Opinion
NOT TO BE PUBLISHED
Superior Court of Ventura County No. CIV 226690 Steven Hintz, Judge
Thomas Bleauvelt for Plaintiff and Appellant Damir De Balkany.
Ferguson Case Orr Paterson LLP, James Q. McDermott, Leslie A. McAdam for Defendants and Respondents Mission Plaza Townhomes Owners Association, Ray Byrom and Kathleen Michel.
PERREN, J.
This is the third in a series of lawsuits filed by Damir De Balkany (De Balkany) against Mission Plaza Townhomes Owners Association et al. (Mission Plaza). Although the complaint alleges numerous wrongful acts against Mission Plaza, the primary focus of the lawsuits is a dispute over reconstruction of a balcony attached to De Balkany's condominium units.
Mission Plaza's request that we take judicial notice of complaints filed in two of the prior lawsuits is granted. (Evid. Code, §§ 452, 459.) Its request to take judicial notice of two correction notices issued by the Ventura City Fire Department is denied because the facts are not established. (See, e.g., Dean W. Knight & Sons, Inc. v. First Western Bank & Trust Co. (1978) 84 Cal.App.3d 560, 568.) For the same reason, we deny De Balkany's request to take judicial notice of a document entitled "Condominium Plan." De Balkany's request for sanctions is denied.
This appeal is from orders granting Mission Plaza's motion to enforce a settlement agreement and awarding it attorney fees pursuant to Civil Code section 1717. De Balkany asserts that, although the trial court granted Mission Plaza's motion to enforce the settlement agreement and awarded it attorney fees, the court in fact gave De Balkany all the relief he requested in his counter motion to enforce the agreement; therefore, he, not Mission Plaza, is the prevailing party and entitled to attorney fees under section 1717. We affirm.
All statutory references are to the Civil Code.
FACTUAL AND PROCEDURAL HISTORY
De Balkany owns two adjacent condominium units in Mission Plaza. He resides there with his 15-year-old son who suffers from muscular atrophy and is in a wheelchair. The lawsuits were precipitated by De Balkany's unpermitted removal of a shear wall between the balconies attached to his units to provide wheelchair access for his son and Mission Plaza's subsequent attempts to rebuild the balcony to conform to applicable building codes and its CC&R's.
The first two lawsuits De Balkany filed against Mission Plaza were dismissed pursuant to a settlement agreement after mediation on December 8, 2003. Four months later, on April 20, 2004, De Balkany filed this lawsuit alleging Mission Plaza failed to comply with the settlement agreement. The first amended complaint alleges Mission Plaza refused to allow construction of a wheelchair ramp, denied parking adjacent to De Balkany's residence for his handicapped-equipped van, and retaliatory vandalism against him and his family.
The complaint alleges Mission Plaza failed to remove tree roots, interfered with De Balkany's construction of a handicapped access ramp, failed to allow him to park a handicapped transportation van adjacent to his condominium units, physically harassed him, jammed toothpicks in the locks of his vehicles and home, put dead animals on his property, slashed his tires, put paint on his car, turned off the water to his residence, put sugar in his gas tank, towed his cars, gave him unwarranted parking tickets, assaulted him, stole his rebar, used undocumented workers, and caused property damage, including mold, plumbing problems, rodent infestations, and termite damage.
Mission Plaza filed an answer and a cross-complaint alleging De Balkany was in breach of multiple provisions of Mission Plaza's CC&R's--using his condominiums for business purposes and storage; constructing interior and exterior changes without prior approval from Mission Plaza; leaving debris and rubbish in the common areas; and creating various nuisances, including blocking the access of other residents.
The complaint was dismissed without prejudice on May 25, 2005, after the parties entered into a second settlement agreement. The agreement provides in part: "Mission Plaza agrees to construct a wheelchair ramp and a balcony between De Balkany's two units. The parties agree not to disrupt or interfere with each other's employees or agents. They further agree that "in any action or interpretation of this Agreement . . . the successful party therein shall be entitled to receive actual attorney's fees … from the unsuccessful party." The parties agreed that Judge Steven Hintz would "retain jurisdiction over the parties" to enforce the agreement "through performance of its terms pursuant to California Code of Civil Procedure Section 664.6."
On August 5, 2005, Mission Plaza filed an ex parte application to enforce the settlement agreement after De Balkany refused access to the contractor hired by Mission Plaza to repair the balcony. De Balkany filed opposition asserting that Mission Plaza refused to provide him with a scope of work, made misrepresentations regarding permit requirements for demolition and reconstruction of the balcony, and failed to give him adequate notice of the time and date of repairs.
