2004) 33 Cal.4th 73, 94 (Villa De Las Palmas) [affirming trial
court’s determination that an association was the prevailing party because
“[o]n a ‘practical level’ [citation], [it] ‘achieved its main litigation objective’ ”];
Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761,
773 (Almanor) [“[T]he test for prevailing party is a pragmatic one, namely
7
whether a party prevailed on a practical level by achieving its main litigation
objectives.”].)
II.
Standard of Review
On appeal, the Association’s sole contention is that the trial court
“incorrectly concluded that the [Plaintiffs] were the prevailing parties in this
action, and that [the Association] was not the prevailing party.”3 It does not
challenge the reasonableness of the fee amount.
We review the trial court’s determination of the prevailing party under
the Davis-Stirling Act for abuse of discretion. (Villa De Las Palmas, supra,
33 Cal.4th at p. 94; Rancho Mirage, supra, 2 Cal.App.5th at p. 260; Almanor,
supra, 246 Cal.App.4th at p. 774; Heather Farms, supra, 21 Cal.App.4th at p.
1574.) “ ‘ “ ‘The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.’ ” ’ ” (Rancho Mirage, supra,
at pp. 260−261.)
3 The Association raises, for the first time in its reply brief, that the trial
court abused its discretion by granting Plaintiffs’ motion for preliminary
injunction. “Normally, a contention may not be raised for the first time in a
reply brief.” (People v. Peevy (1998) 17 Cal.4th 1184, 1206; accord People v.
Silveria and Travis (2020) 10 Cal.5th 195, 255 [“ ‘ “[i]t is axiomatic that
arguments made for the first time in a reply brief will not be entertained
because of the unfairness to the other party” ’ ”].) We do not consider
arguments raised for the first time in the reply brief without a showing of
good cause, which the Association did not make. (Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894,
fn. 10.)
8
The Association argues we should apply de novo review because the
“determination of the legal basis for an attorney fee award is a question of
law, reviewed de novo.”4 We disagree. There is no dispute as to the “legal
basis” for the court’s attorney fee award. Both parties sought an award of
attorney fees as the prevailing party under section 5975, subdivision (c). On
appeal, both parties agree section 5975, subdivision (c) provides the statutory
basis for the prevailing party to recover attorney fees. The Association’s
dispute is not with the legal basis for the trial court’s attorney fee award, but
with the “factual underpinnings” of the court’s determination that Plaintiffs
prevailed in this action.
III.
No Abuse of Discretion in Trial Court’s Determination of Prevailing Party
In determining the prevailing party under the Davis-Stirling Act, “the
trial court should ‘compare the relief awarded on the [ ] claim or claims with
the parties’ demands on those same claims and their litigation objectives as
disclosed by the pleadings, trial briefs, opening statements, and similar
sources. The prevailing party determination is to be made . . . by “a
comparison of the extent to which each party ha[s] succeeded and failed to
4 The Association cites to Conservatorship of Whitley (2010) 50 Cal.4th
1206 (Whitley) and Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169(Connerly) to argue for de novo review. These cases are inapposite because
they involved “ ‘ “the determination of whether the criteria for an award of
attorney fees and costs . . . have been satisfied amounts to statutory
construction and a question of law.” ’ ” (Whitley, at pp. 1213–1214, italics
added [addressing whether a litigant’s nonpecuniary interests can disqualify
him from eligibility for attorney fees under Code of Civil Procedure section
1021.5], quoting Connerly, at p. 1175 [determining whether the California
Business Council can be assessed attorney fees under section 1021.5 as an
“ ‘opposing part[y]’ within the meaning of that statute”].) There is no issue of
statutory construction here.
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succeed in its contentions.” ’ ” (Almanor, supra, 246 Cal.App.4th at p. 774,
citing Hsu, supra, 9 Cal.4th at p. 876.)
The trial court engaged in that comparative analysis and determined
that “Plaintiffs’ main objective in filing suit was to require the Association to
comply with . . . [the CC&Rs] before proceeding with the installation of the
traffic signal.” The court further found that Plaintiffs succeeded in their
objective. By obtaining a TRO and a preliminary injunction, Plaintiffs
compelled the Association to “immediately . . . obtain the written consent of
its members” and were therefore “successful in their attempt to have the
Association comply with the CC&Rs before installing the traffic signal.”
