Filed 5/28/14 Sungate Country Owners Assn. v. Stephens CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



SUNGATE COUNTRY OWNERS
ASSOCIATION,
                                                                         E055751
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. INC1104718)
v.
                                                                         OPINION
TERRY STEPHENS,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Randall Donald White,

Judge. Affirmed.

         Terry Stephens, in pro. per.; Law Offices of Lawrence R. Bynum and Lawrence R.

Bynum for Defendant and Appellant.

         Guralnick & Gilliland, Wayne S. Guralnick and Daniel M. Parlow for Plaintiff and

Respondent.




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                                              I

                                     INTRODUCTION

       Defendant Terry Stephens appeals from an order awarding plaintiff Sungate

Country Owners Association (Sungate) its attorney’s fees under former Civil Code

section 1354, subdivision (c).1 The record on appeal discloses that disputes between

Sungate and Stephens began as early as 2008. Sungate brought this action against

Stephens to compel compliance with its covenants, conditions, and restrictions (CC&Rs).

After the trial court granted a preliminary injunction, Stephens sold his property and

moved. Sungate dismissed the case without prejudice. The trial court made a mandatory

award of attorney’s fees of $13,482.50 to Sungate. (§ 1354, subd. (c).)CT 385}

       On appeal, Stephens contends that the trial court deprived him of constitutional

due process by denying a continuance of the hearing on Sungate’s motion for attorney’s

fees and abused its discretion by determining that Sungate was the prevailing party. In

that we are dealing with a statutory award of attorney’s fees, the trial court did not lose

jurisdiction after Sungate filed a voluntary dismissal. (Parrott v. Mooring Townhomes

Assn., Inc. (2003) 112 Cal.App.4th 873, 876-877.) We hold there was no error or abuse

of discretion and affirm the trial court’s postdismissal order awarding fees to Sungate.


       1  This case was conducted in 2011 and 2012 under the Davis-Stirling Common
Interest Development Act, former Civil Code section 1350 et seq. repealed in 2012,
operative in 2014, reenacted as Civil Code section 4000 et seq. All further statutory
references are to these former code sections unless stated otherwise.



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                                              II

                       FACTUAL AND PROCEDURAL HISTORY

       On June 9, 2011, Sungate filed a complaint against Stephens2 for breach of

CC&Rs, injunctive relief, and declaratory relief. The complaint alleged Sungate is an

owner’s association that was organized to manage a common interest development

(§ 1351, subd. (c)), located in Cathedral City and known as “Sungate Country.” Stephens

was an owner of a lot subject to the use restrictions contained in Sungate’s CC&Rs.

Sungate’s lots are used exclusively for parking and residing in recreational vehicles. No

permanent residential structures are allowed. In June 2011, Stephens had begun living on

his lot without an approved recreational vehicle and engaging in construction of a

permanent residential structure in violation of the CC&Rs. Sungate sought injunctive

and declaratory relief and attorney’s fees.

       On June 13, 2011, Sungate made an ex parte application for a temporary

restraining order and an order to show cause for a preliminary injunction, seeking to

prohibit Stephens from 1) residing on his lot without the presence of an approved

recreational vehicle and 2) engaging in construction activities. The trial court denied the

temporary restraining order but set a hearing for the preliminary injunction. In its reply,




       2   The other defendant, Stephens’s mother, Clara Stephens, is not a party to this
appeal.



                                              3
Sungate described how Stephens continued to live on the property and engage in

construction activity for 12 days in June and July 2011.

       In response, Stephens filed a request asking for an alternative dispute resolution

procedure pursuant to sections 1363.810 through 1363.850. He also filed a declaration

admitting that the approved recreational vehicle had been removed but disputing that he

was in violation of the CC&Rs and asking that the court deny the injunction. Stephens

also filed an answer to the complaint.

       Stephens filed a request seeking a continuance to obtain a lawyer. Stephens also

filed a sur-opposition, again denying that he was engaged in illegal construction or living

on the property. He repeated his request for alternative dispute resolution.

       On July 19, 2011, the trial court granted the preliminary injunction sought by

Sungate.3 In accordance with the terms of the injunction, on August 5, 2011, Sungate

granted Stephens written permission to proceed with “deconstruction activities” to

facilitate the sale of the lot. Stephens and his mother then sold their lot. On October 27,

2011, Sungate dismissed its action without prejudice.

       In December 2011, Sungate filed a motion for attorney’s fees, asserting it was the

prevailing party because it had succeeded in compelling Stephens to comply with the

governing documents, the CC&Rs. The amount of fees sought was $13,482.50 of the

       3 To the extent that Stephens attempts to challenge the preliminary injunction, it is
not appealable more than 180 days after its issuance. (Cal. Rules of Court, rule 8.104;
Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 254.)



                                             4
$30,000 charged to Sungate. Sungate’s lawyer, Daniel M. Parlow, declared that Stephens

had refused to participate in informal dispute resolution.

       On December 28, 2011, Stephens filed an application to continue the hearing,

which was denied by the trial court. On December 29, 2011, Stephens filed his

opposition to Sungate’s motion. His primary objection was that the attorney’s fees were

an unreasonable amount, citing section 1369.850, because Sungate had refused to

participate in alternative dispute resolution procedures.

       In its reply, Sungate asserted that the alternative procedure demanded by Stephen

differed from that set forth in the Davis-Stirling Act. Additionally, Sungate had complied

with section 1369.560, subdivision (a), which authorizes filing a complaint seeking

injunctive relief without engaging in alternative dispute resolution.

