Judge James C. Chalfant, Case Number: 21STCP03001, Date: 2024-05-14 Tentative Ruling

Key v. Hidden Hills

Community Association,

21STCP03001

Tentative decision on (1) motion to vacate and/or correct arbitration award: denied; (2) petition to confirm arbitration award: granted

Petitioner Sarah Key (“Key”) moves the court to vacate and/or correct the Arbitration Award issued by JAMS Honorable David Thompson (“Arbitrator”). Respondent Hidden Hills Community Association (“Association”) seeks an order confirming the Arbitration Award in its favor.

The court has read and considered the moving papers, oppositions, and replies, and renders the following tentative decision.

Petitioner Key commenced this proceeding on September 13, 2021. The operative pleading is the First Amended Petition (“FAP”), filed on April 18, 2022 against Association and Land Mark Electric, Inc. (“Land Mark”) and alleging claims for writ of mandate and declaratory relief. The FAP alleges in pertinent part as follows.

Key is the owner of real property located at 24835 Eldorado Meadow Road, Hidden Hills, California 91302 (“Key Property”) and a member of the Association per Civil Code section 4160. FAP ¶5. The Association is a common interest development subject to the Davis Stirling Common Interest Development Act (“Davis-Stirling” or the “Act”) under Civil Code section 4800 et seq. FAP ¶6. As such, the Association is obligated to maintain and manage common areas and separate interests that arise out of or related to the common interest development. FAP ¶6.

In July 2021, Land Mark submitted development plans to the Association proposing cut and fill 1,880 cubic yards of dirt to remove a hill on property it owns at 5949 Spring Valley Road, Hidden Hills, California 91302 (“Land Mark Property”) and to construct a driveway across the strip of land owned by Key (“Flag Strip”) without her consent. FAP ¶13. In January 2022, the Association’s Architectural Committee provided input that it did not like Land Mark’s plans. FAP ¶13. Land Mark has represented in its pleadings and declarations filed with the court that it plans to build driveways on Key’s Property to obtain access to Eldorado Meadow Road. FAP ¶14. Land Mark has represented to the court that it does not accept that Key owns the Flag Strip between the Land Mark Property and Eldorado Meadow Road. FAP ¶14. Land Mark has never conceded that there is no easement that would permit it to build structures and/or driveways on Key’s land to get to Eldorado Meadow Road. FAP ¶14.

The Association violated Davis-Stirling and engaged in unlawful conduct in violation of Civil Code section 4205 by failing to inform Land Mark, the owner of the Land Mark Property, that building any driveways or other structures over the Flag Strip owned by Key to access Eldorado Meadow Road is trespass in violation of the law and will not be permitted. FAP ¶11.

On or about July 27 and August 6, 2021, Key made demands for record inspection from the Association pursuant to Civil Code sections 5200-5240 relating to the development project on the Land Mark Property. FAP ¶20. The Association failed and refused to provide the records requested. FAP ¶20.

On or about August 13, 2021 the Association’s General Manager Cary Brackett sent an email stating that the records requested were in the google link provided. FAP ¶20. None of the documents in the google link related to the development project proposed for the Land Mark Property. FAP ¶20.

The Association violated Davis-Stirling and engaged in unlawful conduct in violation of Civil Code sections 4925(b) and 5000(b), and the Governing Documents Bylaws section 7.8 by failing and refusing to permit Key and other members of the Association to speak at architectural meetings. FAP ¶¶ 21-22.

The Association violated Davis-Stirling and engaged in unlawful conduct in violation of Civil Code section 4360 when it approved Amendments to the Architectural Standards on October 27, 2021 (the “Amendments”) without disclosing in writing the “purpose and effect” of the proposed grading amendment in section 10(f). FAP ¶23.

The Southern California Gas Company (“SoCalGas”) has two high pressure gas transmission pipelines running directly through the Key Property and Land Mark Property. FAP ¶24. At a meeting on February 16, 2021, many members of the Association reported to the Board of Directors their safety concerns regarding the SoCalGas pipelines. FAP ¶52. The Association’s board members voted to obtain experts to do a study independent of 2SoCalGas about the public safety issues regarding these two ancient high pressure gas transmission pipelines owned by SoCalGas that traverse through Hidden Hills. FAP ¶53.

Key provided the Association Board with a list of three independent high-pressure gas transmission pipeline experts with their resumes. FAP ¶53. On March 15, 2021, Key also provided the Association Board with more than ten pages of safety and safety related issues pertaining to the SoCalGas pipelines. FAP ¶53. On March 16, 2021, the Association Board announced at a meeting, without notice to the membership and without an agenda item, that it would not address any of the safety issues that it had begun investigating relating to the SoCalGas pipelines. FAP ¶54.

