Filed 1/6/15 Patterson v. Sherwood Valley Homeowners Assn. CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


JO ANNE PATTERSON,                                                         2d Civil No. B254446
                                                                     (Super. Ct. No. 56-2010-00377886-
     Plaintiff and Respondent,                                                  CU-NP-VTA)
                                                                              (Ventura County)
v.

SHERWOOD VALLEY HOMEOWNERS
ASSOCIATION,

     Defendant and Appellant.



                   Jo Anne Patterson resides in the Lake Sherwood area of Thousand Oaks.
Her home, which is part of the Original Sherwood Community, is adjacent to a parcel of
property known as Maid Marion Park (Park). When the trees in the Park began blocking
her view of the lake, she brought an action against the Sherwood Valley Homeowners
Association (Association) alleging, inter alia, its planting and maintenance of the trees
violated the declaration of restrictions and grant of easements for the Park (Park CC&Rs).
                   The Association prevailed on all of Patterson's claims and moved for an
award of attorney fees under Civil Code section 1354, subdivision (c) [now § 5975, subd.
(c)],1 which entitles the prevailing party to reasonable attorney fees and costs "[i]n an


         1 All statutory references are to the Civil Code. Effective January 1, 2014, the
Davis-Stirling Common Interest Development Act (Davis-Stirling Act) (§ 1350 et seq.)
was repealed and recodified. (See Stats. 2012, ch. 180, §§ 1-2.) The recodified versions
of section 1354 and other relevant statutes are identical to their former counterparts. In
action to enforce the governing documents." By definition, "governing documents" are
the declaration and any other documents . . . which govern the operation of the common
interest development or association." (§ 1351, subd. (j) [now § 4150].) In denying the
motion, the trial court determined section 1354 did not apply because the Park CC&Rs do
not govern the operation of a common interest development or association. We affirm.
                    FACTS AND PROCEDURAL BACKGROUND

              In 1990, Sherwood Development Company (SDC) created the New
Sherwood Community, a residential development, country club, golf course and park in
the Lake Sherwood area. SDC recorded a declaration of covenants, conditions and
restrictions for the New Sherwood Community (Association CC&Rs), which governs all
of the lots and parcels within that community. The Association manages and controls the
common areas of the New Sherwood Community. Patterson, who resides in the Original
Sherwood Community, is not a member of the Association.
              In 2005, SDC and the Lake Sherwood Mutual Water Company recorded the
Park CC&Rs, which created certain easements and rights in the Park for the benefit of
surrounding properties, including those within the Original and New Sherwood
Communities. As part of the planned park improvement and maintenance program, the
Association became both the owner and manager of the Park.
              The Association planted additional trees in the Park and provided
maintenance services. Patterson complained the trees destroyed her previously
unobstructed view of Lake Sherwood. When the Association failed to adequately address
her concerns, Patterson, representing herself, filed a complaint alleging nuisance and
intentional infliction of emotional distress. The complaint sought to enforce the
Association CC&Rs. Among other things, it alleged the Association created a "nuisance
by extensively over-planting Maid Marion Park with a variety of rapidly growing trees
and by arrogantly and oppressively refusing to maintain the Park in accordance with its
own CC&Rs."

this opinion, we identify both the current and former version of each cited statute, and
then subsequently refer only to the former version, which was in effect at the time of trial.
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              The trial court sustained the Association's demurrer to both causes of
action. Patterson retained an attorney, who filed a first amended complaint (FAC)
alleging claims for breach of zoning ordinance, nuisance, spite fence and
enforcement/breach of the Park CC&Rs. Patterson later filed a second amended
complaint (SAC) alleging the same four causes of action. Unlike the original complaint,
the FAC and SAC did not seek to enforce the Association CC&Rs.
              The trial court granted the Association's motion for summary adjudication
of the claims for breach of zoning ordinance, nuisance and enforcement/breach of the
Park CC&Rs. It determined Patterson did not have a right to an unobstructed view of the
lake and that she lacked standing to enforce the Park CC&Rs. After the jury rejected her
spite fence claim, the court entered judgment for the Association.
              The Association moved for an award of $161,474.50 in attorney fees under
section 1354, subdivision (c), arguing that, as the prevailing party, it was entitled to fees
because Patterson "sought to enforce the Park CC&Rs against the Association (the Fourth
cause of action to the [FAC and SAC]) and sought to enforce the Association's CC&Rs
against the Association in her original complaint . . . ." Patterson opposed the motion,
asserting she has never been a member of the Association and that because the Park
CC&Rs do not govern a common interest development, the Association is not entitled to
fees.
              The trial court denied the motion. Noting "[t]here are two separate
documents in play here," the court determined the Association CC&Rs do not apply
because Patterson is not a member of the Association and did not seek to enforce those
CC&Rs. It found the Park CC&Rs, which Patterson did try to enforce, govern "the
rights, responsibilities and relationship between people who are not members of the
Common Interest Development." Because Patterson did not seek to enforce the
governing documents of a common interest development or association, the court
concluded the Association could not recover fees under section 1354, subdivision (c).
The Association appeals.


