Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC090846, Joseph S. Biderman, Judge.
Glickfeld, Fields & Jacobson and Craig M. Fields for Plaintiff, Cross-defendant and Appellant.
Law Offices of Jeffrey F. Sax and Jeffrey F. Sax for Defendant, Cross-complainant and Appellant.
KLEIN, P. J.
Herschel Rahmanizad appeals the judgment entered in favor of the Montecito Condominium Homeowner’s Association (the HOA) on Rahmanizad’s cross-complaint seeking distribution of insurance proceeds the HOA received as a result of water damage to Rahmanizad’s unit.
Rahmanizad also appeals a post judgment order re attorney fees and costs. The HOA cross-appeals from the post judgment order.
The appeals have been consolidated.
We reject the various claims of the parties and affirm the judgment and the trial court’s post judgment order.
FACTS AND PROCEDURAL BACKGROUND
1. Rahmanizad’s unit incurs water damage.
Rahmanizad resides in unit 310 of a condominium building on Beverly Glen Boulevard, which is operated by the HOA. On July 15, 2003, a water leak in the condominium directly above unit 310 resulted in water damage to Rahmanizad’s unit and the unit below it, unit 210, owned by Joseph Solemeni.
Rahmanizad permitted a restoration company into the unit to dry the carpet and permitted Hillman Environmental Group (Hillman) to inspect the unit in October of 2003. In November of 2003, Hillman reported that Rahmanizad’s unit contained “visible microbial growth on the walls in the hallway closet and on the walls and on the ceiling in the bathroom.” Further, “[m]oisture staining was observed on the ceiling tiles in the hallway and on the wall and ceiling in the master bedroom above the entryway.” Hillman recommended “microbial remediation and asbestos abatement [to include removal of, at] a minimum, the visibly microbially contaminated materials and the wet and water damaged materials . . ., as well as any additional areas discovered during the remediation.”
The HOA asked Rahmanizad to move from his unit so the remediation could be performed. Rahmanizad denied his unit had any mold and refused to vacate unless the HOA paid his relocation expenses.
The HOA submitted a claim to its insurance carrier for the damage to the building caused by the water. The HOA allocated $14,148.74 of the insurance payment to Rahmanizad’s unit. Of that amount, $8,043.74 was earmarked to install new drywall, carpet, tile and fixtures.
2. The HOA’s complaint; Rahmanizad’s cross-complaint.
On April 21, 2004, the HOA sued Rahmanizad for injunctive and declaratory relief. The complaint alleged Rahmanizad refused to provide access to the unit, thereby causing great and irreparable harm to the HOA and its members. The HOA sought an injunction requiring Rahmanizad to allow access to permit remediation. Attached to the complaint as an exhibit is a letter from Robert Heiman, the manager of the HOA, with respect to units 210, 310 and 410, indicating mold removal will take two to five days. “Once there is a clearance, the balance of the money for repairs to your unit will be given to you. There will be an acknowledgment for you to sign.”
The HOA took Rahmanizad’s default on the complaint. Rahmanizad’s counsel filed a request for relief which noted the parties had been engaged in regular discussions regarding this dispute and the HOA requested default unexpectedly and prior to complying with Civil Code section 1354, subdivision (b).
On December 17, 2004, at Rahmanizad’s expense, Envirocheck, Inc., inspected unit 310 and found no abnormal airborne fungal spore conditions. However, the HOA refused to place reliance on the report because it had been redacted to omit the name of the inspector.
The trial court set aside the default and on January 20, 2005, Rahmanizad filed a cross-complaint for conversion, claim and delivery, breach of fiduciary duty, constructive trust and money had and received with respect to $8,043.74 of the insurance proceeds held by the HOA.
3. The HOA’s demand for inspection and Rahmanizad’s opposition.
On March 28, 2005, the HOA filed a motion to compel inspection of unit 310. The motion noted Rahmanizad’s counsel had provided only a redacted copy of the report that indicated the unit contained no hazardous mold and Rahmanizad had refused to cooperate in setting a date for a previously demanded inspection.
Rahmanizad opposed the motion to compel. Rahmanizad argued the HOA had failed to specify the manner in which the inspection would be performed, the demand did not include a proof of service, and the HOA failed to make a reasonable and good faith attempt at informal resolution before filing a motion to compel.
Rahmanizad complained the HOA had moved ahead with the remediation recommended in the Hillman report even though the report did not indicate the presence of hazardous mold. Rather, the report concluded, based on a visual inspection, that microbial contamination and moisture damage were present in the unit. The Hillman report was not based on air samples, interior wall samples or any laboratory observations. Rahmanizad asserted he requested further testing before destructive and inconvenient remediation work was undertaken.
