Mascaro v. Brown CA2/6

Filed 1/19/23 Mascaro v. Brown CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
TINO D. MASCARO et al., as 2d Civil No. B319419
Trustees, etc. (Super. Ct. No. 56-2019-
00529302-CU-OR-VTA)
Plaintiffs and Appellants, (Ventura County)
v.
WILLIAM T. BROWN et al., as
Trustees, etc.
Defendants and
Respondents.
Tino D. Mascaro and Susan R. Mascaro (the Mascaros)
appeal the trial court’s order granting attorney’s fees to William
T. Brown and Sherri L. Brown (the Browns), who prevailed in a
dispute regarding trees that allegedly blocked the Mascaros’
view. The Mascaros contend the trial court erred in awarding
attorney’s fees because: (1) they sued for nuisance and not on a
contract, (2) attorney’s fees are not authorized for mediation, and
(3) the evidence was insufficient to support the award. The
Browns contend they are entitled to attorney’s fees on appeal.
We affirm and order the Browns to recover costs and attorney’s
fees on appeal.
FACTUAL AND PROCEDURAL HISTORY
The Mascaros owned a residence in Camarillo. They
contended their view was obstructed by trees located on the
Browns’ property.
Both lots were subject to the declaration of covenants,
conditions, and restrictions (CC&Rs) of the Bridlewood Planned
Unit Development. Section 7 of article VI of the CC&Rs (the view
provision) stated: “All trees shall be trimmed by the Owner of the
Lot upon which the same are located at the direction of the
Architectural Committee, based upon a determination by the
Architectural Committee that such trimming is necessary to
prevent the obstruction of the view of other Lot Owners within
the Properties.”
The Architectural Committee directed the Browns to trim
the trees. The Browns trimmed the trees on several occasions,
but the Mascaros claimed the trimming work inadequately
complied with the CC&Rs and left “unsightly stumps.”
The Mascaros requested mediation, citing the requirement
that they seek alternative dispute resolution (ADR) before filing a
lawsuit to enforce the CC&Rs. (Civ. Code, §§ 5930, 5935.) The
Browns consequently incurred legal fees in response to the ADR
request.
The mediation was unsuccessful and the Mascaros filed
their complaint1 alleging the view obstruction constituted a
nuisance under Civil Code section 3479. The complaint further
1
Subsequent references to the “complaint” are to the
operative pleading, the first amended complaint.
2
alleged, “As Section 1 of Article XI of the . . . CC&Rs provides for
any Owner to enforce, by any proceedings at law or in equity, the
CC&Rs, the MASCAROS have filed this lawsuit.” The complaint
sought abatement of the nuisance and an injunction prohibiting
violation of the view provision of the CC&Rs. The Mascaros also
sought “[r]easonable attorney’s fees pursuant to Section 8 of
Article XI of the . . . CC&Rs.”
The trial court determined a claim based on violation of the
CC&Rs was time barred unless a continuing nuisance was
shown. (Code Civ. Proc., § 336.) The court also found the Browns
“consistently maintained the trees in compliance with” the
CC&Rs. The court concluded that neither view obstruction nor
displeasure with the appearance of the trees when trimmed
constituted a nuisance pursuant to California law. The court
issued judgment for the Browns. (Code Civ. Proc., § 631.8.)
The trial court granted the Browns’ postjudgment motion
for attorney’s fees. Based on “duplications of effort and some
entries that, to the Court, appear non-essential and unjustified,”
the court reduced the requested $143,381.70 to $132,070.40.
DISCUSSION
Authority for attorney’s fees
The Mascaros contend the trial court had no authority to
award attorney’s fees because their lawsuit was based on
nuisance rather than violation of a contract. We disagree.
“Under the American rule, each party to a lawsuit
ordinarily pays its own attorney fees” except where “ ‘attorney’s
fees are specifically provided for by statute’ ” or by “ ‘the
agreement, express or implied, of the parties.’ ” (Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 751 (Mountain Air).) “ ‘[T]he legal basis for an attorney fee
3
award is a question of law to be reviewed de novo.’ ” (Ibid.) We
conclude the attorney’s fees are authorized by Civil Code section
1717, Code of Civil Procedure section 1021, and Civil Code
section 5975.
