Judge: Malcolm Mackey, Case: 22STCV28468, Date: 2023-04-19 Tentative Ruling

Case Number: 22STCV28468    Hearing Date: April 19, 2023    Dept: 55

RIZZI v. WESTMONT SO. 2 HOMEOWNERS ASSOC. BD. of DIRECTORS 22STCV28468

Hearing Date:  4/19/23,  Dept. 55.

#3:   MOTION FOR ATTORNEYS’ FEES IN THE SUM OF $11,991.70.

 

Notice:  Okay

Opposition

 

MP:  Defendant WESTMONT SOUTH 2 HOMEOWNERS ASSOCIATION.

RP:  Plaintiff

 

 

Summary

 

On 9/1//22, Plaintiff MARIE RIZZI, a self-represented litigant, filed a Complaint, alleging that she seeks to enjoin the Homeowners Association of her residence, from removing 51 Eucalyptus trees that are actually attractive and desirable, and not really dangerous, diseased or unhealthy, as the Association claims.

On 11/2/22, Plaintiff filed a request for dismissal of the entire action.

 

 

MP Positions

 

Moving party requests an order awarding $11,991.70 in attorneys’ fees against Plaintiff, on grounds including the following:

 

·         The defense litigation objective here was to defeat the imposition of an injunction preventing the removal of the eucalyptus trees. By Plaintiff’s dismissing the action, the Association achieved its objective.  See Civil Code section 5975.

·         According to Parrot v Mooring Townhomes Association, Inc.(2003) 112 Cal.App.4th 873,  even if a party dismisses their lawsuit, the Association as the prevailing party that achieved its litigation objective pursuant to statute, can obtain a judgment for their attorneys’ fees.

·         Redacted billing supports the fees being claimed. (Exhibit 1 to Swedelson Decl.)

·         Plaintiff’s proceeding with the lawsuit, until she lost the injunction, necessitated the Association to defend this action and to incur costs of suit and reasonable attorneys’ fees in defense.

 

RP Positions

 

Opposing party advocates denying, and setting an OSC re sanctions for a frivolous motion, for reasons including the following:

 

·         The parties settled this case, with Defendant agreeing not to seek attorneys’ fees, if Plaintiff would dismiss the action, which Plaintiff did.

·         A month after Ms. Rizzi filed her Request for Dismissal, the HOA and its counsel filed this Motion, and broke the agreement not to seek attorneys’ fees.

·         Judges have discretion to deny fees as to voluntarily dismissed cases, by finding no prevailing party.  New Cingular Wireless PCS, LLC v. Public Utilities Commission (2016) 246 Cal.App.4th 784, 818, fn. 29.

·         The HOA and its counsel inflated billing. It wants nearly $12,000 in fees to oppose one ex parte application filed by a pro per.

 

 

Tentative Ruling

 

The motion is denied.

The Court finds that the parties settled this action, including by emails, and that Defendant waived attorneys’ fees in exchange for the dismissal, such that there is no prevailing party.  See, e.g.,  Plaintiff’s decl., filed 4/6/23, exh. 1, at 4th page (“The Board would be willing to not file that cross-complaint and allow you to dismiss your lawsuit with the Association agreeing to not seek to recover the attorneys fees the Association incurred in defending your lawsuit.”).

Settlement agreements can be enforceable under many procedures.  E.g.,  Kilpatrick v. Beebe (1990) 219 Cal. App. 3d 1527, 1529;  Gauss v. GAF Corporation (2002) 103 Cal. App. 4th 1110, 1122.  Settlement agreements may consist of multiple types of conduct.  Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428-29 (enforcing partly oral and written agreement having different terms where agreements shared the same material terms).  Determinations that parties entered into a binding settlement agreement are upheld if they are supported by substantial evidence.  In re Marriage of Assemi (1994) 7 Cal. 4th 896, 911.

A party to a stipulation is conclusively estopped from taking a position contrary to the stipulation, in the same or related litigation.  Palmer v. City of Oakland (1978) 86 Cal.App.3d 39, 44.