Judge Ralph C. Hofer, Case Number: 20GDCV00473, Date: 2024-11-15 Tentative Ruling

TENTATIVE RULING

Calendar: 3

Date: 11/15/2024

Case No: 20 GDCV00473

Case Name: Haas, et al. v. Murphy, et al.

MOTION FOR ATTORNEY’S FEES

Moving Party: Defendant Terri Murphy and Michael Murphy

Responding Party: Plaintiffs Birgit Haas and Scott Haas

RELIEF REQUESTED:

Award of attorney’s fees in favor of defendants Terri Murphy and Michael Murphy and against plaintiffs Birgit Haas and Scott Haas in the amount of $163,620.00

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiffs Birgit Haas and Scott Haas brought this action alleging that they are the owners of real property located in Sierra Madre, and that defendants Terri Murphy and Michael Murphy are the owners of real property adjacent to plaintiffs’ property (the Murphy property), which sits at a lower elevation than plaintiffs’ property and a slope sits on the north side of the Murphy property increasing in elevation up to plaintiffs’ property.

Plaintiffs allege that both properties are subject to Covenants and Restrictions (CC&Rs) recorded on the lots included in the subject tract, which include conditions that prohibit erecting or maintaining buildings other than one private one family residence not exceeding one story in height, together with customary out buildings, including a private garage for not more than three cars, and conditions requiring that each grantee permit free access by owners of adjacent or adjoining lots to slopes or drainageways located on the property which affect adjoining lots when such access is essential to for the maintenance or permanent stabilization on slopes or for the protection of use of property other than the lot on which the slope or drainageway is located. An additional condition includes that each grantee of a lot in the tract agrees that he will not interfere with established drainage over his lot, defined as the drainage which occurred at the time the overall grading of the tract was completed.

The SAC alleges that all conditions under the CC&Rs were to run with the land and be binding on persons claiming under them until January 1, 1988, at which time the CC&Rs are to be automatically extended for successive periods of ten years, unless changed by vote, and are to operate as covenants running with the land, with breaches subject to injunction or abatement.

Plaintiffs allege that since May of 2016, plaintiffs have also been the record owners of a recorded drainage easement over the northerly 16 feet of the Murphy property, recorded July 9, 1962, which easement benefits plaintiffs’ property by directing water away from the property and to the street, limiting saturation of the slope, which slope plaintiffs believe supports the foundation of their property.

Plaintiffs allege that defendants claim some right, title or interest in the drainage easement adverse to plaintiffs’ title, and their claims constitute a cloud on plaintiffs’ title. The complaint alleges that defendants have caused to be constructed a building, a fence, and other encroachments on the Murphy property over and across the drainage easement, obstructing the flow of water through the drainage easement as well as plaintiffs’ ability to maintain the drainage easement.

The SAC alleges that in October of 2019, plaintiffs commenced maintenance on the drainage easement, but shortly thereafter defendant demanded that the maintenance stop and refused access to the drainage easement or the slope for maintenance. Plaintiffs allege that defendants continue to refuse access to the drainage easement, and have threatened to call the police, constructed a fence, filed a lawsuit to prevent access to the drainage easement, and have sent a letter to counsel for plaintiffs disclaiming plaintiffs’ right to the drainage easement and accusing plaintiffs of trespass.

Defendants the Murphys, as Trustees of the Murphy Family Trust, filed a cross-complaint, alleging that in June of 2004, the Murphys had received fee title to the Murphy property, having purchased it from their predecessor, and that they thereafter transferred legal title to themselves in their capacity as Trustees of The Murphy Family Trust. Defendants allege that the June 18, 2004 grant deed from the predecessor conveys the entire fee interest of the entirety of the real property, without any exception and without the real property being burdened in any way by any easement in favor of any property to the north. Cross-complainants allege that the tract map of the Murphy property shows only a utility easement across the east side of the property.

The cross-complaint alleges that from 1961 through May of 2016, Gordon Hawkins owned and occupied the real property directly to the north of and adjacent to the Murphy property, and that at the time cross-complainants acquired the property, there were several block walls constructed on the Murphy property, less than sixteen feet from the boundary line, which area was also planted with maturing trees, bushes and other vegetation.

