Fourth District, Division 3 Remands for Fee Redetermination in “Acrid Dispute Between Neighbors.”
Disputes between homeowner associations and members or neighbors in a common interest subdivision seem to result in overboilings of emotions and (ultimately) litigation resources. Many times, the final result—where both sides seek to recoup hefty attorney’s fees—results in a “wash,” with trial courts determining there was no prevailing party. Other times, the lower court gives the victor a substantial share of the spoils, much to the chagrin of the outwardly outraged opponent (who generally appeals, loses, and owes more fees). Well, here is another one—except that is involves neighbors in a common interest subdivision with CC&Rs. You know that the result could not be good when the appellate court deciding a fee award denial characterized it as a case arising out of “an acrid dispute between neighbors.”
In Harm v. Hetman, Case No. G040454 (4th Dist., Div. 3 June 25, 2009) (unpublished), quite a neighborhood donnybrook was involved, with litigation brought by Mr. Hetman in which he charged that neighbors, the Harms (maybe appropriately named, if you continue on, from the other side’s perspective), violated CC&RS and created a nuisance by (1) building a stucco wall obstructing Hetman’s views; (2) retaining a contractor that damaged Hetman’s brick planter wall when jackhammering construction on Harms’ property, and (3) maliciously planting 30 trees across the neighbors’ property line that would grow over 10 feet in height, so as to create the equivalent of a “spite fence.” The trial court enjoined the stucco wall construction, while the jury found Harms were not negligent with respect to the jackhammering contractor and did not maliciously plant the trees to annoy Mr. Hetman. After trial, Harms filed a motion to recover $201,150 in attorney’s fees for prevailing on the two claims, a request which was denied. Appeals ensued on the merits judgment and fee award denial.
Pebbled Stucco Wall. Library of Congress.
In an earlier appeal, the Court of Appeal reversed the stucco wall injunction.
That presented a new “landscape” (sorry about the pun) for purposes of evaluating the fee award denial.
Certainly, there were three independent bases justifying a fee award in favor of the Harms: (1) the CC&Rs; (2) Civil Code section 1717 (because CC&Rs are contracts for purposes of this provision, Mackinder v. OSCA Development Co., 151 Cal.App.3d 728, 738 (1984)); and (3) Civil Code section 1354(c), see also Heather Farms Homeowners Assn. v. Robinson, 21 Cal.App.4th 1568, 1574 (1994))—because CC&R enforcement was involved.
The lower court determined there was no prevailing party because Hetman prevailed on one claim and Harms prevailed on two, but determined this was “a stand off.” However, the earlier appellate reversal changed things—the Harms prevailed on all causes of action, such that they were entitled to fees. Justice Moore, author on behalf of a 3-0 panel of the Fourth District, Division 3, so decided in Harm. Reversal of fortune, but that is how it can be in the land of litigation (at the trial level or on appeal). The matter was remanded for the trial court to award appropriate fees to the Harms.
BLOG UNDERVIEW—Co-contributor Mike has to blow a trumpet for co-contributor Marc. Long before there was any settled law in the area, he won a case before Hon. William F. McDonald (Ret.), when he was a sitting Orange County Superior Court judge, when one neighbor erected trees as a “spite fence.” Even more on the point, the trees were of a species that had a carob pod with a very pungent, odiferous smell—a smell that Hon. McDonald got to “sense” during the trial. Now, spite fences are deemed a nuisance under Civil Code section 841.4, with rows of trees qualifying as “spite fences” under the right circumstances. (See, e.g., Wilson v. Handley, 97 Cal.App.4th 1301 (2002).) Bravo, Marc, you were ahead of the times on this one!
Carob Tree. Stereograph, 1900-1920. Photographer unknown.