Judge: Gary I. Micon, Case: 21CHCV00496, Date: 2025-04-29 Tentative Ruling
Case Number: 21CHCV00496 Hearing Date: April 29, 2025 Dept: F43
Dept. F43
Date: 04-29-25
Case # 21CHCV00496, Cheifer v. Aliento
Master Association
Trial Date: N/A
MOTION FOR ATTORNEY’S
FEES
MOVING PARTY: Defendant Aliento Master
Association
RESPONDING PARTY: Plaintiff Arne Cheifer
RELIEF REQUESTED
Order determining defendant is the prevailing
party and requiring plaintiff to pay defendant $269,103.59 in attorney’s fees
and costs.
RULING: Motion for
attorney’s fees and costs is denied.
SUMMARY OF ACTION
Plaintiff Arne Cheifer (Plaintiff) sued
defendant Aliento Master Association (Defendant), a homeowner’s association,
for violating the Fair Employment and Housing Act (FEHA) alleging that
Defendant refused to grant Plaintiff a reasonable accommodation to Defendant’s parking
rules and failed to provide Plaintiff with meeting minute records. Plaintiff sought to enjoin Defendant from
enforcing its governing documents, including the Conditions, Covenants and
Restrictions, (CC&Rs), operating rules and parking rules. The parties went to trial, and the jury returned
a verdict for Defendant on January 29, 2025.
Judgment was entered on February 4, 2025.
On February 19, 2025, Defendant filed this
motion contending that it is entitled to attorney fees and costs as the
prevailing party under Code of Civil Procedure, § 1032, subd. (a)(4). Defendant requests $229,681.00 in attorney’s
fees and $39,442.59 in costs, for a total requested amount of $269,103.59. Defendant argues that it is entitled to
attorney’s fees under Civil Code, § 5975 of the Davis-Stirling Common Interest
Development Act because Plaintiff attempted to enjoin Defendant from enforcing
its governing documents, including the CC&R. Additionally, this action was litigated over
four years and included four trial continuances and a motion for summary
adjudication.
Defendant also asserts that expert fees and
costs are recoverable against Plaintiff under Code of Civil Procedure, § 998. In 2022, Defendant served a section 998 Offer
to Compromise which was not accepted. Defendant’s
supporting evidence includes declaration from attorney David G. Molinari; declaration
from attorney Joseph A. Gonnella; declaration from Valencia Management Group
employee Karen Manahan; billing statements showing each task that Defendant’s
attorneys performed, how much time was spent performing each task, hourly rates,
and amount of money owed for each task; the 2022 Offer to Compromise; and
expert invoices. (Declaration of David
G. Molinari, Exhs. 1, 2, 3; Declaration of Joseph A. Gonnella; Declaration of
Karen Manahan.)
Defendant states that Molinari’s discounted hourly
rate was $220.00 in 2021 and 2022, and $250.00 in 2023 and 2024. Gonnella’s hourly was $200.00 in 2021, 2022,
and 2023, and $225.00 in 2024. Defendant
seeks a total of $69,103.59 in attorney’s fees.
Defendant has requested costs in the amount
of $39,442.59 based on a memorandum of costs filed on February 18, 2025.
Plaintiff opposes, asserting that a
prevailing Defendant cannot recover fees and costs in FEHA actions unless the
court finds that the case was “frivolous, unreasonable, or groundless when
brought” or that plaintiff continued to litigate after it clearly became
so. The jury found that Plaintiff had a
disability that affects major life activities.
Thus, this case was not frivolous, unreasonable, or groundless. Because the Complaint is primarily based on
FEHA disability discrimination, Defendant cannot seek mandatory attorney fees
and costs under the Davis-Stirling Common Interest Development Act. The Complaint’s discussion of the CC&R is
contextual rather than the basis of Plaintiff’s claims. Finally, Defendant is not entitled to expert
costs because this is a non-frivolous FEHA action, and the general rules of 998
offers do not apply.
Defendant contends that Plaintiff sought a
remedy under the CC&R which means the Davis-Stirling Act applies. Plaintiff’s third cause of action for
declaratory relief undercuts Plaintiff’s argument that he did not seek relief
under the CC&R. The Complaint
alleges that the actual controversy between Defendant and Plaintiff is whether
Plaintiff is in compliance with Defendant’s governing documents; that the
CC&R requires an owner to “ensure that his or her garage accommodates at
least the number of Authorized Vehicles for which it was originally constructed
by Declarant or Guest Builder”; and that the CC&R requires all residents to
first park their vehicles in their respective garages “to the extent space is
available.” Plaintiff alleged that because
strict compliance with the governing documents prevented Plaintiff from using
and enjoying his property, Defendant could not force him to park both of his
cars in his garage. Plaintiff now states
that this is not a CC&R dispute even though Plaintiff moved for a
preliminary injunction to enjoin the CC&R.
