Judge: Armen Tamzarian, Case: 21STCV42411, Date: 2024-12-17 Tentative Ruling

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Case Number: 21STCV42411    Hearing Date: December 17, 2024    Dept: 52

Plaintiff Lois Meehan’s Motion for Attorney Fees

Plaintiff Lois Meehan moves for $234,190 in attorney fees under Civil Code section 5975, subdivision (c).  Section 5975 of the Davis-Stirling Common Interest Development Act provides:

(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development.  Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.

(b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association.

(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.  (Italics added.)

Plaintiff cannot recover attorney fees from defendants because this was not an action to “enforce” the governing documents under Civil Code section 5975, subdivision (c).  Courts consider “the substance of the claims asserted and relief sought, in determining whether an action is one ‘to enforce the governing documents’ in the meaning of section 5975.”  (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260.)  Plaintiff’s second amended complaint asserted two causes of action: (1) trespass and (2) nuisance based on violations of the City of Malibu’s Health and Safety Code.  Plaintiff sought damages for the torts and an injunction prohibiting defendants from certain uses of plaintiff’s property.  This action brought only tort claims based on real property rights held by every property owner.      

In arguing this was an action to enforce the governing documents, plaintiff relies on section 1 of the CC&Rs: “Section 1. Road Ingress and Egress. Each real property owner and road user shall have, and there is hereby granted to each such real property owner and road user, for his and/or her use and the use of his and/or her invitees (as defined below), in common with all others entitled to use the same, non-exclusive easements on, over, and across the Private Roads for the ingress and egress of vehicles, for the passage and accommodation of pedestrians and for the ingress and egress of construction, repair, service and maintenance vehicles and/or equipment.  The forgoing grant is limited to the non-exclusive use of the surface area of the Private Roads.”  (Statement of Decision, p. 5.) 

Plaintiff’s action did not seek to enforce that provision of the governing documents, nor any other provision. She did not claim any rights under the easement set forth in section 1.  Instead, plaintiff asserted trespass and nuisance actions pursuant to rights she had as a property owner separate and apart from the easement.

It is true that the CC&Rs gave defendants certain rights over plaintiff’s property.  If defendants brought an action or cross-complaint alleging plaintiff interfered with their easement for ingress and egress, that might constitute an action to enforce the CC&Rs.  In this case, however, the easement in the CC&Rs at most could have served as a defense to plaintiff’s trespass claim.  That does not permit plaintiff to recover attorney fees.  “Narrow statutory language limited to ‘actions to enforce’ does not authorize attorney fee awards where the statute is used defensively.”  (Gil v. Mansano (2004) 121 Cal.App.4th 739, 745 [using predecessor to Civ. Code, § 5975, subd. (b) as an example]; accord Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 753 [While an affirmative defense is part of an “action,” “it does not, in and of itself, constitute an ‘action’ for purposes of recovering attorney fees”]; Excess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 712 [“we cannot equate raising a [‘defense’ with bringing an ‘action’ or ‘proceeding’ ” for purposes of attorney fees].)

Plaintiff argues the “gravamen” of her action “was to enforce the strict limitations of the easement rights set forth in the CC&Rs.”  (Mot., p. 3.)  The court is unpersuaded.  Plaintiff’s rights did not derive from the CC&Rs.  They pre-existed the CC&Rs and will continue even if the CC&Rs are revoked or the easement contained in the CC&Rs is abolished. 

            When interpreting a statute, courts should avoid, if possible, rendering any part or word superfluous.  (People v. Lopez (2022) 76 Cal.App.5th 287, 292.) Plaintiff’s interpretation of the statute would effectively render the word “enforce” superfluous.

Plaintiff Lois Meehan’s motion for attorney fees is denied.  Plaintiff Lois Meehan shall recover no attorney fees from any defendant.