       At the telephonic hearing on January 4, 2012, Stephens argued that it was

unreasonable to award fees after he had sold the property for only $25,000. The trial

court took the matter under submission and subsequently awarded attorney’s fees in the

amount of $13,482.50 in favor of Sungate against Stephens. Stephens appealed. (Code

Civ. Proc., § 904.1, subd. (a)(2).)

                                             III

               THE POSTDISMISSAL AWARD OF ATTORNEY’S FEES

       Stephens’s due process arguments are based on a claim that the trial court

wrongfully denied his request for a continuance to obtain legal counsel. The standard of

review is abuse of discretion. (Mahoney v. Southland Mental Health Associates Medical

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Group (1990) 223 Cal.App.3d 167, 170 (Mahoney).) In determining the entitlement to

attorney’s fees under section 1354, subdivision (c), the appellate court conducts an

independent review of whether an action is one to enforce an association’s governing

documents. (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 668.)

The determination of the prevailing party and the amount of the award are reviewed for

abuse of discretion. (§§ 1354, subd. (c), 1369.580; Villa De Las Palmas Homeowners

Association v. Terifaj (2004) 33 Cal.4th 73, 94 (Villa De Las Palmas), citing Heather

Farms Homeowners Association v. Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather

Farms).)

       Two statutes affect this appeal. Section 1354, subdivision (c), provides: “In an

action to enforce the governing documents, the prevailing party shall be awarded

reasonable attorney’s fees and costs.” Section 1369.580 provides: “In an enforcement

action in which fees and costs may be awarded pursuant to subdivision (c) of Section

1354, the court, in determining the amount of the award, may consider whether a party’s

refusal to participate in alternative dispute resolution before commencement of the action

was reasonable.”

       Stephens had no right to a continuance on the attorney’s fees motion as a matter of

law. In civil proceedings, the due process clauses of the United States and California

Constitutions guarantee the right of a party to appear by counsel retained at his own

expense but do not compel the state to provide representation or ensure the representation

is competent. (Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027.) In any event,

                                             6
although Stephens apparently consulted with attorneys, none ever appeared on his behalf.

Instead, Stephens chose to represent himself although he had the opportunity to retain

counsel. The courts are not “a sanctuary for chronic procrastination and irresponsibility

on the part of either litigants or their attorneys.” (Nelson v. Gaunt (1981) 125 Cal.App.3d

623, 638 [upholding the denial of a pro. per. litigant’s application for a continuance].)

The trial court’s denial of a continuance was not an abuse of discretion causing a

“miscarriage of justice.” (Mahoney, supra, 223 Cal.App.3d at p. 170.)

       Stephen’s appeal also fails on the merits because substantial evidence supports the

trial court’s finding that Sungate was the prevailing party entitled to a mandatory award

of attorney’s fees. (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th

1024, 1039.) The trial court has no discretion in granting such fees, other than

reasonableness and amount. (Chapala Management Corp. v. Stanton (2010) 186

Cal.App.4th 1532, 1546.) Here the trial court found that Sungate’s action against

Stephens was to enforce compliance with the governing documents, and Sungate was the

prevailing party. As to the first element, there was no question that Sungate sought to

enforce the use restrictions about residency and construction activities set forth in the

CC&Rs. Stephens does not plausibly contend otherwise.

       As to the second element, the “prevailing party” under section 1354, subdivision

(c), is not rigidly interpreted but determined on a “practical level.” (Heather Farms,

supra, 21 Cal.App.4th at p. 1574.) The issue is generally controlled by whether the

moving party achieved its main litigation objective. (Villa De Las Palmas, supra, 33

                                              7
Cal.4th at p. 94.) In other cases involving statutory fee awards, a plaintiff is considered a

prevailing party when the lawsuit was a “catalyst” motivating a defendant to provide the

primary relief sought or succeeded in activating defendant to modify his behavior.

(California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 741; Elster v. Friedman

(1989) 211 Cal.App.3d 1439, 1443.)

       Here Sungate succeeded in enjoining Stephens from residing on his lot without a

permitted recreational vehicle and from engaging in unauthorized construction activities,

which finally motivated him to comply with the CC&Rs, as set forth in the declaration of

a Sungate board member. After the injunction was granted, Sungate allowed Stephens to

complete authorized “deconstruction” activities. Nevertheless, in simple language,

Sungate got what it wanted and prevailed. After Stephens sold his lot rendering the

action moot, Sungate properly dismissed its lawsuit without prejudice. Nonetheless,

Sungate satisfied its litigation objectives.4 (Silver v. Boatwright Home Inspection, Inc.

(2002) 97 Cal.App.4th 443, 452.) The trial court correctly decided that Sungate was

entitled to an award of attorney’s fees.




       4 Civil Code section 1717, which applies to contractual attorney’s fees provisions,
does not apply to fees awarded under section 1354, subdivision (c). (Heather Farms, 21
Cal.App.4th at p. 1572.)



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                                             IV

                                      DISPOSITION

       Sungate asks this court to award appellate costs and fees, citing Carter v. Cohen

(2010) 188 Cal.App.4th 1038, 1053, holding that the statutory authorization for the

recovery of attorney’s fees incurred at trial generally includes attorney’s fees incurred on

appeal unless the statute specifically provides otherwise. Nevertheless, in the interests of

justice, we order the parties to bear their own costs on appeal, including fees. (Cal. Rules

of Court, rule 828(a)(5).) We affirm the trial court’s postdismissal order awarding

attorney’s fees to Sungate.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                           J.

We concur:


RAMIREZ
                        P. J.


KING
                           J.




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