Civil Code section 1717
Civil Code section 1717, subdivision (a), requires that
attorney’s fees be awarded to the prevailing party “[i]n any action
on a contract, where the contract specifically provides [for]
attorney’s fees and costs, which are incurred to enforce that
contract.” The complaint sought attorney’s fees pursuant to
section 8 of article XI of the CC&Rs, which provides: “In the
event of litigation arising out of or in connection with this
Declaration, the prevailing party shall be entitled to receive costs
of suit and such sum for attorney’s fees as the Court deems
reasonable.” A recorded declaration of CC&Rs is a “contract” for
purposes of Civil Code section 1717. (Harbor View Hills
Community Assn. v. Torley (1992) 5 Cal.App.4th 343, 346; see
Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal.4th 223, 240.) Section 1717 and the
CC&Rs entitle the Browns to recover attorney’s fees because they
prevailed in the Mascaros’ action to enforce the CC&Rs.
The Mascaros contend the attorney fee award was
unauthorized because the single cause of action was not “on a
contract” but alleged only the tort of nuisance. They are
incorrect.
“California courts construe the term ‘on a contract’
liberally. ‘ “As long as the action ‘involve[s]’ a contract it is ‘ “on
[the] contract” ’ within the meaning of section 1717.” ’ ” (Turner
v. Schultz (2009) 175 Cal.App.4th 974, 979-980.) “ ‘Whether an
action is based on contract or tort depends upon the nature of the
4
right sued upon, not the form of the pleading or relief
demanded. . . . If unclear the action will be considered based on
contract rather than tort. [Citation.] [¶] In the final analysis we
look to the pleading to determine the nature of plaintiff’s claim.’ ”
(Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th
1174, 1178-1179.)
The action here was “on a contract.” The complaint sought
both abatement of a nuisance and “a permanent injunction
restraining and enjoining defendants from violating of [sic]
Section 7 of Article VI of the ASSOCIATION[]’S CC&Rs.” It
further alleged, “As Section 1 of Article XI of the . . . CC&Rs
provides for any Owner to enforce, by any proceedings at law or
in equity, the CC&Rs, the MASCAROS have filed this lawsuit.”
The Mascaros’ trial brief admitted that “[a]s a general rule,
a landowner has no natural right to . . . an unobstructed view.”
(See Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521,
535 [obstructed view or “displeasing appearance” of neighboring
structure not a nuisance]; Posey v. Leavitt (1991) 229 Cal.App.3d
1236, 1249.) “ ‘Such a right may be created by private parties
through the granting of an easement [citations] or through the
adoption of conditions, covenants and restrictions.’ ” (Posey, at p.
1250.) The Mascaros contended the view provision of the CC&Rs
created an enforceable “view easement.” Because the nuisance
theory depended upon purported violations of the view provision
(section 7 of article VI of the CC&Rs), the lawsuit was based on
the CC&Rs’ contractual provisions.
The Mascaros quote from Brown Bark III, L.P. v.
Haver (2013) 219 Cal.App.4th 809, 820, which states: “Tort and
other noncontract claims are not subject to section 1717.” But
Brown Bark “ ‘construe[d] the term “on a contract” liberally’ ” to
5
include an action that “ ‘ “ ‘ “involve[s]” a contract.’ ” ’ ” (Id. at p.
821.)
In Exxess Electronixx v. Heger Realty Corp. (1998) 64
Cal.App.4th 698, upon which the Mascaros rely, the contractual
attorney fee provision was not broad enough to authorize fees
pursuant to Civil Code section 1717. The lease there authorized
fees in an action to “enforce the terms” of or “declare rights”
under the lease, and did not extend to tort claims of constructive
fraud or breach of fiduciary duty, or to a claim for equitable relief.
(Exxess Electronixx, at p. 702.) The court recognized cases with
broader attorney fee provisions that permitted fees on tort
claims. (Id. at pp. 712-713, citing, e.g., Santisas v. Goodin (1998)
17 Cal.4th 599, 607 [authorizing fees “ ‘arising out of the
execution of this agreement’ ”].)
We reject the Mascaros’ contention that judicial estoppel
bars the Browns from taking inconsistent positions regarding
whether the nuisance claim was based on the CC&Rs. We note
that the Mascaros’ complaint alleged the CC&Rs authorized
attorney’s fees, but they changed their position after they lost at
trial and claimed the cause of action in the complaint did not
authorize fees. Equitable estoppel did not bar either party from
changing their position on whether the attorney fee provision
applied. (M. Perez Co., Inc. v. Base Camp Condominiums Assn.
