Merritt v. Gandhi
Adams Stirling PLC
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Opinion
Danner, J.

*1 Appellants Salma and David Merritt challenge a trial court order granting respondents attorney’s fees accrued in litigation appellants brought regarding their exclusive use of an outdoor parking space located in the common area of their housing development. Appellants contend the trial court erred by awarding $220,000 in attorney’s fees under Civil Code sections 1717 and 5975,1 because their complaint alleged only civil rights violations sounding in tort that do not provide a basis for awarding fees under these statutes. They further argue the amount of the attorney’s fees awarded by the trial court was excessive. For the reasons explained below, we affirm the trial court’s order.

I. FACTS AND PROCEDURAL BACKGROUND

A. The Complaint

In March 2006, appellants moved into a home at a development in Sunnyvale called the Classics at Fair Oaks (Classics). In March 2011, appellants filed a complaint, in propria persona, against respondents, the Classics at Fair Oaks Association (Association), as well as Chetak Gandhi, Wayne Brown, and Ying-Chi Lee (collectively, respondents), who were members of the Association’s board of directors.

Appellants asserted three causes of action related to the Association’s formulation, enactment, and enforcement of parking policies that impacted appellants and their use of an outdoor parking space in the development. Specifically, appellants alleged: (1) conspiracy to “violate [appellants’] property, disability, privacy and medical privacy rights” (first cause of action); (2) invasion of appellants’ privacy based on physical intrusion into appellants’ home and disclosure of private and medical information (second cause of action); and (3) disability discrimination in preventing appellants from using their property in a way that allowed proper ingress and egress by enacting a policy and taking board action without recognizing the Americans with Disabilities Act and the California Disabled Persons Act, threatening to tow appellants’ vehicle, invading appellants’ privacy, and demanding personal medical information (third cause of action).

As to the second cause of action, appellants claimed that respondents “ha[d] threatened to continue disclosing the [appellants’] private and medical information” and such “continued disclosures will cause [appellants] great and irreparable injury” “[u]nless and until enjoined and restrained by order of [the] Court.” Similarly, as to the third cause of action, appellants alleged that “[u]nless [respondents] are restrained by a preliminary and permanent injunction of [the] Court, [appellants’] injuries will be great and irreparable.” The complaint prayed for a judgment against respondents for “general damages,” “[s]pecial damages,” “exemplary and punitive damages,” “attorney’s fees,” and “[s]uch other and further relief as the Court may deem proper.”

Appellants alleged that they had exclusively and continuously used an outdoor parking space that was “directly adjacent” to their home’s two-car garage since they moved into the house in 2006. Appellants asserted this parking space was “situated on [their] property.” Appellants “saw themselves as the exclusive titled owners of [the] parking space.” Appellants alleged that Salma Merritt had been physically disabled since about October 2005, and the Department of Motor Vehicles (DMV) had issued her a disabled person placard. Appellants claimed that “[f]rom March 2006 to November 2010[,] [they] owned two vehicles and were compelled to park one vehicle in their outside parking space in order to ensure that Salma [Merritt] had sufficient room to enter and exit the vehicle which would be parked inside the garage.”

*2 David Merritt had been the president of the Association’s board from May 2006 to April 2009 and thereafter served as the board’s secretary. In 2008, while David Merritt was the board’s president, the board adopted a parking policy, the enforcement of which was headed by the president or his designee.2 Appellants alleged that the 2008 policy “was not designed to invade home owners’ home or medical privacy, nor deny their property rights as Common Area co-owners by allowing them to freely park in [the] Common Area as long as they had legitimate need.” The policy also “did not add any additional monetary cost or use of HOA funds.”

In March 2010, respondents formulated and proposed a revision to the Association’s parking policy whereby homeowners who had more than two vehicles and wished to park in the common area would be required to purchase a parking permit. Respondents explained that any owners who sought a permit had to allow the board to inspect their garage to “judge whether their garage is being used ‘properly.’ ” David Merritt expressed concern that such a policy would violate owners’ property and privacy rights and illegally increase the Association fees charged to homeowners. He stated that the policy should not be adopted without obtaining input from the owners and consulting with an attorney.

