Court of Appeal, Facing Some Gnarly Procedural Issues, Finds Trial Court Denial Was Correct.
Gunn v. Superior Court (Mai Kai Community Assn.), Case No. G046989 (4th Dist., Div. 3 Feb. 7, 2013) (unpublished) was a situation where an HOA voluntarily dismissed without prejudice an action after a homeowner early on relented and allowed it access to her balcony to remediate a leak causing problems for the homeowner living below the sued homeowner. However, defendant homeowner filed to recover $145,000 in costs and fees as the prevailing party. The lower court denied fees because she did not bring the proper noticed fee motion or introduce proper costs memorandum substantiation, as well as determined that neither side prevailed under the CC&R enforcement fee provision (Civ. Code, § 1354(c).)
First of all, the appellate court had to determine if the order granting a motion to strike/tax costs following a voluntary dismissal without prejudice qualified as a postjudgment appealable order. After finding there was conflicting authority, the appellate court considered under the circumstances that it was best to treat the appeal as a writ petition that should be decided on the merits.
However, that did not get defendant very far.
She failed to file a noticed motion to recover fees, and did not support her costs memorandum fee request with any competent declaration. So, procedurally, the lower court correctly struck/taxed costs.
On the merits, neither side prevailed on a practical level. Certainly not defendant; after all, she did allow the HOA onto the balcony to resolve the overall controversy. (Heather Farms Homeowners Assn. v. Robinson, 21 Cal.App.4th 1568, 1574 (1994) [“practical level” test determines prevailing party status under Civil Code section 1354].) As far as other costs, they too were not recoverable by defendant: there were no court-appointed experts; the case never went to trial so that blowups helped the cause; and nothing in the costs statutes authorizes recompense for travel to and from HOA meetings.
Finally, HOA did not get appellate sanctions on appeal because it failed to file the separate motion required by CRC 8.276(b)(1), with a request in the respondent’s brief not satisfying the procedural requirements.
Justice Fybel was the author of this one on behalf of a 3-0 panel.