In 2021, SoCalGas sent Key a safety notice stating that it needed clear access to the high-pressure lines to inspect, maintain, repair, and/or replace the pipelines. FAP ¶59. Land Mark obtained a letter from SoCalGas regarding the safety protocols that must be followed with respect to what development may be permitted in the vicinity of the SoCalGas pipelines. FAP ¶62. The Association’s Architectural Committee moved forward with the plans to develop the Land Mark Property. FAP ¶62.

Petitioner Key seeks a writ of mandamus and declaratory relief commanding the Association, its Board of Directors, and its Architectural Committee to (1) mandate that Architectural Standards require a permit applicant to obtain a variance to excavate the hills and basements at Hidden Hills; (2) refrain from declaring that a variance is not necessary for the proposed development at the Land Mark Property to excavate, compact, and grade; (3) observe the safety requirements set forth in the SoCalGas’ safety notice regarding high pressure gas transmission pipelines and to comply with the safety protocols of SoCalGas for any development at the Land Mark Property; (4) comply with Civil Code sections 4925(b) and 5000(b) and the Governing Documents Bylaws section 7.8 permitting Key and other members of the Association to speak for a reasonable time at any meeting of the Architectural Committee; (5) comply with the Association’s February 16, 2021 meeting minutes; (6) determine the Amendments are illegal; (7) and declare Key owns the Flag Strip that borders the Land Mark Property. FAP at 24-25.

Petitioner Key also seeks declaratory and injunctive relief against Land Mark that (1) declares Key owns the Flag Strip, (2) there is no easement of any kind permitting Land Mark to build driveways or any other structures across the Flag Strip owned by Key, (3) declares the non-exclusive road easement is to the Hidden Hills Corporation, not the Association, (4) Land Mark cannot traverse or build on the Flag Strip owned by Key without her prior written permission, (5) Land Mark does not have permission to traverse or build on the Flag Strip, and (6) Land Mark be ordered to remove its fencing from the Key Property. FAP at 25-26.

On November 10, 2021, Department 86 (Judge Beckloff) heard Petitioner Key’s application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”). Petitioner sought to enjoin Respondent Association from (1) implementing changes to the Association’s Architectural Standards approved on October 27, 2021, (2) granting permission to Land Mark to traverse or build across the Flag Strip without Key’s permission, (3) granting any applicant/owner of real property in Hidden Hills authorization to move forward with any construction until the Association complies with requests to produce documents for inspection and copying documents requested under Civil Code section 5210, and (4) granting any owner of real property in Hidden Hills authorization to move forward with any construction without permitting Association members to speak at meetings on the subject for a reasonable time.

The court denied Key’s application for a TRO for lack of exigency. The court set an OSC hearing why the Association should not be enjoined from (1) implementing the changes to the Architectural Standards approved on October 27, 2021, and (2) granting permission to Land Mark to traverse or build across the Flag Strip without permission from Key.

On November 15, 2021, Key amended the Petition to name Land Mark as a Respondent. On November 17, 2021, Key served Land Mark by substituted service with the Complaint, summons, and moving papers.

On January 10, 2022, the case was reassigned to Judge Stroebel in Department 82. On January 12, 2022, Judge Stroebel held a trial setting conference and stayed the Petition’s second cause of action for injunctive relief – which is a remedy, not a cause of action—if it was not subsumed within the mandamus claim.

On February 18, 2022, Judge Strobel directed the parties to file supplemental briefs on the sole issue of the ownership of the Flag Strip and whether Land Mark’s project is on the Flag Strip. The court imposed page limits and set a briefing schedule.

On April 5, 2022, the court denied Key’s application for a preliminary injunction.

On April 14, 2022, the court ordered the case between Key and Association to arbitration and stayed Key’s claims against the Association.

On April 18, 2022, Key filed her FAP. On April 28, 2022, the court stayed the entire case pending completion of arbitration.

On March 27, 2024, Key filed the instant motion to vacate and/or correct arbitration award. The Association filed an opposition, and Key filed a reply.

On April 22, 2024, the Association filed the instant petition to confirm arbitration award. Key filed an opposition, and the Association filed a reply.

An arbitration award shall “include a determination of all the questions . . . the decision of which is necessary in order to determine the controversy.” CCP §1283.4. “The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” CCP §1283.6. This requirement may be satisfied by service by the arbitration, or upon proper service of the Award with the Petition. See Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” CCP § 1285. “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” CCP § 1286.