Accordingly, the court determined Plaintiffs were the prevailing parties
entitled to their reasonable attorney fees.
We will not disturb the trial court’s determination absent a clear
showing of an abuse of discretion. (Villa De Las Palmas, supra, 33 Cal.4th at
p. 94; Rancho Mirage, supra, 2 Cal.App.5th at p. 260; Almanor, supra, 246
Cal.App.4th at p. 774; Heather Farms, supra, 21 Cal.App.4th at p. 1574.) It
is the Association’s burden to demonstrate the trial court abused its
discretion by “ ‘ “ ‘exceed[ing] the bounds of reason.’ ” ’ ” (Rancho Mirage,
supra, at p. 260.) However, rather than presenting their appeal under the
applicable standard of review, the Association continues to press their
“respectful disagreement with the factual foundation” for the trial court’s
conclusion “that the [P]laintiffs’ primary objective was met in this case.”
It argues the record does not support the trial court’s finding that
Plaintiffs’ litigation objective was to obtain membership approval before
installation of the traffic lights. It contends that “Plaintiffs’ own pleadings
and motions in this case reveal that their singular goal in this litigation was
to try to prevent the construction of a traffic signal next to their home.” It
10
further contends “[t]he only remedy which Plaintiffs sought for Breach of
Governing Documents was money.” Thus, the Association argues that since
Plaintiffs failed to stop the construction of the traffic signal and failed to
obtain any monetary relief, Plaintiffs were not the prevailing parties “as a
matter of law.” We disagree.
First, the Association’s arguments ignore the governing standard of
review. In deciding whether the trial court abused its discretion, we are
bound by the substantial evidence rule. (Salehi, supra, 200 Cal.App.4th at p.
1154.) We presume the trial court’s judgment is correct, with “ ‘ “all
intendments and presumptions . . . indulged to support the judgment[.]” ’ ”
(Ibid.) “ ‘ “[T]he trial court’s resolution of any factual disputes arising from
the evidence is conclusive.” ’ ” (Ibid.) “[W]e do not substitute our judgment
for that of the trial court when more than one inference can be reasonably
deduced from the facts.” (Almanor, supra, 246 Cal.App.4th at p. 776.)
Second, the record simply belies the Association’s contentions and
demonstrates the trial court’s determination that Plaintiffs prevailed on a
practical level was well within the bounds of reason. As set forth in the
complaint, Plaintiffs’ primary cause of action was for breach of the governing
documents, wherein they alleged the Association breached the CC&Rs and
exceeded its authority in failing to request a vote and obtain majority
approval from its members before taking actions to install the traffic lights,
including the expenditure of Association funds. In seeking a TRO, Plaintiffs
argued the Association had “completely ignored” and “disregarded” the
CC&Rs and its actions should be enjoined until the rights and
responsibilities of the parties under the CC&Rs could be judicially
determined.
11
In seeking a preliminary injunction, Plaintiffs again made clear their
objective: “[T]he Association approved . . . the construction of traffic signals
at Gates 2 and 6 improperly because the Association did not seek a vote of the
Members of the Association. [¶] . . . [¶] [Plaintiffs’] ultimate goal in this
Action is not to prevent the construction of the [traffic lights]. It is to compel
the Association to submit this project to a vote of the Members and to let them
decide. This authorizing procedure is required by the CC&Rs, Civil Code
section 5605, . . . . If the Members decided to approve the project, Plaintiffs,
as part of the Association, must live with that decision. [¶] Plaintiffs in this
Motion [for a preliminary injunction] seek only to preserve the Status Quo
until that vote can be had.” (Italics added.)
