Filed 9/30/13 Quillinan v. Papavassiliou CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


CYPORETTE QUILLINAN et al.,
         Plaintiffs and Appellants,
                                                                     A136810, A136813
v.
ANNA PAPAVASSILIOU,                                                  (Alameda County
                                                                     Super. Ct. No. RG-10550466)
         Defendant and Respondent.


         Plaintiffs Cyporette, Kevin, John, and Moshe Quillinan sued their landlord, Anna
Papavassiliou, for damages suffered in connection with her alleged maintenance of
substandard rental housing. After two and one-half years of litigation, Cyporette, John,
and Moshe filed voluntary dismissals of their claims.1 Two weeks later, Kevin moved for
leave to file an amended complaint, but before the motion was heard he, too, dismissed
his claims, terminating the action. Papavassiliou thereafter moved for statutory attorney
fees, contending she was a prevailing party by virtue of plaintiffs‘ voluntary
abandonment of the action. The trial court granted the motion. Finding no abuse of
discretion, we affirm.
                                               I. BACKGROUND
         Plaintiffs initiated this lawsuit in November 2009. Their third amended complaint
(complaint), filed on December 13, 2011, alleges they lived in a ―dilapidated‖ apartment
building in Berkeley ―owned and/or managed‖ by Papavassiliou. The complaint
         1
         When referring to the individual plaintiffs, we will use their first names for
clarity. We mean no disrespect in observing this convention.
describes in detail plaintiffs‘ dealings with Papavassiliou and her agents in an effort to
obtain the repair of various deficiencies in the building and alleges 10 causes of action,
including attempted retaliatory eviction (Civ. Code, § 1942.5, subd. (c)) and wrongful
collection of rent for a substandard dwelling (Civ. Code, § 1942.4, subds. (a), (b)).
Although plaintiffs were self-represented, the record suggests the case was vigorously
litigated on both sides.
       On July 5, 2012, Papavassiliou moved for a continuance of the October 2012 trial
date on the grounds additional time was necessary for discovery and she intended to file a
motion for summary adjudication of certain claims. One week later, on July 13, John,
Moshe, and Cyporette filed requests for voluntary dismissal of their claims. On July 18,
Kevin filed a motion for leave to file an amended complaint. Papavassiliou responded on
July 24 with a motion to compel discovery, for sanctions, and for appointment of a
referee. Before any of the pending motions were heard, on July 30, Kevin filed a request
for a voluntary dismissal of his claims. Judgment was entered for Papavassiliou the next
day.
       In September, Papavassiliou filed a motion for statutory attorney fees, citing as
authority Civil Code sections 1942.4 and 1942.5, and Code of Civil Procedure
section 1033.5. Papavassiliou argued she was a prevailing party as a matter of law
because plaintiffs had voluntarily dismissed their action. Kevin and Cyporette opposed
the motion. In a declaration, Cyporette explained she dismissed her claims because she
thought Papavassiliou intended to repair the substandard conditions in their home. A
housing inspector had told her Papavassiliou had applied for building permits to repair
the premises, and Papavassiliou had begun some repairs. After a discussion with Kevin,
her husband, the couple ―mutually decided to give the Defendant one more chance to
repair our premises. Following through on our belief, we dismissed this action without
prejudice to see if Defendant would continue to perform repairs.‖ Kevin stated in his
declaration that he dismissed the action on the same basis. Kevin‘s declaration further
stated that Papavassiliou had not, in fact, proceeded with the needed repairs, and as a



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result he had initiated an action against her in federal court, filed one week after his
request for dismissal.
         The trial court granted the motion, awarding attorney fees of $32,036.25. In the
written order explaining its rationale, the trial court found not credible Cyporette‘s and
Kevin‘s explanation for their dismissals, citing Kevin‘s filing of the federal action barely
one week after his dismissal and his statement in connection with the motion for leave to
file an amended complaint, two weeks prior to his dismissal, that he believed
Papavassiliou did not intend to perform substantive repairs but instead to do cosmetic
work. The court then reasoned: ―Even if Plaintiff had dismissed his action based on
[the] good-faith but—on his own account—readily-proven-erroneous belief that he had
attained his litigation goal, that would not change the reality that Defendant is the
‗prevailing party ―on a practical level‖ ‘ (Galan [v. Wolfriver Holding Corp. (2000)]
80 Cal.App.4th [1124,] 1129 [(Galan)]).‖ Analogizing the circumstances to those in
Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146 (Salehi),
discussed below, the court concluded: ―[E]ven assuming Plaintiff dismissed the action in
[the] good-faith belief that he had induced Defendant to make repairs, that would mean
that Plaintiff mistook himself for the prevailing party, while Defendant actually was the
prevailing party. As such, she is entitled to recover her attorney‘s fees pursuant to Civil
Code sections 1942.4 and 1942.5.‖
                                      II. DISCUSSION
         Plaintiffs contend the trial court erred in finding Papavassiliou to be the prevailing
party.
         Civil Code section 1942.4 precludes a landlord of substandard housing from
collecting rent and permits a tenant to obtain an order requiring the landlord to repair the
deficiencies. (Id., subds. (a), (c).) Civil Code section 1942.5 precludes retaliation by a
landlord against a tenant seeking to enforce rights under regulatory statutes such as
section 1942.4. Both section 1942.4, subdivision (b)(2) and section 1942.5,
subdivision (g) provide that the court ―shall‖ award reasonable attorney fees and costs to
the prevailing party in an action brought under the statute. Such language makes an