A petition to confirm arbitration award must “(a) [s]et forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement…(b) [s]et forth the names of the arbitrators…[and] (c) [s]et forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” CCP §1285.4. The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. CCP §1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.

“A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice…(b) [i]f the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: (1) [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” CCP §1290.4(a).

The response to a petition to confirm arbitration award must be filed within ten days of service of the petition, unless the petition was served in the same manner as provided for service of a summons, in which case the response must be served within 30 days. CCP §1290.6. The time to respond may also be extended by court order for good cause. CCP §1290.6.

A response that seeks to vacate or correct the award must be served and filed no later than 100 days after the date of the service of a signed copy of the award on the respondent. CCP §1288.2.

The court shall correct the award if it determines any of the following: “(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy.” CCP §1286.6.

Except on these grounds, arbitration awards are immune¿from judicial review in proceedings to challenge or enforce the award. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11. Limiting grounds for judicial review effectuates the parties' agreement that the award be¿final. It also reflects that arbitrators ordinarily¿need not follow the law¿and may base their decisions on “broad principles of justice and equity.” Id. at 10. “Neither the merits of the controversy ... nor the sufficiency of the evidence to support the arbitrator's award are matters for judicial review.” Morris v. Zuckerman (1968) 69 Cal.2d 686, 691. The court “may not substitute its judgment for that of the arbitrators.” Ibid.¿

“[I]t is presumed that all issues submitted for decision have been passed on and resolved, and the burden of proving otherwise is upon the party challenging the award.” Rodrigues v. Keller (1980) 113 Cal.App.3d 838, 842. “[T]o discharge that burden, the party attacking the award must demonstrate that a particular claim was expressly raised at some time before the award, and that the arbitrator failed to consider it.” Ibid. (citations omitted). However, “the failure of an arbitrator to make a finding on even an express claim does not invalidate the award, so long as the award ‘serves to settle the entire controversy.” Id. at 843 (internal quotation mark omitted). This is because “the merits of the controversy are for the arbitrator, not for the courts.” Ibid. “[I]t is not appropriate for courts to review the sufficiency of the evidence before the arbitrator. . . .” Ibid.

On April 14, 2022, the court ordered the case between Petitioner Key and Respondent Association to arbitration. Hanley Decl., ¶2.

The parties, through their respective attorneys, signed a stipulation to submit the matter to JAMS. Hanley Decl., ¶2, Ex. 1. On September 2, 2022, the Honorable Justice David A. Thompson (Ret.) was appointed as sole arbitrator (the “Arbitrator”) over the parties’ disputes. White Pet. Decl., ¶6.

The Association’s Bylaws section 14.7 provides: “Any dispute ... (not resolved internally) which arises from the Governing Documents, (ii) any occurrence or activity within Hidden Hills, (iii) any alleged error or omission of the Association, or (iv) the management or operation of the community of Hidden Hills shall be submitted for resolution to a retired Judge of the Superior Court who shall hear the case without a jury and whose decision shall be final and binding.” Hanley Decl., ¶4.

The parties signed a JAMS Stipulation which stated: “It is stipulated and agreed between the parties to submit all disputes, claims, and controversies to neutral, binding arbitration at JAMS, pursuant to the JAMS Administrative Policies and, unless otherwise agreed in writing by the parties, to the applicable JAMS Arbitration Rules and Procedures. The Parties hereby agree to give up any rights they might possess to have this matter litigated in a court or jury trial.” Hanley Decl., ¶5; Assn. Pet., Ex. 3.

Key’s Second Amended Notice of Claims (“SANC”) was Key’s pleading in arbitration. Hanley Decl., Ex. 14.

On September 28, 2022, the Arbitrator entered the first Scheduling Order stating that JAMS Rule 17 would govern the exchange of information in the arbitration. White Opp. Decl., ¶3, Ex. B. On November 11, 2022, the Arbitrator entered the second Scheduling Order stating the parties had agreed the initial exchange of information required by JAMS Rule 17(a) would occur on or before December 5, 2022. White Opp. Decl., ¶4, Ex. C.

The Arbitrator conducted status conferences and hearings on various motions on September 28 and November 11, 2022, and January 3, April 27, May 30, June 9, July 25, August 29, and October 27, 2023. White Pet. Decl., ¶7. Key was represented at each hearing by her counsel of record. White Pet. Decl., ¶7.