On or about July 20, 2010, respondents voted to enact a parking policy that required owners who wished to park a car in the common area to open their garages to inspection by the board. If an owner refused to allow an inspection, he or she would not be allowed to park in the common area, and any car parked by that owner in the common area could be towed. The parking policy and a letter from the board to homeowners stated that, in order to obtain a parking permit, an owner was required to provide proof of vehicle registration with a Classics address and establish that the owner’s garage was being used as parking for the number of vehicles it was originally designed to accommodate.

Appellants alleged that on August 26, 2010, the board voted to approve all parking permits requested, including appellants’ permit. According to the letter sent by the board to the homeowners, the permits were valid for three months. Appellants claimed that during August and September 2010, respondents “invaded the homes of all owners exercising their right to park cars in [the] Common Area, including [appellants’] home, where [appellants] repeatedly notified [respondents] that they had no right to intrude upon their home’s privacy.” Appellants asserted that “David [Merritt] was not certain about the law in this area and relied upon what [respondents] told [appellants] about the law and gave them access to their home.” During the inspection, respondents questioned appellants about the contents and condition of their garage. Appellants claimed that respondents demanded that appellants “divulge ... the medical reason” upon which Salma Merritt was issued a disabled person placard by the DMV. Appellants alleged that from on or about October 2010 to February 2011, respondents “reported to non-Board members—the Public—about [Salma Merritt’s] medical disability condition, their petition for [a] permit based on [a] disabling medical condition and the status and condition of [appellants’] garage.”

In late November 2010, the board again revised the parking policy. Appellants alleged that in November 2010, respondents took various actions related to the parking permits “to retaliate against [David Merritt] for exercising his constitutional rights to free speech, medical privacy, disability rights and asserting his duties as a board member.” At a board meeting on January 25, 2011, respondents allegedly “pressured [David Merritt] to divulge medical information about his wife and threatened to not issue [a] permit unless he did so.” Appellants provided the board information about “state laws regarding home owner privacy, medical privacy and disability rights” and a parking permit application that listed three cars. Appellants explained that their third car would be kept “off premises” and appellants would simply continue to use the common area parking space as they had for the preceding five years. Appellants claimed that respondents said “they would not ever recognize [appellants’] disability, property and medical privacy rights and voted to deny [the] permit.” In February 2011, respondents allegedly threatened to tow appellants’ vehicle.

B. Procedural History

*3 Appellants filed their complaint in the Santa Clara County Superior Court on March 2, 2011. After almost two years of litigation in the trial court and this court, the trial court issued an order declaring appellants to be vexatious litigants. Subsequently, on February 13, 2013, the trial court granted respondents’ motion for summary judgment on appellants’ three causes of action.

In its order on summary judgment, the trial court concluded that, for the third cause of action, appellants had presented “no admissible evidence to support their contention that the guest parking space at issue was privately owned by them as opposed to being part of the common area of the common interest development.” The trial court also found appellants could not establish that the common area parking was a public accommodation in light of several undisputed facts including provisions of the Association’s covenants, conditions, and restrictions (CC&Rs). Further, the trial court found that appellants’ second cause of action failed because respondents’ “[a]ctions authorized by and taken to enforce [the] CC&Rs and policies enacted pursuant to them ... cannot be considered a serious invasion of privacy under these circumstances.” As to the first cause of action, the trial court rejected it as dependent on the other two deficient causes of action.

Appellants appealed the trial court’s vexatious litigant and summary judgment orders. This court affirmed the trial court’s order designating appellants as vexatious litigants. (Merritt v. Gandhi (May 21, 2015, H039291) [unpub. opn.].) In addition, this court denied appellants’ request to litigate their appeal of the order granting summary judgment.

While the vexatious litigant appeal was pending, respondents filed a motion in May 2013, requesting $322,840 in attorney’s fees and $15,416 in costs. The trial court deferred decision on the motion pending appellants’ appeal. Following this court’s ruling on appeal, on September 22, 2015, respondents filed another motion for attorney’s fees and costs seeking $15,453 in costs and $332,667.50 in attorney’s fees. Appellants filed an opposition, a sur-reply, and a motion to amend their opposition. On January 14, 2016, the trial court heard oral argument on respondents’ motion.