Further still, Plaintiffs asserted the burden of an injunction on the
Association was “miniscule” because “it can simply hold a vote of the Members
for the [installation of the traffic lights], vitiating an injunction.” (Italics
added.) Promptly after the issuance of the preliminary injunction, the
Association did just that. It put the matter to a vote and obtained majority
approval from its members for the traffic lights and, on the basis of that
material change in facts, the court granted the Association’s motion to
dissolve the preliminary injunction. Only after the Association came into
compliance with the CC&Rs did Plaintiffs voluntarily dismiss their entire
action for mootness.
The Association argues, however, that Plaintiffs’ voluntary dismissal of
the action, without any finding of liability against it, compels the conclusion
that it is the prevailing party, as a matter of law. In support of this
argument, the Association relies on the statutory definition of “prevailing
party” under the general cost statute of Code of Civil Procedure section 1032,
subdivision (a)(4), which provides that a “ ‘[p]revailing party’ ” includes “a
12
defendant in whose favor a dismissal is entered[.]” (Code. Civ. Proc. § 1032,
subd. (a)(4).) But “the premise for this argument, that a litigant who prevails
under the cost statute is necessarily the prevailing party for purposes of
attorney fees, has been uniformly rejected by the courts of this state.”
(Heather Farms, supra, 21 Cal.App.4th at p. 1572.) And as noted by the
Heather Farms court, “Code of Civil Procedure section 1032, subdivision (a)
only defines ‘ “[p]revailing party” ’ as the term is used ‘in [that] section.’ It
does not purport to define the term for purposes of other statutes.” (Ibid.)
Moreover, elsewhere in its opening brief,5 citing Heather Farms, the
Association agrees the prevailing party under section 5975, subdivision (c), is
determined by the pragmatic test of identifying “which party has prevailed on
a ‘practical level.’ ”
The Association also relies on Coltrain v. Shewalter (1998) 66
Cal.App.4th 94 (Coltrain) to argue Plaintiffs’ voluntary dismissal of the
action makes it the prevailing party. But Coltrain does not help advance the
Association’s argument. There, the trial court awarded attorney fees to
defendants as “a prevailing defendant” under Code of Civil Procedure, section
425.16, subdivision (c), the fee-shifting provision of the anti-SLAPP statute.
(Coltrain, supra, at p. 100.) Although concluding the trial court erroneously
applied the standard under Code of Civil Procedure section 1032, subdivision
5 On March 16, 2021, the Association filed a Notice of Errata regarding
its opening brief, indicating that it “inadvertently listed incorrect citations to
the record” and filed with the notice, a “corrected copy of Appellant’s Opening
Brief” which “corrects such citation errors and makes no other changes other
than to the form of the citations to the record.” On March 18, 2021, we issued
notice that the Association’s Notice of Errata will be treated as a motion for
leave to file an amended appellant’s opening brief and will be considered
concurrently with the appeal. We hereby grant the Association’s unopposed
motion for leave to file an amended opening brief.
13
(a)(4), the Court of Appeal affirmed the fee award. (Id. at p. 107.) In doing
so, the Court of Appeal held that “where the plaintiff voluntarily dismisses an
alleged SLAPP suit while a special motion to strike is pending, the trial court
has discretion to determine whether the defendant is the prevailing party for
purposes of attorney[ ] fees under Code of Civil Procedure section 425.16,
subdivision (c). In making that determination, the critical issue is which
party realized its objectives in the litigation.” (Ibid., italics added.)
The Coltrain court rejected “defendants’ contention that a voluntary
dismissal while a special motion to strike is pending should automatically
entitle a defendant to attorney’s fees.” (Coltrain, supra, 66 Cal.App.4th at p.
107.) Rather, the court noted that “regardless of whether the action is a
SLAPP suit or not, the plaintiff may have good faith reasons for the dismissal
that have nothing to do with oppressing the defendant or avoiding liability
for attorney’s fees.” (Ibid.) The Coltrain court also reiterated what the
California Supreme Court has previously said on this subject: “ ‘In
particular, it seems inaccurate to characterize the defendant as the
“prevailing party” if the plaintiff dismissed the action only after obtaining, by
means of settlement or otherwise, all or most of the requested relief, or if the
plaintiff dismissed for reasons, such as the defendant’s insolvency, that have
nothing to do with the probability of success on the merits.’ ” (Coltrain,
supra, 66 Cal.App.4th at p. 103, quoting Santisas v. Goodin (1998) 17 Cal.4th
599, 621−622.)