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                                       DISCUSSION

                                    Standard of Review

              In determining the entitlement to attorney fees under section 1354,
subdivision (c), the appellate court conducts an independent review of whether an action
is one to enforce the governing documents of an association or common interest
development. (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664,
669.) The determination of the prevailing party and the amount of the award are
reviewed for abuse of discretion. (Villa De Las Palmas Homeowners Assn. v. Terifaj
(2004) 33 Cal.4th 73, 94; Heather Farms Homeowners Assn. v. Robinson (1994) 21
Cal.App.4th 1568, 1574.)
                                 Motion for Attorney Fees
              Section 1354 is part of the Davis-Stirling Act, which controls common
interest developments in California.2 Subdivision (c) of that section states: "In an action
to enforce the governing documents, the prevailing party shall be awarded reasonable
attorney's fees and costs." "'Governing documents' means the declaration and any other
documents, such as bylaws, operating rules, articles of incorporation, or articles of
association, which govern the operation of the common interest development or
association." (§ 1351, subd. (j), italics added.)
              The parties do not dispute that the Association CC&Rs govern the
operation of the New Sherwood Community -- a common interest development or
association -- and therefore fall within the definition of "governing documents."


       2 Section 1354 provides, in its entirety: "(a) The covenants and restrictions in the
declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure
to the benefit of and bind all owners of separate interests in the development. Unless the
declaration states otherwise, these servitudes may be enforced by any owner of a separate
interest or by the association, or by both. [¶] (b) A governing document other than the
declaration may be enforced by the association against an owner of a separate interest or
by an owner of a separate interest against the association. [¶] (c) In an action to enforce
the governing documents, the prevailing party shall be awarded reasonable attorney's fees
and costs."
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(§§ 1354, subd. (c), 1351, subd. (j); see Arias v. Katella Townhouse Homeowners Assn.,
Inc. (2005) 127 Cal.App.4th 847, 852-853.) The Association maintains this was an
action to enforce those governing documents because the original complaint alleged
violations of the Association CC&Rs. Patterson responds those allegations were
superseded by the FAC and SAC, which alleged violations of the Park CC&Rs, not the
Association CC&Rs. We agree with Patterson.
              "'It is well established that an amendatory pleading supersedes the original
one, which ceases to perform any function as a pleading. [Citations.]' [Citation.] 'Such
amended pleading supplants all prior complaints. It alone will be considered by the
reviewing court. [Citations.]' [Citation.]" (Foreman & Clark Corp. v. Fallon (1971) 3
Cal.3d 875, 884; Bassett v. Lakeside Inn, Inc. (2006) 140 Cal.App.4th 863, 869-870
(Bassett); JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) In other words, once an
amended complaint is filed, the original complaint is superseded and ceases to have any
effect as a pleading or as a basis for judgment. (Bassett, at pp. 869-870; Baltins v. James
(1995) 36 Cal.App.4th 1193, 1205, overruled on another point in Jordache Enterprises,
Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 761, fn. 9.)
              When Patterson amended the original complaint to delete the allegations
regarding the Association CC&Rs, it ceased to be an action to enforce those governing
documents. (See Bassett, supra, 140 Cal.App.4th at pp. 869-870; Baltins v. James,
supra, 36 Cal.App.4th at p. 1205.) Both the FAC and the SAC -- the operative complaint
-- sought enforcement of the Park CC&Rs against the Association, not its own CC&Rs.
Because the Association obtained judgment on the SAC, it prevailed in an action to
enforce the Park CC&Rs. The trial court properly declined to award fees based on
allegations in the superseded original complaint.
              The Association contends Patterson conceded, in her pro per opposition to
the motion for summary adjudication, that attorney fees would be available to the party
who prevailed on the SAC. It is true that Patterson asserted that section 1354 afforded
her a private right of action to enforce the Park CC&Rs. The trial court rejected that
theory, finding she lacked standing under that statute. As the Association points out,