C. The Order Regarding Attorney’s Fees and Costs

On February 16, 2016, the trial court issued a written order granting respondents’ motion for attorney’s fees in the amount of $220,000 and costs in the amount of $15,416. The trial court found the motion timely and ruled that respondents were entitled to attorney’s fees on two of the four grounds raised. The trial court concluded that, under section 1717 and a prevailing-party attorney’s fees provision in the Association’s “Declaration of Restrictions (CC&Rs),” the present action “is an action on a contract. The litigation unquestionably regarded the rights and obligations of the Association and [appellants] under the [CC&Rs].”3 The trial court observed that the “heart of [appellants’] complaint challenges the policies [respondents] implemented regarding parking, the permitting process and the enforcement process,” and the CC&Rs “contain several provisions relating to parking at Classics that were key in this litigation.” The trial court noted the summary judgment order interpreted the CC&Rs “regarding the respective rights and obligations of the litigants” and “found that [appellants’] claim for disability discrimination was not meritorious because the parking spaces at issue are on private property and did not involve a place of ‘public accommodation.’ ” The trial court rejected appellants’ “wish to style the dispute as an attempt to enforce their civil rights” because “there is no escaping the fact that the interpretation of the rights and obligations of the litigants under the [CC&Rs] was central to this dispute.”

*4 In addition, the trial court concluded that respondents were entitled to attorney’s fees under section 5975, subdivision (c), which provides that, “[i]n an action to enforce the governing documents [of an association], the prevailing party shall be awarded reasonable attorney’s fees and costs.”4 The trial court found that “ ‘an action’ encompasses the entire judicial proceeding, including any defenses asserted[,] for purposes of an attorney fee award. [Citation.] And, [respondents] asserted their rights under the [CC&Rs] to enforce parking policies, successfully arguing that [appellants] had no legitimate claims for discrimination, invasion of privacy and other claimed relief because [respondents’] actions were authorized under the [CC&Rs].”

The trial court rejected respondents’ request for attorney’s fees under section 55 and the vexatious litigant provisions in the Code of Civil Procedure section 391 et seq.

The trial court reviewed respondents’ redacted billing invoices, portions of the extensive court file, and the case docket entries spanning some four-and-a-half years. The trial court found both that the hourly rates charged by respondents’ counsel were reasonable and the case involved complex issues. The trial court concluded, however, that it was inappropriate to compensate respondents’ counsel for work done in connection with respondents’ motions to designate appellants vexatious litigants. In addition, the trial court determined that time spent by respondents’ counsel on certain tasks was excessive. Using the lodestar method, the trial court concluded that an award of $220,000 for attorney’s fees was reasonable. The trial court also determined that $15,416 in costs was reasonable. Appellants, through counsel, timely appealed the trial court’s February 16, 2016 order.

II. DISCUSSION

Appellants raise three claims on appeal. Appellants contend that this court should independently review the trial court’s determination that the present action is “on a contract” under section 1717 and reverse the trial court’s order awarding attorney’s fees because appellants’ complaint “sounds only in tort” and did not attempt to enforce the CC&Rs. Appellants similarly argue for independent review of the trial court’s ruling under section 5975 and urge reversal because their complaint did not seek enforcement of the CC&Rs and “never challenge[d] the CC&Rs but only raise[d] U.S. Constitutional rights questions and nothing more.” Finally, appellants maintain that the trial court awarded excessive attorney’s fees.

Respondents counter that we should review the trial court’s order for an abuse of discretion and affirm the order because it is legally and factually supported. In addition, respondents request appellate attorney’s fees and costs.5

A. Attorney’s Fees Under Section 1717

*5 Turning first to the appropriate standard of review, we are guided by the California Supreme Court’s decision in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744 (Mountain Air). “ ‘ “On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.” ’ [Citations.] In other words, ‘it is a discretionary trial court decision on the propriety or amount of statutory attorney fees to be awarded, but a determination of the legal basis for an attorney fee award is a question of law to be reviewed de novo.’ [Citations.] ... [W]here the material facts are largely not in dispute, our review is de novo.” (Id. at p. 751.)

