Opinion
D072288
04-12-2018
LORRAINE MARTINI, Plaintiff and Appellant, v. BEL AZURE HOMEOWNERS ASSOCIATION et al., Defendants and Respondents.
Mesisca, Riley & Kreitenberg and Dennis P. Riley, Rena E. Kreitenberg for Plaintiff and Appellant. Hartsuyker, Stratman & Williams-Abrego and Roger L. Popeney; Law Offices of Roxanne Huddleston and Roxanne Huddleston for Defendants and Respondents Bel Azure Homeowners Association and Morning View Associates.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00024081-CU-PO-NC ) APPEAL from a postjudgment order of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. Mesisca, Riley & Kreitenberg and Dennis P. Riley, Rena E. Kreitenberg for Plaintiff and Appellant. Hartsuyker, Stratman & Williams-Abrego and Roger L. Popeney; Law Offices of Roxanne Huddleston and Roxanne Huddleston for Defendants and Respondents Bel Azure Homeowners Association and Morning View Associates.
After plaintiff and appellant Lorraine Martini obtained a special verdict finding defendants and respondents Bel Azure Homeowners Association (Association) and its manager Morning View Associates (Morning View) each 35 percent negligent with respect to injuries she had suffered after falling on Association's premises, she moved for $145,212.67 in attorney fees and costs, claiming she was the prevailing party under Association's covenants, conditions and restrictions (CC&R's), Code of Civil Procedure sections 1032 and 1033.5, and Civil Code section 5975, subdivision (c) of the Davis-Stirling Common Interest Development Act (Davis-Stirling Act; § 4000 et seq.). The trial court denied her motion, ruling her case was "not an action 'to enforce or interpret any of the covenants, conditions or restrictions' in the CC&R's" but instead was "a common law negligence case," and no contract or statute authorized an attorney fee award.
Undesignated statutory references are to the Civil Code. Section 5975, subdivision (c) was formerly section 1354, subdivision (c), which the Legislature repealed and reenacted without change in 2012. (See Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1138, fn. 1; Cal. Law Revision Com. com., 12B Pt. 2 West's Ann. Civ. Code (2016 ed.) foll. § 5975, p. 236.)
Martini appeals, contending the court erred by denying her an attorney fee award because she put Association's CC&R's at issue in her first amended complaint, bringing the matter within section 5975, subdivision (c), and entitling her to attorney fees under a fee provision in the CC&R's. Martini further argues that even if she is limited to an attorney fee award under section 5975, those fees are identical to and need not be apportioned from those incurred in connection with her premises liability and negligence claims. Finally, Martini contends the fees she sought are reasonable. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The background of Martini's injuries as well as some of the trial evidence is set forth in our related opinion, Martini v. Bel Azure Homeowners Association, et al. (Apr.11, 2018, D071846) [nonpub. opn.]. We need not repeat those facts here. On our own motion, we take judicial notice of the record in that prior appeal. (Evid. Code, §§ 452, subd. (d)(1) [judicial notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1173.)
Martini sued Association and its manager, Morning View, asserting causes of action for negligence and "premises liability" after she tripped on a loose pile of gravel during repaving of a private street within Association. Thereafter, she filed a first amended complaint adding causes of action against Association and Morning View for breach of fiduciary duty, breach of Association's CC&R's, and declaratory relief. In part, Martini generally alleged Association's CC&R's provided that Association had the " 'sole and exclusive right and duty to manage, operate, control, repair, replace or restore all of the Common Area' " and that the CC&R's provided for the recovery of attorney fees and costs to the prevailing party in any litigation for enforcement of those obligations. Incorporating those allegations, she alleged in her negligence cause of action that Association was responsible for repairing, replacing or maintaining the common area under section 4775. Martini alleged defendants owed a duty to maintain all common areas in a safe condition for all residents, perform repairs to the common area in a safe manner, and not create dangerous or unsafe conditions, but breached those duties by failing to properly oversee the resurfacing work, failing to inspect the area during the repairs, and/or ignoring the loose gravel and failing to take action to protect residents from those dangers by cordoning off the area or providing residents with an alternate way to access the premises. Martini also alleged defendants breached the CC&R's: that defendants ignored their responsibility under those documents and California law to maintain and repair the common areas under industry standards and the applicable standard of care by failing to provide instructions concerning general access to the property during the pendency of construction, and failing to put up barriers or other designations to direct residents where to walk in entering or exiting the premises.
