Judge: Virginia Keeny, Case: 21VECV00960, Date: 2025-04-24 Tentative Ruling

Case Number: 21VECV00960    Hearing Date: April 24, 2025    Dept: 45

CATHERINE ROCHERON, et al. v. MOSHE GABAY, et al.

DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES IN THE SUM OF $59,850

Date of Hearing:        April 24, 2025                        Trial Date:       September 15, 2025

Department:              W                                            Case No.:        21VECV00960

Moving Party:            Defendants Moshe Gabay and Orit Gabay

Responding Party:     Plaintiffs James Cruce and Robert Borsuk

BACKGROUND

Plaintiffs are each owners of lots within Tract 13564, located in Sherman Oaks, California. Plaintiffs allege each acquired their properties in reliance on the restrictions contained in a recorded Declaration of Restrictions governing Tract 13564, which include that all garages be "detached." On January 13, 2021, defendants Moshe and Orit Gabay purchased a lot within Tract 13564 located at 4512 Sunnyslope. Plaintiffs further allege defendants violated the restrictive covenant by obtaining a permit with the intention to mansionize the property, construct a second story, and/or eliminate the detached garage on the property.

On July 22, 2021, Plaintiffs Catherine Rocheron, Guillaume Rocheron, James Cruce, Ruth Holzman, and Robert Borsuk filed a complaint against Defendants Moshe Gabay and Orit Gabay asserting causes of action for (1) Breach of Recorded Declaration of Restrictions; (2) Injunctive Relief; and (3) Declaratory Relief.

The instant action is related to Eileen Duffy v. Eliran Levi (23VECV02343) and Ivor Brogger, et al. v. Michael Shabtai, et al. (21VECV01006).

[Tentative] Ruling

Defendants’ Motion for Attorneys’ Fees in the Sum of $59,850 is DENIED.

REQUEST FOR JUDICIAL NOTICE

In opposition, Plaintiffs request this court take judicial notice of certain court documents and a grant deed. The court takes judicial notice of the existence of these documents

DISCUSSION

Defendants Moshe Gabay and Orit Gabay move for prevailing party attorney fees pursuant to Civil Code section 5975 in the amount of $59,850.00 in favor of Defendants and against Plaintiffs Catherine Rocheron, Guillaume Rocheron, James Cruce and Robert Bursok.

Code of Civil Procedure section 1032 and 1033.5(a)(10) provide that a prevailing party may recover its costs as a matter of right, and that those costs may include attorneys’ fees when authorized by statute, law, or contract. Civil Code section 5975(c), which is part of the Davis-Stirling Common Interest Development Act governing relations between homeowner associations and their members, provides that a prevailing party in an action to enforce the governing documents between the parties “shall be awarded reasonable attorney’s fees and costs.” (Civ. Code § 5975(c).) Because the Act defines “governing documents” as including CC&Rs, this section applies to actions to enforce CC&Rs. (Civ. Code, § 4150.) 

Defendants maintain they are the prevailing party and thereby, entitled to attorney fees pursuant to Civil Code section 5975. First, the court notes Defendants are the prevailing party in the action as summary judgment was granted in their favor. Plaintiffs do not dispute Defendants are the prevailing party either. However, Plaintiffs contend Defendants cannot recover attorney fees’ pursuant to Civil Code section 5975(c) since Tract 13564 is not a common interest development subject to the Davis-Stirling Common Interest Developmental Act. Moreover, Defendants improperly seek an award of attorney fees against former Plaintiffs Catherine Rocheron, Guillaume Rocheron and Ruth Holzman as this court entered dismissals against them in February 2022. Plaintiffs also argue the request is untimely as the deadline to file a motion for attorney fees was January 22, 2025 (CRC Rules 3.1702, 8.104.)

The court DENIES the motion for attorney fees. As noted by Plaintiffs, an owner does not have the right to recover attorneys' fees under the Davis-Stirling Act if their HOA is a voluntary association of homeowners having no power to charge or collect assessments. (See Mount Olympus Property Owners Association v. Shpirt (1997) 59 Cal.App.4th 885, 894-896.) Moreover, Civil Code section 4201 provides that the Davis-Stirling Act applies only to developments with common areas. Defendants have not presented any evidence of a mandatory homeowners’ association or a common area nor do they dispute Plaintiffs’ contention they do not exist here. So while Civil Code section 5975 requires a mandatory fee award to prevailing parties, Defendants have not fallen within the scope of the Davis-Stirling Act.

The court also notes the motion is untimely. The Notice of Entry was served November 21, 2024, making the deadline to file their motion for attorney fees January 20, 2025. Defendants’ motion was filed January 22, 2025. Although generally electronic service extends by two days, because the time for filing a notice of appeal is not extended by the manner of service under section 1013, the time for filing a motion for attorney fees is also not extended.