Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 06CC06089, Robert D. Monarch, Judge. (Retired judge of the Orange S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gates, O’Doherty, Sonter & Guy and Richard A. Muench for Defendants and Appellants.
Law Office of Robert Grey Johnson, Jr., Robert Grey Johnson, Jr.; Law Office of William J. Kopeny & Associates, and William J. Kopeny for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Victoria Dupont sued her neighbors, Dean and Susan Leffler, for damages caused by the construction of their second story addition, which allegedly obstructed Dupont’s ocean view. Dupont recovered $2000 for damage to her side yard. The Lefflers filed a motion for attorney fees, claiming they were the prevailing parties. The trial court found there was no prevailing party and denied their motion. On the Lefflers’ appeal from the postjudgment order denying attorney fees, we affirm.
FACTS
Dupont and the Lefflers are next-door neighbors in the residential community of Regatta, located in Monarch Beach. Regatta is subject to Covenants, Conditions and Restrictions (CC&R’s) and is governed by the Regatta Homeowners Association (the Association). Dupont’s first amended complaint alleged the CC&R’s and the Rules and Regulations Architectural Improvement Guidelines (the Rules) require approval by the Architectural Control Committee (the Committee) before a homeowner can change the exterior of his or her home, and “‘[i]mprovements that block a neighbor’s ocean view or encroach on a neighbor’s privacy will typically be denied.’” The Rules provide that if a neighbor objects to a proposed improvement, no work shall be commenced until the Committee can decide whether to override the objection. “‘In the event the objection involves view blockage, staking of the proposed changes by a Certified Staking company to better understand the specific outline of the proposed changes, may be required at the proponent’s expense.’”
Dupont alleged that the Lefflers asked for her approval of their proposed construction project, which she gave them, “thereby allowing [the Lefflers] to obtain approval of the project by the . . . Committee.” But her approval was allegedly based on a misrepresentation by the Lefflers: “[Dupont] was not advised by [the Lefflers] that the project included the expansion of [their] upstairs master bedroom closet,” which caused a “significant[] obstruction” of Dupont’s ocean view. Had she known of the significant obstruction, Dupont alleged, she would have objected, and the Committee would have denied the project.
Once construction started, Dupont alleged, the Lefflers and their workers trespassed on Dupont’s property, causing damage. Dupont asked the Lefflers to stop their construction and the trespasses, but they refused. Dupont alleged that “[the Lefflers’] wrongful conduct, unless and until enjoined and restrained by order of this court, is a violation of the Regatta community CC&Rs and interferes with the rights of plaintiff to quiet enjoyment of her property, and is offensive[,] annoying, and constitutes a nuisance.” Dupont pleaded causes of action for intentional misrepresentation, injunctive relief and damages, and declaratory relief “as to whether the . . . CC&Rs preserve and protect homeowner views from obstruction from either vegetation or building additions within the Regatta community.”
Dupont’s first amended complaint was filed in July 2006. At a pretrial conference on June 13, 2007, the court and the parties discussed the declaratory relief cause of action in the context of the Lefflers’ motion for nonsuit. The court stated, “I don’t know what the declaratory relief adds to their request for intentional misrepresentation. . . . [W]hatever relief they would be entitled to would be intrinsically bound up in the intentional misrepresentation. [¶] . . . [¶] [W]hat declaration am I going to make? Gee, that the association or the architectural committee was misled and they, based upon this concealment, had – it’s so much involved in intentional misrepresentation that – I am saying it again – it seems like a surplusage cause of action.” The Lefflers expressed their belief that it was a separate cause of action and that the prevailing party on that issue would be entitled to attorney fees. The court responded, “What they are saying is that the architectural committee was misled, and had they known the true facts they wouldn’t have given the approval. [¶] Now, that’s not so much an implementation of the terms and provisions of the CC&R’s . . . . The CC&R’s were – the procedural aspects of it were pursued. However, as a function of misrepresentation or concealment, the architectural committee didn’t have a full deck. [¶] . . . I’m now focusing back on [declaratory relief] truly being a function of the intentional misrepresentation, of the damages flowing from it, and not a function of construing the CC&R’s on behalf of one or the other.” The Lefflers agreed that the issue was whether they complied with the procedure in the CC&R’s, but pointed out the relief prayed for by Dupont was a declaration that she had a right to a view under the CC&R’s. At that point, Dupont dismissed the third cause of action for declaratory relief with prejudice.