Here, the trial court acknowledged that “Plaintiffs eventually dismissed
their claims without prejudice” and concluded “such conduct does not deprive
them of prevailing party status.” It is a reasonable conclusion, from the
litigation history, that Plaintiffs voluntarily dismissed the action because the
Association’s capitulation after issuance of the preliminary injunction had
14
mooted their action. The court did not find and nothing in the record
suggests, as the Association argues, that “[r]ather than face trial, Plaintiffs
dismissed” their claims.
The Association’s reliance on Salehi, supra, 200 Cal.App.4th 1146 is
similarly unhelpful. In Salehi, the plaintiff dismissed without prejudice eight
of ten causes of action against her condominium association on the eve of trial
because her construction expert suddenly became unavailable. (Id. at pp.
1151−1152.) The plaintiff obtained a continuance of trial on the remaining
two causes of action for negligent misrepresentation and fraud, believing she
would not need the expert to prove those claims. (Ibid.) Before the trial date,
the association moved for attorney fees as the prevailing party on the eight
dismissed causes of action. (Id. at pp. 1152−1153.) The Court of Appeal
reversed the trial court’s order denying the fee award. (Id. at pp. 1155, 1162.)
In doing so, the Court of Appeal concluded that “[t]he record does not suggest
that [plaintiff] would have prevailed on the merits. It does not appear that
she was ready to go forward procedurally and prove the case substantively.”
(Id. at p. 1155.) Here, unlike Salehi, the trial court specifically found
“Plaintiffs have established a reasonable probability of success on the merits
of their claim for breach of the Association’s governing documents” when it
issued the preliminary injunction enjoining the Association from proceeding
with construction of the traffic signal at Gate 2 during the pendency of the
lawsuit.
Third, the Association’s focus on Plaintiffs’ prayer for relief to argue the
true intent of Plaintiffs’ action was to prevent a traffic light from being
installed, not enforcement of the governing documents, is misplaced. In
determining litigation success, the court respects substance rather than form.
(Rancho Mirage, supra, 2 Cal.App.5th at p. 260 [“We see nothing in the
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Davis-Stirling Act that suggests we should give more weight to the form of a
complaint . . . than to the substance of the claims asserted and relief sought,
in determining whether an action is one ‘to enforce the governing documents’
in the meaning of section 5975.”].) A prayer is not part of a cause of action.
(Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 815 [“It is
elementary that the prayer is no part of the statement of the cause of action
[citations] and that the issues involved are determinable from the facts
alleged rather than from the prayer.”].)
Moreover, while preventing the installation of the traffic light “might
have been a litigation ‘dream’ ” for Plaintiffs (Ritter & Ritter, Inc. Pension &
Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103,
127), it does not undercut their main litigation objective of requiring the
Association to comply with the CC&Rs and obtain majority approval from its
members before installing the traffic light. (See ibid. [Plaintiff homeowners
were determined to be prevailing party despite not achieving “litigation
‘dream’ ” of obtaining correction of building defect where they succeeded in
compelling membership vote. “The fact that the membership did not vote to
correct this defect in the building does not mean that the [plaintiffs] failed on
their main litigation objective.”].)
In sum, we conclude the trial court’s determination that Plaintiffs
prevailed on a practical level was supported by substantial evidence and well
within the bounds of reason. The Association has failed to demonstrate any
abuse of discretion in the court’s award of attorney fees to Plaintiffs and
denial of attorney fees to it under section 5975, subdivision (c).
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IV.
Association’s Remaining Arguments
A. Any Claim of Error as to Inclusion of Javaheri and Dehghani in the Fee
Award Is Forfeited
The Association argues the trial court erred in awarding attorney fees
to Javaheri and Dehghani because they “are not the owners of the property”
and therefore have “no right to enforce the CC&Rs.” As such, the Association
argues, Javaheri and Dehghani “cannot be ‘prevailing parties’ in an action to
enforce the governing documents of the Fairbanks Ranch Association.”
