Filed 1/30/14 Mabury Ranch HOA v. Peterson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE MABURY RANCH
HOMEOWNERS ASSOCIATION,
                                                                       G044759
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 30-2008-00115161)
         v.
                                                                       OPINION
JAMES R. PETERSON,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Di Cesare, Judge. Affirmed.
                   James R. Peterson, in pro. per.; Victor E. Hobbs for Defendant and
Appellant.
                   Slaughter & Reagan, William M. Slaughter and Gabriele M. Lashly for
Plaintiff and Respondent.
                                          *                  *                  *
              The Mabury Ranch Homeowners Association (the Association)
successfully sued a homeowner regarding maintenance of his property and related issues.
Due to an untimely notice of appeal, the only issue currently before this court is whether
the trial court properly granted the Association $160,000 in attorney fees and $7,213 in
costs as a prevailing party. Because Peterson has not established the trial court
committed error, we affirm.
                                              I
                                           FACTS
              In sum, the Association sued James Peterson for failing to maintain his
home. The Association received a judgment in its favor in December 2010. On January
2011, the Association filed a motion seeking $235,247 in attorney fees, plus $4,800 in
additional attorney fees and $7,213 in costs. Peterson opposed. On February 3, 2011, the
court granted the Association $160,000 in attorney fees and $7,213 in costs, stating that
“[i]t is undisputed that plaintiff prevailed in this action.” The court calculated attorney
fees at $185 per hour. The court also denied the Association’s request for prelitigation
fees of $10,199.
              Peterson appealed, both from the underlying judgment and from the
attorney fees order. On March 29, 2013, in response to the Association’s motion to
dismiss the appeal, we filed an order dismissing the appeal “as untimely to the extent it
purports to appeal from the judgment filed on December 3, 2010. Appellant’s notice of
appeal, filed on February 4, 2011 is more than 60 days after respondent’s service of
notice of entry of judgment, which service occurred on December 3, 2010.” We noted
that we could, however, review the issue of attorney fees and costs. On April 26, we




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denied Peterson’s petition for rehearing on the order. On June 19, Peterson filed a
“corrected” reply brief, purportedly in response to the court’s orders.1
                                              II
                                       DISCUSSION
              We first note that in his reply brief, refiled after we issued the order
granting the motion to dismiss, Peterson purports to incorporate by reference his entire
argument regarding attorney fees and costs in the trial court. This is improper. “‘[I]t is
entirely inappropriate for an appellate brief to incorporate by reference documents and
arguments from the proceedings below. . . .’ [Citations.] ‘An appellant cannot rely on
incorporation of trial court papers, but must tender arguments in the appellate briefs.’
[Citation.]” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn.18.)
Further, “[i]t is well established, [that], this practice does not comply with rule
8.204(a)(1)(B) of the California Rules of Court, which requires an appellate brief
‘support each point by argument and, if possible, by citation of authority.’” (Parker v.
Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 290, fns. omitted.) We
therefore decline to consider any argument not actually briefed. (Id. at p. 291.)
              Moreover, Peterson’s reply brief borders on incoherence. He never
squarely addresses either the issue of whether the Association is entitled to attorney fees
under law or contract or the amount of those fees. Instead, under the guise of “invited
error caused by attorney’s work which caused Court Error,” he seeks to use the attorney
fee issue as a reason to reverse the entire judgment. “The Appellant respectfully requests
that the lawsuit be dismissed with prejudice . . . .”


1 On June 20, 2013, after we issued our order granting the Association’s motion to
dismiss the appeal with the exception of attorney fees and costs, Peterson filed a motion
to augment the record with documents regarding the HOA’s bylaws, election rules, an
election tally sheet, and photographs of Peterson’s residence. Although these documents
are not pertinent to the only issue remaining on appeal, the motion is unopposed, and we
therefore grant it.

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              In short, Peterson’s briefs do not discuss, with reasoned argument and
citations, the only issues he was permitted to pursue. At oral argument, he again
addressed issues relating to the validity of the underlying judgment, which is now final,
rather than the question of attorney fees and costs. We would be well within the scope of
proper appellate procedure to deem his entire argument waived. (Jones v. Superior Court
(1998) 26 Cal.App.4th 92, 99.) Instead, we will briefly address the relevant points
relating to attorney fees and costs.
              The first question is whether the Association was legally entitled to
attorney fees. Article XIV, Section 9 of the Association’s CC&R’s states: “In the event
action is instituted to enforce any of the provisions contained in this Declaration, the
party prevailing in such action shall be entitled to recover from the other party thereto
and as part of the judgment, reasonable attorneys’ fees and costs of suit.” Thus, under
this provision, the Association is entitled to fees under ordinary theories of contract law
and Civil Code section 1717. Further, Civil Code section 1354, subdivision (c), provides
that “In an action to enforce the governing documents, the prevailing party shall be
awarded reasonable attorney’s fees and costs.” As the trial court noted, “[i]t is
undisputed that plaintiff prevailed in this action.” Thus, as the prevailing party, the
Association is entitled to attorney fees.
              The only other question is whether the fees awarded were reasonable.
Despite Peterson’s assertions of “invited error caused by attorney’s work which caused
Court Error,” he offers no authority, and no evidence other than his opinion, as to why
this should reduce the attorney fee award. Indeed, the Association, in its motion below,
offered admissible evidence to establish that if anything increased the amount of attorney
fees in this case, it was Peterson’s intransigence.
              The trial court determined that $185 per hour was reasonable, although the
Association’s counsel’s declaration stated he ordinarily received $220 to $240 per hour.
Peterson offered no evidence to show that either the rate nor the number of hours worked

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was unreasonable. He similarly offers no argument on costs. We find no error with
respect to either award.
                                             III
                                      DISPOSITION
               The judgment is affirmed. The Association is entitled to its costs on
appeal. The Association may file an appropriate motion for attorney fees on appeal with
the trial court.




                                                   MOORE, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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