No. One (2003) 111 Cal.App.4th 456, 469.)
It is irrelevant that the trial court ruled against the
Mascaros for two reasons: relief for violation of the CC&Rs was
time barred, and obstruction of views does not constitute a
nuisance. As the Mascaros contended in the trial court, the
statute of limitations for violation of the CC&Rs did not bar an
action for continuing nuisance based on violation of the CC&Rs.
6
(Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th
1379, 1389.) On both theories, the Browns were the prevailing
parties entitled to fees. (Code Civ. Proc., § 1032, subd. (a)(4).)
Code of Civil Procedure section 1021
Code of Civil Procedure section 1021 provides in relevant
part: “Except as attorney’s fees are specifically provided for by
statute, the measure and mode of compensation of attorneys and
counselors at law is left to the agreement, express or implied, of
the parties.” Section 8 of article XI of the CC&Rs requires that
attorney’s fees be awarded to the prevailing party in “litigation
arising out of or in connection with” the CC&Rs. Both the
nuisance claim and the request to enjoin violation of the CC&Rs
arose from, and were in connection with, the CC&Rs.
Attorney’s fees pursuant to Code of Civil Procedure section
1021 are not limited to contractual claims and may encompass
tort claims. (Xuereb v. Marcus & Millichap, Inc. (1992) 3
Cal.App.4th 1338, 1341.) Civil Code section 1717, which applies
only to actions “on a contract,” “cannot be said to supersede or
limit the broad right of parties pursuant to Code of Civil
Procedure section 1021 to make attorney fees agreements.”
(Xuereb, at p. 1342.) Attorney’s fees were ordered in Xuereb
pursuant to Code of Civil Procedure section 1021, even though
the plaintiff had abandoned the breach of contract claim and
prevailed solely on tort claims. (Xuereb, at pp. 1342-1343.) As in
Xuereb, the attorney fee provision in section 8 of article XI of the
CC&Rs is “broad enough to encompass both contract actions and
actions in tort.” (Id. at p. 1343; Santisas v. Goodin, supra, 17
Cal.4th at p. 608.)
Civil Code section 5975
Attorney’s fees were also properly ordered pursuant to the
7
Davis-Stirling Common Interest Development Act (Civ. Code,
§§ 4000-6150). It provides: “In an action to enforce the governing
documents, the prevailing party shall be awarded reasonable
attorney’s fees and costs.” (Civ. Code, § 5975, subd. (c).) The
“governing documents” include the CC&Rs. (Civ. Code, §§ 4135,
4150, 4250.) Section 5975 thus requires the court to award
attorney’s fees to the prevailing party in an action to enforce
CC&Rs. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66
Cal.App.5th 583, 590.)
Although the complaint alleged both nuisance and violation
of the CC&Rs, the case was an action to “enforce” the contract
pursuant to Civil Code section 5975 because “the alleged source
of the contractual obligation and its terms was the CC&R’s.”
(Chee v. Amanda Goldt Property Management (2006) 143
Cal.App.4th 1360, 1381.)
Attorney’s fees for mediation
The Mascaros contend the trial court erred in awarding
attorney’s fees of $5,180 associated with the mediation. We reject
this contention.
The Mascaros requested the Browns mediate the view
provision of the CC&Rs. The request cited Civil Code sections
5930 and 5935, which require a demand for mediation or other
ADR as a prerequisite to filing a civil suit to enforce CC&Rs.
(See Civ. Code, § 5925, subd. (a).) In response to the request, the
Browns retained counsel who communicated with the parties and
potential mediators, negotiated, wrote a mediation brief, and
attended the mediation.
The Mascaros rely upon section 8 of article XI of the
CC&Rs, which states: “In the event of litigation arising out of or
in connection with this Declaration, the prevailing party shall be
8
entitled to receive costs of suit and such sum for attorney’s fees as
the Court deems reasonable.” Where, as here, litigation was
filed, this provision does not limit attorney’s fees to those
incurred after filing.
Moreover, Civil Code section 5975, subdivision (c),
mandates attorney’s fees to the prevailing party, regardless of the
specific language of the CC&Rs. “[W]hen attorney fees and costs
expended in prelitigation ADR satisfy the other criteria of
reasonableness, those fees and costs may be recovered in an
action to enforce the governing documents of a common interest
development.” (Grossman v. Park Fort Washington Assn. (2012)
2
212 Cal.App.4th 1128, 1134.) The Mascaros have not shown
that the attorney’s fees associated with ADR were unreasonable.