Testimony concluded on June 19, and the trial court granted the Lefflers’ motion for nonsuit on the request for injunctive relief. The jury returned a verdict in favor of Dupont in the amount of $2000 for “the reasonable cost to repair the physical damage to [her] side yard that occurred as a result of [the Lefflers’] project.”
Subsequently, the Lefflers filed a motion for attorney fees, claiming the causes of action seeking permanent injunctive and declaratory relief, on which they prevailed, were attempts to enforce the CC&R’s. Because the CC&R’s contain an attorney fees clause, the Lefflers argued, they were entitled to recover attorney fees under Civil Code section 1717. Furthermore, Civil Code section 1354, subdivision (c) provides that the prevailing party in an action to enforce CC&R’s “shall be awarded reasonable attorneys’ fees and costs.” In response, Dupont claimed she was the prevailing party.
All statutory references are to the Civil Code.
The trial court found there was no prevailing party. “Based upon the information before me, [both] looking at . . . all the pleadings globally and recalling what I do of the trial and the circumstances, it was inequitable, under all the circumstances, that either party recover costs or fees.”
DISCUSSION
The Lefflers contend they obtained an unqualified victory on those causes of action in which Dupont attempted to enforce the CC&R’s, i.e., the requests for injunctive and declaratory relief. They claim the $2000 verdict in favor of Dupont represented damages for trespass, not the successful prosecution of an action to enforce the CC&R’s. In the face of this complete victory, they argue, it was an abuse of discretion for the trial court to deny them attorney fees, under either section 1717 or section 1354, subdivision (c). (Hsu v. Abbara (1995) 9 Cal.4th 863, 875-876; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)
Dupont argues neither section 1717 nor section 1354 authorizes an award of attorney fees in this case because her action was not based on the CC&R’s. Section 1717 provides for an award of attorney fees to the prevailing party “[i]n 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 . . . .” (§ 1717, subd. (a), italics added.) Subdivision (c) of section 1354 provides that the prevailing party in an action to enforce the CC&R’s shall be awarded attorney fees. Dupont contends her action was neither an attempt to enforce the CC&R’s nor an action on a contract. Rather, she argues, her action was a tort action for trespass, nuisance, and misrepresentation. Her main contention was that she was entitled to stop the construction and be paid damages for the harm caused by it because her failure to oppose it was based on the Lefflers’ misrepresentation. She sought damages for trespass and interference with quiet enjoyment of her property and injunctive relief against a nuisance.
We agree with the trial court that the gist of Dupont’s action was not one to enforce the CC&R’s. Although she alleges in paragraph 14 of the complaint that the Lefflers’ “wrongful conduct . . . is a violation of the Regatta community CC&Rs,” the main thrust of the paragraph is that their conduct interferes with her right to quiet enjoyment and constitutes a nuisance. And her causes of action were based on the Lefflers’ alleged misrepresentation about the scope of the construction project, not a right or remedy in the CC&R’s. (See Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 670.)
Even if Dupont’s action could be characterized as an action to enforce the CC&R’s, we would still uphold the trial court’s decision. Where a fee-shifting statute such as section 1354, subdivision (c), does not define “prevailing party,” the trial court has discretion to find there is no prevailing party. (Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1137.) The prevailing party determination is made “on a practical level,” after analyzing each party’s litigation objectives. (Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th at p. 1574.) “Generally, where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the proper decision for that of the trial judge. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of a clear showing of abuse, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. [Citations.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
DISPOSITION
The order denying attorney fees is affirmed. In the interest of justice, each party shall bear its own costs on appeal.
WE CONCUR: RYLAARSDAM, J. FYBEL, J.