Rancho Mirage Country Club HOA v. Hazelbaker

Filed 8/9/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RANCHO MIRAGE COUNTRY CLUB
HOMEOWNERS ASSOCIATION,
E063272
Plaintiff and Respondent,
(Super.Ct.No. PSC1300860)
v.
OPINION
THOMAS B. HAZELBAKER,
Individually and as Co-Trustee, etc. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Affirmed.
Matthew T. Ward for Defendants and Appellants.
Epsten Grinnell & Howell and Anne L. Rauch for Plaintiff and Respondent.
Defendants and appellants Thomas B. Hazelbaker and Lynn G. Hazelbaker own,
through their family trust, a condominium in the Rancho Mirage Country Club
development. Defendants made improvements to an exterior patio, which plaintiff and
respondent Rancho Mirage Country Club Homeowners Association (Association)
contended were in violation of the applicable covenants, conditions and restrictions
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(CC&Rs). The parties mediated the dispute pursuant to the Davis-Stirling Common
Interest Development Act (Davis-Stirling Act or the Act), codified at sections 4000-6150
of the Civil Code1 (formerly sections 1350-1376). The mediation resulted in a written
agreement. Subsequently, the Association filed the present lawsuit, alleging that
defendants had failed to comply with their obligations under the mediation agreement to
modify the property in certain ways.
While the lawsuit was pending, defendants made modifications to the patio to the
satisfaction of the Association. Nevertheless, the parties could not reach agreement
regarding attorney fees, which the Association asserted it was entitled to receive as the
prevailing party.
The Association filed a motion for attorney fees and costs, seeking an award of
$31,970 in attorney fees and $572 in costs. The trial court granted the motion in part,
awarding the Association $18,991 in attorney fees and $572 in costs. Defendants argue
on appeal that the trial court’s award, as well as its subsequent denial of a motion to
reconsider the issue, are erroneous in various respects.2
For the reasons discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, defendants applied for and received approval from the
Association’s architectural committee to make certain improvements to the patio area of
1 Further undesignated statutory references are to the Civil Code.
2 The Association did not file a cross appeal challenging the trial court’s award of
less than the full amount requested.
2
their property. Subsequently, however, the Association contended that defendants had
made changes that exceeded the scope of the approval, and which would not have been
approved had they been included in defendants’ November 2011 application.
On June 19, 2012, the Association sent defendants a request for alternative dispute
resolution pursuant to former section 1369.510 et seq., identifying the disputed
improvements and proposing that the parties mediate the issue. Defendants accepted the
proposal, and a mediation was held on April 8, 2013. A “Memorandum of Agreement in
Mediation” dated April 9, 2013, was reached, signed by two representatives of the
Association, its counsel, and Thomas Hazelbaker (but not Lynn Hazelbaker). The
agreement called for defendants to make certain modifications to the patio, in accordance
with a plan newly approved by the Association; specifically, to install three openings,
each 36 inches wide and 18 inches high, in a side wall of the patio referred to as a
“television partition” in the agreement, and to use a specific color and fabric for the
exterior side of drapery. The agreement provided for the modifications to be completed
within 60 days from the date of the agreement. It also provided for a special assessment
on defendants’ property to pay a portion of the Association’s attorney fees incurred to
that point, and included a prevailing party attorney fees clause with respect to any
subsequent legal action “pertaining to the enforcement of or arising out of” the
agreement.
The modifications described in the mediation agreement were not completed
within 60 days. The parties each blame the other for that circumstance.
3
On September 4, 2013, the Association filed the present lawsuit, asserting two
causes of action: (1) for specific performance of the mediation agreement, and (2) for
declaratory relief. Subsequently, the parties reached agreement regarding modifications
to the property, slightly different from those agreed to in mediation; instead of three 36-
inch-wide openings, two openings of 21 inches, separated by a third opening 52 inches
wide, were installed in the wall, and a different fabric than the one specified in the
mediation agreement was used for the drapery. The modifications were completed by
defendants in September 2014. The parties could not reach a complete settlement,
however, because they continued to disagree about who should bear the costs of the
litigation.
