Dissent Disagreed, Wanting To Remand The Matter For Determining A Reasonable Fee Award–$138,875 In Fees Went POOF! Based On The Majority Opinion.
In an interesting 2-1 decision, the 4/1 DCA in Senseman v. Mimi Real Properties, Case No. D084658 (4th Dist., Div. 1 Mar. 26, 2026) (unpublished) affirmed a merits determination but struck a $138,875 fee award to plaintiff as a matter of law. The dissent (Justice O’Rourke) saw things differently.
This dispute involved two condo owners, with one living above the other. Plaintiff sued on the basis that defendant should not be allowed to use the unit as a short-term rental. Plaintiff lost some claims on pretrial motions, but a jury awarded $2,220.15 on nuisance and CC&R violations, mainly for noise issues, even though asking the jury for $524,000 in damages. Plaintiff did not win a complete ban on defendant being able to use the unit for a short-term rental. The lower court determined that plaintiff prevailed (even though there were some remaining abatement injunction issues), awarding $149,763 in fees and costs ($138,875 being fees).
The appellate court reversed the fee award as a matter of law, on a 2-1 vote. The majority found that the fee award was premature based on the abatement injunction issues, but the majority also determined that plaintiff did not pragmatically prevail based on the claimed damages versus what was obtained from the jury. The dissent believed that the CC&R violations justified the award and cited a case where a fee award was affirmed although it was much higher than the eventual recovery. (Almanar Lakeside Villas Owners Assn. v. Carson, 246 Cal.App.4th 761, 767-768, 775, n. 6 (2016).) The dissent felt that the fee award was not premature because the abatement injunction issue was not material to the fee adjudication. The dissent would have reversed, but he would have remanded so the lower court could determine a reasonable fee.