On August 22, 2005, the court issued an order granting Mission Plaza's motion to enforce the settlement agreement. The order required De Balkany to "unlock all gates adjacent to Units 1 and 3 between the hours of 6:45 a.m. to 6:00 p.m. Monday through Saturday until the work is done or until other arrangements are made"; prohibited De Balkany from disrupting or interfering with the contractor's work; and required De Balkany to remove debris and possessions so the contractor could perform the required work.
Approximately nine months later, on May 12, 2006, De Balkany, no longer represented by an attorney, filed a motion to enforce the settlement agreement asserting the contractor was not following applicable building regulations; the contractor was not qualified; Mission Plaza was interfering with his quiet enjoyment of his property; Mission Plaza had failed to repair termite damage and had not started repairs to the balcony, rain gutters, and roof flashing. One week later, De Balkany filed an ex parte application for a restraining order and injunction prohibiting Mission Plaza "from replacing/altering the existing balconies [at units 1 and 3] unless and until they show at [a] hearing that such demolition/construction is authorized by the Settlement Agreement." De Balkany asserted Mission Plaza had violated the settlement agreement because the contractor began to install posts under the existing balcony and he had not agreed to this type of construction.
On May 22, 2006, Mission Plaza filed "partial opposition to plaintiff's motion to enforce settlement agreement," asserting that its contractor's attempts to repair the balcony have been made impossible by De Balkany's interference, including assaulting the contractor by throwing a piece of rebar at him. Both parties filed additional motions and points and authorities seeking enforcement of the settlement agreement.
On June 23, 2006, De Balkany, now represented by an attorney, filed points and authorities in opposition to enforcement of paragraph Q of the settlement agreement. In addition to asserting Mission Plaza's breach of the agreement, De Balkany contended that paragraph Q, relating to reconstruction of the balcony, was too indefinite to be enforceable, no meeting of the minds had occurred, and enforcement would be unduly burdensome for the court. The same day, Mission Plaza filed additional opposition to De Balkany's motion to determine breach of settlement agreement. Mission Plaza asserted that De Balkany had undertaken structural modifications to his property without permission and had submitted fraudulent bids in the name of licensed contractors. Mission Plaza advised the court that it had consulted with multiple structural engineers, who developed plans to construct a balcony to withstand the load requirements of a heavy wheelchair and to be compatible with the rest of the complex.
On June 30, 2006, the court issued a ruling on submitted matter denying De Balkany's motion and granting Mission Plaza's motion. Mission Plaza filed a motion for attorney fees and costs in the amount of $18,205.68. De Balkany filed an opposition to the motion objecting to certain costs and asserting that Mission Plaza was not the prevailing party under section 1717. On August 1, 2006, De Balkany filed a document entitled "plaintiff's opposition to defendants' motion for attorney's fees; plaintiff's motion to determine prevailing party and for attorney's fees." Subsequently, De Balkany filed supplemental points and authorities in opposition to Mission Plaza's motion for attorney fees asserting that an order requiring him to pay attorney fees would violate his civil rights.
On September 11, 2006, the court issued a ruling on submitted matter denying De Balkany's motion, stating in part: "The court determined that defendant was the prevailing party in its ruling of June 30, 2006. No motion for reconsideration was filed and plaintiff's present motion to be declared the prevailing party is too late and procedurally inappropriate. The Association is the prevailing party and is entitled to fees and costs as ordered . . . . De Balkany is not the prevailing party and is not entitled to fees and costs. That motion is denied."
In this appeal, De Balkany asserts that, although the trial court granted Mission Plaza's motion to enforce the settlement agreement and denied his motion, he is in fact the prevailing party because he obtained the relief he sought in his motion and is the prevailing party entitled to attorney fees under section 1717.
DISCUSSION
The sole issue in this appeal is which party prevailed on the merits for the purposes of an award of attorney fees under section 1717. Section 1717, subdivision (b)(1) provides that "[t]he court . . . shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section."
In Hsu v. Abbara (1995) 9 Cal.4th 863, 876, our Supreme Court adopted the following standard for determining the prevailing party under section 1717: "[I]n deciding whether there is a 'party prevailing on the contract,' the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by 'a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.''' The court also said: "[I]n determining litigation success, courts should respect substance rather than form, and to this extent should be guided by 'equitable considerations.' For example, a party who is denied direct relief on a claim may nonetheless be found to be a prevailing party if it is clear that the party has otherwise achieved its main litigation objective." (Hsu, at p. 877, italics omitted.)
In Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1151, the court reviewed the legislative history of section 1717 and concluded: "Because the statute allows such discretion, it must be presumed the trial court has also been empowered to identify the party obtaining 'a greater relief' by examining the results of the action in relative terms: the general term 'greater' includes '[l]arger in size than others of the same kind' as well as 'principal' and '[s]uperior in quality.'" The trial court has broad equitable discretion to determine which party prevailed or to determine that there was no prevailing party in a particular situation. (Id. at p. 1150.)
