Judge: Ashfaq G. Chowdhury, Case: 22GDCP00183, Date: 2024-03-07 Tentative Ruling

Case Number: 22GDCP00183    Hearing Date: March 8, 2024    Dept: E

Hearing Date: 03/08/2024 – 8:30am
Case No. 22GDCP00183
Trial Date: N/A
Case Name: TRACI ANN CURTIS-DE RAGO, Trustee, or Successor Trustee, under the JOHN E. DE RAGO AND TRACI ANN CURTIS-DE RAGO FAMILY TRUST DATED NOVEMBER 20, 2009; MARGARITA HIRAPETIAN, an individual; ROUBINA MALAYAN, an individual and Trustee of the ROUBINA MALAYAN REVOCABLE TRUST U/T/A JULY 2, 2004; EDGARDO P. ROSALES, an individual; and, NAZLY BIM, an individual; v. WOODGLEN HOMEOWNERS ASSOCIATION, a California non-profit corporation and DOES 1 THROUGH 20, inclusive,

[TENTATIVE RULING– MOTION FOR ATTORNEY FEES]

RELIEF REQUESTED¿ 
Petitioners, Traci Ann Curtis-De Rago, an individual and as Trustee, or Successor Trustee, under the John E. De Rago and Traci Ann Curtis-De Rago Family Trust dated November 20, 2009, Margarita Hirapetian, Roubina Malayan, an individual and Trustee of the Roubina Malayan Revocable Trust u/t/a July 2, 2004, Edgardo P. Rosales, and Nazly Bim (collectively, “Petitioners”), will and hereby do move the Court for an order awarding Petitioners $149,948.75¹ in attorneys’ fees and $1,087.45 in costs for a total of $151,036.20 as the prevailing party as well as pursuant to the Association’s Governing Documents (as defined herein below), California Rules of Court, Rule 3.1702, and Code of Civil Procedure §§ 1032, 1033.5(a)(10), and Civil Code §§ 1717, 5145, 5975.

This motion is based on this notice of motion, the accompanying Memorandum of Points and Authorities, the declarations of Elsa M. Horowitz, Michael Schulman, Sahil Shah, and John Narcise attached hereto, the Request for Judicial Notice (the “RJN”) filed concurrently herewith, all pleadings and records on file herein, and on such further argument and evidence as may be presented at the hearing of this motion² .

[The Court includes the footnotes below.

Footnote 1 - $140,048.75 + $9,900.00 (for this motion which includes an anticipated additional 6 hours for review of an opposition, reply brief and appearance at the hearing on this motion) = $149,948.75

Footnote 2 - On October 11, 2023, the parties submitted a Stipulation Pursuant To California Rules Of Court Rule 3.1702 To Extend Time For Petitioners To File Motion For Attorneys’ Fees And Costs; [Proposed] Order Thereon so that repayment could be finalized, and the fees and costs issues could be resolved. However, because the order was not yet entered by the Court, this motion was necessary. ]

PROCEDURAL
Moving Party:  Petitioners
Responding Party: No Opposition submitted by Respondents as of 3/4/2024

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

Moving Papers: Notice/Motion; Request for Judicial Notice;
Opposition Papers: No Opposition
Reply Papers: No Reply

BACKGROUND
This case does not arise from a Complaint. On 11/10/2022, Petitioners filed a Petition.

The caption of the Petition requested as follows:

PETITION FOR ORDERS SUMMARILY:

1. AUTHORIZING THE USE OF THIRD-PARTY ELECTION AGENT [Civil Code § 5103, § 5105 and § 5110 and Corporations Code § 7510(c) et seq.]

2. AUTHORIZING A SPECIAL MEETING OF MEMBERS CALLED BY 5% PERCENT OR MORE OF THE MEMBERS OF THE ASSOCIATION [Corporations Code § 7510(e)] and,

3. SETTING A DATE CERTAIN FOR THE ANNUAL MEETING OF THE ASSOCIATION AND ELECTIONS OF THE BOARD OF DIRECTORS AND THEREAFTER, ENFORCING PROCEDURES AND ELECTION RESULTS [Corporations Code § 7510(c), § 7515, § 7616 and § 7520 et seq.]

(Petition filed 11/10/2022, p.1.)

This action arose when Petitioners, owners/members of Woodglen Homeowners Association, alleged that Respondent, Woodglen Homeowners Association, through its then allegedly rogue Board of Directors, repeatedly refused to hold a lawfully mandated annual meeting and election and interfered with Petitioners efforts to conduct one. According to the “Preliminary Statement” section of this motion, the purpose of the Petition was to obtain a Court order to ensure that an election of the Board of Directors of Woodglen Homeowners Association took place on a date certain, with use of an authorized third-party election agent, and that the results of said election be enforced by the Court.

The Petition was granted on February 3, 2023.

On February 14, 2023, the Hon. David A. Rosen of this Court signed the Order After Hearing on Petition.

On August 14, 2023, the Hon. David A. Rosen of this Court signed the Amended Order After Election.

On August 16, 2023, Petitioners served and filed the Notice of Entry of Judgment or Order.

TENTATIVE RULING
The Court will hear from the parties at the hearing.

In Petitioners’ motion, Petitioners state that Respondent, Woodglen Homeowners Association, “has acknowledged that all efforts undertaken by the Petitioners  prior to and including with this Petition (as defined below) were for the benefit of the community as a whole and have agreed that Petitioners are entitled to reimbursement of their expenses in their entirety, which amounts the Association has since agreed that Petitioners are entitled to full reimbursement for.” (Pet. Mot. p. 6.)

Further, Petitioners filed a Stipulation and a Proposed Order on the Stipulation on 2/13/2024.

This Stipulation was titled “Stipulation to Dismiss Case with the Court Retaining Jurisdiction Pursuant to Code of Civil Procedure Section 664.6.”

In relevant part, the Stipulation states:

1. The parties have entered into a written settlement agreement and stipulation for judgment which provides that judgment shall only be entered in the event the Association defaults on the settlement agreement and stipulation for judgment.

2. The parties agree and request that the case be dismissed without prejudice pursuant to Code of Civil Procedure Section 664.6 with the Court retaining jurisdiction to enforce the settlement agreement and stipulation for judgment.

3. This stipulation may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same  instrument. In addition, signed copies of this stipulation exchanged via electronic transmission, including, without limitation, facsimile, email or photocopy shall be deemed originals and delivered for all purposes.

(Stip. filed 02/13/2024.)

In light of the proposed stipulation, the fact that there was no Opposition to this motion, and that Petitioners allege that Respondent agreed that Petitioners are entitled to full reimbursement, the Court will hear argument.

The Court is unclear if  the parties intend for the motion for attorney’s fees to be taken off calendar as moot if the Court signs the proposed stipulation.

If so, the Court likely has no problem with signing the stipulation and denying the motion for attorney’s fees as moot.

The Court also would like the parties to address how this Stipulation, if signed by the Court, affects the August 16, 2023 Notice of Judgment or Order.

The Court would like the parties to address this because the Stipulation states in ¶1 that “The parties have entered into a written settlement agreement and stipulation for judgment which provides that judgment shall only be entered in the event the Association defaults on the settlement agreement and stipulation for judgment.” (Stip. filed 02/13/2024; italics added.)

The Court is uncertain whether the parties are attempting to stipulate that the prior Notice of Judgment or Order is no longer in effect based on the proposed stipulation.

The Court is inclined to GRANT the unopposed motion, but the Court will hear from the parties.