On April 22, 2005, Rahmanizad and the HOA, acting without counsel, agreed to have Hillman inspect the unit a second time. On April 28, 2005, Hillman reported it had found no “visible microbial growth” or “moisture damage.”
4. The HOA’s motions for summary judgment.
On January 12, 2006, the HOA gave notice of motions for summary judgment on its complaint and on Rahmanizad’s cross-complaint. The HOA asserted Rahmanizad had no defense to the HOA’s complaint because the HOA had the right to enter the unit to perform necessary repairs at no expense to Rahmanizad. Rahmanizad’s lack of cooperation caused the HOA to incur substantial attorney fees and Rahmanizad’s neighbors had been displaced for more than a year. The HOA asserted remediation presently is unnecessary only because the HOA prosecuted this matter until the mold receded.
The HOA sought summary judgment on Rahmanizad’s cross-complaint on the ground Rahmanizad was not entitled to the insurance proceeds.
Rahmanizad filed opposition in which he argued he was not bound by the restated CC&R’s because they were enacted after he purchased his unit and he did not sign them. Further, Rahmanizad asserted Solemeni, the occupant of 210, moved from his unit after a March 2003 leak and unit 210 was vacant at the time of the July 2003 leak.
On June 1, 2006, the trial court denied the HOA’s motions for summary judgment.
5. Rahmanizad’s motion for summary judgment.
On November 22, 2006, Rahmanizad filed a motion for summary judgment on the HOA’s complaint on the ground the relief sought was moot in that the parties now agree there is no need for mold remediation in unit 310.
In its opposition, the HOA asserted a future dispute was likely because the building had antiquated plumbing which had leaked on numerous occasions. The HOA asserted that in May of 2005, Rahmanizad refused to allow plumbers to enter his unit to repair a leak accessible only through his unit until late in the day. The delay resulted in substantial damage to other units. The building also has a leaky roof and the HOA has not been able to repair it. The HOA claimed it would likely have to invoke the CC&R’s to inspect and remediate water damage and mold in the near future.
The HOA further asserted its cause of action for declaratory relief was not limited to inspecting and repairing the mold caused by the water intrusion in July of 2003. Rather, it related to the HOA’s right to enter the unit as necessary to effectuate emergency repairs.
On February 22, 2007, the trial court adopted its tentative ruling which granted Rahmanizad’s motion for summary judgment. The trial court found the first cause of action for injunctive relief was moot and the HOA should have dismissed this cause of action after the trial court denied the HOA’s motion for summary judgment. The trial court further found Rahmanizad was entitled to summary judgment on the HOA’s cause of action for declaratory relief. “The only claimed wrongs possibly subject to this cause of action are past wrongs, i.e., wrongs which have already occurred.” The trial court found the possibility Rahmanizad might deny the HOA access to his unit for repair of future leaks did not justify issuance of an advisory opinion.
In the course of the hearing on the motion, counsel for the HOA indicated it did not dismiss the cause of action for access to unit 310 in order to be able to assert entitlement to attorney fees. Further, the HOA believed triable issues of fact remained with respect to whether Rahmanizad would permit emergency access to his unit in the future and there was an issue as to whether the restated or the original CC&R’s applied. The HOA requested a declaration the restated CC&R’s were valid. Rahmanizad’s counsel noted the restated and the original CC&R’s contained identical provisions with respect to emergency access to and repair of units in the building. After further discussion, Rahmanizad stated, on the record, that he agreed to be bound by the restated CC&R’s. The trial court then found there was no justifiable controversy and adopted the tentative decision.
6. Trial on Rahmanizad’s cross-complaint.
On March 12, 2007, at a bench trial on Rahmanizad’s cross-complaint against the HOA for the insurance proceeds allocated to unit 310, the trial court received numerous exhibits into evidence including the CC&R’s and the HOA’s insurance policy. The parties stipulated the HOA had received the sum of $28,484.97, of which $14,148.74 was referenced to Rahmanizad’s unit, with $8,043.74 allocated to “buildback”; Rahmanizad is not a named insured on the policy; and, the HOA has not performed any repairs to unit 310 and has not paid Rahmanizad for that purpose.
