Losing Plaintiff’s Fee Denial Also Affirmed In Dueling Fee Motion Case.



    Homeowner/landowner cases seem to bring a lot of angst and emotions, maybe not as much as the recent presidential election, but still on the top level on a range scale from 1 to 10—we would say most disputes are in the 7-10 range. The problem in these controversies is that there are often CC&R contractual fee clauses, as well as fee-shifting statutes under the Davis-Stirling Act applicable to common interest developments, which can impose attorney’s fees on the non-prevailing party.  So, not only does the loser lose on the merits, but the loser may have to loser’s attorney’s fees as well as winner’s attorney’s fees.  Talk about angst.

    Sui v. Price, Case No. G052248 (4th Dist., Div. 3 Nov. 9, 2016) (unpublished) is a case on point for illustrating how these general observations actually find resonance in a real life case.  There, the defense obtained a favorable demurrer without leave ruling, resulting in a judgment against plaintiffs, giving rise to their fees claim as the prevailing parties under Civil Code section 1717 (based on a fees clause in the CC&Rs) and under Civil Code section 5975 (the fee-shifting provision in the Davis-Stirling Act applicable to actions to enforce governing documents such as CC&Rs).  The defense so moved, but plaintiffs also sought fees because they had won by defeating a prior SLAPP motion and by asserting that they actually prevailed in their action.  The lower court granted the defense fee motion and denied plaintiffs’ fee motion as moot after determining the defendants prevailed in the action.

    The 4/3 DCA, in a 3-0 decision by Justice Ikola, affirmed.  The defendants did prevail under the CC&Rs and Davis-Stirling Act by obtaining a demurrer without leave dismissal of plaintiff’s action.  Once they were found to be the prevailing parties, plaintiffs’ fee motion was moot, especially given that they failed to move for SLAPP fees way earlier in the litigation so as to timely assert entitlement under the SLAPP fee-shifting statute.


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