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award of attorney fees to the prevailing party mandatory, assuming there is a prevailing
party. (Hsu v. Abarra (1995) 9 Cal.4th 863, 872.)
         Neither Civil Code section 1942.4 nor 1942.5 defines ―prevailing party‖ for
purposes of an award of attorney fees. Accordingly, ―the determination of which party, if
either, prevailed in an action brought under section 1942.4 is a matter left to the
discretion of the trial court.‖ (Galan, supra, 80 Cal.App.4th at p. 1128.) In these
circumstances, the trial court is required to determine which party, if either, ―was the
prevailing party ‗on a practical level.‘ ‖ (Id. at p. 1129.) This calls for a ―pragmatic
approach,‖ requiring ―consider[ation of] the extent to which each party realized its
litigation objectives.‖ (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252,
1264.)
         Because the decision to award attorney fees is left to the discretion of the trial
court, we review for abuse of discretion. (Heather Farms Homeowners Assn. v.
Robinson (1994) 21 Cal.App.4th 1568, 1574.) ― ‗ ―[D]iscretion is abused whenever . . .
the court exceeds the bounds of reason, all of the circumstances before it being
considered.‖ [Citation.]‘ [Citation.] ‗In deciding whether the trial court abused its
discretion, ―[w]e are . . . bound . . . by the substantial evidence rule. [Citations.] . . . The
judgment of the trial court is presumed correct; all intendments and presumptions are
indulged to support the judgment; conflicts in the declarations must be resolved in favor
of the prevailing party, and the trial court‘s resolution of any factual disputes arising from
the evidence is conclusive.‖ ‘ ‖ (Salehi, supra, 200 Cal.App.4th at p. 1154.)2
         Plaintiffs argue Papavassiliou was required to demonstrate their claims were
frivolous in order to recover attorney fees. The case on which plaintiffs rely,
Christiansburg Garment Co. v. Equal Employment Opportunity Comm. (1978) 434 U.S.
412, addresses the standard for recovery of attorney fees under a federal statute, title 42

         2
         Plaintiffs argue for de novo review, but that standard is applicable only when the
decision to award attorney fees is a matter of statutory interpretation. (Carver v. Chevron
U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) This case does not call for statutory
interpretation, since the standard for an award of attorney fees is well-established.


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United States Code section 2000e-5(k), that is not relevant here. (Christiansburg, at
p. 413, fn. 1.) As discussed above, Galan directly addresses the standard to be applied
under Civil Code section 1942.4, applying the ―practical level‖ test. Because plaintiffs
provide no grounds for rejecting that decision, we apply the Galan standard.
       In Galan, the plaintiffs entered into a settlement agreement with the prior owners
of their residence, agreeing as part of the settlement to dismiss their claims against the
current owner, who had purchased the building from one of the settling defendants. The
settling defendants apparently insisted on this dismissal because the current owner had
filed suit against them in connection with the sale. In turn, the plaintiffs had no strong
incentive to pursue the current owner because there were questions about the
collectability of a judgment against it. The trial court denied an award of prevailing party
attorney fees to the current owner, notwithstanding the plaintiffs‘ voluntary dismissal.
(Galan, supra, 80 Cal.App.4th at p. 1126.) The Court of Appeal affirmed the denial,
rejecting the argument the current owner was a prevailing party as a matter of law
because it had been dismissed. The court found no abuse of discretion in the trial court‘s
conclusion there was no prevailing party, noting the settlement did not ―exonerate‖ the
current owner, the plaintiffs had reached a satisfactory settlement with the other
defendants, and the plaintiffs could have decided as a practical matter it was not worth
the further expense of pursuing the current owner. (Id. at p. 1129.)
       Salehi, cited by the trial court, did not arise under either Civil Code section 1942.4
or 1942.5, but it applied the same ―practical level‖ standard for determining the
prevailing party in a claim for statutory attorney fees. The pro se plaintiff in Salehi, an
attorney, sued her condominium association. At the same time, she represented another
condominium owner in a similar lawsuit. (Salehi, supra, 200 Cal.App.4th at p. 1151.)
Two weeks before scheduled trial in Salehi, but after the conclusion of trial in the parallel
lawsuit, the plaintiff told defense counsel that an expert witness had become seriously ill
and would be unavailable for trial. The plaintiff said she planned to dismiss all of her
claims other than the claims for fraud and negligent misrepresentation and to refile the
dismissed claims after the expert had recovered. Shortly thereafter, she filed a voluntary