Rahmanizad testified the property manager of the HOA is Pegasus Management Co. (Pegasus) and Robert Heiman is the individual at Pegasus who is responsible for the HOA. After the leak, Rahmanizad asked Heiman the name of the company hired to remediate the mold but received no response from Heiman. Two members of the HOA board told Rahmanizad he had to move from his unit so they could remediate the mold. Rahmanizad responded he had no mold and if he did he would remediate it himself. Rahmanizad told them, “if you can give me the money I can do the remediation, but I don’t have any mold.”
The damage to Rahmanizad’s unit was primarily stains on his carpet and walls. The damage remains unrepaired. Rahmanizad admitted that, after the leak, he had a black substance on the walls of his bathroom. However, his cleaning staff determined it was mildew.
Rahmanizad’s counsel then sought to read into the record the deposition testimony of Heiman as the agent of the HOA. The trial court indicated Rahmanizad had to show Heiman was unavailable before the testimony could be read. Counsel for the HOA added the deposition was not given in this case, but in a companion case in which the HOA was not a party.
The trial court sustained the HOA’s objection to the reading of the deposition testimony finding Rahmanizad failed to show the HOA had notice it might be used in this case.
Jonathon Cohen, president of the HOA, testified he was aware the board was holding insurance company money that had been allocated for repairs. Cohen testified Heiman was authorized to pay only day-to-day expenses and was not authorized to administer insurance proceeds. Cohen was unaware that any of the homeowners affected by the July 2003 water incident had been given the insurance proceeds allocated to their unit. The HOA has not made any determination as to what should be done with the money. However, they did decide not to give the money to Rahmanizad.
Rahmanizad argued the HOA wrongfully was withholding insurance proceeds. (Foothill Village Homeowners Assn. v. Bishop (1999) 68 Cal.App.4th 1364, 1374-1375.)
The HOA asserted Rahmanizad was not entitled to the insurance proceeds based on Section 802 of the CC&R’s which states: “Insurance proceeds shall be used by the Association for repair or replacement of the property for which the insurance was carried . . . .”
The trial court found Rahmanizad had not met his burden of proof on the cross-complaint.
7. Judgment entered; Rahmanizad appeals.
On April 2, 2007, the trial court granted judgment in Rahmanizad’s favor on the HOA’s complaint and granted judgment in favor of the HOA on Rahmanizad’s cross-complaint.
On May 29, 2007, Rahmanizad appealed the judgment in favor of the HOA on Rahmanizad’s cross-complaint, entered April 2, 2007. (Case No. B199493.)
8. Cross motions to be declared the prevailing party and for attorney fees.
a. The motions.
The HOA filed a motion seeking to be declared the prevailing party and for attorney fees and costs in the amount of $92,335.25.
Rahmanizad also filed a motion seeking to be declared the prevailing party in the litigation and for an award of attorney fees as in the amount of $35,088.50. Rahmanizad also filed a memorandum of costs.
b. The trial court’s ruling on the cross-motions for attorney fees.
The trial court noted the HOA’s complaint of April 2004 sought a TRO, injunctive and declaratory relief re access to Rahmanizad’s unit and attorneys fees. The trial court found: “The HOA let an inordinate period of time pass before it sought any judicial intervention to compel Rahmanizad to permit an inspection. The court is perplexed as to why no temporary restraining order or preliminary injunction was sought during the first few months of the litigation due to the claimed emergency nature of the HOA’s concerns. Nevertheless, ultimately the HOA did gain access to inspect Rahmanizad’s unit and fortunately for all of the parties concerned, there was no mold found, toxic or otherwise, to be remediated. Hence, the HOA did achieve one of its litigation objectives, albeit by taking a painfully long and inexplicably circuitous route.”
“Rahmanizad’s litigation objective was to prevent the HOA from obtaining a judicial order granting the HOA virtually unrestricted access to perform work in the unit. Rahmanizad was successful in this regard. He further sought, by way of cross-complaint, a portion of insurance proceeds that the HOA recovered due to damage from water intrusion relating to his unit. Rahmanizad was unsuccessful at the trial of the cross-complaint.”
“The Court concludes each side walked away from this wasteful litigation with a partial victory and a partial loss. Although Rahmanizad has not raised, let alone briefed, the point, the Court is well-aware that it has discretion to find that he was the prevailing party if it concludes that his cross-complaint was essentially defensive in nature. The Court declines to exercise that discretion here. . . .”
The trial court indicated it independently had researched the issue of costs under Code of Civil Procedure section 1032 and had concluded Rahmanizad was the prevailing party. (McLarand, Vasquez and Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454.) The trial court awarded Rahmanizad costs in the amount of $445 and struck the cost bill of the HOA.
c. Notices of appeal from the post-judgment order.