On October 15, 2014, the Association filed a motion seeking attorney fees and
costs pursuant to section 5975, subdivision (c). The motion sought $31,970 in attorney
fees, plus $572 in costs. On October 30, 2014, the hearing of the matter, initially set for
November 10, 2014, was continued to November 25, 2014, on the court’s own motion.
Defendants filed their opposition to the motion on November 14, 2014.
At the November 25, 2014 hearing on the motion, the trial court noted that
defendants’ “paperwork was not timely and the Court did not consider it.”3 The court
further observed that the bills submitted by the Association in support of its motion were
heavily redacted, sometimes to the point where it could not “tell what’s going on.” The
3 Defendants concede that their opposition to the motion for attorney fees was
filed late, only seven court days before the hearing. (See Code Civ. Proc., § 1005, subd.
(b) [opposition papers due nine court days before hearing].)
4
court declined to review unredacted bills in camera, and further remarked that “if I can’t
tell what’s going on, I’m not awarding those fees.” At the conclusion of the hearing, the
court took the matter under submission.
On December 2, 2014, the trial court issued a minute order granting the
Association’s motion, but awarding less than the requested amount; $18,991 in attorney
fees, plus $572 in costs. The trial court denied the Association’s motion with respect to
fees incurred prior to the mediation, awarding $3,888.50 in “[p]ost mediation fees”
incurred by one law firm on behalf of the Association “starting 60 days post mediation,”
and $15,102.50 in “litigation fees” incurred by another law firm. With respect to the
“[p]ost mediation fees,” the court commented as follows: “The court had great difficulty
determining the nature of the billings because so much information was redacted from the
billings. All doubts were resolved in favor of the homeowner.”
Judgment was entered in favor of the Association on December 17, 2014, and on
January 14, 2015, a notice of entry of judgment was filed. On January 21, 2015,
defendants filed a motion for reconsideration of the trial court’s order regarding fees and
costs. On February 27, 2015, after a hearing, the trial court denied the motion as
untimely, further noting that the motion “did not set forth any new facts, law, or a chance
in circumstances.”
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II. DISCUSSION
A. The Association’s Lawsuit Is an “Action to Enforce the Governing Documents”
Under the Davis-Stirling Act.
This case presents the question of whether the Davis-Stirling Act, and particularly
the fee-shifting provision of section 5975, subdivision (c), applies to an action to enforce
a settlement agreement arising out of a mediation conducted pursuant to the mandatory
alternative dispute resolution requirements of the Act. We conclude that it does apply in
at least some circumstances, and more specifically that it applies on the facts of this case.
“The Davis-Stirling Act, enacted in 1985 [citation], consolidated the statutory law
governing condominiums and other common interest developments.” (Villa De Las
Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal. 4th 73, 81 (Villa De Las Palmas).)
“The Davis-Stirling Act includes provisions addressing alternative dispute resolution
(ADR), including the initiation of such nonjudicial procedures, the timeline for
completing ADR, and the relationship between ADR and any subsequent litigation.”
(Grossman v. Park Fort Washington Assn. (2012) 212 Cal. App. 4th 1128, 1132
(Grossman).) Among other things, the legislation provides that “[a]n association or a
member may not file an enforcement action in the superior court unless the parties have
endeavored to submit their dispute to alternative dispute resolution pursuant to this
article.” (§ 5930, subd. (a).)
The Act also includes the following mandatory attorney fees provision: “In an
action to enforce the governing documents, the prevailing party shall be awarded
reasonable attorney’s fees and costs.” (§ 5975, subd. (c).) This language has been
6
interpreted to allow recovery of not only litigation costs, but also reasonable attorney fees
and costs expended in pre-litigation ADR pursuant to the Davis-Stirling Act. (Grossman,
supra, 212 Cal.App.4th at p. 1134 [interpreting former section 1354, later renumbered as
§ 5975 without substantive change].)
