Both Civil Code Section 1354 (Now Section 5975) And CC&R Fee Clause Were In Play.
Yikes! Talk about a change in fortune based on a prior appeal. Homeowner finally won, obtaining damages and substantial attorney’s fees for hanging in there to the end.
In Multani v. Castle Green Homeowners Assn., Case No. B278397 (2d Dist., Div. 7 May 28, 2019) (unpublished), HOA earlier won a summary judgment and $90,000 in attorney’s fees in connection with foreclosing on a HOA assessment lien. However, that victory went away in an earlier appeal against the HOA. Then, after a bench trial on remand, homeowners won—the lower court concluded that the HOA unlawfully foreclosed on an assessment lien by not giving a 90-day notice of the right to redemption in proper matter such that homeowner was entitled to $434,000 in damages for loss of the condo unit. (The unit was sold at the assessment lien nonjudicial foreclosure for $20,200). But that was hardly the end of the story. Homeowner moved for fees under the Davis-Stirling Act fee shifting provision (former Civil Code section 1354, now section 5975) and the CC&Rs’ fees clause. The lower court awarded them about $720,000 in fees as the prevailing party.
Both the merits and fee rulings were affirmed on appeal. What really sealed the deal for the appellate court was that the HOA argued the same bases for fee entitlement when winning them after the summary judgment motion—it could hardly shift course when the tide turned against it.