On December 5, 2022, the parties exchanged information. White Opp. Decl., ¶5. Key did not bring any application to the Arbitrator regarding the Association’s disclosures or for any enhanced discovery procedures beyond the provisions of JAMS Rule 17. White Opp. Decl., ¶5. Key did not notice the deposition of any party in the arbitration or request any deposition dates. White Opp. Decl., ¶5.

In early 2023, the parties filed competing motions for summary disposition of Key’s claims. White Opp. Decl., ¶6. The Arbitrator denied both motions due, in part, to confusion over the standards that would apply to these motions. White Opp. Decl., ¶6. After the parties consulted with the Arbitrator, they agreed that the dispositive motions would be filed under CCP section 437c standards, which was confirmed in multiple scheduling orders. Hanley Decl., ¶25, Ex. 21; White Opp. Decl., ¶6. The parties then filed renewed dispositive motions under CCP section 437c standards. White Opp. Decl., ¶6, Ex. D.

On December 18, 2023, the Arbitrator made his final award. Hanley Decl., ¶ 25, Ex. 21; White Pet. Decl., ¶9, Ex. 5. The Arbitrator found that the parties’ JAMS Stipulation encompassed all disputes, claims, and controversies between the parties as of August 25, 2022 (but not any disputes arising thereafter). Assn. Pet. Ex. 5, pp. 27-28. He denied all six of Key’s claims. Ex. 5, pp. 2-6.

The first claim sought a declaration that Key owns the Flag Strip in fee simple, that the Association deny any request by Land Mark to construct driveways or build structures on or across any real property owned by Key, and that there is no easement of any kind on or over the Flag Strip that would permit the Association to grant Land Mark the right to build driveways on the Flag Strip. Assn. Pet. Ex. 5, p. 2. The Arbitrator found that it was undisputed that Key owns the Flag Strip and that the rest of Key’s claim was moot because Land Mark had withdrawn its plan to build a driveway across the Flag Strip. He granted the Association’s summary judgment motion and denied Key’s motion. Id.

The Arbitrator found the second and sixth claims to be closely related. The second claim sought a declaration that the Architectural Standards provision adopted on October 27,2021 is illegal and void because the written notice to members was inadequate. The sixth claim sought a declaration that the Association violated Davis-Stirling when it approved those same amendments. He granted the Association’s summary judgment motion and denied Key’s motion. Ex. 5, pp. 3-4.

The third claim sought a declaration that the Common Interest Development Open Meeting Act (“OMA”) applies to Architectural Committee meetings. The Arbitrator granted the Association’s summary judgment motion. Ex. 5, pp. 4-5.

The fourth claim sought a declaration that the Association has a fiduciary duty to ensure the safety of its members, cannot defer that duty to a third party, and must comply with a February 16, 2021 Board resolution directing the Architectural Committee to refrain from approving plans for properties with SoCalGas lines running through them. The Arbitrator granted the Association’s summary judgment motion. Ex. 5, p. 5.

The fifth claim sought a declaration that Key had a right under Davis-Stirling that Key has a right to inspect Land Mark’s construction plans submitted to the Association Board. The Arbitrator granted the Association’s summary judgment motion on the fifth claim.

The Arbitrator awarded the Association $206,351.25 in attorney fees and $48,464.28 in costs, a total of $254,815.53. Ex. 5, p. 7. The Arbitrator stated that he had carefully considered the Association’s fee motion, Key’s opposition, and the Association’s reply, together with the evidence offered in support of the fee motion and the other pleadings and papers on file, and exercising such discretion as the law allows. Ex. 5, p. 7. He granted the $206,351.25 in attorney fees as reasonable and reasonably necessary to the conduct of the litigation for the reasons articulated in the Association’s fee motion and reply, as well as based on the Arbitrator’s own knowledge and familiarity with the legal market, and assuming that the Association is not entitled to recover attorney fees on the fourth and sixth claims. Ibid. The Association was awarded $48,464.28 in costs, including court costs and JAMS fees, for the reasons articulated in the fee motion and reply. Ibid.

Key filed a request with the Arbitrator to correct and/or vacate the award. White Pet. Decl., ¶10. Key asserted the second through sixth claims do not involve any claim that permits an award of attorney fees. Hanley Decl., ¶18, Ex. 14. Key also achieved her objective to preclude Land Mark from building driveways across the Flag Strip that she owns. Hanley Decl., ¶25.

On January 2, 2024, the Arbitrator entered an order denying Key’s request to correct and/or vacate the award. White Pet. Decl., ¶10, Ex. 6.

The Association seeks an additional $16,500 in fees ($550/hr. x 30 hours) and $60 in costs for the work on the petition to confirm and the opposition to Key’s petition to correct or vacate. White Pet. Decl., ¶11-12.