Here, appellants argue the trial court improperly awarded attorney’s fees because this matter is not an “action on a contract” within the meaning of section 1717.6 As appellants’ argument challenges the legal basis for the fee award and the material facts are not in dispute, we independently review appellants’ claim.7 (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894; Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1615.)

Turning to the merits of the question presented, “[t]he term ‘on a contract’ in section 1717 ‘does not mean only traditional breach of contract causes of action. Rather, “California courts ‘liberally construe “on a contract” to extend to any action “[a]s long as an action ‘involves’ a contract and one of the parties would be entitled to recover attorney fees under the contract if that party prevails in its lawsuit.” ’ ” ’ ” (In re Tobacco Cases I (2011) 193 Cal.App.4th 1591, 1601 (Tobacco Cases I); see also Mitchell Land & Improvement Co. v. Ristorante Ferrantelli, Inc. (2007) 158 Cal.App.4th 479, 489 [declaratory relief action seeking a determination of the parties’ respective rights and duties under a contract is an action “ ‘ “on a contract” ’ ”].) “An action (or cause of action) is ‘on a contract’ for purposes of section 1717 if (1) the action (or cause of action) ‘involves’ an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party’s rights or duties under the agreement, and (2) the agreement contains an attorney fees clause.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 241–242 (Barnhart).)

Nevertheless, “section 1717 does not apply to tort claims; it determines which party, if any, is entitled to attorneys’ fees on a contract claim only.” (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708; see also Xuereb v. Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342.) “ ‘Whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded. If based on breach of promise it is contractual; if based on breach of a noncontractual duty it is tortious. [Citation.] If unclear the action will be considered based on contract rather than tort. [Citation.] [¶] In the final analysis we look to the pleading to determine the nature of plaintiff’s claim.’ ” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1178–1179.)

*6 The label placed on a cause of action by a party is not dispositive to the applicability of section 1717. Instead, courts look to the gravamen of the overall action. (See Hyduke’s Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 436.) As a leading treatise on California attorney’s fees has stated in discussing the many cases interpreting section 1717, “An action is more likely to be found ‘on a contract’ for purposes of [section] 1717 if the agreement is broad in scope or if the main thrust of the litigation is based on the contract.” (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2018) § 4.50.)

Here, appellants identified their causes of action against respondents as “Conspiracy” to violate appellants’ property, disability, and privacy rights, “Invasion of Privacy,” and “Disability Discrimination.” In their complaint, appellants alleged numerous actions by respondents related to the enactment and implementation of the Association’s revised parking policies. Appellants attached to their complaint, among other things, the Association’s parking policies, a letter regarding the procedures for parking permit applications, and minutes of the Association’s board meetings. The improper acts alleged in the complaint were fundamentally related to and performed under the auspices of the rights and obligations of the parties delineated by the CC&Rs.

The CC&Rs are a contract between the parties. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 240, 246.) The CC&Rs designated the common area of the Classics and granted the Association’s board certain authority over the common areas. The CC&Rs set forth certain parking rules, including that “[o]ccupants shall park their vehicles in their garages so that Common Area parking spaces are available primarily for guest parking.” The CC&Rs further authorized the board to adopt rules regulating parking in the common area. The CC&Rs reserved “the right of the Association’s agents to enter any Lot to cure any violation or breach of th[e] Declaration or the Bylaws or Rules” upon requisite notice and lack of action by the owner to cure the violation or breach. In light of these provisions, the acts appellants challenged in their complaint were intertwined with respondents’ performance of their duties under the terms of the CC&Rs. Further, the trial court necessarily had to examine and interpret the rights and obligation of the parties under the CC&Rs when it considered appellants’ causes of action and ruled on respondents’ motion for summary judgment. Therefore, appellants’ suit was “on a contract” within the meaning of section 1717. (Barnhart, supra, 211 Cal.App.4th at pp. 241–242.)