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dismissal of most of her claims. At about the same time, a statement of decision was
rendered in the parallel lawsuit granting judgment to the association. In addition, the
plaintiff moved for a continuance of trial on the remaining claims for fraud and
misrepresentation. (Ibid.) The defendant, arguing the plaintiff dismissed her claims
because she realized she would lose at trial, unsuccessfully sought statutory attorney fees
in connection with the dismissed claims. (Id. at p. 1152.)
       The Court of Appeal reversed, holding the trial court abused its discretion in not
finding the defendant to be the prevailing party. In explanation, the court said: ―When
Salehi filed her request for dismissals on January 8, 2010, she should have known that
her expert‘s unavailability would constitute good cause for a continuance. The trial court
would have abused its discretion had it denied a continuance in these circumstances. . . .
[¶] Instead of moving for a continuance on all of the causes of action, as a competent
attorney would have done, Salehi dismissed eight of them. These dismissals were
unnecessary because she was entitled to a continuance. . . . [¶] . . . Even though Salehi‘s
dismissals were based on reasons unrelated to ‗the probability of success on the merits‘
[citation], it is unfair to deprive Association of its reasonable attorney fees. Because of
Salehi‘s dismissals, Association ‗realized its litigation objectives.‘ [Citation.] The
dismissals were due to Salehi‘s faulty reasoning. To shield her from attorney fees
liability would reward what the trial court characterized as her ‗poor decisions.‘ She
should not be able to take advantage of her own fault or wrong.‖ (Salehi, supra,
200 Cal.App.4th at pp. 1155–1156.)
       We agree with the trial court that this case is much closer to Salehi than Galan.
Like any defendant, Papavassiliou‘s objective in the litigation was a defense judgment.
As a result of the voluntary dismissals, she achieved this objective. Judging from the
complaint, plaintiffs were seeking compensatory and punitive damages; their demand
contains no request for any other type of relief. Unlike the plaintiffs in Galan, who
entered into a settlement with other defendants, plaintiffs received nothing in return for
their dismissals. On this ―practical level,‖ the trial court did not abuse its discretion in
finding Papavassiliou to be the prevailing party.


                                               6
       In their opposition to the motion for attorney fees, plaintiffs contended they
thought they had achieved their litigation objective because Papavassiliou appeared ready
to repair their property. The trial court found this claim not credible, since Kevin was
already concerned at the time he filed his dismissal that Papavassiliou‘s conduct was a
sham, and he filed his federal lawsuit only a week later. Because this finding is
supported by substantial evidence, we must accept it as correct.
       Even if that were not the case, plaintiffs‘ contention is contradicted by the
complaint, which, as noted, seeks only monetary relief. Although Civil Code
section 1942.4, subdivision (c) permits a court to order abatement of substandard
conditions, plaintiffs‘ cause of action under section 1942.4 makes no reference to such
relief. In any event, as the trial court noted, to the extent plaintiffs mistakenly dismissed
while believing Papavassiliou was acting in good faith, Salehi suggests they must live
with the consequences of their mistake.
       In this court, plaintiffs contend they achieved their litigation objectives because
the filing of their lawsuit caused Papavassiliou to stop insisting on the payment of rent, as
prohibited by Civil Code section 1942.4. Plaintiffs waived this argument when they
failed to present it to the trial court. (See, e.g., In re Marriage of Zimmerman (2010)
183 Cal.App.4th 900, 912 (Zimmerman) [a reviewing court will ordinarily not consider
claims made for the first time on appeal].)
       Plaintiffs have moved for judicial notice of various documents, contending, among
other arguments, they demonstrate Papavassiliou dismissed an unlawful detainer action
as a result of their filing of this action. While we grant the motion and take judicial
notice of the documents, they do not change our decision. Plaintiffs were required to
present the evidence and arguments about the factual issue of their motive for dismissing
to the trial court. (Zimmerman, supra, 183 Cal.App.4th at p. 912.) The issue cannot be
relitigated on appeal.3

       3
         We note, however, that among the documents in the motion for judicial notice is
a first amended complaint in a new state action containing virtually identical claims to
those in the dismissed action. There can hardly be a better indication that plaintiffs failed

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       Plaintiffs also argue the trial court erred in setting the amount of attorney fees
because it failed to take into account their financial circumstances. There is legal
authority for their position that a plaintiff‘s financial condition can be considered by the
trial court in setting the amount of an award of statutory attorney fees. (See, e.g., Garcia
v. Santana (2009) 174 Cal.App.4th 464, 476–477.) Plaintiffs waived this argument,
however, when they failed to raise or support it in the trial court. (Zimmerman, supra,
183 Cal.App.4th at p. 912.) Their opposition to the attorney fees motion does not seek a
reduction of the award on this basis, and their accompanying declarations contain no
information about their financial condition. Even if the issue had been raised, any such
reduction of the award would have been without evidentiary support because plaintiffs
failed to present any evidence of their financial condition to the trial court.
                                    III. DISPOSITION
       The judgment of the trial court is affirmed.



                                                   _________________________
                                                   Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Sepulveda, J.*



to achieve their litigation objectives in this action than their refiling of the same claims in
a new action. Had their objectives been met, there would be no need for them to refile.
       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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