Cross-complainants allege that beginning in about 2013 and continuing into about 2014, they began the process of planning and seeking approval of the City of Sierra Madre to relocate a portion of one of the block walls, include in the relocation new drainage systems, and construct a two-story pool house that would be about ten feet from the boundary line. The plans were reviewed with Hawkins, who did not voice any objection or concern about drainage or any drainage easement, and after receiving Hawkins’ consent, cross-complainants submitted their plans to the City, and applied for the necessary permits. After receiving approval and the necessary permits, cross-complainants undertook the work, which was completed in 2015, and received final approval from the City. At no time since the work was completed has there been any problem with the drainage of the surface water flowing naturally from the Hawkins’ property.

The cross-complaint alleges that in 2016, cross-defendants Birgit Haas and Scott Haas entered the Hawkins property, observed the Murphy property, including the relocated block wall, drainage systems, pool house, and vegetation that were within 16 feet of the boundary line between the properties, and were provided with documents showing Hawkins and his deceased wife had received, as their personal right, an easement for drainage purposes only over the northern sixteen feet of the Murphy property. Cross-complaint alleges that cross-defendants had the right to inquire about the improvements on the Murphy property at that time, which they either exercised or knowingly waived, but that on May 25, 2016, after having observed, examined, and investigated, cross-defendants chose to go forward with their acquisition of the Hawkins’ property.

The cross-complaint further alleges that beginning in October of 2019, cross-defendants intentionally entered the Murphy property, without permission, and intentionally cut down trees, bushes and vegetation on the property, and have done so on several occasions, including an occasion after cross-complainants had hired a surveyor to mark the property line, cross-complainants had installed a wooden fence in compliance with the applicable municipal code, and installed a “No Trespassing” sign, and informed everyone on the other side, including cross-defendants, that they had no right or permission to enter the real property. The cross-complaint alleges that cross-complainants have been damaged by the loss of the trees, bushes and vegetation which have been removed, and also by the circumstance that the integrity of the slope and ability to handle normal surface water flows and water flows during rainy seasons has been put at risk.

The cross-complaint alleges causes of action for trespass to real property and trespass to timber.

On July 15, 2022, the court heard motions for summary judgment or summary adjudication brought by plaintiffs and by the Murphy defendants. The motion for summary adjudication brought by the Murphy defendants was granted as to the fifth cause of action of the SAC for permanent injunction and damages—violation of CC&Rs, and the sixth cause of action for declaratory relief re CC&Rs, on the ground defendants had submitted undisputed evidence showing that the property now owned by plaintiffs was conveyed to their predecessors in interest, Gordon Hawkins and Jeanne Hawkins, prior to the effective date and date of recording of the CC&Rs plaintiffs were attempting to enforce.

Two of the remaining causes of action of the SAC and the cross-action based on the SACC went to a court trial in October of 2022 and August of 2023. In February of 2024, the court entered it final statement of decision and a correction to that final statement of decision. On April 24, 2024, at a Status Conference re Trial, plaintiffs made an oral motion to the court for dismissal without prejudice of the second cause of action for private nuisance, and for permanent injunction and damages—interference with easement, which had been reserved to be tried in a second phase of the trial.

On September 3, 2024, judgment was entered in the matter.

Judgment as to the SAC was for defendants and against plaintiffs the Haas parties on the first cause of action for quiet title to express easement, the fourth cause of action for declaratory relief re easement, and the fifth and sixth causes of action based on the CC&Rs (as determined on the motion for summary adjudication discussed above).

Judgment as to the SACC was for cross-defendants the Haas parties and against cross-complainants the Murphys as trustees of the family trust on the first cause of action for trespass to real property and the second cause of action for trespass to timber. Judgment as to the SACC was for cross-complainants the Murphys as trustees and against cross-defendants the Haas parties on the third cause of action for declaratory relief and the fourth cause of action for quiet title.