In Grossman, although the parties participated in a mediation prior to the
litigation, there is no indication that the mediation produced any sort of agreement, and
the complaint was explicitly framed as an action to enforce a specific provision of the
CC&Rs at issue. (Grossman, supra, 212 Cal.App.4th at pp. 1131, 1133.) In contrast, the
mediation between the parties in this case did produce an agreement, and the complaint
was framed as an action to enforce that agreement. Grossman therefore does not directly
address whether the Association’s claim for attorney fees and costs is properly treated as
falling within the scope of the Davis-Stirling Act. Grossman in essence interprets the
term “action” in section 5975 to encompass both the mandatory pre-litigation ADR
efforts and any subsequent litigation “to enforce the governing documents.” (Grossman,
supra, at p. 1134; § 5975.) But is a lawsuit to enforce an agreement that was reached
during mediation (or another form of ADR) an action “to enforce the governing
documents,” in the meaning of section 5975, where the mediation was initiated pursuant
to the Davis-Stirling Act? In our view, that question must be answered in the affirmative,
at least in circumstances similar to those of this case, for the reasons discussed below.
We must construe the words of a statute in context and with reference to the entire
scheme of law of which they are a part. (State Farm Mutual Automobile Ins. Co. v.
Garamendi (2004) 32 Cal. 4th 1029, 1043.) The Davis-Stirling Act is intended, among
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other things, to encourage parties to resolve their disputes without resort to litigation, by
effectively mandating pre-litigation ADR. (See § 5930, subd. (a) [enforcement action in
civil court may not be filed until parties have “endeavored to submit their dispute” to
ADR; § 5960 [in determining amount of fee and cost award, court “may consider whether
a party’s refusal to participate in [ADR] before commencement of the action was
reasonable”].) Narrowly construing the phrase “action to enforce the governing
documents” to exclude actions to enforce agreements arising out of that mandatory ADR
process would discourage such resolutions, and encourage gamesmanship. For example,
a party might agree to a settlement in mediation without any intention of fulfilling its
settlement obligations, but simply to escape the cost-shifting provisions of the Davis-
Stirling Act.4 It is unlikely, therefore, that a narrow construction is preferable.
Moreover, the gravamen of the Association’s complaint is that defendants have
not taken certain steps to bring their property into compliance with the applicable
CC&Rs. The relief sought by the complaint is an order requiring defendants to take those
steps, and a declaration of the parties’ respective rights and responsibilities. The
circumstance that the steps to bring the property into compliance with CC&Rs were
specified a mediation agreement does not change the underlying nature of the dispute
between the parties, or the nature of the relief sought by the Association. Indeed, the
parties’ agreement was the product of a mediation conducted explicitly pursuant to the
ADR requirements of the Davis-Stirling Act. We see nothing in the Davis-Stirling Act
4We here speak in hypotheticals; we do not suggest a finding that defendants
have engaged in such gamesmanship.
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that suggests we should give more weight to the form of a complaint—its framing as an
action to enforce a mediation agreement—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.
We hold, therefore, that the present case is an “action to enforce the governing
documents,” in the meaning of section 5975.5 As such, the trial court properly
considered the Davis-Stirling Act as the basis for any recovery, as the Association
requested in its motion for attorney fees and costs. (Parrott v. Mooring Townhomes
Assn., Inc. (2003) 112 Cal. App. 4th 873, 879-880 [because party sought recovery pursuant
to fee-shifting statute, standards for contractual fee-shifting clauses inapplicable].)
B. The Trial Court Did Not Abuse Its Discretion by Determining the Association to
Be the Prevailing Party.
Defendants contend the trial court erred by determining the Association to be the
prevailing party. We find no abuse of discretion.
The 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
5 It bears mention that our conclusion here may not apply to every action to
enforce a settlement agreement arising out of ADR conducted pursuant to the Davis-
Stirling Act. Consider the situation of a dispute arising regarding the application of
CC&Rs, resolved at mediation by an agreement for one party to buy the other party’s
property, with payments to be made on a specified schedule. Suppose the payments are
not made on time, and a lawsuit to enforce the settlement is brought. It would be difficult
to characterize such an action as one to “enforce the governing documents,” at least in the
same sense as the action at issue in this appeal. But we may leave for another day the
question of whether a dispute like our hypothetical would nevertheless fall within the
scope of section 5975.