The matter proceeded to trial on the theory that defendants were negligent by, among other things, failing to provide a safe passage for Association's occupants to walk in and out of the complex, which was the reason Martini fell. In a special verdict, the jury found Association and Morning View each 35 percent negligent, and that their negligence was a substantial factor in causing Martini's injuries. It also found Martini was negligent and allocated 30 percent responsibility to her. The jury awarded Martini $11,000 in past economic and noneconomic damages. The court adjusted the award to reflect Martini's negligence and entered judgment against Association and Morning View accordingly.
Martini thereafter filed a cost memorandum and concurrently moved for $137,167.50 in attorney fees and $8,045.17 in costs. She argued her right to such recovery was mandatory based on an attorney fee provision in Association's CC&R's that allowed for "attorney fees and costs to the prevailing party in an action 'to enforce . . . any of the covenants, conditions or restrictions . . . .' " Martini asserted the provision was broad enough to encompass noncontract claims, and that her causes of action for negligence and premises liability were based on Association's breach of their duties under the CC&R's. Martini further sought statutory attorney fees as the prevailing party under section 5975.
Association and Morning View opposed the motion, arguing there was no operable contract, statute or legal authority entitling Martini to an attorney fee award. They pointed out that Martini had abandoned her claims for breach of fiduciary duty, breach of the CC&R's and declaratory relief because discovery had demonstrated they were not viable and the facts lent themselves only to a negligence claim. They argued further that section 5975 did not entitle Martini to attorney fees; though they acknowledged the CC&R's contained a clause entitling a prevailing party in "litigation to enforce or interpret" the CC&R's to recover reasonable attorney fees and costs, they asserted the present dispute was merely a negligence claim not involving the interpretation or enforcement of the CC&R's.
The court denied Martini's motion: "Plaintiff seeks an award of attorney fees and costs under a provision in the CC&R's applicable to the Bel Azure Homeowners Association. That provision states, in relevant part: 'In the event the Association, Declarant or any owner shall commence litigation to enforce or interpret any of the covenants, conditions or restrictions herein contained, the prevailing party in such litigation shall be entitled to costs of suit and such attorneys fees as the court may adjudge reasonable and proper.' [¶] This case is not an action 'to enforce or interpret any of the covenants, conditions or restrictions' in the CC&R's. This is a common law negligence case. [¶] Plaintiff also cites . . . section 5975 as a basis for an award of attorney fees. That statute is not applicable. That statute provides that an award of attorney fees shall be made to the prevailing party in 'an action to enforce the governing documents' of a common interest development. This is not an action to enforce the governing documents of the Bel Azure Homeowners Association. [¶] There is no contract or statute authorizing an award of attorney fees. As such, each side is required to bear his/her/its own attorney fees."
Martini appeals from the postjudgment order.
DISCUSSION
I. Motion to Augment the Record
The appellate record in this case contains what appear to be the CC&R's of Association. Nevertheless, Martini has moved to augment the record on appeal with certain documents (her motion for leave to file a first amended complaint and an accompanying notice of lodgment) filed in the superior court that attached portions, or the entirety, of Association's CC&R's, so as to establish those CC&R's were in the superior court file when the trial court issued its attorney fees order. In a declaration filed with the motion to augment, Martini's counsel states the CC&R's were unintentionally omitted from the later-filed first amended complaint and also from Martini's motion for attorney fees and costs. He points out none of the defendants challenged the authenticity of the CC&R's that were the subject of Martini's attorney fees motion.
We grant the motion. A reviewing court will disregard matters that were not before the trial court, and it is not proper to augment the appellate record with such matters. (Cal. Rules of Court, rule 8.155; People v. Tate (2010) 49 Cal.4th 635, 672, fn. 21; Roden v. AmerisourceBergen Corp. (2010) 186 Cal.App.4th 620, 630.) But here, the trial court in its order denying attorney fees specifically quoted from what it characterized as an attorney fee provision of Association's CC&R's, and we presume it had a proper and lawful basis for doing so. (Evid. Code, §§ 664 ["It is presumed that official duty has been regularly performed"]), 666 [when the act of a court or judge is the subject of "collateral attack," the court (or judge), "acting as such, is presumed to have acted in the lawful exercise of its jurisdiction"]; People v. Allegheny Cas. Co. (2007) 41 Cal.4th 704, 715.) Martini's motion demonstrates the CC&R's were contained in the superior court record in connection with her motion for leave to file her first amended complaint. "A reviewing court may order the record augmented to include any document filed or lodged in the case in superior court," (In re Marriage of Eaddy (2006) 144 Cal.App.4th 1202, 1209, citing predecessor to Cal. Rules of Court, rule 8.155(a)(1)(A)), and we consider the CC&R's before the court for purposes of its ruling.