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Patterson's lack of standing does not necessarily insulate her from an award of attorney
fees. Section 1354, subdivision (c), applies even when a plaintiff sues to enforce the
governing documents but is unsuccessful because he or she lacks standing to do so.
(Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1038-1039;
Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1014.)
              Regardless of Patterson's standing, however, attorney fees are available
only if she sought to enforce the governing documents, i.e., "the declaration and any
other documents, such as bylaws, operating rules, articles of incorporation, or articles of
association, which govern the operation of the common interest development or
association." (§§ 1351, subd. (j), 1354, subd. (c).) Under section 1354's "[n]arrow
statutory language," the critical inquiry is whether the declaration or other document,
notwithstanding its label, governs the operation of a common interest development or
association. (Gil v. Mansano (2004) 121 Cal.App.4th 739, 745; see Bear Creek Master
Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1480 ["The Davis-Stirling Act by its
own terms applies to . . . common interest developments"].)
              There is no question the Park CC&Rs govern the operation of the Park.
The question is whether, in so doing, they govern the operation of a common interest
development or association, as defined under the Davis-Stirling Act. The Association
concedes that, although it must adhere to the Park CC&Rs, they do not govern its
operation or that of any other association. (See § 1351, subd. (a) [now § 4080]; SB
Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 281, fn. 4 (SB
Liberty).) The only remaining query, therefore, is whether they govern a common
interest development.
              The Davis-Stirling Act defines "common interest development" as any of
the following: "(a) A community apartment project. [¶] (b) A condominium project. [¶]
(c) A planned development. [¶] (d) A stock cooperative." (§ 1351, subd. (c) [now §
4100]; see SB Liberty, supra, 217 Cal.App.4th at p. 281, fn. 3.) It is undisputed the Park
is not an apartment, condominium or stock cooperative. To qualify as a planned
development, a project must have either a "[c]ommon area that is owned either by an

                                             6
association or in common by the owners of the separate interests who possess
appurtenant rights to the beneficial use and enjoyment of the common area," or a
"[c]ommon area and an association that maintains the common area with the power to
levy assessments that may become a lien upon the separate interests . . . ." (§ 1351, subd.
(k) [now section 4175, subds. (a)-(b)].)
              Patterson asserts the Park does not meet the definition of a planned
development because there is neither a common area, nor the power to levy a lien on any
separate interests. (See § 1352 [now § 4200].) The Association points to no law or
evidence in the record refuting this assertion. Indeed, it does not appear to claim the Park
is a planned development. As the trial court aptly observed, because the Park CC&Rs
"govern[] the rights, responsibilities and relationship between people who are not
members of [a] Common Interest Development," they "indicate on their face that it is not
a 'common interest development.'"
              Moreover, section 1352 conditions the creation of a common interest
development upon the conveyance of certain interests and the recordation of certain
documents. (See Golden Rain Foundation v. Franz (2008) 163 Cal.App.4th 1141, 1151.)
One of the required documents is a declaration stating, among other things, "that the
common interest development is a community apartment project, condominium project,
planned development, stock cooperative, or combination thereof." (§ 1353, subd. (a)(1)
[now § 4250, subd. (a)].) That the Park CC&Rs contain no such statement reinforces the
conclusion it is not a common interest development.
              In its reply brief, the Association contends, for the first time, that it is
entitled to at least $19,086.50 in attorney fees for defending the original complaint. It
claims that by successfully demurring to that complaint, which sought to enforce its own
CC&Rs, it is the prevailing party "[i]n an action to enforce the governing documents." (§
1354, subd. (c).) Because this contention was not raised in the trial court or in the
opening brief, we decline to address it. (See, e.g., Hepner v. Franchise Tax Bd. (1997) 52
Cal.App.4th 1475, 1486 ["Points not raised in the trial court will not be considered on
appeal"]; Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213

                                               7
Cal.App.4th 1277, 1292, fn. 6 ["Arguments presented for the first time in an appellant's
reply brief are considered waived"]; Holmes v. Petrovich Development Co. (2011) 191
Cal.App.4th 1047, 1064, fn. 2 ["argument is forfeited" where "it is raised for the first time
in [appellant's] reply brief without a showing of good cause"].)
              The Association had the burden of establishing its entitlement to attorney
fees. (See Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) It
has not shown that Patterson's claim to enforce the Park CC&Rs qualified as an action to
enforce the governing documents of a common interest development or association.
(§§ 1354, subd. (c), 1351, subd. (j).) Because the Association did not prevail on an action
to enforce the governing documents, the trial court properly denied its motion for fees
under section 1354, subdivision (c).
                                       DISPOSITION
              The order denying the motion for attorney fees is affirmed. Patterson shall
recover her costs on appeal.
              NOT TO BE PUBLISHED.




                                          PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.




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                                  Henry J. Walsh, Judge

                             Superior Court County of Ventura

                            ______________________________

             Swedelsongottlieb, David C. Swedelson and Joan E. Lewis-Heard for
Defendant and Appellant.
             Law Offices of Richard L. Francis & Associates, and Richard L. Francis for
Plaintiff and Respondent.




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