Petitioner Key seeks to vacate or correct the Arbitration Award on the grounds that (1) the Arbitrator exceeded his powers by awarding attorney fees and costs to the Association on claims under Davis-Stirling, (2)) the Arbitrator exceeded his powers and authority by declaring the Association as the prevailing party on the first claim, (3) the Arbitrator violated public policy set forth in Davis-Stirling and exceeded his powers by (a) denying the Key the right to amend her claims, (b) applying summary judgment procedures in CCP section 437c contrary to JAMS Rule 18 on summary disposition of claims, and (c) denying discovery.[1]

Respondent Association seeks an order confirming and the Arbitrator’s Award and entering judgment in its favor, including fees and costs in the amount of $254,815.53, post-award costs of $16,560, and interest per statute.

Davis-Stirling provides: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Civil Code[2] §5975(c).

The Act defines “governing documents” as “the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.” §4150. The “declaration” is the document that contains the common interest development’s legal description, states the nature of the development, and sets forth the name of the association and the restrictions that are entitled to be enforceable servitudes. §§ 4135, 4250(a).

Key relies on Retzloff v. MoultonParkway Residents’ Assn., (“Retzloff”) (2017) 14 Cal.App.5th 742, and LNSU#1, LLC v. Alta Del Mar Coastal Collection Community Association, (“LNSU”) 94 Cal.App.5th 1050.

In Retzloff, two members sued their homeowner association under Davis-Stirling by conducting business outside of board meetings and failing to maintain certain corporate records. 14 Cal.App.5th at 746. The trial court sustained the association’s demurrer without leave to amend and awarded attorney fees and costs under section 5235(c). Id. The appellate court noted that the enforcement statute for the members’ claims was section 4955, which permits an association to recover costs only if the court finds the action to be frivolous, unreasonable, or without foundation. Id. at 748-49 (citing That v. Allders Maintenance Assn., (“That”) (2012) 206 Cal.App.4th 1419, 1429 (plain language of now section 5145(b) did not permit prevailing association to recover attorney fees even where action was frivolous, unreasonable or without foundation)).

The Retzloff court stated that the only statute that might authorize the association to obtain attorney fees against the members is 5235(c). Id. at 749. Section 5235(a) permits a member to inspect association records and obtain reasonable costs and attorney’s fees if the association unreasonably withheld them. Id. Section 5235(c) provides that a prevailing association may recover any costs if the court finds the action to be frivolous, unreasonable, or without foundation.” Id. The court found that the plain meaning of “any costs” in section 5235(c) did not include attorney’s fees. Id. at 750. “Throughout the Act, the Legislature specifically indicates when a provision awards attorney fees to only a prevailing association or a prevailing member, either a prevailing member or association, or neither party.” Id. When it wanted to award attorney fees to either a prevailing member or association, the Legislature used the term “prevailing party” – i.e., 5975(c), 4225, 4705, and 5380. Id. at 751. The fact that the Legislature did not use this language in section 5235(c) indicates its intention not to include an award of attorney fees to a prevailing association. Id. Under section 5235(c), the association was entitled to costs, not attorney fees. Id. at 752, 754.

In LNSU, homeowners filed an action alleging that their association violated the OMA. 94 Cal.App.5th at 1059. The trial court denied the claim and the appellate court affirmed. Id. at 1080. The association sought attorney fees under section 5975(c), arguing that the homeowners’ action at least in part was to enforce the governing documents of the association. Id. at 1081. The court noted Davis-Stirling’s definitions of “governing documents” and “declaration” (§§ 4150, 4135, 4250(a)) and that “in an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” §5975(c). Id. at 1082. The court added that an award of attorney fees to the prevailing party is mandatory in such an enforcement action. Id. (citation omitted).

The LNSU court stated that it must examine the allegations of the complaint to determine whether the homeowners sought to enforce the association’s governing documents under section 5975(c). The complaint made only one express reference to the governing documents in a paragraph describing the association. Id. The complaint also mentioned the governing documents when it alleged that the homeowners had repeatedly requested minutes of all board meetings “in accordance with the Governing Laws and Rules.” Id. The complaint failed to mention section 5975, the charging allegations did not cite or quote any governing document, the prayer did not seek to enforce any governing document, and no governing document was attached to the it. Id. at 1082-83. The court stated it would have expected to find such content in the complaint if the homeowners were seeking enforcement of the association’s governing documents under sectioi n5975. Id. at 1083.