Judgment was declared that the express easement that was the subject of this case was extinguished by adverse possession, extinguishment of the servitude, and/or abandoned by plaintiffs’ predecessors in interest. Judgment was also declared that title to the Murphy property is free and clear of the Easement for Drainage Purposes Only recorded on July 9, 1962, and no other person or entity claiming any right, estate, or interest in the property adverse to the Murphys’ interest has any interest in the property.

The judgment states, “Costs and attorney’s fees, if any, to the prevailing party to be determined by a post judgment memorandum of costs and motion for attorney’s fees.” [Judgment, p. 4:1-2].

ANALYSIS:

Defendants Terri Murphy and Michael Murphy bring this motion seeking an award of attorney’s fees in their favor and against plaintiffs, the Haas parties, for the work performed in connection with defendants’ defense against the Haas parties’ claims and causes of action for enforcement of the CC&Rs.

In general, under CCP § 1021

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...”

Under CCP § 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Section 1033.5 (a) provides that an allowable cost under §1032 includes:

“(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

The Murphys seek fees under statute, specifically, Civil Code § 5975, arguing that this statute provides for the Murphy parties’ recovery of attorney’s fees with respect to the causes of action to enforce the CC&Rs.

Civil Code §5975 states:

“(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.”

Defendants argue that the California Supreme Court has held that this statute, like other attorney fees statutes, such as Civil Code section 1717, provides for a full mutual remedy to a defendant who prevails in defending an action to enforce CC&Rs, even to a defendant who prevails on the ground that plaintiff was not successful in establishing that the documents relied upon were governing documents.

Defendants rely on Tract 19051 Homeowners’ Assn. v. Kemp (2015) 60 Cal.4^th 1135, 1149, in which the Court, in construing the predecessor statute to Civil Code section 5975, Civil Code section 1354 (c), which has not changed with respect to the attorney’s fees clause, held that defendants in that matter, a homeowner and subsequent purchaser of property being sued for alleged violations of restrictions by ongoing remodeling of the property, were entitled to an award of attorney’s fees under the statute. The Court found an award of attorney’s fees was proper under the statute, even though defendants had prevailed in the action because plaintiffs had failed to establish that plaintiff Tract 19051 Homeowners’ Association constituted a “common interest development” within the meaning of the Common Interest Development Act, so had failed to establish that the restrictions in the governing documents applied to defendants’ property. Tract 19051, at 1138-1139.

The Court evaluated the attorney’s fees provision of the statute, and observed:

“When a lawsuit is brought to enforce what the complaint expressly alleges are the governing documents of a common interest development, the action would ordinarily be understood to be “an action to enforce the governing documents [of a common interest development]” as that clause is used in former section 1354(c). Whether or not the plaintiff in the action is ultimately successful in establishing that the documents relied upon are in fact the governing documents of a common interest development would not affect the character or type of action that has been brought.”

Tract 19051, at 1144.

The Court expressly concluded that reciprocity applied to the attorney’s fees provision before it:

“[W]e conclude that the Court of Appeal erred in reversing the attorney fee award in favor of defendants. First, the trial court's award of attorney fees is supported by the language of the statute: Plaintiffs' underlying lawsuit was an action to enforce the governing documents of a common interest development, and defendants were the prevailing party in the action. Second, because plaintiffs clearly would have been entitled to an award under the statute had they prevailed in the action, denying defendants an award under the statute when they were the prevailing party would unquestionably violate the reciprocal nature of the statute and thus defeat the evident legislative intent underlying the statute. As we shall explain, prior California decisions, interpreting and applying comparable statutory attorney fee provisions that mandate an award of attorney fees to the prevailing party, directly support this interpretation of former section 1354(c).”

Tract 19051, at 1139, italics in the original.

Defendants argue that under this holding, it follows that the Murphys are entitled to an award of attorney’s fees for having been prevailing defendants in an action by the Haas parties to enforce the CC&Rs, and that this is true notwithstanding that the Murphys prevailed on the grounds that the Haas property was not part of the common interest development and the CC&Rs were not recorded against the Haas property.

