Judge: Melvin D. Sandvig, Case: YC072542, Date: 2024-06-13 Tentative Ruling

Case Number: YC072542    Hearing Date: June 13, 2024    Dept: F47

Dept. F-47

Date: 6/13/24                                                             

Case #YC072542

MOTION FOR ATTORNEYS’ FEES & COSTS ON APPEAL

Motion filed on 1/11/24.

MOVING PARTY: Plaintiff/Respondent Cross Creek Village Homeowners Association

RESPONDING PARTY: Defendant Alexandar Cvetkovich

NOTICE: ok

RELIEF REQUESTED: Orders (1) determining that Plaintiff/Respondent Cross Creek Village Homeowners Association is the prevailing party on appeal against Defendant/Appellant Alexander Cvetkovich, (2) awarding attorneys’ fees to Plaintiff as the prevailing party on appeal against Defendant in the amount of $3,100.00, (3) awarding costs to Plaintiff as the prevailing party in this civil lawsuit in the amount of $60.00 against Defendant, and (4) amending the Judgment entered on 7/25/23 to include the award of attorneys’ fees and costs on appeal in the total amount of $3,160.00. 

RULING: The motion is granted, in part, and denied, in part, as set forth below.        

FACTUAL SUMMARY & PROCEDURAL HISTORY

This action arose out of a dispute between Plaintiff/Respondent Cross Creek Village Homeowners Association (Plaintiff) and one of its members, Defendant/Appellant Alexander Cvetkovich (Defendant).  On 12/15/17, Plaintiff filed this action against Defendant.  

On 5/13/22, Plaintiff obtained a judgment against Defendant in the amount of $1,100.00.  (RJN, ¶1, Ex.A).  On 9/7/22, the Court granted Plaintiff’s Motion for Attorneys’ Fees and Costs as the prevailing party against Defendant awarding Plaintiff $48,740.45 in attorneys’ fees and $28,922.86 in court costs.  (RJN, ¶2, Ex.B).  The Court awarded Plaintiff its attorneys’ fees and costs pursuant to Civil Code Section 5975(c) and Civil Code Section 1717(a). (RJN, ¶2, Ex.B.) On 9/8/22, the Court signed an Amended Judgment that included an award of attorneys’ fees and costs in the total amount of $78,763.31.  (RJN, ¶3, Ex.C). The Court signed another Amended Judgment on 7/25/23, in the amount of $99,221.12 after awarding Plaintiff attorneys’ fees and costs on Defendant’s first appeal.  (RJN, ¶3, Ex.C).

Defendant filed two appeals in this action.  On 7/13/22, Defendant filed his first Notice of Appeal.  (RJN, ¶4, Ex.D).  On 12/8/22, the Second Appellate District dismissed Defendant’s first appeal.  (RJN, ¶5, Ex.E).  On 2/8/23, the Second Appellate District issued a Remittitur on Defendant’s first appeal.  (RJN, ¶6, Ex.F).  The Remittitur stated that Plaintiff was “to recover cost on appeal.”  (RJN, ¶6, Ex.F).  On 6/1/23, this Court granted Plaintiff’s first Motion for Attorneys’ Fees and Costs on Appeal in the amount of $10,945.50.  (RJN, ¶7, Ex.G).

On 6/9/23, Defendant filed his second Notice of Appeal.  (RJN, ¶8, Ex.H).  On 9/25/23, the Second Appellate District dismissed Defendant’s second appeal.  (RJN, ¶9, Ex.I).  On 12/12/23, the Second Appellate District issued a Remittitur on Defendant’s second appeal.  (RJN, ¶10, Ex. J).

As a result of the second Notice of Appeal, on 1/11/24, Plaintiff filed and served the instant motion seeking orders (1) determining that Plaintiff/Respondent Cross Creek Village Homeowners Association is the prevailing party on appeal against Defendant/Appellant Alexander Cvetkovich, (2) awarding attorneys’ fees to Plaintiff as the prevailing party on appeal against Defendant in the amount of $3,100.00, (3) awarding costs to Plaintiff as the prevailing party in this civil lawsuit in the amount of $60.00 against Defendant, and (4) amending the Judgment entered on 7/25/23 to include the award of attorneys’ fees and costs on appeal in the total amount of $3,160.00.