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objectives; the limitations applicable to contractual fee-shifting clauses, codified at
section 1717, do not apply.6 (Heather Farms Homeowners Assn. v. Robinson (1994) 21
Cal. App. 4th 1568, 1574.) We review the trial court’s determination for abuse of
discretion. (Villa De Las Palmas, supra, 33 Cal.4th at p. 94.) “‘“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.”’” (Goodman v. Lozano
(2010) 47 Cal. 4th 1327, 1339 (Goodman).)
The trial court’s determination that the Association prevailed on a practical level is
not beyond the bounds of reason. The Association wanted defendants to make alterations
to their property to bring it in compliance with the applicable CC&Rs, specifically, by
installing openings in the side wall of the patio, and altering the drapery on the patio.
The Association achieved that goal, with defendants completing the modifications to the
patio in September 2014.
Defendants focus on the circumstance that the modifications that were ultimately
made to the property differed in some details from those contemplated by the mediation
agreement. This argument, however, frames the issue improperly. The “action” at issue
in the section 5975 analysis includes not only the litigation in the trial court, but also the
6 Section 1717 provides that when an action on a contract “has been voluntarily
dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing
party” for the purpose of an award of attorney fees pursuant to a contractual prevailing
party clause. (§ 1717, subd. (b)(2).) Because section 1717 is inapplicable to this case,
we need not and do not discuss in detail defendants’ arguments that rest on application of
that section.
10
pre-litigation ADR process. (Grossman, supra, 212 Cal.App.4th at p. 1134.) The
objective of the Association’s enforcement action, including the pre-litigation ADR
process, is reasonably characterized broadly, as seeking to force defendants to bring their
property into compliance with the CC&Rs. It was successful in achieving that goal.
Moreover, the differences between the terms of the mediation agreement and the
actual modifications that defendants made, and which the Association accepted, are
reasonably viewed as de minimis. The openings installed in the patio wall were of
different dimensions than were contemplated in the mediation agreement, but
nevertheless openings were installed, to the satisfaction of the Association; different
fabric was used, but nevertheless the exterior color of the drapery was brought into
conformity with the rest of the development. And defendants concede (indeed, insist)
that the changes between the terms of the mediation agreement and the final
modifications to the property were motivated by physical necessity—the dimensions of
the existing wall and its supporting beams, the unavailability of the specified fabric for
drapery. Defendants cannot point to any success in any aspect of the litigation itself;
prior to the motion for attorney fees at issue, the only significant events in the litigation
were the filing of the complaint and the answer. The trial court therefore did not exceed
the bounds of reason in determining the Association achieved its main litigation
objectives as a practical matter.
Defendants argue that the trial court abused its discretion by refusing to consider
their late-filed opposition papers and supporting evidence, and that consideration of that
evidence “undoubtedly would have mitigated in favor of [defendants] and necessarily a
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different ruling as to the prevailing party determination.” This argument fails in several
respects. First, a trial court has broad discretion to accept or reject late-filed papers.
(Cal. Rules of Court, rule 3.1300(d).) Defendants made no attempt to seek leave to file
their opposition late, and made no attempt to demonstrate good cause for having failed to
adhere to the applicable deadline. The circumstance that they were, at the time,
appearing in propria persona, does not establish good cause. (See Nelson v. Gaunt (1981)
125 Cal. App. 3d 623, 638-639 [“When a litigant is appearing in propria persona, he is
entitled to the same, but no greater, consideration than other litigants and attorneys
[citations]. Further, the in propria persona litigant is held to the same restrictive rules of
procedure as an attorney [citation].” (Fn. omitted.).) The trial court acted well within its
discretion when it declined to consider defendants’ opposition papers.7
Second, defendants are incorrect that consideration of their opposition would
likely have made any difference in the trial court’s determination of the prevailing party.