Defendants here prevailed on the causes of action to enforce the CC&Rs pursuant to their successful motion for summary adjudication of the fifth and sixth causes of action of the operative complaint, in which the court determined:

“Defendants have shown that at the time the Grant Deed conveyed the property to Gordon and Jeanne Hawkins, there were not yet any CC&Rs entered into or recorded in connection with the subject property, as the CC&Rs were not executed or recorded until after the date of conveyance.

In Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, the California Supreme Court recognized that CC&Rs recorded prior to the conveyance by deed of a lot within a subdivision were properly applied to the lot in question. In this case, however, the CC&Rs were indisputably not recorded prior to the actual conveyance by grant deed of the lot to plaintiffs’ predecessors in interest, so that the party granting the rights pursuant to the CC&Rs no longer held any interest in the subject lot and could not convey the rights contained in the CC&Rs,which, as to plaintiffs’ lot, were void. The subsequent recordation of those void CC&Rs could not make the CC&Rs enforceable by the Hawkins parties or their successors in interest. See Taormina Theosophical Community, Inc. v. Silver (1983, 2nd Dist.) 140 Cal.App.3d 964, 970-971.

Plaintiffs in opposition do not dispute the timing of these conveyances, and plaintiffs have failed to attempt to raise triable issues of material fact on this issue. Plaintiffs have also failed to submit a separate statement of material facts which responds to, or cites to evidence to respond to, the critical facts in this matter that the CC&Rs were not recorded until after the property had been conveyed to Gordon Hawkins and Jeanne Hawkins. [See UMF Nos. 1-5, and evidence cited]. CCP § 437c(b)(3); CRC Rule 3.1350 (f). The opposition also fails to discuss the legal authorities cited or provide citation to authority under which the CC&Rs would apply to plaintiffs’ property here or provide grounds for plaintiffs’ personal enforcement of any provisions included in the CC&Rs.

Accordingly, no triable issues of fact remain with respect to the applicability of the CC&Rs to the Haas property and summary adjudication is granted on the ground that plaintiffs will be unable to establish the essential element of these two causes of action, that the CC&Rs sought to be enforced apply to the subject property and convey upon plaintiffs the rights they seek to enforce.”

[Miller Decl., para. 9, Ex. F, Minute Order 07/15/2022, p. 35 of 41].

This conclusion is sufficient to show that in this “action to enforce the governing documents” by the Haas parties, defendants were the “prevailing” parties, and so are entitled to “be awarded reasonable attorney’s fees and costs” under Civil Code §5975 (c) in connection with the defense against the claims brought under the CC&Rs.

The opposition argues that plaintiffs’ lawsuit was not an action to enforce the governing documents of a common interest development, but concedes that plaintiffs pursued the CC&Rs as an “independent basis to enjoin the Murphy’s activities,” and amended the complaint to do so. [Opposition, p. 5:20-21]. Plaintiffs also concede that they sought attorney’s fees in their pleadings, so that the reciprocity would apply. Plaintiffs rely on the following language from LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Association (2023) 94 Cal.App.5^th 1050:

“To determine whether appellants sought by their action to enforce the Association's governing documents, and therefore were liable for attorney fees because they failed to do so, we examine the allegations of their complaint. (See Gause v. Pacific Gas & Electric Co. (1923) 60 Cal.App. 360, 367, 212 P. 922 [“the nature of the action must be determined from the allegations of the complaint”]; Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 65-66, 281 Cal.Rptr.3d 45 [reviewing allegations of complaint to determine nature of action for limitations purposes].) …. The complaint nowhere mentions section 5975; the charging allegations neither cite nor quote any provision of any governing document; the prayer for relief does not ask the court to enforce any provision of the governing documents; and no governing document or part thereof is attached to the complaint. We would expect to find such content in the complaint had appellants sought enforcement of the Association's governing documents under section 5975.”

LNSU #1, LLC, at 1082-1083.