The complaint shows that the homeowners sued the association for violating the OMA, and therefore section 4955(a), the provision of the OMA concerning costs and attorney fees, governed. Id. at 1084. That provision did not authorize attorney fees for the association and only allowed it to recover costs for an action that is frivolous, unreasonable, or without foundation. Id. at 1084. The court held that the association could recover neither attorney fees nor costs. Id. at 1086-90.

The court shall vacate the award if, inter alia, it determines that the arbitrator exceeded his powers, and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. CCP §1286.2(a). ¿ An arbitrator exceeds his power within the meaning of CCP section 1286.2 by issuing an award that violates a party’s statutory rights. Ahdout v. Hekmatjah, (2013) 213 Cal.App.4th 21, 37. The court shall correct the award if it determines, inter alia, that the arbitrator exceeded his powers, but the award may be corrected without affecting the merits of the decision upon the controversy submitted. CCP §1286.6. An arbitrator has no discretion to refuse to enforce the attorney fee and cost provisions of the Act. Rentzloff, supra, 14 Cal.Ap.5th at 750; LNSU, supra, 94 Cal.App.5th at 1081-83; That, supra, 206 Cal.App.4th at 1429. Pet. at 10.

Key argues that the Arbitrator exceeded his authority by awarding attorney fees. Davis-Stirling defines when a party can recover attorney fees and neither the JAMS Rules nor the Association’s Bylaws can prevail over the Act. Davis-Stirling expressly states that it shall prevail in any conflict between the Bylaws and the Act. §4205(a). Pet. at 12.

Key acknowledges that her first claim was made to enforce the Association’s governing documents, and therefore attorney fees could be awarded to the Association if it prevailed. However, the Arbitrator had no authority to award fees on the second through sixth claims, all of which arose under the Act but were not made to enforce the governing documents. The one-way fee shifting provisions of Davis-Stirling that award attorney fees only to a member of the association, or to neither party, are based on a public policy that encourages members to actively participate in homeowner association proceedings. The voluntary members of an association board cannot rule like kings and queens and public participation would be chilled if members had to pay legal fees when challenging the unlawfulness of association mandates under the Act. Pet. at 7-10.

The Arbitrator stated that he had carefully considered the Association’s fee motion, Key’s opposition, and the Association’s reply, together with the evidence offered in support of the fee motion and the other pleadings and papers on file, and exercising such discretion as the law allows. Assn. Pet. Ex. 5, p. 7. The Arbitrator did not have authority or discretion to award attorney fees on the second through sixth claims. Pet. at 8-9. Key also argues that the Arbitrator could award costs to the Association on the second through sixth claims only if there was a finding that her action was frivolous, unreasonable, or without foundation. See LNSU, supra, 94 Cal.App. 5th at 1081-83. Pet. at 11.

Key further contends that the Association was not the prevailing party on the first claim for purposes of section 5975(c). “The analysis of who is a prevailing party under the fee-shifting provisions of the Act focuses on who prevailed “on a practical level’ by achieving its main litigation objectives.” Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker, (2016) 2 Cal.App.5th 252, 260. Pet. at 14. Key was the prevailing party because she achieved her main litigation objective that Land Mark not be permitted to build driveway across the Flag Strip owned by her. After the action was filed, Land Mark withdrew its plans and submitted new plans which do not build across the Flag Strip. For this reason, the Arbitrator found the claim was moot. Pet. at 15.

As such, Key achieved her objective and is clearly the prevailing party. Therefore, fees cannot be awarded to the Association on the first claim even though it was brought to enforce the Association’s governing documents. See Champir, LLC v. Fairbanks Ranch Assn., (“Champir”) (2021) 66 Cal.App.5th 583, 592 (homeowners entitled to attorney fees against association where they achieved their litigation objective of compelling the association to comply with its CC&Rs when association complied with preliminary injunction and the action was dismissed as moot). In fact, Key is entitled to her attorney fees on the first claim. Pet. at 15.

As for the remaining claims, the second claim sought compliance with the mandatory provisions for association rules changes (§§ 43355, 4360) and the governing Davis-Stirling Article 5 (§§ 4340-70) contains no provision for an award of attorney fees. Pet. at 17.

The third claim sought compliance with the OMA requirements and the Association cannot recover attorney fees on an OMA claim even if it was the prevailing party. LNSU, supra, 94 Cal.App.5th at 1085. Nor can the Association recover its costs on this claim because there was no finding that it was frivolous, unreasonable, or without foundation. Finally, the Association was not the prevailing party because the Arbitrator refused to arbitrate Key’s claim for injunctive relief by unlawfully deciding that the Architectural Committee is not a committee of the Association. Pet. at 18-19.

