Opinion
G053128
11-09-2017
ANAHEIM HILLS PLANNED COMMUNITY ASSOCIATION, Plaintiff and Respondent, v. KANG-SHEN CHEN, Defendant and Appellant.
Kang Shen Chen, in pro. per., for Defendant and Appellant. Gordon & Rees, Jeffrey A. Swedo and Stephanie P. Alexander for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2009-00292597) OPINION Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Kang Shen Chen, in pro. per., for Defendant and Appellant. Gordon & Rees, Jeffrey A. Swedo and Stephanie P. Alexander for Plaintiff and Respondent.
* * *
Defendant Kang-Shen Chen appeals the trial court's award of attorney fees to Anaheim Hills Planned Community Association (the Association) incurred in a prior appeal in this dispute over multiple violations of the Association's covenants. Chen argues that despite the court's findings to the contrary, that Civil Code section 1717 bars an award of attorney fees, and that the Association was not the prevailing party. We find these contentions lack merit, and therefore affirm the judgment.
Unless otherwise indicated, subsequent statutory references are to the Civil Code.
I
FACTS
This matter has been here before, and the facts and procedural history are laid out in full in that opinion. (Anaheim Hills Planned Community Association v. Chen (Apr. 2, 2015, G046408, G047582) [nonpub. opn.] (Chen).) As relevant here, the Association sued Chen and his wife for multiple purported violations of the Association's declaration of covenants, conditions, and restrictions (CC&Rs). A settlement was reached, which was set forth on the record. The terms provided for a stipulated judgment in the Association's favor. It also included an injunction requiring the Chens to remediate a lengthy list of violations, and set forth a procedure for doing so. If the Chens defaulted, the Association would have the right to an expedited trial for damages to prove up the costs of performing remediation. The parties also agreed to reduce their agreement to writing, and that the Association would have the right to bring an attorney fee motion, with the court to determine the issue of prevailing party status.
Chen's wife, Shu-Jen Chen, is not a party to this appeal.
Thereafter, the Chens refused to sign the settlement agreement. The Association filed a motion for entry of judgment pursuant to Code of Civil Procedure section 664.6. The court did so, entering a judgment and permanent injunction in the Association's favor, and setting an expedited trial on damages.
Before the trial on damages, however, the Chens filed a notice of appeal (the first appeal) in case No. G046408, with respect to the court granting the motion under Code of Civil Procedure section 664.6. The first part of the judgment stated the Chens' failure to comply with any part of the judgment would constitute a "default." In the second part of the judgment, the court found the Chens had already defaulted "under the provisions of the Injunction set forth in Part I."
The trial on damages proceeded, and ultimately the court awarded the Association approximately $508,000 in damages, and subsequently, $134,494.30 in attorney fees and costs. Via motion, the Association was later awarded an additional $40,190.20 in fees and costs. The Chens then filed a second notice of appeal from that judgment (the second appeal), in case No. G047582. (Chen, supra, G046408, G047582.) That appeal addressed the monetary judgment and attorney fee awards.
We ultimately concluded the first appeal was not from an appealable judgment. As to the second appeal, we rejected most of the Chens' arguments. We did find the court's determination that the Chens had already violated an "injunction" that had not yet been entered was erroneous, and we ordered the judgment modified to reflect that the Chens were in default of the settlement agreement, as opposed to the damages award. We also agreed with the Chens that the Association was not entitled to a damages award until it had performed remediation work. We ordered the judgment modified to reflect these two points. We found the Association was entitled to its costs on appeal.
With respect to the attorney fee and cost orders, we affirmed (via later modification to the opinion) the first award of $134,494.30. We reversed the second order for $40,190.20, and remanded to the trial court for further consideration in light of our opinion.
Upon return to the trial court, the Association filed a motion for attorney fees on appeal of $36,830.50 pursuant to section 5975. The Chens opposed the motion on the ground that the Association was not the prevailing party under section 1717. They argued that because they recovered "a greater relief," they were the prevailing party. The Association responded that the Chens had sought to reverse all the relief it had received, and that given the injunctive relief this court had affirmed, it had achieved its litigation objectives. The trial court ultimately found in the Association's favor and entered an attorney fee award in the requested amount. Chen now appeals.
The only opposition to the motion by the Chens is listed as "Supplemental Points and Authorities." If there is any other opposition, it is not in the record.
II
DISCUSSION
Chen purports to raise three issues on appeal: "1. Whether a party who prevails on appeal is entitled to recover attorney fees under . . . § 1717 where the underlying appellate decision did not decide who won the lawsuit, but instead contemplates further proceedings in the trial court below? [¶] 2. Whether this Court's Appellate Opinion . . . decided who won the lawsuit in the underlying . . . case, and whether the Decision contemplated further proceedings in the trial court below? [¶] 3. Whether the Superior Court errored [sic] when . . . it granted [the Association's] Motion for Attorney Fees as the Prevailing Party on Appeal?" These issues are not addressed by separate headings or subheadings in Chen's brief. In the interests of justice, we address Chen's arguments on the merits to the extent we are able to extract them from his disorganized brief. To the extent we are unable to locate or parse a particular argument, it is deemed waived.
This is improper. Issues on appeal are confined to those issues that are set out in headings and subheadings. This is sufficient grounds for disregarding these arguments. (Citizens Opposing A Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 380, fn. 16 ["[W]e decline to address these contentions" "not listed 'under a separate heading or subheading'"]; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [argument "forfeited" by not presenting it "in an appellate brief under a separate heading"]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) [¶] 9:91, p. 9-32 ["The court may disregard arguments not properly segregated under appropriate discrete headings"].) In the interests of justice, we address Chen's arguments on the merits to the extent we are able to extract and separate them. To the extent we are unable to locate or parse a particular argument, it is deemed waived.