Appellants cite Stout v. Turney (1978) 22 Cal.3d 718, 730 and All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1227 (All-West Design) as support for their argument that the action here was not “on a contract.” Those cases do not persuade us that appellants’ claim has merit. In Stout, plaintiffs’ action was one for fraud in the sale of real property. (Stout, at p. 721.) The action there arose out of certain representations made by the defendant prior to plaintiffs’ purchase of the property. (Id., at pp. 721–722.) On appeal, our Supreme Court rejected plaintiffs’ argument that the action was “on a contract” under section 1717. The Supreme Court held that plaintiffs’ fraud action arose “out of a contract” but was “not ... an action ‘on the contract.’ ” (Stout, at p. 730.) Appellants’ case is not like the action in Stout because the alleged impropriety here did not involve fraud or misrepresentations prior to the entry of a contract. Rather, the challenged acts occurred in the context of the existing CC&Rs, and the acts had to be considered and adjudged under the relevant provisions of the contract.

*7 Similarly, All-West Design is inapposite because that decision did not analyze whether a particular action sounded in contract or tort. The Court of Appeal in All-West Design held the trial court was not bound by a contingency fee agreement when awarding attorney’s fees under section 1717 for a claim of breach of contract on a promissory note. (All-West Design, supra, 183 Cal.App.3d at pp. 1226–1227.) The court did not discuss or interpret the meaning of “on a contract” in section 1717.

In addition, appellants argue that they “never sought to gain relief by way of the CC&Rs, nor had they joined [a] cause of action for breach of contract.” They assert “[r]espondents countered the discrimination claims by raising a defense that they had taken the alleged retaliatory and discriminatory actions as part of their duties as HOA board members, i.e., producing [a] policy that authorized them to invade the inside of homeowners’ private property, not recognize Appellants right to make disability accommodations within their home and demand medical information of Mrs. Merritt’s disabilities.” That appellants did not affirmatively seek enforcement of particular provisions of the CC&Rs is not dispositive to our determination of whether their action is “on a contract” under section 1717. (See Turner v. Schultz (2009) 175 Cal.App.4th 974, 980 [section 1717 applies whether the action seeks to avoid or enforce a contract].)8 Appellants’ action essentially sought to secure continued exclusive use of the parking space they claimed was their private property and to preclude implementation of the Association’s revised parking policies as against appellants, which required an interpretation and determination of the rights and duties of the parties under a contract—in this case the Association’s CC&Rs.

Appellants’ causes of action were themselves fundamentally grounded in the rights and obligations arising out of the CC&Rs and respondents’ defensive responses followed from appellants’ claims. Accordingly, based on the gravamen of the case, we conclude—as the trial court did—that the action here was on a contract. (See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1608 [holding that a wrongful eviction action under a housing ordinance was “on a contract” because it was “fundamentally ... based upon the lease, in that respondent sought compensation for appellant’s wrongful interference with respondent’s occupation and enjoyment of the leased premises”]; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347–348 [equitable action seeking declaratory and injunctive relief and to quiet title based on violations of the terms of a promissory note and deed of trust are actions on a contract]; Texas Commerce Bank v. Garamendi (1994) 28 Cal.App.4th 1234, 1246–1247 [“Actions for a declaration of rights based upon an agreement are ‘on the contract’ within the meaning of Civil Code section 1717” where “the issues in the case had ... everything to do with the interpretation of the [relevant contracts]”].)

*8 For these reasons, we conclude that the trial court properly awarded attorney’s fees to respondents under section 1717.9

B. Reasonableness of the Attorney’s Fees

We review for abuse of discretion the trial court’s determination of the amount of the attorney’s fees awarded under section 1717. (Mountain Air, supra, 3 Cal.5th at p. 751.)

The “trial court has broad authority to determine the amount of a reasonable fee.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “[O]ur review must be highly deferential to the views of the trial court.” (Children’s Hospital and Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 777.) As the California Supreme Court has explained: “ ‘The “experienced trial judge is the best judge of the value of professional services rendered in [that] court, and while [the judge’s] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong” ’—meaning that it abused its discretion.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) An appellate court will not set aside the amount awarded “absent a showing that it is manifestly excessive in the circumstances.” (Children’s Hospital, at p. 782; Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1004.)

