$89,387.50 Was Fee Recovery, With Trial Court Correctly Apportioning After Passage Of City Resolution.
Although technically not a HOA case, we post under this category because it involved an adjacent property owner in the City of Palm Desert suing another neighbor for having noncompliant construction plans under the HOA’s CC&Rs. The non-prevailing party in these disputes can be rocked by the ultimate fee exposure, in this case close to $90,000.
Plaintiff challenger of construction plans in Pasternack v. Fagel, Case No. E060349 (4th Dist., Div. 2 Sept. 11, 2015) (unpublished) eventually had his case dismissed after the HOA Architectural Board approved construction plans and a City resolution confirmed the propriety of what was done (albeit an intervening change in the prior law). The lower court awarded defendants $89,387.50 out of a requested $127,998.32, based on fees incurred after passage of the City resolution.
The appellate court affirmed, especially finding that the challenge to fee recovery might have had some merit had the entire request been awarded. However, the trial judge’s sagacity in only awarding fees after passage of the City resolution showed the award was no abuse of discretion. The basis for the fees was Civil Code former section 1354 (now 5975), which allows fees to the prevailing party in certain CC&R disputes.