This outcome is on its face is in clear contrast to the current action, where plaintiffs sought leave to amend the complaint and were permitted to do so, to add allegations that each property is bound and burdened by recorded CC&Rs. The pleading quotes conditions from the CC&Rs, and clearly seeks to enforce them. [See Motion, Ex. E, Motion for Leave to File Verified First Amended Complaint, Ryan Decl. paras. 8, 9; FAC, paras. 3-10; SAC paras. 3-9, 50-54, 56-60]. A copy of the CC&Rs is attached to the SAC. [SAC, para. 3, Ex. 1]. The SAC expressly seeks attorney’s fees in connection with the claim under the CC&Rs:

“As a proximate result of DEFENDANTS’ violation of the CC&Rs, PLAINTIFFS have been required to, and have incurred, attorney's fees and costs and the PLAINTIFFS are entitled to recover those attorney fees and costs in an amount to be proven at trial.”

[SAC, para. 54].

This outcome is in clear contrast to the concerns raised in LNSU #1. The statute applies here. Plaintiffs do not dispute that defendants were the prevailing parties on the CC&R issues.

Court’s Determination of Reasonableness of Fees

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:

“the fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77 [227 Cal.Rptr. 804] explained: “Section 1717 provides for the payment of a 'reasonable' fee. After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.”

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624 [134 Cal.Rptr. 602].)

The Court also held that the standard of review with respect to this determination is abuse of discretion:

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”-- meaning that it abused its discretion.”

Defendants seem to argue that they are entitled to the reasonable fees to defend this action in its entirety until the first day of trial, because plaintiffs had taken the position in seeking leave to amend the their original pleading to add the fifth and sixth causes of action that the original four causes of action had been based on the CC&Rs, but amendment was sought to clarify the claims with respect to the CC&Rs. Defendants also argue that the Haas parties insisted in keeping enforcement of the CC&Rs in the initially alleged four causes of action notwithstanding this court’s summary adjudication of the fifth and sixth causes of action against the Haas parties, so that the work of the Murphys’ lawyers in defending against enforcement of the CC&Rs continued until the first day of trial, when this court asked the attorneys for the Haas parties to stipulate that the CC&Rs were not part of the initially pleaded four causes of action.

Defendants have submitted a declaration of attorney Katharine Miller describing the work performed for which fees are sought, which does not attach actual billing statements. The declaration indicates that time expended in working on other aspects of the case that did not involve defense of enforcement of the CC&Rs is not included in the chart of time provided. It is difficult to confirm from the declaration how this allocation was made. [See Miller Decl., para. 13]. Plaintiffs in opposition argues that the evidence submitted in support of the hours spent is insufficient and does not appear to reflect a sufficient record of contemporaneous billing entries.

It is also not clearly established what billing rates were actually charged by the attorneys here, Miller, and her law partner David King. The declaration states that the attorneys are civil litigators, representing clients in real estate and business disputes, and that “Given the years of experience we have, the reasonable rate for each of us is now in excess of $600 per hour.” [Miller Decl., para. 13]. The declaration appears to then apply a $600 billing rate for each attorney. This approach is a very vague way of establishing the reasonableness of the $600 billing rate. This method seems particularly improper as the billing documents are not submitted for the court to confirm what rates were actually charged, and the time entries included in the declaration begin in 2020 and extend through 2024 with the same billing rate to be applied throughout.

The declaration indicates that in preparing the chart of time claimed, counsel has taken out time spent defending non-CC&Rs enforcement claims or theories, time associated with the cross-complaint, the parts of the summary adjudication motion which was not addressed to the CC&Rs, and time dealing with experts which did not address the claims under the CC&Rs. [Miller Decl., para. 13]. Again, it is not explained how this allocation was made. It appears that counsel’s position is that this court should simply take counsel’s word that allocation was made, even though defendants also appear to be taking the position that all six causes of action pursued by plaintiffs implicated the CC&Rs. Hence, the defendants argue, that time spent defending the complaint was connected to the CC&Rs until just before trial when it was confirmed that the CC&R enforcement would not be pursued further.

The attorney declaration also does not provide a clear overall statement of the hours spent, to which plaintiffs have objected. Hence, the court was required to cull through the declaration to find the figures and then total them. The chart represents without details that certain other hours were spent, but defendant is not claiming them in connection with this motion.