Defendants sought to introduce evidence that the terms of the mediation agreement could
not be precisely implemented, and evidence of the Association’s “delay and
unwillingness to address ambiguities in the agreement.” Even accepting these points as
true, however (and they are disputed at least in part by the Association), they would not
likely have altered the trial court’s analysis of which party prevailed in the action. The
fact remains, as discussed above, the Association contended defendants had altered their
7 Defendants’ arguments to the contrary rely heavily on case law from the
summary judgment context. This reliance is out of place. Even if a motion for attorney
fees is the last issue remaining in a case, it is not, as defendants put it, a “case dispositive
motion” in the same sense that a motion for summary judgment is.
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property in a manner that was inconsistent with the applicable CC&Rs, and sought
successfully to force defendants to make modifications to bring the property into
compliance. Because the Association achieved that main litigation objective, it was
properly considered to have prevailed in the action as a practical matter, even though the
only judgment resulting from the case related to the award of fees and costs, not the
merits of the complaint.8
In short, the trial court reasonably found the Association to be a prevailing party,
for purposes of making an award of attorney fees and costs under the Davis-Stirling Act.
C. The Trial Court Did Not Abuse Its Discretion in Determining the Amount of
Fees and Costs to Award.
Defendants argue that the trial court abused its discretion in determining its award
of fees and costs in several different respects. We find no abuse of discretion.
Once the trial court determined the Association to be the prevailing party in the
action, it had no discretion to deny attorney fees. (§ 5975; Salehi v. Surfside III
Condominium Owners Assn. (2011) 200 Cal. App. 4th 1146, 1152 [language of § 5975
reflects legislative intent to award attorney fees as a matter of right when statutory criteria
are satisfied].) The magnitude of what constitutes a reasonable award of attorney fees is,
however, a matter committed to the discretion of the trial court. (PLCM Group, Inc. v.
Drexler (2000) 22 Cal. 4th 1084, 1095-1096.) As noted above, in reviewing for abuse of
8Like the trial court, we need not address the Association’s contention that
defendants not only filed their opposition late, but also never properly served the
documents and supporting evidence on the Association.
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discretion, we examine whether the trial court exceeded the bounds of reason.
(Goodman, supra, 47 Cal.4th at p. 1339.) In so doing, we presume the “trial court
impliedly found ‘every fact necessary to support its order.’” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal. 4th 1106, 1115-1116, fn. 6, citing Murray v. Superior
Court (1955) 44 Cal. 2d 611, 619.)
Here, the trial court explicitly took into account the circumstance that the
Association had already recovered a portion of its attorney fees pursuant to the agreement
of the parties, and awarded fees only for fees incurred starting 60 days after the
mediation, when the agreed upon modifications should have been completed. The court
also excluded any award with respect to billings that did not provide sufficient
“information” for it to “tell what’s going on.” The amount actually awarded was
substantially less than the total amount requested, and defendants have not pointed to
anything suggesting the amount is unreasonable on its face, given the circumstances of
the case. We therefore find no manifest abuse of discretion in the court’s award.
Defendants argue that the trial court did not have enough information to support
its findings, pointing to the trial court’s comments about heavy redaction of the billing
records. The trial court specified, however, that it awarded no fees with respect to billing
items it considered to be excessively redacted, and that it resolved any doubts about the
appropriateness of billing entries in favor of defendants. Moreover, unlike some other
jurisdictions, California law does not require detailed billing records to support a fee
award; “[a]n attorney’s testimony as to the number of hours worked is sufficient evidence
to support an award of attorney fees, even in the absence of detailed time records.”
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(Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal. App. 4th 285, 293.)
Furthermore, “[a]n award for attorney fees may be made in some instances solely on the
basis of the experience and knowledge of the trial judge without the need to consider any
evidence. (Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal. App. 3d 215, 227.)