Martini's counsel averred in a sworn declaration filed with that motion: "During conversations with the parties it was learned that [Association] was claiming it had no duty to [Martini] in connection with the resurfacing of the common area and that the only negligent actor was City Paving. As a result of that position, I obtained a copy of the recorded Covenants Conditions and Restrictions and determined that it provided for an independent duty on the part of [Association] to maintain and repair the common area. A true and correct copy of the relevant portion of the Covenants Conditions and Restrictions is attached hereto as Exhibit 2."
Martini's attorney fee motion was based in part on the attorney fee provision of Association's CC&R's, and in opposition, defendants did not object on grounds the CC&R's were either not authenticated or not properly before the trial court. To the extent the court erred in any way by quoting the attorney fee provision in Association's CC&R's without judicially noticing it or without evidence authenticating it, defendants forfeited any appellate challenge to that error by failing to object to Martini's reference to it or the court's mention of it below. For the same reason, we cannot say defendants will be prejudiced by augmenting the record in this way, as they had every opportunity to, and did, make their arguments concerning whether the CC&R's attorney fee provision provided a basis for an award of attorney fees to Martini.
Finally, as we have summarized above, in her operative complaint, Martini generally alleged that the CC&R's placed certain obligations on Association, and more specifically claimed defendants owed her duties to maintain the common areas and perform all repairs so as not to create dangerous or unsafe conditions. California Supreme Court authority now makes clear that even if Martini could not ultimately prove the CC&R's referenced in her first amended complaint were in fact Association's governing documents, she might nevertheless be entitled to recover attorney fees under section 5975: "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 [section 5975]. 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 Homeowners Ass'n v. Kemp, supra, 60 Cal.4th at p. 1144.) We thus look to the character or type of action Martini brought, not whether she succeeded in proving the existence or terms of the governing documents. (Ibid.)
II. Sufficiency of the Record
Defendants also challenge the adequacy of the record to assess Martini's claims about her entitlement to fees. They argue neither Martini's attorney fee motion points and authorities, which purported to quote the CC&R's, nor the court's minute order, constitutes evidence of the terms of the CC&R's attorney fee clause. We reject these contentions on the same grounds stated above: That Martini may be unable to prove the existence or content of Association's CC&R's or its status as a common interest development is of no moment. And, we have concluded the court had before it the document described as Association's CC&R's; those documents were in the superior court record and defendants did not dispute whether the cited provisions were in fact part of Association's governing documents or the CC&R's authenticity. Defendants therefore additionally forfeited these procedural arguments.
III. The Court Did Not Err by Declining to Award Martini Attorney Fees Under the
Davis-Sterling Act
A. Standard of Review and Legal Principles
A determination of the legal basis for an attorney fee award is a question of law that this court reviews de novo. (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751; Retzloff v. Moulton Parkway Residents' Association, No. One (2017) 14 Cal.App.5th 742, 747.)
"With regard to an award of attorney fees in litigation, California generally follows what is commonly referred to as the 'American Rule,' which provides that each party to a lawsuit must ordinarily pay his or her own attorney fees. [Citation.] The American Rule is codified in Code of Civil Procedure section 1021, which states in relevant part: '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 . . . .' " (Tract 19051 Homeowners Association v. Kemp, supra, 60 Cal.4th at p. 1142; see also Retzloff v. Moulton Parkway Residents' Association, No. One, supra, 14 Cal.App.5th at p. 749.) "[T]he Legislature has established a variety of exceptions to the American Rule by enacting numerous statutes that authorize or mandate an award of attorney fees in designated circumstances." (Tract 19051, at p. 1142.)