On July 26, 2007, Rahmanizad appealed the trial court’s ruling on the post judgment order entered June 26, 2007. (Case No. B200982.)
Rahmanizad subsequently abandoned this appeal and remittitur issued on December 21, 2007.
On August 16, 2007, the HOA filed a cross appeal from the appeal filed July 26, 2007. (Case No. B200982.)
By order dated September 24, 2007, this court granted the HOA’s motion to consolidate the appeals in this matter under Case No. B199493.
CONTENTIONS
Rahmanizad contends the trial court erroneously found the HOA had no obligation to distribute the insurance proceeds to him and improperly excluded Heiman’s deposition testimony at the trial on the cross-complaint.
The HOA contends the trial court improperly granted summary judgment on the HOA’s complaint, erroneously found the HOA was not the prevailing party and abused its discretion in failing to award the HOA attorneys fees.
Rahmanizad contends the HOA’s notice of appeal filed August 16, 2007, was untimely as to the judgment entered April 2, 2007, and, even if it were timely, it was a cross appeal from a post judgment order, not an appeal of the judgment in Rahmanizad’s favor entered April 2, 2007.
DISCUSSION
1. Rahmanizad fails to demonstrate error in the trial court’s ruling on the cross-complaint.
Rahmanizad contends he was entitled to distribution of the insurance proceeds because the HOA owed him a fiduciary duty. (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 126.)
Rahmanizad argues Section 8.02, taken together with Section 9.05(c) of the CC&R’s, which authorizes the distribution of insurance proceeds to the homeowner if a decision not to rebuild or repair is made, strongly implies that insurance proceeds are to be distributed to the affected homeowners if repairs are not made. Rahmanizad asserts this result is consistent with California law which recognizes that a homeowner’s association holds “insurance proceeds solely as a trustee for the individual owners. [Citation.] This means that the money [is] not a corporate asset beneficially owned by the Association.” (Foothill Village Homeowners Assn. v. Bishop, supra, 68 Cal.App.4th at pp. 1374-1375; Countrywide Home Loans, Inc. v. Tutungi (1998) 66 Cal.App.4th 727, 732-733.)
Rahmanizad concludes the trial court erroneously found in favor of the HOA on his causes of action for conversion, claim and delivery, breach of fiduciary duty, common count of money had and received, and imposition of a constructive trust.
We find Section 8.02 controls the dispute. It provides the HOA shall use insurance proceeds for repair or replacement of the insured property and makes no mention of payment of such proceeds to homeowners. This provision of the CC&R’s countermands the general rule, stated in Foothill Village, that a homeowner’s association holds insurance proceeds for the benefit of the homeowners.
Rahmanizad’s reliance on Section 9.05(c) of the CCR’s is misplaced. Section 9.05(c) applies only where 75 percent of all owners do not consent to purchase any units rendered uninhabitable after damage to the building.
Consequently, the trial court’s ruling on Rahmanizad’s cross-complaint is supported by the record. Because Rahmanizad did not demonstrate entitlement to the disbursement of the insurance proceeds, each of the causes of action in his cross-complaint failed. (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543; First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 635.)
2. No reversible error in the exclusion of the deposition testimony of Heiman.
Rahmanizad argues Heiman was an agent of the HOA and he acted on behalf of the HOA with respect to withholding the insurance proceeds. Thus, he effectively was a party to the action. Rahmanizad notes Heiman was found to be the agent of a homeowner’s association in a case involving the same Robert Heiman, Heiman v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 724, 740-741.
Rahmanizad asserts that because Heiman was the agent of the HOA, his deposition testimony should have been admitted into evidence, regardless of whether Heiman testified at trial or was available to testify. (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1005-1006.)
Rahmanizad claims the error was prejudicial because Heiman testified the HOA distributed the insurance proceeds received as a result of the water damage to each of the other homeowners to make repairs to their own units except Rahmanizad. Had this testimony been allowed, Rahmanizad claims the HOA would have been estopped from asserting it properly withheld proceeds from Rahmanizad. (Meyer v. Glenmoor Homes, Inc. (1996) 246 Cal.App.2d 242.) Heiman’s testimony also constituted an admission by the HOA that the homeowners were entitled to the proceeds, contrary to what the HOA claimed at trial. (Miller v. Anson-Smith Construction Co. (1960) 185 Cal.App.2d 161, 165-166.)