Defendants’ arguments about the sufficiency of the documentation submitted by the
Association in support of its request for attorney fees are without merit.9
Defendants also suggest that the trial court erred by not articulating in more detail
its findings with respect to how it arrived at the number that it did for an award of
attorney fees and costs. It is well settled, however, that the trial court was not required to
issue any explanation of its decision with regard to the fee award. (Gorman v. Tassajara
Development Corp. (2009) 178 Cal. App. 4th 44, 101 (Gorman) [“We adhere to our earlier
conclusion that there is no general rule requiring trial courts to explain their decisions on
motions seeking attorney fees.”].) To be sure, appellate review may well be “hindered”
by the lack of any such explanation. (Martino v. Denevi (1986) 182 Cal. App. 3d 553,
560.) Without explanation, an award may appear arbitrary, requiring remand if the
appellate court is unable to discern from the record any reasonable basis for the trial
9 Moreover, defendants never objected to the adequacy of the documentation
submitted by the Association in support of its motion for attorney fees, either at the
hearing on the motion, or in their late-filed opposition papers. The court raised the issue
of excessive redactions on its own motion, not at the prompting of defendants. As such,
even if defendants’ challenge to the adequacy of the evidentiary basis for the trial court’s
award of fees had merit, it would have been forfeited. (See Robinson v. Grossman (1997)
57 Cal. App. 4th 634, 648 [party that failed to object to the trial court that the opposing
party’s attorney fees were not sufficiently documented waived the right to object on
appeal to the amount of the fee award].)
15
court’s decision. (E.g. Gorman, supra, at p. 101 [“It is not the absence of an explanation
by the trial court that calls the award in this case into question, but its inability to be
explained by anyone, either the parties or this appellate court.”) Here, the trial court’s
reasoning is not so inscrutable, as discussed above.
D. Judgment Was Properly Entered Against Both Defendants.
Defendants argue that judgment was not properly entered against Lynn
Hazelbaker, because she was not a signatory to the mediation agreement. This argument
was not raised in the trial court, however, and “[a]s a general rule, ‘issues not raised in
the trial court cannot be raised for the first time on appeal.’” (Sea & Sage Audubon
Society, Inc. v. Planning Com. (1983) 34 Cal. 3d 412, 417.) Moreover, the argument is
without merit. It depends on the characterization of the action as no more than an action
on a contract, rather than an action to enforce the CC&Rs, which we rejected above.
Moreover, Lynn Hazelbaker was jointly represented by the same attorneys as Thomas
Hazelbaker during the periods of the case when they have been represented by counsel,
and joined with him in every filing, both in the trial court and in this court.10 An award
of attorney fees to the Association against both Thomas and Lynn Hazelbaker is
appropriate.
10 For example, defendants’ opposition to the Association’s motion for attorney
fees and costs is entitled “Declaration of Thomas B. Hazelbaker in Opposition to
Plaintiff[’]s Motion for Attorneys’ Fees and Costs,” but the heading indicates the
document was filed on behalf of both Thomas B. Hazelbaker and Lynn G. Hazelbaker, as
“Defendants, In Pro Per,” and Lynn Hazelbaker filed no separate opposition to the
motion.
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E. The Trial Court Did Not Err By Denying Defendants’ Motion for
Reconsideration.
Defendants argue that the trial court erred by denying their motion for
reconsideration as untimely. They are incorrect. Judgment was entered on December 17,
2014, while defendants’ motion was filed on January 21, 2015. “A trial court may not
rule on a motion for reconsideration after entry of judgment.” (Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal. App. 4th 187, 192.)
Defendants further contend that the trial court should have treated their untimely
motion for reconsideration as a timely motion for new trial, and granted it. However,
defendants’ asserted bases for demanding a “new trial”—really, a new hearing on the
issue of attorney fees, since no trial, or any other disposition on the merits of the
complaint, ever occurred—are all contentions we have discussed above, and rejected.
Defendants’ January 21, 2015 motion was properly denied on the merits, even if it could
be construed as timely filed.
F. The Association Is Entitled to Appellate Attorney Fees.
The Association correctly asserts that if it prevails in this appeal it is entitled to
recover its appellate attorney fees. “A statute authorizing an attorney fee award at the
trial court level includes appellate attorney fees unless the statute specifically provides
otherwise.” (Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1499.) Neither section 5975,
nor any other provision of the Davis-Stirling Act, precludes recovery of appellate
attorney fees by a prevailing party; hence they are recoverable.
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III. DISPOSITION
The judgment is affirmed. The Association is awarded its costs and attorney fees
on appeal, the amount of which shall be determined by the trial court.
CERTIFIED FOR PUBLICATION
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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