Plaintiff cannot retroactively invoke FEHA’s attorney fees
standard. Additionally, Plaintiff does
not object to Defendant’s request for judicial notice of the CC&R.
REQUEST FOR JUDICIAL NOTICE
Defendant requests that the court take
judicial notice of the following exhibits pursuant to Evidence Code sections
451, 452, and 453:
·
Exhibit 1 - Aliento Master Association, Master Declaration of
Covenants, Conditions and Restrictions, publicly recorded with the Los Angeles
County Recorder’s Office on June 5, 2017
·
Exhibit 2 - Plaintiff’s operative Complaint filed on July 2, 2021
·
Exhibit 3 - Jury Verdict and Judgment on Jury Verdict in case
number 21CHCV00496
The court grants Defendant’s request pursuant
to Evidence Code, § 452, subd. (d).
ANALYSIS
A prevailing party is entitled to recover its
attorneys’ fees when authorized by contract, statute, or law. (See Code Civ. Proc., § 1033.5, subd.
(a)(10); Cal. Civ. Code § 1717(a).) “A
successful party means a prevailing party, and [a party] may be considered
prevailing parties for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.” (Bowman v.
City of Berkeley (2005) 131 Cal.App.4th 173, 178.) If a buyer prevails in a Song-Beverly action,
then the buyer is allowed to recover attorney fees. (Civ. Code, § 1794, subd. (d).) Plaintiff is authorized by statute to recover
attorney fees.
Defendant is the prevailing party because the
jury entered a verdict in Defendant’s favor.
(Code Civ. Proc., § 1032, subd. (a)(4) [“a defendant as against those
plaintiffs who do not recover any relief against that defendant.”].)
3. The Davis-Stirling Common Interest
Development Act
“The Davis-Stirling Act is intended, among
other things, to encourage parties to resolve their disputes without resort to
litigation, by effectively mandating prelitigation ADR.” (Rancho Mirage Country Club Homeowners
Ass’n v. Hazelbaker (2016) 2 Cal.App.5th 252, 259 [citing Civ. Code, §
5930, subd. (a)].)
The Davis-Stirling Act mandates attorney’s
fees to the prevailing party in an action to enforce a homeowner
association’s governing documents. (Almanor
Lakeside Villas Owners Ass’n v. Carson (2016) 246 Cal.App.4th 761, 776
[citing Civ. Code, § 5975]; Salawy v. Ocean Towers Housing Corp. (2004)
121 Cal.App.4th 664, 672.) An “action to
enforce” is a proceeding that is initiated by the party filing the claim in
order to enforce or protect a rights or redress or prevent a wrong. (Salaway, supra, 121
Cal.App.4th at p. 672.) An “action to
enforce” does not include steps taken to defend within the action because a
defense is merely a response to claims of the other party. (Id. at pp. 672-73.)
Here, Plaintiff sought an exception or
accommodation to the CC&R’s enforcement, while Defendant sought to fully
enforce the CC&R as a defense. Plaintiff
referenced the CC&R to provide context for his claims which primarily stem
from FEHA. Further, Plaintiff’s
allegation that he complied with Section 5950 of the Act does not make this an
enforcement action because Plaintiff merely states that he complied with the
provision’s ADR requirements. (Compl.,
¶¶ 7-9.)
Section 5975 does not apply to the Second
Cause of Action (under Civ. Code, § 5235) because enforcing a member’s right to
inspect an association’s records is not included in section 5975. Further, section 5235 has its own attorney fees
provision, which the prevailing party may only invoke if the prevailing party
demonstrates that the action is “frivolous, unreasonable, or without
foundation.” (Civ. Code, § 5235, subd.
(c).) Defendant does not present such an
argument.
Finally, the minute orders granting the temporary
restraining order and the preliminary injunction state that Defendant was
enjoined from enforcing its rules. ((See
Minute Order - 9/2/21; Minute Order - 10/22/21.) Plaintiff even states in his moving papers
that he wanted to “prevent the HOA from enforcing its parking rules against
him.” (Plaintiff’s Reply - filed
10/15/21, at p. 10.)
Because this case did not arise from
Plaintiff attempting to enforce the CC&R under section 5975 and Defendant has
not proven that this case from frivolous or unreasonable under section 5325,
Defendant cannot seek attorney fees and costs under the Davis-Stirling Common
Interest Development Act.