For this period, the time not requested is 312.5 hours, making the total time spent 519.2 hours.

For the period from 10/06/2022 through 09/03/2024, 3.8 hours are being claimed at $600 per hour =$2,280.00 in fees claimed.

For this period, time not requested is not specified, so the total time spent cannot be calculated. [Miller Decl., para. 13]

Total hours prior to this motion = (44.4 hours, plus 206.7 hours, plus 3.8 hours) 254.9 hours (at $600 per hour $152,940)

Grand total = (254.9 hours plus 17.8 hours) 272.7 hours (at $600 per hour $163,620.00)

Total not sought= (92.5 hours plus 312.5 hours) 497 hours (at $600 per hour $298,200.00)

Total overall sum presumably billed to client= (Total sought here, 272.7 hours, plus total not sought 497 hours) 769.7 hours (at $600 per hour $461,820.00).

The fees sought here accordingly are approximately one third of the total fees purportedly spent in this matter.

The court has reviewed the chart of hours submitted, and is very familiar with the entire course of this litigation and the issues presented, having presided over the action since its inception, including providing a detailed ruling on the motion for summary judgment/adjudication. The court also presided at the trial, drafted a detailed statement of decision, and participated in the post-trial proceedings to ensure the entry of an appropriate judgment in this case.

The opposition argues that the billing rate of $600 per hour is unreasonable and not supported by sufficient evidence, as there is no information provided regarding the actual rates of the attorneys, or market rates during the time period services were performed. The court shares these concerns, but is familiar with the fees customarily claimed by attorneys at the experience level of the attorneys here, and despite the incomplete showing, the court will apply a $600 per hour billing rate.

With respect to the hours claimed, the court is of the view that the defense against the efforts by plaintiffs to enforce the CC&Rs was a minor and secondary issue in this case. This matter instead mainly concerned the alleged existence of, and alleged encroachment of, a drainage easement, the alleged improper design and placement of a wall, and the alleged consequent resulting instability of a hillside. These other issues were complicated, time-consuming, and required expert evidence. The great bulk of discovery, pretrial preparation, the motions for summary judgment/adjudication, and the trial concerned these issues and the various interactions between the parties concerning these issues.

The defense against the enforcement of the CC&Rs was based on recorded documents, publicly available, and within the possession of defendants, and on timelines established by such documents, so that discovery in support of the defense was not difficult or protracted. The chart of time spent concedes as much, seeking time in connection with reviewing the initial complaint listing that counsel conducted, “analysis of client documents including re recorded property records.” [Miller Decl., para. 13, beginning 07/01/20].

The opposition argues that the defense to the CC&Rs claims was one of standing and was determinable based on judicially noticeable documents, which should have been pursued with appropriate diligence and disposed of earlier in the litigation.

The court agrees that the proof in connection with the CC&R claims was easily discoverable, and finds that the discovery necessary to defend against the CC&R claims reasonably totaled one hour.

The court notes that the research necessary to challenge the CC&R enforcement claims was performed partly in connection with pursuing discovery and that there was some time spent in connection with an opposition to a motion for leave to amend the complaint to add stand- alone causes of action for relief under the CC&Rs, and a demurrer to the FAC, which argued in part that the claims for violations of the CC&Rs were not sufficiently alleged, and were time barred. Specifically, defendants claim when the parties were in the midst of exchanging discovery to have spent 1.7 hours performing “Legal research and analysis re law and defense to Haas’s enforcement claims, theories…” [Miller Decl., para. 13, 11/19/20]. The time spent opposing the motion for leave to file a FAC includes time for legal research and is claimed in the sum of 8.4 hours [Miller Decl., para. 13, beginning 07/19/21], plus .8 hours in an ex parte appearance. [Miller Decl., para. 13, 07/26/21], and then another 8.4 hours drafting the opposition. [Miller Decl., para. 13, beginning 08/19/21. This second entry for 8.4 hours appears duplicative of the July charges, and is in any case excessive, and is not awarded. The chart also includes 1 hour preparing for the hearing on the motion for leave to amend, and another 1.2 hours reviewing the tentative ruling, and preparing for the hearing, as well as attending the hearing. [Miller Decl., para. 13, beginning 09/15/21, and 09/17/21]. This claim appears duplicative and is reduced to 1.5 hours total in connection with the hearing. While the opposition argues that only time spent pursuing the successful standing claim should be awarded, direct work to defeat the CC&Rs claim, which was not so misguided as to appear unreasonable, is recoverable by the prevailing party.