As informed by Hsu and Sears, we compare the terms of the settlement agreement, each party's pleadings in support of their motions to enforce the agreement, and the relief granted by the trial court to determine whether the court abused its discretion in determining the prevailing party.
Paragraph Q of the settlement agreement states: "[Mission Plaza] may install a new balcony between MP 1 & 3. In the event [Mission Plaza] installs a new balcony, it shall give Plaintiffs two (2) weeks written notice prior to commencing such work. Plaintiffs agree that prior to work commencing, they shall remove all objects and debris in the area leading up to and below the balcony, such that the balcony can be installed as efficiently as possible."
Mission Plaza's motion to enforce the settlement agreement sought the following relief: "1. [Mission Plaza] may proceed with the engineered plans for the balcony without interruption from plaintiff. The contractor or engineer may make reasonably necessary amendments to the plans. [¶] 2. Plaintiff shall remove all items from the balcony including the wheelchair and oxygen tubing. [¶] 3. Plaintiff and his family shall vacate the property during the construction of the balcony [i.e., at a specified time and day]. [¶] 4. Plaintiff[] shall pay [Mission Plaza's] reasonable attorney's fees and costs incurred as the result of plaintiff's failure to comply with the settlement agreement. [¶] 5. Plaintiff shall reimburse defendant for costs resulting from the delay in the amount of $61,673.00."
De Balkany's motion to enforce the settlement agreement requested the following relief: (1) "[A] copy of the scope of work to be performed on his property by defendants' contractor." (2) "[P]rompt repair of the damage to his property caused by defendants' contractors and to compensation for the costs of such damage." (3) "[A] safety rail alongside the wheelchair-accessible ramp." (4) "[C]ompensation for currently existing balconies which were designed by EDL Structural Engineering specifically to safely accommodate a handicapped child in a heavy, high-power wheelchair, if defendants' contractors do not erect new balconies." (5) "[V]erification and identification of new termite damages to his property by D.B.A., Inc." (6) "[I]nform[ation] regarding anyone working on his properties." (7) "[R]eturn of his handicapped-accessible van"; "costs of storage and for damage or loss." (8) "[T]imely repair of all issues addressed in the settlement agreement and to damages and sanctions for defendants' unjustified delay in making such repairs." (Emphasis omitted.)
The trial court's order states: "De Balkany moves for enforcement of the settlement agreement, requesting that the HOA desist from the construction project on which the HOA is engaged. The HOA opposes that motion, and requests fees and costs. The HOA moves for enforcement of the settlement agreement, requesting that De Balkany cease interfering with the construction, and alleging numerous other breaches of the agreement; and seeks fees and costs on its motion. [¶] . . .
"De Balkany's motion is denied. The HOA motion is granted.
"The court finds that paragraph Q is clear and enforceable. It grants the HOA the authority to rebuild balconies in De Balkany's units that have suffered a variety of damages and modifications. The court orders the HOA construction to proceed on the balconies, with a view to restoring them to their original condition so far as city permits, HOA rules, and the practicalities of sensible construction allow. The HOA will attempt to minimize the disruption to the De Balkany family. De Balkany is ordered not to interfere with the construction.
"The court is mindful of De Balkany's concern for the health of his son. The court finds that the HOA has been exceedingly careful of the boy's health. The court finds that the HOA has been exceedingly tolerant of De Balkany's antagonistic, litigious, and disruptive behavior throughout the lengthy proceedings in the case that terminated in a mutually acceptable settlement agreement. The court finds that De Balkany has breached the settlement agreement by unreasonably interfering with the construction authorized by paragraph Q of the settlement agreement.
"The several other breaches of the agreement alleged by the HOA need not be dealt with at this time.
"A finding of contempt is a serious matter, a field on which a thoughtful court should seldom tread without offering the clearest warning of its intent. This ruling should be construed as a clear notification of the court's intent to tolerate no further breaches of the settlement agreement by De Balkany.
"Section XII of the settlement agreement authorizes an award of attorneys fees and costs to the successful party in an action to enforce the agreement. It is a sufficient sanction in this matter, at this time, to grant fees and costs to the HOA, pursuant to the usual procedures."
The record speaks for itself. Mission Plaza is the prevailing party because it obtained the relief it sought in its motion and De Balkany did not. (Hsu v. Abbara, supra, 9 Cal.4th 863 .) We reject De Balkany's argument that the court improperly awarded attorney fees as sanctions for his obstreperous behavior. The award of attorney fees was made because Mission Plaza was the prevailing party on the contract.
The orders of the trial court are affirmed. Respondents are to recover costs and attorney fees on appeal.
We concur: GILBERT, P.J., YEGAN, J.