Presiding Justice Sills Sustains Fee Awards on Behalf of 3-0 Panel.
If one is prone to read lots of appellate opinions (as we are), distinctive styles come through by various appellate justices authoring the cases assigned to them. That happens to be the case in the next decision we review—Presiding Justice Sills, the author, has been noted for his distinctive style by Presiding Justice Perluss of the Second District, Division 7 in Marriage of Silverman (an unpublished decision we did a recent post on). This one, however, involves a homeowner association versus homeowner, with the homeowner coming out on the losing end of the fee battle.
Nellie Gail Ranch Owners Association v. Colombo, Case No. G040957 (4th Dist., Div. 3 Sept. 9, 2009) (unpublished) involved two attorney’s fees awards totaling about $188,000 for trial and previous appellate work in a case where a homeowners association prevailed against a homeowner. HOA obtained an injunction contemplating that it could enter homeowner’s property and demolish half-completed structures because they had not been constructed within a specified time period as required under the CC&Rs. (There was a safety valve section of the injunction that allowed homeowner more time, a safety valve period that got extended because of “some confusion” fessed up to by the appellate court in its prior opinion when the dispute was ongoing.) Homeowner was most unhappy, and appealed the two fee orders.
Homeowner did not become any happier after review; he lost and now faces having to pay a lot of fees for losing “the war” with the HOA.
The Fourth District, Division 3, in a 3-0 panel opinion authored by Presiding Justice Sills, found that the prevailing party determination under the HOA fee-shifting statute (Civil Code section 1354) is a pragmatic one, with large discretion given to the trial court when making the determination. (Heather Farms Homeowners Assn. v. Robinson, 21 Cal.App.4th 1568, 1572, 1574 (1994).) In this instance, the appellate panel found that HOA obtained its main litigation objective with the injunction, even if homeowner eked out some extra time by the previous appeal. Relying on Ritter & Ritter, Inc. v. Churchill Condominium Ass’n, 166 Cal.App.4th 103 (2008) [reviewed in our July 24, 2008 post], Justice Sills found that “you don’t have to obtain your ‘dream’ litigation objective to be a prevailing party.”
Homeowner argued that fees could not be awarded because, in the prior appeal, the appellate court ordered each side to bear its own costs on appeal. That argument failed, based on reasoning in Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918 (2007) that allows fee recovery even if routine costs were not awarded by the appellate court. Although Butler-Rupp involved a fee award pursuant to contract, Justice Sills did not see why the principle should operate any differently in a case involving a prevailing party statute.
The last gasp for homeowner was trying to argue that his CCP section 998 offer cut off exposure because he was willing to give HOA most of what it ultimately got. The problem here was that homeowner sent his offer late (6 days rather than the mandated 10 days before trial). Also, HOA clearly received a more favorable judgment at trial—a possible demolition.
The hefty fee awards were affirmed, which brings to mind a former Fourth District, Division 3 justice’s refrain in our Mission Statement—click on it to see what Ed Wallin said—our mantra for this website.