Amount of attorney’s fees
The Mascaros contend the evidence did not show the
attorney’s fees were reasonable or necessary. We review a trial
court’s determination of the amount of attorney’s fees for abuse of
discretion. (Mountain Air, supra, 3 Cal.5th at p. 751.) The trial
court did not abuse its discretion.
“ ‘California courts do not require detailed time records,
and trial courts have discretion to award fees based on
declarations of counsel describing the work they have done and
the court’s own view of the number of hours reasonably spent.
[Citations.]’ ” (Syers Properties III, Inc. v. Rankin (2014) 226
Cal.App.4th 691, 698.) Because the fees here were set by the
judge who presided over the trial, the court was “familiar with
2
Grossman relied upon former section 1354 of the Civil
Code (repealed by Stats. 2012, ch. 180, § 1), which is identical to
current Civil Code section 5975.
9
the quality of the services performed and the amount of time
devoted to the case.” (PLCM Group v. Drexler (2000) 22 Cal.4th
1084, 1096.)
The Browns’ counsel submitted invoices itemizing their
attorneys’ time, which included drafting pleadings; conducting
and responding to discovery; legal research; communications with
the clients, co-counsel, and opposing counsel; trial preparation;
and court appearances including trial. The invoices included
“such crucial information as the number of hours worked, billing
rates, types of issues dealt with and appearances made on the
client’s behalf.” (Martino v. Denevi (1986) 182 Cal.App.3d 553,
559.) Counsel’s hourly rates ranged from $300 to $395, which
counsel declared was consistent with rates for attorneys with
similar experience in Ventura County.
The Mascaros contend the invoices were inadmissible
hearsay. They are incorrect. Mr. Dunlevy authenticated the
invoices he prepared and declared that they were for “legal
services [he] provided.” (See Mai v. HKT Cal, Inc. (2021) 66
Cal.App.5th 504, 520-525 [invoices supporting client’s testimony
not inadmissible hearsay].) The invoices from Myers, Widders,
Gibson, Jones & Feingold, LLP, were authenticated by the
declarations of attorneys who had personal knowledge of the
services they provided. They were also authenticated as business
records by the firm’s attorneys and support personnel. (Evid.
Code, § 1271.) The invoices constituted “contemporaneous time
records [that] are the best evidence of lawyers’ hourly work” and
“eclipse other proofs.” (Taylor v. County of Los Angeles (2020) 50
Cal.App.5th 205, 207.)
The trial court reduced the request for fees that
represented “duplications of effort” or were “non-essential and
10
unjustified.” The Mascaros do not identify other time entries
that are purportedly unreasonable or unnecessary and have not
shown that the trial court abused its discretion in setting the
3
amount of fees.
Attorney’s fees on appeal
“ ‘A statute authorizing an attorney fee award at the trial
court level includes appellate attorney fees unless the statute
specifically provides otherwise.’ ” (Rancho Mirage Country Club
Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 265;
Serrano v. Unruh (1982) 32 Cal.3d 621, 637-638 [attorney’s fees
awarded for appeal vindicating trial court fee award].) Because
attorney’s fees on appeal are not prohibited by the CC&Rs, or by
Civil Code sections 1717 or 5975, or Code of Civil Procedure
section 1021, the Browns shall be awarded attorney’s fees on
appeal pursuant to a noticed motion in the trial court. (Cal.
Rules of Court, rule 3.1702(c).)
3
The Mascaros contend the trial court improperly
considered supplemental declarations because they were
untimely filed with the Browns’ reply to the Mascaros’ objections
to the motion for fees. This contention was briefly mentioned in
the Mascaros’ opening brief on appeal but was not identified
under a separate heading or subheading. (Cal. Rules of Court,
rule 8.204(a)(1)(B); In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Because they did not develop an argument on this issue until
their reply brief, we decline to consider it. (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52.)
11
DISPOSITION
The order is affirmed. Respondents shall recover costs and
attorney’s fees on appeal, in an amount to be determined on
noticed motion in the trial court.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
12
Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Law Offices of Patrick L. Garofalo and Patrick L. Garofalo
for Plaintiffs and Appellants.
Myers, Widders, Gibson, Jones & Feingold, Kelton Lee
Gibson and James E. Perero for Defendants and Respondents.