Rahmanizad asks this court to reverse the judgment on the cross-complaint and order the trial court to issue a new judgment in his favor with costs and attorneys fees as the prevailing party.
We decline Rahmanizad’s request. Initially, we note none of Heiman’s deposition testimony is included in the record on appeal. Thus, Rahmanizad failed to demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Rahmanizad claims the relevant pages of Heiman’s deposition testimony are attached to the Reply Brief. However, nothing is attached.
Moreover, even accepting Rahmanizad’s summary of Heiman’s testimony as accurate, the fact the HOA distributed insurance proceeds to other homeowners does not establish that Rahmanizad was entitled to the proceeds. Indeed, based on Section 8.02 of the CC&R’s, the HOA was entitled to use the insurance proceeds for the repair or replacement of the property for which the insurance was carried. In sum, nothing in Heiman’s asserted deposition testimony causes this court to question the trial court’s ruling on the cross-complaint.
3. This court lacks jurisdiction to consider the HOA’s purported appeal from the order granting Rahmanizad’s motion for summary judgment on the HOA’s complaint.
The HOA contends there is no controversy with respect to the HOA’s right to access to the unit to perform mold remediation. Thus, the trial court erred in granting summary judgment in Rahmanizad’s favor on the HOA’s complaint. The HOA further asserts the trial court ignored the HOA’s prayer for damages in the complaint and the active controversy between Rahmanizad and the HOA with respect to his right to claim a portion of the insurance proceeds which was the subject of Rahmanizad’s cross-complaint.
The HOA asks this court to conduct a de novo review to determine whether there are any genuine issues of material fact. (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1403; Bernstein v. Consolidated American Ins. Co. (1995) 37 Cal.App.4th 763.)
As noted in the Facts and Procedural Background, the HOA cross-appealed from the post judgment order denying attorney fees. However, the HOA did not appeal the order granting Rahmanizad’s motion for summary judgment on the HOA’s complaint. The order granting summary judgment was separately appealable. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 976-979; CC California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1047-1048.)
Because the HOA failed to appeal the order granting summary judgment on its complaint, this court lacks jurisdiction to consider the HOA’s purported appeal from that order or the related judgment.
Based on this conclusion, we need not address Rahmanizad’s further assertion the HOA’s notice of appeal filed August 16, 2007, was untimely.
Nonetheless, we note the order granting summary judgment appears to have been correct in that, once the need for remediation was removed, the HOA had no right to an injunction or declaratory relief because there was no present controversy. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)
4. The trial court committed no abuse of discretion in finding neither party to this litigation prevailed for the purpose of awarding attorney fees.
The HOA contends it is the prevailing party under Code of Civil Procedure section 1032, subdivision (a)(4) and Civil Code, section 1717 on its complaint and Rahmanizad’s cross-complaint. The HOA asserts it obtained virtually all the relief it sought in its complaint when Rahmanizad “capitulated” to the HOA’s demand for an inspection. (Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4th 553, 572 [a defendant’s “voluntary” change in conduct in response to litigation renders the plaintiff the prevailing party].)
Code of Civil Procedure section 1032, subdivision (a)(4) defines “prevailing party” to include “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.”
The HOA notes the trial court was frustrated by this litigation, as evidenced by its orders of February 22, 2007, and June 26, 2007. However, this does not permit the trial court to decline to award the HOA attorney fees as the prevailing party. (Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1398-1399.)
The HOA claims it reasonably believed mold remediation was necessary based on the first Hillman report and Rahmanizad forced the HOA to file the complaint after Rahmanizad refused access to his unit. Rahmanizad initially opposed the HOA’s request for inspection of the unit but thereafter relented. The HOA concludes it achieved its primary litigation objective, not merely “one of its litigation objectives” as the trial court found. (Hsu v. Abbara (1995) 9 Cal.4th 863, 877.)
With respect to the trial court’s criticism of the HOA for not seeking a TRO or a preliminary injunction, the HOA asserts its counsel utilized the reasonable trial strategy of seeking inspection pursuant to the Civil Discovery Act rather than the procedurally more onerous method of seeking a preliminary injunction or a TRO. Further, the strategy proved successful because Rahmanizad eventually permitted access to the unit.
The HOA asserts it was not unreasonable for its counsel to consider that issuance of a mandatory preliminary injunction was unlikely. (See Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295-296 [preliminary mandatory injunction is rarely granted].) Additionally, the HOA properly could consider the prohibitive cost associated with seeking a TRO, the cost of opposing a direct appeal from an order granting a preliminary injunction (Code Civ. Proc., § 904.1, subd. (a)(6)), the possibility the injunction might be stayed on appeal (Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 706), and the stricter scrutiny an injunction would face on appeal versus the use of the Civil Discovery Act to achieve the same objective.
