Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Super. Ct. No. 30-2010-00358534
Larry Rothman & Associates and Larry Rothman for Defendant and Appellant.
The Roberts Law Firm and Jeffrey T. Roberts for Plaintiffs and Respondents.
RYLAARSDAM, ACTING P. J.
Defendant, Brookhurst Village Condominium Association, Inc., appeals from a judgment awarding attorney fees and costs to plaintiffs Diana Chacon, Maximino Gutierrez, Jose Gutierrez, and Teofilo Figueroa Ibarra. Defendant concedes the underlying controversy over the validity of the directors’ election is now moot because a new election has been held pursuant to the trial court’s order. Defendant contends, nonetheless, the trial court abused its discretion in granting judgment in plaintiffs’ favor. Defendant further contends the trial court abused its discretion in awarding attorney fees and costs to plaintiffs and in the amount of the award. We disagree with these contentions and therefore affirm the judgment.
FACTS
Challenging the validity of the directors’ election held by defendant, plaintiffs homeowners served defendant with a written Request for Resolution pursuant to Civil Code section 1369.520. The Request for Resolution asked defendant to participate in alternative dispute resolution (ADR), which defendant timely accepted. After having agreed to mediate, defendant told plaintiffs it would not consider recounting all of the ballots or conducting a new election. Believing mediation would be futile in such case, plaintiffs proposed to submit the dispute to arbitration, which defendant declined.
At that point, plaintiffs filed a declaratory relief action challenging the election; it included a certificate of compliance with section 1369.520. Defendant asked the court to dismiss the action because the parties failed to participate in ADR. The court refused and found the parties had endeavored to participate in ADR, as statutorily required. After a hearing, the court declared plaintiffs the prevailing parties and entered judgment in their favor, awarding them attorney fees of $21,588 and costs of $1,708.
DISCUSSION
The Judgment
Defendant claims the trial court abused its discretion in entering a judgment in plaintiffs’ favor because plaintiffs failed to attempt to submit their dispute to ADR pursuant to section 1369.520 before filing suit. Defendant further argues plaintiffs’ failure to concurrently file with the complaint a separate certificate of compliance with section 1369.520 warranted judgment against plaintiffs. Defendant’s arguments are ill-founded.
a. Attempt to Informally Resolve
Section 1369.520, subdivision (a) provides that “[a]n association [member] or an owner... may not file an enforcement action... unless the parties have endeavored to submit their dispute to [ADR]....” The trial court found plaintiffs did make an effort to resolve their dispute via ADR, pursuant to section 1369.520.
An appellate court reviews “factual findings made by the trier of fact... for substantial evidence. [Citations.]” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500-501.) Under this standard, it is the appellant’s burden to demonstrate the “record lacks any substantial evidence... to support” the trial court’s factual findings. (SFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 476.)
Here defendant fails to meet its burden as it does not explain how the record “clearly indicates” (bold omitted) plaintiffs did not endeavor to submit to ADR as required. In fact, the portion of the record it cites shows the parties tried to agree on a mediator over the course of three weeks, defendant was unwilling to consider recounting all of the ballots or conducting a new election if the parties submitted to mediation and defendant refused to submit to arbitration, as plaintiffs proposed. This evidence supports the trial court’s finding plaintiffs endeavored to submit the matter to ADR.
b. Certificate of Compliance
Defendant maintains judgment should not have been entered in favor of plaintiffs because they did not file a certificate of compliance with section 1369.520 concurrently with the complaint. Defendant also claims, perhaps in the alternative, that section 1369.560, subdivision (b) requires an enforcement action be dismissed if a separate certificate of compliance with section 1369.520 is missing. But defendant’s failure to engage in reasoned legal argument or cite to legal authority waives this issue on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Moreover, defendant fails to advise us that plaintiffs included such a certificate on the last page of their complaint. Defendant also neglects to mention that “failure to file a certificate... is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action... would result in substantial prejudice to one of the parties.” (§ 1369.560 (b).) Before trial, as plaintiffs point out, defendant represented to the court it would file a demurrer to the complaint on the grounds that the parties did not mediate before plaintiffs filed lawsuit. But the record is devoid of any evidence showing defendant did so.
Instead defendant chose to mediate as per the court order and submitted to the court’s jurisdiction when it appeared at the hearing. We decline to review an issue defendant failed to properly raise at trial. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712.)
2. Attorney Fees and Costs
a. The Award
Although not clearly stated and sans record references, it appears defendant is arguing the trial court abused its discretion in awarding attorney fees and costs to plaintiffs because they did not submit to ADR before filing suit. Section 1354, subdivision (c) provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Under this section, the award to plaintiffs as the prevailing parties in an action challenging an election under their homeowners association’s bylaws was proper. (Kaplan v. Fairway Oaks Homeowners Assn. (2002) 98 Cal.App.4th 715, 720-721.) Moreover, under section 1354, subdivision (c) the award was mandatory. (See Martin v. Bridgeport Community Assn. Inc. (2009) 173 Cal.App.4th 1024, 1039 [“mandatory attorney’s fees and costs award under section 1354 apply when a plaintiff brings an action to enforce such governing documents, but is unsuccessful because he or she does not have standing to do so”].)
Defendant’s reliance on section 1369.580 to support its claim the trial court abused its discretion in granting the award is ill-founded. That section states that “the court... may consider” the reasonableness of a party’s refusal to participate in ADR in determining the amount of the award, not whether or not it should make an award at all.
Accordingly, defendant has failed to show that the trial court improperly awarded fees and costs to plaintiffs.
b. The Amount of the Award
Defendant contends the amount of attorney fees and costs awarded was not reasonable. But that decision is “within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel, and the amount of time involved. [Citation.]” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) Moreover, an appellate court “must affirm [the] award” unless “the trial court clearly abused its discretion” [citation] such that “the award shocks the conscience or is not supported by the evidence. [Citations.]” (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 549-550.) It is the defendant’s burden to show a ‘“clear case of abuse”’ resulting in a ‘“miscarriage of justice.”’ (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 80.)
Citing to over 40 pages of irrelevant material from the record, defendant merely takes issue with opposing counsel’s hourly rate of $350 and court appearance charges. It argues the itemized travel time should be “divided in half because actual time was not set out, ” and conclusorily complains that “[m]ost of the remaining time is excessive.” But plaintiffs’ counsel provided the trial court a declaration detailing his years of experience and expertise, the amount of time spent on prosecuting this action, and that his hourly rate is commensurate with that of other lawyers performing similar work. Defendant, on the other hand, failed to provide the trial court with any declaration to support its conclusions the fees charged were excessive. And other than rehashing the same complaints it made in its opposition to the motion, defendant does not cite to any legal authorities to support its propositions and makes no attempt to explain how the trial court abused its discretion in determining the amount of the award under the circumstances.
Again without record references or legal citations, defendant further argues the trial court should not have awarded prelitigation fees to plaintiffs. This argument fails. When a court awards attorney fees, it may also award prelitigation fees. (See Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655.) And they are not precluded by sections 1369.580 or 1354, subdivision (c).
Therefore, as defendant has failed to show the trial court abused its discretion in determining the amount of the award, the award must be sustained.
3. Miscellaneous
Defendant has waived any additional arguments that are either unsupported by appropriate authority, reasoned legal argument, or both. (People v. Stanley, supra, 10 Cal.4th at p. 793.)
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: O’LEARY, J., FYBEL, J.