2. The Fair Employment and Housing Act and Code
of Civil Procedure section 998(c)
“If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the plaintiff
shall not recover his or her postoffer costs and shall pay the defendant’s
costs from the time of the offer.” (Madrigal
v. Hyundai Motor Am. (2023) 90 Cal.App.5th 385, 397.) “The purpose of the cost-shifting statute is
to encourage the settlement of litigation without trial, by punishing the party
who fails to accept a reasonable settlement offer from its opponent.” (Prince v. Invensure Ins. Brokers, Inc.
(2018) 23 Cal.App.5th 614, 622.) “Where
the offeror obtains a judgment more favorable than its offer, the judgment
constitutes prima facie evidence showing the offer was reasonable and the
burden lies with the offeree to show that the offer was not in fact
reasonable.” (Elite Show Servs., Inc.
v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268.)
Additionally, “in any action or proceeding other than an
eminent domain action, the court or arbitrator, in its discretion, may require
the plaintiff to pay a reasonable sum to cover postoffer costs of the services
of expert witnesses, who are not regular employees of any party, actually
incurred and reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the
defendant.” (Code Civ. Proc., § 998, subd.
(c)(1).) “[W]here trial court has discretion
under both Gov. Code, § 12965(b) and Code Civ. Proc., § 998,
subd. (c)(1) to award prevailing defendant its expert witness fees, [the]
court in determining size of award should consider the policies behind both
statutes.” (Holman v. Altana Pharma
US, Inc. (2010) 186 Cal.App.4th 262, 283-85.)
As stated above, Defendant is the prevailing party. Defendant has satisfied its burden of
presenting a copy of the offer of compromise.
(Molinari Dec., Exh. 2.)
Defendant served the offer on Plaintiff on October 4, 2022, and offered
to pay Plaintiff $70,000.00 to cover litigation costs, fees, damages, and
attorney fees and to provide three (3) additional parking locations near
Plaintiff’s property. (Molinari Dec., ¶
18, Exh. 2.) Plaintiff rejected the
offer. (Molinari Dec., ¶ 18.)
“Once the offeror shows the section 998 offer is valid,
the burden shifts to the offeree to show the offer was not made in good
faith.” (Khosravan v. Chevron Corp.
(2021) 66 Cal.App.5th 288, 296.)
Plaintiff contends that section 998 does not apply
because this is a nonfrivolous FEHA case.
(Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 84
[“[T]here is no statutory authority to award section 998 postoffer fees and
costs in a nonfrivolous FEHA action.”] [citing Murillo v. Fleetwood
Enterprises, Inc. (1998) 17 Cal.4th 985; Williams, supra, 51
Cal.4th 97].)
Section 998 does not apply to award costs and attorney
and expert fees in a FEHA action unless the court finds that the case was “frivolous,
unreasonable, or groundless when brought, or the plaintiff continued to
litigate after it clearly became [frivolous].”
(Huerta v. Kava Holdings, Inc. (2018) 29 Cal.App.5th 74, 76, 84.)
A case is “frivolous, unreasonable, or groundless” if the
“plaintiff brought or continued litigating the action without an objective
basis for believing it had potential merit.”
(Lopez v. Routt (2017) 17 Cal.App.5th 1006, 1011.) Defendant has the burden to demonstrate that
the case was frivolous, unreasonable, or groundless. (Lopez v. Routt (2017) 17 Cal.App.5th
1006, 1011.)
Defendant does not present arguments showing that
Plaintiff’s case was frivolous, unreasonable, or groundless when filed or later
became frivolous.
Defendant’s argument under the FEHA statute fails for the
same reason. Government Code section
12965, subd. (c)(6) is an express exception to Code of Civil Procedure section
1032, subd. (b) and governs attorney’s fees and costs awards in FEHA
actions. Therefore, the court has
discretion to award attorney’s fees and costs to defendant prevailing
parties. (Williams v. Chino Valley
Indep. Fire Dist. (2015) 61 Cal.4th 97, 109.) Similar to section 998, when the defendant is
the prevailing party, the court cannot award attorney’s fees and costs unless
the court finds the action was “frivolous, unreasonable, or groundless when
brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (b)(6).)
Therefore, Defendant cannot collect costs, attorney fees,
or expert fees under Gov. Code, § 998 or Gov. Code, § 12965(c)(6).
CONCLUSION
Defendant’s motion for attorney fees and costs is denied.
Defendant to give notice.