Judge: Michael E. Whitaker, Case: 23SMCV01199, Date: 2023-12-07 Tentative Ruling

Case Number: 23SMCV01199    Hearing Date: February 20, 2024    Dept: 207

TENTATIVE ruling

MOTION

Plaintiff Princeton Lofts, Inc. (“Plaintiff”) brought suit against Defendant Gamma Investors, Group, LLP (“Gamma”) to abate a barking dog nuisance on the property.  Default was entered against Defendant on May 9, 2023.  Subsequently, Defendant agreed to and did abate the barking dog nuisance, but has refused to settle with Plaintiff regarding the legal fees Plaintiff expended in bringing the instant lawsuit. 

On November 30, 2023, Plaintiff filed a motion seeking $12,000 in attorneys’ fees and $744.96 in litigation costs as the “prevailing party” pursuant to Civil Code section 5975, subdivision (c).  Defendant did not oppose the motion.  At the hearing, Plaintiff made an oral motion to dismiss the case against Defendant, in light of the fact that the nuisance had been abated, which the court granted. The Court denied the original motion for attorneys’ fees without prejudice on the basis that it had not been noticed sufficiently in advance of the hearing.

On January 16, 2024, the Court continued the hearing to allow Plaintiff to effectuate service of the notice of motion and motion on Gamma.  (January 16, 2024 Minute Order.) Plaintiff subsequently filed a proof of service, indicating Plaintiff served Gamma the notice of continued hearing by mail on January 18, 2024.

Plaintiff now moves again for $12,000 in attorneys’ fees and $744.96 in litigation costs.  No opposition was filed.

LEGAL STANDARD

Civil Code section 5975 provides:

(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.

(b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association.

(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.

ANALYSIS

“Prevailing Party”

“The Davis-Stirling Common Interest Development Act (Davis-Stirling Act or the Act) governs an action to enforce the recorded CC&Rs of a common interest development.”  (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590 (hereinafter Champir).)  “In determining the prevailing party under the Davis-Stirling Act, the trial court should compare the relief awarded on the claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made by a comparison of the extent to which each party has succeeded and failed to succeed in its contentions.”  (Id. at p. 592.)  In other words, the test for determining whether a party is a “prevailing party” for purposes of Civil Code section 5975 “is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.”  (Artus v. Gramercy Towers Condominium Assn. (2022) 76 Cal. App. 5th 1043.

Here, as the Court has previously noted, Plaintiff achieved the main purpose of the litigation, namely Defendant’s cessation of the barking dog nuisance.  Therefore, Plaintiff is the “prevailing party” for purposes of Section 5975. 

Timeliness of Motion

Code of Civil Procedure section 1005, subdivision (b) provides:

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, 12 calendar days if the place of address is the Secretary of State's address confidentiality program (Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code), and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.

The court, or a judge thereof, may prescribe a shorter time.

The Court notes that Plaintiff filed a proof of service indicating that the Notice of Continued Hearing was served on Gamma by mail on January 18, 2024.  The Notice of Continued Hearing indicates that the motion and supporting papers were also served on Gamma concurrently with the Notice.  Therefore, the Court finds that Plaintiff has provided the requisite minimal procedural due process to defendant as required by Code of Civil Procedure, section 1005.  (See Code Civ. Proc., § 1005 [“all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”]

Conclusion

Therefore, Plaintiff’s motion for attorneys’ fees and costs is granted.  Plaintiff shall file a proposed order in conformance with the Court’s ruling for the Court’s consideration and approval. 

Further, Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED:  February 20, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court