Section 5975, subdivision (c) is such a provision. (Tract 19051 Homeowners Association v. Kemp, supra, 60 Cal.4th at p. 1142.) It provides: "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." Under the Davis-Stirling Act, "governing documents" are "the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association." (§ 4150; Tract 19051, at p. 1142, fn. 3.) Association's CC&R's meet this definition. (See Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 127 ["The primary governing document of the association is the declaration—the document that contains a legal description of the development and 'the restrictions on the use or enjoyment of any portion of the common interest development that are intended to be enforceable equitable servitudes,' " which "is frequently referred to as the 'covenants, conditions, and restrictions,' or the 'CC&R's' "].) B. Analysis
Martini is entitled to recover her reasonable attorney fees under section 5975, subdivision (c) if her negligence action was one to enforce the CC&R's and if she prevailed in that action. Martini concedes that such fees would be recoverable, if at all, only against Association, and not Morning View, as Morning View was not a party to the CC&R's.
In assessing Martini's claim, we look to the "gravamen" or "gist" of the underlying dispute; the question is not how the action is framed, but the substance of the claims asserted and the relief sought, in determining whether an action is one to enforce the governing documents within the meaning of section 5975. (See Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252, 259-260; Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 671.) As the Rancho Mirage court put it: "We see nothing in the Davis-Stirling Act that suggests we should give more weight to the form of a complaint . . . than to the substance of the claims asserted and the relief sought, in determining whether an action is one 'to enforce the governing documents' in the meaning of section 5975." (Rancho Mirage, at p. 260.) Thus, the form of Martini's operative pleading, or the fact that she framed her action as one for negligence, is not dispositive.
Martini argues that because her complaint "put at issue" the CC&R's, her lawsuit was "an action to enforce the governing documents" within the meaning of section 5975. She argues that Farber v. Bay View Terrace Homeowners Association (2006) 141 Cal.App.4th 1007 (Farber), Martin v. Bridgeport Community Association, Inc. (2009) 173 Cal.App.4th 1024 (Martin), and Salehi v. Surfside III Condominium Owners' Association (2011) 200 Cal.App.4th 1146 (Salehi) compel a conclusion that her lawsuit sought to enforce Association's obligation under the CC&R's to properly maintain and repair the common areas, a duty that "emanates from the CC&R[']s." According to Martini, it is "of no moment that [she] did not proceed to trial on the causes of action for breach of the [CC&R's] and breach of fiduciary duty" because "[a]ll that is required under . . . [section] 5975[] is that [her] complaint alleged duties and obligations under the [CC&R's] and breach thereof, thereby asserting a claim to enforce the governing documents." (Some capitalization omitted.)
We cannot agree. The Legislature wrote section 5975, subdivision (c) to specifically and narrowly provide that an award of attorney fees may be recovered by a prevailing party in an action to enforce the governing documents, not merely one involving or arising out of those documents or duties under them. (See Salawy v. Ocean Towers Housing Corp., supra, 121 Cal.App.4th at p. 674 [section 5975 "could have been written to provide for attorney fees to the prevailing party in any action 'arising out of or related to' the governing documents or in which they are enforced. But it did not"]; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1380.) We are not at liberty to ignore those words, and must give effect to them when applying the statute. (Salawy, at p. 674; see People v. Martinez (2017) 2 Cal.5th 1093, 1107 [courts must give effect to the unambiguous language the Legislature has chosen]; Ramos v. Garcia (2016) 248 Cal.App.4th 778, 785.) Making that determination here involves more than just reviewing the allegations of the operative pleading to see if it references duties under the CC&R's, but requires ascertaining the overall gist or "essence" of Martini's action. (Farber, supra, 141 Cal.App.4th at p. 1012.)
Doing so here compels us to conclude that Martini's lawsuit seeking personal injury damages for Association's failure to take additional, assertedly reasonably necessary, steps to protect residents by issuing more specific warnings, having its manager walk through the property during the construction activity, or providing an alternate route through the property, was not essentially an action to enforce provisions of the CC&R's. Though Association's CC&R's unquestionably required Association to "manage, operate, control, repair, replace or restore" the common areas, there was no dispute Association was taking steps to maintain or repair its common area by repaving the circular drive. The question for the jury was not whether Association breached that duty, but whether it breached its duty to exercise ordinary care and acted as a reasonably careful landowner when it was maintaining, controlling, and repairing the premises. Hence, Martini's counsel in closing arguments told the jury: "What we're here to determine is essentially a negligence case. And it's to determine whether or not people were negligent in their actions in relation to [the day of Martini's fall]." Association, for its part, did not dispute its responsibility to give notice to the homeowners concerning the work; it took the position that it did give such notice in writing three weeks before the work was to be done, and, via its agent, called each homeowner two days beforehand.