The total time awarded for this preliminary research will be 1.7 hours and for opposing the motion for leave to amend will be 10.7 hours.

With respect to the demurrer, the chart includes 2.7 hours analyzing the CC&R fact allegations and strategizing regarding a demurrer [Miller Decl., para. 13, beginning 07/27/21]. The time claimed to draft the demurrer is 10.4 hours, which includes time dealing with legal research on “CC&Rs not on title at time developer/declarant deeded Haas’s lot” [Miller Decl., para. 13, beginning 10/06/21]. The time to draft the motion to strike is claimed at 9.1 hours [Miller Decl., para. 13, beginning 10/11/21]. The drafting of the replies is claimed at 13.9 hours, including “further research” with “particular focus upon issues on face due to CC&Rs and not of record when Haas’s lot deeded by developer.” [Miller Decl., beginning 12/06/21]. Further time for research regarding the governing documents is claimed in a chart entry which includes many other tasks, and totals 8.6 hours, which seems excessive, particularly at a $600 per hour billing rate, and is not allowed. [Miller Decl., para. 13, beginning 12/28/21]. The hearing on the demurrer and motion to strike is billed at 2.3 hours, which obviously encompasses the time spent for the entirety of the hearing on the demurrer and motion to strike, which was not entirely addressed to the CC&Rs. [Miller Decl., para. 13, beginning 12/17/21]. The total hours claimed which the court finds applicable from the chart is 38.4 hours.

The court notes that the demurrer was directed not only at the CC&Rs, but included arguments that each of the causes of action were barred by the various applicable statutes of limitations. The court finds that approximately one-third of the time devoted to the demurrer and motion to strike was not time directed to defeating enforcement of the CC&Rs, so the court awards two-thirds of the time claimed, and the total time awarded for the demurrer and motion to strike is 25.6 hours.

The court finds that the issue of enforcement of the CC&Rs was successfully resolved in favor of defendants through that portion of the motion for summary adjudication filed by defendants pertaining to the fifth and sixth causes of action. As set forth above, the motion as to those causes of action was granted. Also evident from the court’s minute order is that the motion for summary adjudication of those causes of action was a small portion of defendants’ overall motion for summary judgment, which was addressed to each of six causes of action of the SAC, with arguments as to most causes of action involving more than one issue, including the issues raised as to the fifth and sixth causes of action, which included an argument that summary adjudication was warranted because the claims were time barred, which was not the basis for the court granting summary adjudication on the CC&R’s. Defendants’ motion was denied as to the bulk of the motion, as to four of six causes of action and nine of the thirteen stated issues, so that defendants only prevailed in the motion on two-thirteenth of the issues addressed. Again, the more complex and time-consuming issues were those other than the issues concerning the CC&Rs.

Moreover, a review of the minute order addressing the motion for summary adjudication, some of which is quoted above, shows that the motion by defendants as to the fifth and sixth causes of action was not rigorously challenged by plaintiffs in opposition to that motion. [Miller Decl., Ex. F, pp. 22, 35].

The court is also concerned that the research regarding the CC&R issues had already been performed and billed in connection with the opposition to the motion for leave to amend and the demurrer and motion to strike, so the time necessary to prepare the motion for summary adjudication on the narrow issue concerning the applicability of the CC&Rs to the Haas property should have been greatly reduced.

