Dispute Was Covered Under CC&R’s Fee Provision.
In Hunkel v. Gerhardt, Case No. H044753 (6th Dist. March 12, 2019) (unpublished), two neighboring homeowners squared off in a dispute over the placement of a fence by one homeowner group. The defendant homeowners claimed that there was no proper board of directors making a decision on the fence dispute, a position ultimately embraced by the trial court. The lower court then awarded prevailing defendants $111,215.50 against losing plaintiffs under both Civil Code section 1717 (the former based on a CC&R fee clause) and Civil Code section 5975 (the latter being a Davis-Stirling Act fee-shifting provision).
The Sixth District affirmed, based on the Civil Code section 1717 rationale alone.
Plaintiff neighbors, the losing parties, did sue for declaratory relief, a classic contractual claim covered by a broadly-worded CC&R provision providing for fee entitlement even by individual homeowners. Defendant neighbors did prevail on a liminal board authority issue, an issue which allowed fee recovery even though they obtained no affirmative relief.