Section 4.4 of Association's CC&R's provides: Association Maintenance of Common Area. Except as otherwise provided in this Declaration, the Association, acting through the Board and its officers, shall have the sole and exclusive right and duty to manage, operate, control, repair, replace or restore all of the Common Area or any portion thereof, together with the improvements, trees, shrubbery, plants and grass thereon, all as more fully set forth in this Declaration, the Articles and the Bylaws. The Association shall maintain and repair all parking areas which are Exclusive Use Areas; provided, however, should any such maintenance or repair result from the act or neglect of an Owner or his guests or licensees, the Owner shall reimburse the Association for such maintenance or repair. In addition, the Association shall maintain and repair all private streets and drainage systems located within the Project."
Thus, we conclude Martini's action was not one to enforce the Association's CC&R's. (Accord, Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th at pp. 1365, 1381 [holding in an action against a landlord and property manager for negligence/nuisance, premises liability, breach of contract (CC&R's) and declaratory relief that trial court did not err by apportioning attorney fee award under former section 1354 to only those fees attributable to the breach of contract and declaratory relief causes of action, in which the plaintiff alleged the landlord under the CC&R's was contractually obligated to indemnify or pay her for losses and damages as a result of injuries from his tenant's dog, and sought to affirm her interpretation of the CC&R's].)
Nothing in Martini's cited cases compels us to reach a different conclusion. In Farber, the plaintiff had sold her condominium, governed by CC&R's, to another person, Stiffler, who discovered extensive roof leaks. (Farber, supra, 141 Cal.App.4th at pp. 1009-1010.) Stiffler claimed the plaintiff had failed to disclose the leaks and asked her to pay, but plaintiff took the position that the homeowner's association had a duty to maintain the roof and demanded it accept responsibility, and that Stiffler seek compensation from it. (Id. at p. 1010.) When both refused, she filed an action for declaratory relief against Stiffler and the association, alleging there was a controversy concerning her and defendant's respective rights and duties pursuant to the CC&R's, and seeking a declaration that if Stiffler was having roof problems, it was the association's duty and obligation to alleviate it. (Ibid.) The association successfully demurred, alleging that since the plaintiff was no longer an owner and member of the association, it had no duty to her and she lacked standing to enforce the CC&R's. (Ibid.) It then moved for judgment on the pleadings on her original complaint, and the court granted the motion, awarding the association attorney fees and costs as the prevailing party in an action to enforce its governing documents under section 5975's predecessor statute. (Farber, at p. 1011.)
On appeal, the plaintiff argued she had standing to sue because her complaint did not seek to enforce the CC&R's, but only sought to establish the association's obligations to Stiffler. (Farber, supra, 141 Cal.App.4th at p. 1011.) Pointing out her complaint unambiguously requested a declaration of her rights against the association, the appellate court held Farber's action sought relief under the CC&R's: "[T]he essence of Farber's claim is that the CC&R's place the obligation to fix Stiffler's roof on the Association, so she cannot be liable for the cost. . . . That is an action to enforce the CC&R's, whether framed in terms of Farber's rights against the Association or Stiffler's." (Id. at p. 1012.) The court stated, "We cannot regard that as anything but an attempt to enforce the CC&R's." (Ibid.)
The present case is in a different procedural context, as Martini brought her negligence claim to trial after disposing of her remaining claims; we thus do not limit our review to the allegations of her operative complaint as the Farber court did on the motion for judgment on the pleadings at issue there. Here, though the CC&R's required Association to maintain or repair the common areas, Martini's action was not brought to compel Association to do so, but to compensate her for damages she suffered when it negligently undertook its obligations. We cannot regard that as an attempt to enforce the CC&R's.