Statutory Framework and Standard of Review
The statutory authority for attorney fee awards in common interest developments is section 5975. It states that "[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." (§ 5975.) "Reviewing courts have found that this provision of the Davis-Stirling Act '"reflect[s] a legislative intent that [the prevailing party] receive attorney fees as a matter of right (and that the trial court is therefore obligated to award attorney fees) whenever the statutory conditions have been satisfied."'" (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773 (Almanor).) Where attorney fees are available under a statute or contract, they are available both in the trial court and on appeal. (Harbour Landing-Dolfann Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263.)
"The Davis-Stirling Act does not define 'prevailing party.'" (Almanor, supra, 246 Cal.App.4th at p. 773.) But "the test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives." (Ibid.)
Section 1717, subdivision (b)(1), is not part of the Davis-Stirling Act, but addresses prevailing party determinations in the context of attorney fee awards based on contractual provisions. It states: "The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section." (§ 1717, subd. (b)(1).) Paragraph (2) states that "Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section." (§ 1717, subd. (b)(2).)
We review the trial court's determination of a prevailing party for abuse of discretion. (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94; Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1154.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.)
Section 1717 -- Settlement Agreement
Chen argues that the Association cannot be a prevailing party because the motion for attorney fees was made in an action to enforce the provisions of a settlement agreement. Because the settlement agreement did not include attorney fees on appeal, he reasons, the parties did not "agree" to the award of attorney fees. It is unsurprising the settlement agreement included no such provision, because had the case actually settled, no appeal would follow.
While Chen is correct that there is no prevailing party in a case that "has been voluntarily dismissed or dismissed pursuant to a settlement" (§ 1717, subd. (b)(2)), this is not such a case. First, this case was never "voluntarily settled and dismissed" as he claims. It ended in a judgment pursuant to Code of Civil Procedure section 664.6, because the Chens refused to sign the settlement agreement.
In Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, the court rejected the argument that an action to enforce a settlement agreement did not permit an attorney fees award under section 5975. The court concluded "the gravamen of the Association's complaint is that defendants have not taken certain steps to bring their property into compliance with the applicable CC&Rs. The relief sought by the complaint is an order requiring defendants to take those steps, and a declaration of the parties' respective rights and responsibilities. The circumstance that the steps to bring the property into compliance with CC&Rs were specified in a mediation agreement does not change the underlying nature of the dispute between the parties, or the nature of the relief sought by the Association. . . . We see nothing in the Davis-Stirling Act that suggests we should give more weight to the form of a complaint—its framing as an action to enforce a mediation agreement—than to the substance of the claims asserted and relief sought, in determining whether an action is one 'to enforce the governing documents' in the meaning of section 5975." (Id. at pp. 259-260.)
The same reasoning applies here, but even with more force. This was not a separate action to enforce a settlement agreement after the original matter was settled. This case terminated in a judgment of the original action after the Chens failed to uphold their end of the deal and sign a settlement agreement in the first place. Accordingly, section 5975 applies.
Second, even if we were to agree that this case voluntarily settled, this argument must fail because Chen agreed the trial court would decide who the prevailing party was in this case. Appeals were not excluded from this provision.
And finally, even if the case had been settled and dismissed, there is ample case law stating that section 1717, subdivision (b)(2), does not apply in cases where a fee-shifting statute, rather than a contract, authorizes attorney fee awards. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572.) Thus, we find no error.
Section 1717Chen further claims that section 1717 bars recovery of attorney fees for the appeal because the appeal did not finally resolve the lawsuit and did not decide who won the case. Chen relies on Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959. In that case, the Court of Appeal reversed a grant of summary judgment, concluding that because the case was ongoing, no prevailing party determination could be made at that time. (Id. at p. 961.)
This case, however, is different. This court, with one minor change to its language, affirmed the trial court's order granting injunctive relief. As we shall discuss below, this order was the Association's key goal in the litigation. The fact that a trial on damages at a future date was permitted if the Chens defaulted and the Association decided to pay for remediation is wildly different than a reversal of a grant of summary judgment. Future proceedings were possible, but not certain, and would not occur if the Chens follow the court's order. We therefore find our prior decision did decide the merits of the lawsuit and who won the case.
Chen also relies on Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1150-1151, for reasons we do not quite understand, since in that case, the court concluded the trial court correctly awarded appellate attorney fees where the appellate court affirmed the majority of the judgment but left open the appropriate amount of damages. Here, the Association won the key issues on the appeal, and the only matters left open (other than attorney fees, of course) were possible, but not certain, future claims for damages. We find that section 1717 does not bar an award of attorney fees on appeal.
Section 5975 - Prevailing Party Determination
Chen makes little effort on appeal to argue that the Association did not achieve its litigation objectives. While the Chens argued below that they obtained a "net gain" due to the reversal of the monetary damage award, this argument ignores the forest for the trees. It is clear from the context of this case that the Association's key goal was to force the Chens to remedy the CC&R violations, or to have the ability to remedy them itself and then seek compensation. This is exactly what the court ordered, and it constituted the achievement of the Association's primary goal. Accordingly, we find no abuse of discretion in determining that the Association was the prevailing party.
III
DISPOSITION
The judgment is affirmed. The Association is entitled to its costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.