The fourth claim sought compliance with the OMA. The Association is not entitled to fees or costs for the same reason as the third claim. Pet. at 20.

The fifth claim sought compliance with the record inspection provisions of the Act (§5200-240). Only Key would have been entitled to attorney fees under section 5235 and the Association could only recover costs if there was a finding of frivolous, unreasonable, or without foundation. Pet. at 20-21.

As the Association points out (Opp. at 3), the Arbitrator awarded attorney fees “for the reasons articulated” in the Association’s fee motion, Key’s opposition, and the Association’s reply, together with the evidence offered in support of the fee motion and the other pleadings and papers on file, and exercising such discretion as the law allows. Assn. Pet. Ex. 5, p. 7.[3] The Association’s fee motion argued that Bylaws section 14.7 created a contractual right to attorney fees under section 1717, each of Key’s claims sought to enforce the Association’s governing documents, and while there was arguably no entitlement to fees on Key’s OMA claims, the issue was unsettled, and those fees were negligible.

Thus, the Arbitrator awarded the Association attorney fees on two theories: contract fees under section 1717 and Davis-Stirling fees. The Arbitrator did not award fees for the OMA (third) and record inspection (fifth) claims.[4]

The Association argues Bylaws section 14.7 contains a broad attorney fee provision for any arbitration or court action which arises from “[a]Any dispute ... (not resolved internally) which arises from the Governing Documents, (ii) any occurrence or activity within Hidden Hills, (iii) any alleged error or omission of the Association, or (iv) the management or operation of the community of Hidden Hills….” Hanley Decl., ¶4, Ex. 20 (Attachment A). All of Key’s claims arose from the Governing Documents, an occurrence within Hidden Hills, or errors by the Association or its Board. Thus, the Association had a contractual right to attorney’s fees under section 1717.

Key does not address this issue except to argue that the Association’s Bylaws cannot prevail over the Act. §4205(a). Pet. at 12. Yet, there is no conflict such that Davis-Stirling must prevail. Where governing documents contain an attorney fee clause, it may be enforced under section 1717 in conjunction with a statutory right to fees. Deane Gardenhome Assn. v. Denktas, (1993)0 13 Cal.App.4th 1394, 1397 (awarding section 1717 fees to homeowner pursuant to CC&Rs); Harbor View Hills Community Association v. Torley, (1992) 5 Cal.App.4th 343, 345 (awarding attorney fee under both sections 1717 and predecessor to section 5975). The Association argues that no case holds that section 1717 contractual attorney fees conflicts with Davis-Stirling sections 4955 and 5235. See LNSU, supra, 94 Cal.App.5th at 1081 (“No contractual attorney fee provision is at issue here.”). Opp. at 4. Key does not rebut this conclusion.

Key also argues that it was improper for the Arbitrator to award fees on all claims under section 1717. Reply at 4. He did not do so. To justify vacating an arbitrator’s award on the basis that he exceeded his powers by violating a party’s’ statutory rights, there must be a clear error of law. Pearson Dental Supplies, Inc. v. Superior Court, (2010) 48 Cal.4th 665, 670. A decision to award fees on the open meeting and record inspection claims (third and fifth claims) under section 1717 would not have been a clear error of law, but the Arbitrator agreed that the Association’s total requested fees were reasonable with the fees for the third and fifth claims disregarded. Opp. at 9.

The LNSU court stated that the court must examine the allegations of the complaint to determine whether a homeowner sought to enforce an association’s governing documents under section 5975(c). 94 Cal.App.5th at 1082. Key did seek to enforce the Association’s Governing Documents such that the Association had a statutory right to fees under section 5975(c). The FAP expressly alleges that Key brought the action to enforce the Association’s Governing Documents. FAP, ¶7. Key’s SANC prayed for attorney fees on every claim on the theory that she was seeking to enforce the Governing Documents. In addition to the first claim which Key admits sought to enforce the Governing Documents, the SANC’s second and sixth claims stated that the Association “has failed to comply with…the Governing Documents.” Hanley Decl., Ex. 14, ¶¶ 34, 112(a). The fourth claim alleged that the Association’s Board was acting “outside the scope of its authority under its Governing documents” (Ex. 14, ¶66), and that “the failure to conduct the study….is not in compliance with the Governing documents” (Ex. 14, ¶67(c)). These are just the type of allegations that LNSU, supra, 94 Cal.App.5th at 1082, required for a determination that a homeowner sought to enforce an association’s governing documents under section 5975(c).