Martin likewise was decided in a different procedural context, namely, a demurrer by a community association on plaintiffs' complaint for breach of a lot line agreement and specific performance of that agreement. (Martin, supra, 173 Cal.App.4th at pp. 1027, 1029.) The plaintiffs were living at and paying the mortgage on the property, which was owned by another couple. (Id. at p. 1027.) Plaintiffs' complaint included a fourth cause of action for breach of the association's CC&R's, and that cause of action, as well as the fifth, seventh and eighth causes of action were premised on duties the association owed to the property owners under its governing documents, but the plaintiffs did not qualify as an owner of a separate interest entitled to enforce the CC&R's and other governing documents. (Id. at pp. 1029, 1035-1036.) Specifically, the seventh cause of action claimed the association was negligent by failing to properly use or maintain a common area watering system. (Id. at p. 1037.) The trial court sustained the demurrer without leave to amend on grounds the plaintiffs lacked standing to sue the association, and awarded the association attorney fees under section 1354, subdivision (c). (Martin, at pp. 1027, 1029-1030.) On the plaintiffs' challenge to the attorney fee award and citing Farber, supra, 141 Cal.App.4th at p. 1014, the Court of Appeal said simply: "The mandatory attorney's fees and costs award under section 1354, subdivision (c), applies 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. [Citation.] Accordingly, we conclude that the trial court properly awarded attorney's fees and costs to [the association] for defense against the complaints in which the Martins were named plaintiffs." (Martin, at p. 1039.) The association's demurrer to the complaint in Martin encompassed a claim that specifically sought to enforce the association's governing documents, and there was no issue in that case whether that claim and the remaining claims fell within the scope of section 1354, subdivision (c). (Martin, at p. 1035.) Martin is therefore distinguishable, and it is dictum to the extent Martini seeks to rely on it to convert her personal injury action into one to enforce the CC&R's.
We reach the same conclusion about Salehi, in which the sole issue on appeal was whether the association in that case was the prevailing party. (Salehi, supra, 200 Cal.App.4th at p. 1150.) Salehi gives us no basis to reach a different conclusion in this case.
IV. Martini Is Not Entitled to Attorney Fees Under Section 1717 , Subdivision (a)
Section 1717, subdivision (a), provides: "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."
Our conclusion disposes of any claim by Martini for attorney fees under section 1717, as the attorney fee clause in Association's CC&R's in this case contains the same limiting language for an award. That is, to recover attorney fees under that clause, the owner must prevail in litigation "to enforce . . . any of the covenants, conditions or restrictions herein contained . . . ."
In full, section 10.6 of Association's CC&R's provides: "Litigation. In the event the Association, Declarant or any Owner shall commence litigation to enforce or interpret any of the covenants, conditions or restrictions herein contained, the prevailing party in such litigation shall be entitled to costs of suit and such attorneys' fees as the court may adjudge reasonable and proper. The 'prevailing party' shall be the party who is entitled to recover his costs of suit, whether or not the suit proceeds to final judgment. A party not entitled to recover his costs shall not recover attorneys' fees. No sum for attorneys' fees shall be counted in calculating the amount of a judgment for purposes of determining whether a party is entitled to recover his costs or attorneys' fees."
Martini maintains that she needed only to commence litigation to enforce Association's CC&R's, and because her operative complaint contained a claim for breach of the CC&R's, she is entitled to recover fees as the prevailing party whether or not she proceeded to a final judgment on that claim. But such an interpretation disregards the CC&R's "prevailing party in such litigation" (italics added) language. And further, the language of the CC&R's is not so broadly worded to permit recovery of attorney fees in connection with Martini's tort claim for negligence. (Compare Santisas v. Goodin (1998) 17 Cal.4th 599, 608 [attorney fee clause allowed prevailing party to recover for legal action "arising out of" the execution of the agreement or sale of property; court held "[o]n its face, the provision embraces all claims, both tort and breach of contract, in plaintiffs' complaint, because all are claims 'arising out of the execution of th[e] agreement or the sale' "]; Moallem v. Coldwell Banker Com. Group, Inc. (1994) 1830-1831 [attorney fee provision extending to any "legal action . . . relating to" the contract was broad enough to include tort claims].) "A party may recover attorney fees on a tort claim only if an attorney fee provision broad enough to cover tort claims expressly identifies that party as a party entitled to its benefits." (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 828.)
For the foregoing reasons, the trial court did not err in declining to award Martini attorney fees in this action.
DISPOSITION
The postjudgment order is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.