The hours sought from the chart which the court identifies as pertaining to the preparation of the motion for summary adjudication include very early research and drafting of 4.9 hours (Miller Decl. para. 13, beginning 04/27/21) and 2.6 hours. [Miller Decl., para. 13, beginning 06/21/21]. In March of 2022, defendants spent 24.3 hours preparing the motion. [Miller Decl., para. 13, beginning 03/03/22]. An additional 5.6 hours are claimed for reviewing opposition and drafting reply papers. [Miller Decl., para. 13, beginning 6/10/22]. Defendants claim time for opposing plaintiffs’ motion for summary judgment/adjudication (although they also claim in the chart that they are not seeking any time in connection with the cross-claims), when only one issue pertaining to the first cause of action was implicated in connection with that motion, with the opposition on the issue essentially duplicating the arguments in defendants’ motion already awarded. The court awards 1 hour of additional time for the opposition to plaintiffs’ motion on this issue.

Defendants claim 1.3 hours for the court appearance and oral argument on the motions for summary judgment/adjudication, and conference with the client regarding the outcome, and 2.1 hours and then an additional 1.3 hours preparing the proposed order on the motion. [Miller Decl., para. 13, 07/15/22 and beginning 7/25/22 and 08/05/22]. The court finds that the fees to prepare the order are unreasonably high given the specificity of the court’s minute order, and the fact that only 4, possibly 5, issues out of thirteen pertain to the CC&Rs arguments. The court awards only one hour of time for preparing the order. The total time claimed as summarized above would total 4.9 hours, plus 2.6 hours, plus 24.3 hours, plus 5.6 hours, plus one hour to oppose plaintiffs’ motion, plus one hour to prepare the order, for a total of 39.4 hours the court finds were reasonably spent on the motions for summary judgment/adjudication pertaining to the CC&Rs. At the $600 billing rate, this totals $23,640.00. While the court has some doubts with respect to defendants’ claim to have apportioned the fees sought between the CC&R claims and the other claims, and with respect to whether the research necessary to prevail on the claims governed by the fees statute had been performed previously and accounted for in the fees awarded on the motion for leave to amend and demurrer and motion to strike, above, the court awards the summary adjudication fees as adjusted above in full.

Defendants also claim time for having prepared a proposed judgment in this matter. The court recalls the process which was required to produce a satisfactory judgment in this matter, which, as discussed above, involved many complex issues, and the crafting of a clear and concise judgment for declaratory relief and quiet title. The judgment as to the fifth and sixth causes of action includes a single narrative paragraph, and two simple phrases that judgment as to the SAC is for defendants as to each of the fifth and sixth causes of action. [Judgment, pp. 1, 2]. The court finds that the time reasonably spent on post-judgment matters by defendants in connection with the CC&Rs issues was .5 hours.

Defendants also seek 17.8 hours to pursue this motion for fees. [Miller Decl, para. 14]. The court has reviewed the moving papers, which involve the straightforward application of Civil Code section 5975, and finds that the reasonable time to prepare such a motion and a reply is 10 hours of time at a $600 per hour billing rate, and that since the parties may appear remotely, the time to attend the hearing should not exceed one hour. An additional 11 hours accordingly is awarded.

The total fees which the court finds are to be awarded as the reasonable fees in the portion of this action involving enforcement of the governing documents in which defendants prevailed under Civil Code §5975 (c) are 1.7 hours in preliminary research, 1.0 hour in discovery, 10.7 hours opposing the motion for leave to amend, 25.6 hours in connection with the demurrer and motion to strike, 39.4 hours in connection with the motions for summary judgment/adjudication, .5 hours in post-trial legal services, and 11.0 hours in pursuing the motion for fees.

This amount totals 89.9 hours. At the reasonable billing rate of $600 per hour, the total fee award is $53,940.00, which is to be awarded to defendants and against plaintiffs pursuant to Civil Code §5975.

The Court finds that defendants Terri Murphy and Michael Murphy were the prevailing parties in the portion of this action which was brought to enforce the governing documents of a common interest development, and are entitled to reasonable fees to prevail on those claims. The court finds that reasonable attorney’s fees are $53,940.00 [$163,620.00 sought] which are to be awarded to defendants Terri Murphy and Michael Murphy against plaintiffs Birgit Haas and Scott Haas payable within 60 days of the entry of an attorney fee award order.

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