Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. NS015466, Tracy Moreno Grant, Judge. Affirmed.
Law Offices of David Allen and David Allen for Plaintiffs and Appellants.
Milford V. Smith; Law Offices of Lottie Cohen and Lottie Cohen for Defendants and Respondents.
VOGEL, Acting P.J.
In a proceeding to compel a stock cooperative’s board of directors to hold a meeting, the trial court awarded attorney’s fees and costs to one of the defendants. The petitioners appeal, claiming they were the prevailing parties. We disagree and affirm the order.
FACTS
Royal Palms Apartments, Inc. is a 164-unit stock cooperative operated by a Board of Directors. Without shareholder consent, the Board decided to borrow $2.5 million for plumbing repairs (using the real property for security). In protest, 90 of Royal Palms’ 164 shareholders signed petitions to hold a shareholders meeting on November 7, 2005, for the purpose of removing the members of the Board. The petitions were presented to the Board on October 28 (so there was plenty of time to give notice of the special meeting, which under the bylaws must be given at least seven but no more than ten days prior to the meeting). The Board cancelled the November 7 meeting and refused to reschedule it.
“Stock cooperative” means “a development in which a corporation is formed or availed of, primarily for the purpose of holding title to, either in fee simple or for a term of years, improved real property, and all or substantially all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation. The owners’ interest in the corporation, whether evidenced by a share of stock, a certificate of membership, or otherwise, shall be deemed to be an interest in a common interest development and a real estate development . . . .” (Civ. Code, § 1351, subd. (m).) Subsequent undesignated section references are to the Civil Code.
Royal Palms’ bylaws provide: “It shall be the duty of the President to call a special meeting of the corporation . . . upon a petition signed by twenty percent of the members.”
On November 15, Mary Cook (and several other shareholders included in our references to Cook) filed a petition for a writ of mandate to compel the Board to call a special meeting, naming the Board and several of its members, including Richard H. Gibson, as respondents.
The Board thereafter called a meeting of the shareholders, and an election was held on November 29. On December 2, Milford V. Smith -- stating that he had been “retained by Warren Hsiao, Mayra Martinez, Richard H. Gibson, Clare Naughton, and Peter Vical [all of the Board members named in Cook’s petition] to file a responsive pleading” -- wrote to Cook’s lawyer, demanding dismissal of the writ petition on the ground that Cook had obtained the relief she sought. On December 8, Gibson (represented by Smith) filed an answer to the petition, denying Cook’s allegation that he was a member of the Board and alleging that the petition was in any event moot because the election had been held. The other Board members did not file responsive pleadings or otherwise appear in this action.
On December 12, Cook’s lawyer filed a request for a dismissal of Cook’s petition, and the dismissal was entered on December 19.
On December 21, Gibson filed a motion for attorney’s fees (§ 1354, subd. (c)) and costs (Code Civ. Proc., § 1032), contending he was the prevailing party because the petition was voluntarily dismissed. On December 30, Cook filed a motion against Gibson claiming she was the prevailing party because her petition accomplished its purpose. Gibson opposed Cook’s motion, contending that he was not a member of the Board at the time the petition was filed. According to Gibson’s subsequently filed declaration, he had sold his stock in the Royal Palms Apartments and resigned from the Board in October 2005.
Subdivision (c) of section 1354 provides, with regard to Common Interest Developments, that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”
The trial court denied Cook’s motion and granted Gibson’s motion, finding that Gibson was not a member of the Board when the petition was filed. The court ordered Cook to pay $4,113.70 to Gibson for fees and costs.
DISCUSSION
“Prevailing party,” as used in section 1354, means the party who prevailed on a “practical level.” (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574; Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443-1444 [a plaintiff is the prevailing party when the lawsuit is the catalyst motivating the defendants to provide the primary relief sought].) Because the petition caused the Board to schedule the meeting, Cook was the prevailing party vis-à-vis the Board. But the Board, qua Board, never appeared in this action. Although Smith stated in a letter that he had been retained by all of the Board members to respond to Cook’s petition, the only pleading Smith filed was Gibson’s answer -- and Gibson unequivocally answered only for himself and not for the Board as an entity or for its other members. It follows that the trial court could not have ordered the Board or the other members to pay Cook’s attorney’s fees or costs.
This brings us to the fee award in favor of Gibson. The trial court’s finding that Gibson was not a member of the Board at the time Cook’s petition was filed or at any time thereafter is supported by substantial evidence and is binding on this appeal. (Thueson v. U-Haul Internat., Inc. (2006) 144 Cal.App.4th 664, 669.) Gibson’s answer to Cook’s petition denies Cook’s allegation that he was residing at the Royal Palms, a member of the Board, and the Secretary of the Board at the times relevant to these proceedings, and his papers filed with regard to the fee motions include documents showing his October 28, 2005, sale of his Royal Palms unit (that is the date escrow closed) and his resignation from the Board sent the same date to the Board’s president (“Please accept my resignation effective Friday, October 28, 2005”).
Cook’s argument on appeal -- that the trial court abused its discretion in awarding fees to Gibson -- focuses on the relief Cook obtained against the Board (the election was held in response to her petition) and ignores the fact that Gibson prevailed on his fee motion because he was not a member of the Board when the petition was filed or when the election was held. In short, Gibson, who should never have been named as a party, became the prevailing party when Cook voluntarily dismissed her petition and was entitled to his fees as the prevailing party.
DISPOSITION
The order is affirmed. The parties are to pay their own costs of appeal.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.