Key’s arguments about public policy are unavailing. It is true that the Legislature parsed those occasions in Davis-Stirling when attorney fees and costs would be awarded to a prevailing member, to a prevailing association, or neither. Retzloff, supra, 14 Cal.App.5th at 751 (the Legislature used the term “prevailing party” when it wanted to award attorney fees to either a prevailing member or association, – i.e., 5975(c), 4225, 4705, and 5380). It is also true that the Legislature permitted an award of attorney fees for OMA and record inspection claims only to a prevailing member. §§ 4955, 5235. But section 5975(c) expressly permits an award to the association when a member seeks to enforce the association’s governing documents, and Key did so.

As for the prevailing party, the Association clearly prevailed on the second through sixth claims and the Association is correct that the court cannot second-guess the Arbitrator’s decision that it is the prevailing party on the first claim. Pierotti v. Torian, (2000) 81 Cal.App.4th 17, 26. Opp. at 10.

Moreover, the Arbitrator could reasonably conclude that Key did not obtain any relief against the Association on the first claim and that the Association was the prevailing party under both section 1717(b)(1) (party on a contract recovering greater relief) and section 5975 (achieving main objective on a practical level). The first claim sought a declaration that Key owns the Flag Strip in fee simple, that the Association must deny any request by Land Mark to construct driveways across her property, and that there is no easement of any kind on or over the Flag Strip that would permit the Association to grant Land Mark the right to build driveways on the Flag Strip. Assn. Pet. Ex. 5, p. 2. As the Association argues, Key’s objective was both to stop Land Mark and to compel the Association to adopt her position that no easement exists over the Flag Strip. Opp. at 11. She failed on the latter point. Land Mark’s decision to withdraw its plans to build a driveway across Flag Strip is distinguishable from the case cited by Key, Champir, supra, 66 Cal.App.5th at 590, because the association in that case complied with a preliminary injunction obtained by the member.

As for costs, the prevailing party is entitled to reasonable costs in an action to enforce the governing documents. §5975(c). CCP section 1284.2 states that each party shall bear his pro rata share of the arbitrator’s expenses and fees, together with the other expenses of the arbitration, unless the arbitration agreement provides otherwise. The Association argues that JAMS Rule 24(g), to which the parties agreed, provides that the arbitrator may allocate expenses and interest if provided by the parties’ agreement or applicable law. White Decl., Ex. A. The Arbitrator interpreted Bylaws section 14.7 to permit an award of costs, including the cost of the Arbitrator. Hanley Decl., Ex. 20, p. 9. This contract interpretation may not be overturned by the court. Gueyffier v. Ann Summers, Ltd., (2008) 43 Cal.4th 1179, 1182. The Association’s fee reply, relied on by the Arbitrator, also argued that Key’s open meeting and record inspection claims (third and fifth claims) were unreasonable and without foundation. Hanley Decl., Ex. 20, pp. 7-8. The Arbitrator adopted this reasoning, and costs were properly awarded with respect to all of Key’s claims.

Petitioner Key’s motion to vacate and/or correct arbitration award is denied. Respondent Association’s petition to confirm arbitration is granted. The Association is entitled to a judgment in its favor confirming the arbitration award, $254,815.53 in fees and costs awarded by the Arbitrator, post-arbitration costs of $60 and attorney’s fees of $16,500, and post-arbitration award, pre-judgment interest of 7% on the $254,815.53 awarded.

The Association’s counsel is ordered to prepare a proposed judgment, serve it on Key’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment as to the Association is set for June 20, 2024 at 9:30 a.m. Upon entry of judgment, the remaining case against Land Mark will be transferred to Department 1 for reassignment to an I/C court.

[1] As the Association points out (Opp. at 1, n.1), Key’s 24-page moving papers exceed the 15-page limit of CRC 3.1113(d). The court previously exercised its discretion for the April 5, 2022 preliminary injunction motion to consider only the first 15 pages of Key’s brief and does so again. As a result, Key’s arguments concerning the $48,464.28 award of costs, the Arbitrator’s refusal to permit amendment of claims, his ruling on the application of CCP section 437c, and his ruling on discovery have not been considered.

[2] All further statutory references are to the Civil Code unless otherwise stated.

[3] The Arbitrator’s statement that he was exercising such discretion as the law allows may be understood as a reference to the reasonable amount of attorney fees, not entitlement.

[4] The Arbitrator stated that he did not award fees under section 5975(c) for the OMA and record inspection claims (erroneously referred to by the Association’s fee reply and the Arbitrator as the second and sixth claims). Ex. 5, p. 7.