On 6/3/24, Defendant filed (served on 5/31/24) an opposition to the motion.  On 6/6/24, Plaintiff filed and served a reply.  On 6/7/24, an Order Nunc Pro Tunc was filed by the Court of Appeal indicating that the remittitur issued 12/12/23 erroneously did not award costs on appeal and pursuant to CRC 8.278(a)(2) costs on appeal are awarded to Plaintiff/Respondent.  On 6/7/24, Plaintiff filed and served a supplemental reply and supplemental request for judicial notice.  On 6/10/24,  Defendant filed (served 6/7/24) a supplemental opposition.

ANALYSIS  

Plaintiff’s Request for Judicial Notice (RJN) and Supplemental Request for Judicial Notice (SRJN) are granted.

In California, “[w]here a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is also entitled to attorney fees on appeal.”  Villinger/Nicholls Development Co. (1995) 31 CA4th 321, 329; See also Sixells, LLC (2008) 170 CA4th 648, 656; MBNA America Bank, N.A. (2006) 147 CA4th Supp. 1, 14.  Therefore, if there is a contractual or statutory basis to recover attorney’s fees at the trial court level, that right also allows for recovery of attorney’s fees incurred on appeal.  Douglas E. Barnhart, Inc. (2012) 211 CA4th 230, 250; See also Garcia (2013) 220 CA4th 1058, 1067.   

Plaintiff’s Governing Documents include its Declaration of Restrictions Covenants (CC&Rs) which constitute a contract between Plaintiff and its members such as Defendant.  Plaintiff’s CC&Rs provide that the prevailing party in a lawsuit to enforce the CC&Rs is entitled to recover its attorneys’ fees and costs.  (RJN, ¶11, Ex.K, Article XV, Section 9).

Civil Code 5975(c) provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.”  The instant action constituted one to enforce the governing documents against Defendant.  See Civil Code 5925    

Civil Code 1717(a) provides, in relevant part:

In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.

                                                           . . .

Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit.

Here, the Court already determined that Plaintiff was entitled to recover attorney’s fees after trial and on the first appeal pursuant to contract and statute.  (RJN ¶¶2, 7, Ex.B, G). 

Based on the dismissal of Defendant’s second appeal, Plaintiff is also the prevailing party on that appeal.  See CRC 8.278(a)(2).  While the initial remittitur on the second appeal issued on 12/12/23 did not provide that Plaintiff is to recover costs on appeal, the Court of Appeal, on its own motion, issued an Order Nunc Pro Tunc on 6/7/24 indicating that the 12/12/23 remittitur erroneously did not award costs on appeal and that pursuant to CRC 8.278(a)(2), costs on appeal are awarded to Plaintiff/Respondent.  (RJN, ¶6, Ex.F; SRJN, ¶1, Ex.N); See CRC 8.278(b)(2).    

A party moving for attorneys’ fees on appeal in an unlimited action must file a motion for attorneys’ fees within forty (40) days of the issuance of remittitur.  See CRC 3.1702(c); CRC 8.278(c)(1).  Here, the instant motion was filed within 40 days of the issuance of the 12/12/23 remittitur.  

A court’s determination of a reasonable attorney fee award ordinarily begins with the lodestar method of calculation (the number of hours reasonably expended multiplied by the reasonable hourly rate).  State Farm General Insurance Company (2021) 71 CA5th 197, 209 citing PLCM Group, Inc. (2000) 22 C4th 1084, 1095.  The trial court has broad discretion to determine a reasonable attorney fee award.  Douglas E. Barnhart, Inc. (2012) 211 CA4th 230, 249 

While the appeal was dismissed after Defendant’s default, Plaintiff’s counsel was still required to monitor the status of the appeal in order to protect its client’s interests.  As such, the Court finds that the 15.5 hours of attorney time and the hourly rate of $200 charged are reasonable.  (See Speights Decl. ¶¶5-7, Ex.L).  Therefore, the Court awards Plaintiff $3,100.00 in attorneys’ fees as the prevailing party on appeal.

The Court declines to award the $60.00 in costs.  While Plaintiff has attached a copy of a memorandum of costs on appeal to the declaration of attorney Speights filed in support of the motion, there is no evidence that document was separately served and filed within 40 days after the issuance of the remittitur as required.  See CRC 8.278(c)(1); CRC 3.1700; (Speights Decl. ¶8, Ex.M).

CONCLUSION

Based on the foregoing: (1) Plaintiff is determined to be the prevailing party on the second appeal; (2) Plaintiff is awarded $3,100.00 in attorneys’ fees as the prevailing party on the second appeal; (3) Plaintiff is awarded $0 costs on the second appeal; and (4) the Judgment will be amended to include an award of attorneys’ fees on the second appeal in the amount of $3,100.00 and $0 costs on the second appeal.