Opinion
G040454.
6-25-2009
JAMES MICHAEL HARM et al., Plaintiffs, Cross-defendants and Appellants, v. WAYNE T. HETMAN, Defendant, Cross-complainant and Respondent.
Law Offices of Richard A. Jones and Richard A. Jones for Plaintiffs, Cross-defendants and Appellants. Law Offices of Andrew D. Weiss and Andrew D. Weiss for Defendant, Cross-complainant and Respondent.
Not to be Published in Official Reports
As set forth in greater detail in the companion case of James Michael Harm v. Wayne T. Hetman (G039955, app. pending), this case arises out of an acrid dispute between neighbors. James Michael Harm and Soraya Maria Harm ultimately filed a lawsuit against Wayne T. Hetman for quiet title, slander of title, nuisance, negligence, intentional infliction of emotional distress, declaratory relief and injunctive relief. Mr. Hetman cross-complained for quiet title, injunctive relief, negligence and slander. Each party obtained some relief.
In this appeal, the Harms claim the trial court erred in denying their request for attorney fees for having prevailed on two out of three causes of action arising under the Master Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Foothill Ranch (CC&Rs). Because the Harms did not prevail on each of those causes of action, the court called it a wash and, in essence, determined there was no prevailing party to whom fees should be awarded. However, in our opinion in the companion appeal, we reverse the judgment in several particulars, with the result that the Harms now prevail on all causes of action arising under the CC&Rs. Consequently, the order denying attorney fees is reversed and the matter is remanded to the trial court for a determination of the attorney fees owing to the Harms.
I
FACTS
In his cross-complaint, Mr. Hetman asserted five causes of action. He claimed that three of those causes of action were based on violations of the CC&Rs.
In the second cause of action, Mr. Hetman sought an injunction to prohibit the Harms from building a stucco block wall that purportedly would violate the nuisance and view provisions of sections 7.6 and 7.16 of the CC&Rs. He also sought attorney fees, pursuant to section 12.5 of the CC&Rs and section 1354, subdivision (c) of the Civil Code. The court granted the injunctive relief sought. However, in the companion appeal, we reverse the portion of the judgment enjoining the Harms from constructing the wall on their property.
Mr. Hetman, in his third cause of action for negligence, asserted that his existing brick planter wall had been damaged when the Harms contractor began jackhammering in furtherance of construction work on their property. He also asserted that in commencing such work, the Harms and their contractor had breached the nuisance provision found in section 7.6 of the CC&Rs. He sought damages exceeding $10,000, plus attorney fees pursuant to section 12.5 of the CC&Rs and section 1354, subdivision (c) of the Civil Code. The jury found that the Harms were not negligent.
In the fourth cause of action, Mr. Hetman said that the Harms had planted at least 30 trees along the property line separating the respective properties. He stated his belief that the trees would grow to more than 10 feet in height and "were planted maliciously and/or maintained for the purpose of annoying him." Mr. Hetman also asserted that the CC&Rs required the Harms to obtain the permission of the homeowners association before planting the trees and that the Harms had failed to do so. He contended that sections 7.6 and 8.3 of the CC&Rs prohibited the maintenance of the trees as a spite fence, and he requested that the Harms be enjoined from maintaining the trees as such. In addition, Mr. Hetman sought attorney fees incurred as a result of the purported violation of the CC&Rs, citing CC&Rs section 12.5 and Civil Code section 1354, subdivision (c). The court denied the requested injunctive relief, finding that the Harms did not maliciously plant the trees to annoy Mr. Hetman.
After trial, the Harms filed a motion for attorney fees in which they sought $201,150 in attorney fees as prevailing parties on the third and fourth causes of action set forth in Mr. Hetmans cross-complaint. The court denied their motion. The Harms appeal.
II
DISCUSSION
The Harms contend that, as prevailing parties on Mr. Hetmans third and fourth causes of action, they were entitled to attorney fees pursuant to sections 12.5(a) and 12.5(h) of the CC&Rs, and Civil Code sections 1354 and 1717.
Section 12.5(a) of the CC&Rs provides in pertinent part: "Except as otherwise expressly provided herein, . . . any Owner . . . shall have the right to enforce any or all of the provisions of the Restrictions against any property within the Properties and the Owners thereof. Such right shall include an action for damages, as well as an action to enjoin any violation of the Restrictions. . . ." Section 12.5(h) of the CC&Rs provides: "Any judgment rendered in any action or proceeding hereunder shall include a sum for attorneys fees in such amount as the Court may deem reasonable, in favor of the prevailing party . . . ."
Clearly, the CC&Rs do, as the Harms state, provide a basis for the prevailing party on the CC&Rs causes of action to recover attorney fees. We turn now to Civil Code section 1717, pertaining to contracts with attorney fees clauses, and Civil Code section 1354, pertaining to litigation with respect to governing documents of common interest developments.
At the outset, we observe that Mr. Hetman is in error in his assertion that Civil Code section 1717 is inapplicable because it pertains to attorney fees available under contract and there is no contract at issue in this case. CC&Rs are contracts to which Civil Code section 1717 applies. (Mackinder v. OSCA Development Co. (1984) 151 Cal.App.3d 728, 738.)
Civil Code section 1717, subdivision (a) provides in pertinent part: "In any action on a contract, where the contract specifically provides that attorneys 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 attorneys fees in addition to other costs. . . ." Subdivision (b)(1) of that statute provides: "The court . . . shall determine who is the party prevailing on the contract for purposes of this section . . . . 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."
Civil Code section 1354, subdivision (c) provides: "In an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorneys fees and costs." Whether a litigant is the prevailing party for the purposes of section 1354 should be determined "on a practical level." (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)
Here, Mr. Hetman claimed three of his causes of action were supported by the CC&Rs. At trial, he prevailed on one cause of action, having obtained an injunction against the Harms construction of a wall. He lost on two others, having failed to prevail on his negligence cause of action or to obtain an injunction against the Harms with respect to their trees. In ruling on the matter then before it, the court regarded the matter as "a stand off." That is to say, Mr. Hetmans win on one cause of action cancelled out the Harms win on another. In other words, the court determined, on a practical level, that there was no prevailing party. On the judgment as entered, this ruling was consistent with both Civil Code section 1717, subdivision (b)(1) and Civil Code section 1354.
However, as have we stated, this court, in our opinion in the companion appeal, is reversing the portion of the judgment enjoining the Harms from constructing a wall on their property. Consequently, the Harms have now prevailed on all causes of action arising out of the CC&Rs. This being the case, it would be an abuse of discretion to deny them attorney fees incurred in connection with the causes of action based on the CC&Rs. (Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th at p. 1574 [abuse of discretion standard applies].)
III
DISPOSITION
The order is reversed and the matter is remanded for a determination of the attorney fees owing to the Harms with respect to the causes of action based on the CC&Rs. The Harms shall recover their costs on appeal.
WE CONCUR:
OLEARY, ACTING P. J.
FYBEL, J. --------------- Notes: As a technical point, attorney fees shall be awarded to the Harms either in their individual capacities or in their capacities as trustees of The Harm Family Living Trust dated May 26, 2005, consistent with our opinion in the companion appeal.