In support of this claim of error, the Association dedicates two short
paragraphs in their opening brief, cites to no legal authorities whatsoever for
their contentions, and provides unhelpful record citations. The record
citations merely refer this court back to the Association’s Memorandum of
Points and Authorities in Opposition to Plaintiffs’ Notice of Motion for
Attorneys’ Fees and Costs, to pages which contain almost verbatim the same
two short paragraphs as in their opening brief, and to a Notice of Lodgment
which indicates the Fairbanks Ranch CC&Rs were at some point lodged as
an exhibit with the trial court. Having not seen the CC&Rs, we do not know
what the governing documents provide.
The Association also fails to provide any discussion of how the inclusion
of Javaheri and Dehghani in the fee award resulted in prejudice.6 Indeed, it
does not even challenge the reasonableness of the fee amount.
6 When the Association raised this standing argument at the hearing on
attorney fees, Plaintiffs’ counsel argued “all litigation efforts in this case are
consolidated . . . there’s [no] reasonable way to chop up the plaintiffs in this
case.” The trial judge asked the Association, the work for all plaintiffs are
“all intertwined, though, aren’t they?” Despite these questions being raised
below, the Association does not address them on appeal.
17
“To prevail on appeal, an appellant must establish both error and
prejudice from that error. [Citation.] In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record. Rather than scour the
record unguided, we may decide that the appellant has forfeited a point urged
on appeal when it is not supported by accurate citations to the record.
[Citations.] Similarly, we may disregard conclusory arguments that are not
supported by pertinent legal authority.” (WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 (WFG).)
Simply put, the reviewing court is not required to develop the
Association’s arguments or search the record for supporting evidence. For
these reasons, we conclude the Association has forfeited the claim of any
prejudicial error as it relates to the inclusion of Javaheri and Dehghani in the
fee award. (WFG, supra, 51 Cal.App.5th at p. 894.)
B. Section 1717 Does Not Provide the Association with Any Basis for
Recovering Attorney Fees Pursuant to the CC&Rs
In addition to section 5975, subdivision (c), the Association also sought
an award of attorney fees pursuant to the CC&Rs, which provides the
Association would be entitled to reimbursement of its legal expenses if a
member sued it and the Association was “ ‘successful or sustained in its
position in such suit.’ ” Although not raised in the trial court or in its opening
brief, the Association argues in its reply brief that its “claim in this case that
it is the prevailing party is based upon a contractual right to attorneys’ fees
pursuant to Civil Code section 1717[.]” Although we do not consider
arguments raised for the first time in a reply brief absent good cause (see
footnote 3 ante), we quickly dispose of the Association’s argument.
Section 1717 provides that “[i]n any action on a contract, where the
contract specifically provides that attorney’s fees and costs, which are
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incurred to enforce that contract, shall be awarded either to one of the parties
or to the prevailing party, then the party who is determined to be the party
prevailing on the contract, . . . shall be entitled to reasonable attorney’s fees
in addition to other costs.” (§ 1717, subd. (a).) Section 1717, subdivision
(b)(2) creates an exception to the recovery of attorney fees under this statute,
and states that “[w]here an action has been voluntarily dismissed or
dismissed pursuant to a settlement of the case, there shall be no prevailing
party for purposes of this section.” (§ 1717, subd. (b)(2).) That exception
codifies the holding in International Industries, Inc. v. Olen (1978) 21 Cal.3d
218, in which the Supreme Court “determined that a defendant could not
recover attorney fees under section 1717 when the plaintiff voluntarily
dismissed the action before trial.” (Hsu, supra, 9 Cal.4th at pp. 872−873.)
Thus, notwithstanding the trial court’s determination that the
Association was not the prevailing party, and we find no abuse in that
determination, the Association may not recover attorney fees under section
1717, subdivision (b)(2), since Plaintiffs voluntarily dismissed their lawsuit.
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DISPOSITION
The judgment is affirmed. Plaintiffs are entitled to their costs on
appeal.
DO, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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