The HOA argues Rahmanizad failed in his objective of thwarting access to the unit. Thus, the HOA prevailed on the complaint. Because the HOA also prevailed on Rahmanizad’s cross-complaint, it realized all of its litigation objectives while Rahmanizad realized none of his objectives.
The trial court found Rahmanizad achieved his litigation objective of preventing “virtually unlimited access to perform work in his unit.” However, the HOA sought only to inspect the unit and remediate any mold found. The HOA did not seek unlimited access to the unit.
The HOA concludes the trial court abused its discretion in failing to award the HOA attorney fees.
Rahmanizad asserts he prevailed on the complaint and therefore must be considered the prevailing party. The trial court recognized this and awarded Rahmanizad costs under Code of Civil Procedure section 1032(4). Further, where neither a defendant nor a plaintiff obtains any relief, the defendant is the prevailing party. (Hsu v. Abbara, supra, 9 Cal.4th at pp. 875-876; Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1272; Childers v. Edwards (1996) 48 Cal.App.4th 1544, 1549; Code Civ. Proc., § 1032, subd. (a)(4).)
Rahmanizad asserts that if the HOA loses its appeal and Rahmanizad wins his, then Rahmanizad is the prevailing party without question and would be entitled to seek attorney fees for the entire action upon remand.
A finding of no prevailing party is reviewed for abuse of discretion. (Deane Gardenhome Assn. v. Denktas, supra, 13 Cal.App.4th at p. 1397.) The trial court “ ‘ “ ‘is given wide discretion in determining which party has prevailed on its causes(s) of action. . . .’ ” [Citation.]’ ” (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158.) Upon review, the trial court’s exercise of discretion will not be disturbed absent clear abuse. (Hsu v. Abbara, supra, 9 Cal.4th at p. 871; Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 479; Nasser v. Superior Court (1984) 156 Cal.App.3d 52, 59.)
In determining whether a party has prevailed, the trial court “compare[s] the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Hsu v. Abbara, supra, 9 Cal.4th at p. 876.)
If one party has a “simple, unqualified win” in its litigation, then that party is the prevailing party, and the trial court would abuse its discretion if it determined otherwise. (Deane Gardenhome Assn. v. Denktas, supra, 13 Cal.App.4th at p. 1398.) But if “both parties seek relief, but neither prevails,” or if the “ostensibly prevailing party receives only a part of the relief sought” so that the judgment may be “ ‘ “considered good news and bad news as to each of the parties[,]” ’ ” then the trial court properly may find that no party prevailed. (Ibid.; see also Hsu v. Abbara, supra, 9 Cal.4th at pp. 875-876; Nasser v. Superior Court, supra, 156 Cal.App.3d at pp. 59-60.)
No abuse of discretion appears in the trial court’s finding neither party prevailed in this lawsuit. When the results of the litigation are “mixed,” the trial court may determine that no party has prevailed on the contract. (See Hilltop Investment Associates v. Leon (1994) 28 Cal.App.4th 462, 468-469 [no abuse of discretion in denying attorney fees where the result was “a draw”].)
Here, the trial court properly could find the HOA failed to obtain declaratory relief, Rahmanizad failed on the cross-complaint and he failed to block access to the unit. Although Rahmanizad asserts he opposed the motion to compel inspection on procedural grounds only, nonetheless, he opposed the motion. Consequently, the HOA did succeed in gaining access to Rahmanizad’s unit.
Although the trial court criticized the HOA for failing to seek declaratory relief at the outset of the litigation, we do not believe the trial court based its finding on improper factors, such as the parties’ litigation conduct. (See, e.g., Deane Gardenhome Assn. v. Denktas, supra, 13 Cal.App.4th at p. 1398.) Rather, the trial court thoughtfully assessed the extent to which each party had realized its litigation goals and ascertained “ ‘the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’ ” (Hsu v. Abbara, supra, 9 Cal.4th at p. 876.) No abuse of discretion appears.
DISPOSITION
The judgment is affirmed. Neither party shall receive costs on appeal.
We concur: KITCHING, J. ALDRICH, J.
Civil Code section 1717 provides: “(a) 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. . . .
“(b)(1) 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. [¶] (2) 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.”
The HOA notes it additionally is entitled to attorney fees under Civil Code section 1354, subdivision (c), relating to actions to enforce documents governing common interest developments.