Appellants focus their argument on respondents’ production of their motion for summary judgment. Appellants maintain that the “only real work that attorney fees could have been applied to was a motion for summary judgment, which came after the motion for vexatious litigants was granted.” They argue that, given the work undertaken by respondents to file their three vexatious litigant motions, “when drafting the motion for summary judgment there was no significant research or work to be done.” Appellants assert that “[t]his was not a complex piece of litigation and in the average law firm, somewhere around $10,000 would have been charged to produce this action’s motion for summary judgment.” Appellants request “a dramatic reduction, if not elimination, of the excessive [a]ttorney fees which were granted herein.”

The trial court here examined the billing invoices, court file, and docket entries before determining that $220,000 in attorney’s fees was reasonable. This amount was approximately $110,000 less than respondents had requested. In making its determination, the trial court rejected an argument by appellants that is similar to the one they make here, namely that “80% of the motion practice revolved around the vexatious litigant motions.” The trial court explained that, setting aside the vexatious litigant motions, “the parties also filed several other motions that required extensive effort,” including respondents’ “comprehensive summary judgment motion,” several discovery motions, and appellants’ motions for sanctions, reconsideration, and to amend the complaint. In addition, the trial court found that the hourly rates charged were “eminently” reasonable and the case presented complex issues.

*9 Based on the information and circumstances before the trial court, we cannot conclude that the $220,000 award for work spanning several years was clearly wrong or manifestly excessive. The trial court’s findings are supported both by the record on appeal, which includes over 200 pages of billing invoices, and by the trial court’s docket. We discern no reason to reject the trial court’s findings as an abuse of discretion on this record. (See Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1119.) Accordingly, appellants’ claim that the attorney’s fees award was excessive fails.

C. Attorney’s Fees on Appeal

Respondents have requested attorney’s fees and costs for this appeal. “ ‘Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees.’ ” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.) Thus, upon an appropriate motion, the trial court is to consider whether attorney’s fees incurred on appeal should be awarded and, if so, in what amount. (See ibid.; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 320.)

III. DISPOSITION

The February 16, 2016 order awarding attorney’s fees to respondents is affirmed. Respondents are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

WE CONCUR:
Elia, Acting P.J.
Grover, J.

 

Footnotes

1. Unspecified statutory references are to the Civil Code.

2. Appellants attached to their complaint the 2008 parking policy and related documents, as well as subsequently-adopted parking policies, a letter regarding the procedures for parking permit applications, and certain board meeting minutes.

3. The attorney’s fees provision in the CC&Rs states: “Except as provided by Article 12, in the event of any litigation or alternative dispute resolution procedure arbitration regarding the rights or obligations of the Association or any Person subject to this Declaration, the prevailing party in such proceeding, in the discretion of the judge or decision-maker, shall be entitled to recover costs, [i]ncluding reasonable attorneys’ fees.”

4. Section 5975 is part of the Davis-Stirling Common Interest Development Act (Civ. Code, § 4000 et seq.).

5. Respondents filed a request for judicial notice in this court asking us to take notice of two orders issued by the United States District Court for the Northern District of California (case No. 5:15-cv-02775-EJD) and a memorandum decision of the United States Court of Appeals for the Ninth Circuit (case No. 16-16888). The documents relate to the federal court’s dismissal of substantially similar claims brought by appellants in that court in 2015, and a grant of attorney’s fees and costs in that action. We deferred ruling on respondents’ request for judicial notice pending consideration of this appeal. Appellants have not filed an opposition to respondents’ request. Thus, we grant the request. (Evid. Code, §§ 459, subd. (a), 452, subd. (d); Cal. Rules of Court, rule 8.54(c).) Nevertheless, we have not relied on the federal court documents in reaching our conclusions in this appeal.

6. “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. [¶] Where a contract provides for attorney’s fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.” (§ 1717, subd. (a).)

7. Appellants do not challenge whether the CC&Rs contain a prevailing-party attorney’s fees provision or argue that provision is per se unenforceable.

8. We note that Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664—which appellants cited in support of their argument regarding the inapplicability of section 5975—is inapposite to our analysis under section 1717 because the holding in Salawy was limited to the application of former section 1354, subdivision (f) (now codified as § 5975, subd. (c)). (Id. at p. 670.)

9. Because section 1717 fully supports the trial court’s order, we need not examine whether section 5975 also provides a proper basis for the fee award.

Adams Stirling PLC