Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. GIC864963, John S. Meyer, Judge.
McCONNELL, P. J.
In this suit for enforcement of requirements under the covenants, conditions and restrictions (CC&R's) of a condominium project, Barbara J. Woodbury appeals an award of $316,106.99 in statutory and contractual attorney fees to Seacrest Villas Homeowners Association (the Association) and David Brown. Woodbury contends that even though she voluntarily dismissed her damages claims, and judgment was entered against her on her legal claims, she is the prevailing party as a practical matter because shortly before or during trial the Association satisfied or agreed to satisfy her demands. She asserts the court erred by not applying the correct legal standard to its prevailing party analysis. Woodbury, however, ignores the evidence supporting the court's findings that her claims were largely unfounded, insubstantial, or controlled by Lamden v. La Jolla Shores Condominium Homeowners Assn. (1999) 21 Cal.4th 247 (Lamden), under which courts defer to a homeowners association's decisions on day-to-day affairs, such as the particular methods of maintaining common areas of the project, under the business judgment rule. We find no error or abuse of discretion and affirm the judgment and the order.
When appropriate we refer to the defendants together as the Association.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996 Woodbury purchased one of the 10 condominiums at Seacrest Villas, a development in La Jolla, California, which the Association governs. Under the CC&R's, the Association is required to maintain the common areas of the project, including the exterior components of the units, with the exception of doors and windows, which owners are required to maintain.
The record does not contain a copy of the CC&R's, and the Association advises the document was not admitted at trial. Woodbury cites trial exhibit No. 1898 as being a copy of the CC&R's, but that exhibit does not pertain to the CC&R's. In support of its motion for attorney fees, the Association submitted a copy of the attorney fees clause in the CC&R's.
In October 2006 Woodbury filed a third amended complaint (hereafter complaint) against the Association and Brown, the president of the Association's three-member board of directors. The complaint contained causes of action for damages arising from the Association's alleged breach of its duty under the CC&R's to maintain the common areas of the condominium project (first), and from Brown's breach of fiduciary duty by not complying with the CC&R's (fourth).
The complaint also named other directors of the Association as defendants, but Woodbury voluntarily dismissed them from the action.
The complaint alleged that for "several years" the Association breached the CC&R's by failing to: have the roof of Woodbury's condominium "competently, professionally and adequately inspected for water intrusion"; authorize the "reroofing of a portion of [her] roof recognized by a competent, licensed roofing contractor as requiring repairs"; "professionally inspect for possible mold, dry rot or toxic conditions emanating from roof, flashing, fascia and other leaks"; repair termite damaged wood; "professionally paint" the exterior of her unit; "properly and competently waterproof leaking planters"; and "engage qualified, licensed and insured contractors to perform skilled work." Further, the complaint alleged the Association breached the CC&R's by not providing Woodbury with accurate and timely minutes of board meetings, or with financial documents showing expenditures. These allegations were incorporated into the breach of fiduciary duty cause of action against Brown. The complaint alleged the defendants' conduct caused diminution in value of Woodbury's condominium and other damages. Additionally, the complaint included causes of action for injunctive and declaratory relief against the Association pertaining to its alleged failure to abide by the CC&R's (second and third) as described above, and injunctive relief against the Association to prohibit it from enforcing certain amendments to the CC&R's (fifth).
When trial commenced in January 2008, a jury was empanelled to hear the causes of action for damages. Woodbury dropped her claim for diminution in value, and during her opening statement she claimed noneconomic damages for "[h]umiliation, inconvenience, [and] lost time in having to deal with this over the years."
During the presentation of Woodbury's first witness, the court questioned her attorney outside the jury's presence on whether she had any ground for her breach of fiduciary claim against Brown, or prayer for emotional distress damages against him or the Association, since the gravamen of her complaint was contract-based rather than tort-based. After a break, Woodbury moved to dismiss her damages claims, explaining she did not understand they were subject to a jury trial. She advised the court, "I can't go through this kind of time and effort and... waste of dollars" in putting on a jury trial. The court granted her motion to dismiss and released the jury.
The matter proceeded to a bench trial on the injunctive and declaratory relief claims. The witnesses were Woodbury, Brown, and the parties' experts, and we discuss the evidence below. The court denied Woodbury any relief, explaining in a statement of decision that she "was over dramatic and exaggerated her problems" and her testimony on certain issues was not credible. The court found that some of her claims were minor, some claims were unfounded, and several claims concerned the Association's chosen methods of repair and were thus governed by Lamden, supra, 21 Cal.4th 247. On May 14, 2008, the court entered judgment for the Association and Brown. Woodbury unsuccessfully moved for a new trial.
The Association and Brown then moved for contractual and statutory attorney fees and other costs. At the July 18, 2008 hearing, the court determined they were the prevailing parties and granted them $316,106.99 in fees. The court rejected Woodbury's argument that she was actually the prevailing party since her lawsuit caused the Association to meet her demands. The court granted in part Woodbury's motion to tax costs and awarded the Association $8,802.43 in costs. These awards were added to the judgment.
DISCUSSION
I
Legal Principles
A "prevailing party" entitled to costs of suit "includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Code Civ. Proc., § 1032, subd. (a)(4).) Attorney fees are an allowable item of costs when they are authorized by contract, statute or law. (Id., § 1033.5, subd. (a)(10).)
Here, the CC&R's provide for an award of attorney fees to the "prevailing party," defined as "the party who is entitled to recover his costs of suit, whether or not the suit proceeds to final judgment." A provision for attorney fees in a declaration of restrictions such as the CC&R's here is a contract subject to Civil Code section 1717. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d1012, 1023-1024.)
Under Civil Code section 1717, in an action on a contract providing for attorney fees the "prevailing party" is entitled to attorney fees. (Civ. Code, § 1717, subd. (a).) For purposes of Civil Code section 1717, "the prevailing party on the contract shall be the party who recovered a greater relief in the action on the contract," although the court may determine there was no prevailing party. (Id., § 1717, subd. (b)(1).) "[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.' " (Hsu v. Abarra (1995) 9 Cal.4th 863, 876.) "[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." (Id. at p. 877, italics omitted.)
Additionally, Civil Code section 1354, subdivision (c), a provision of the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.), provides: "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." For purposes of Civil Code section 1354, the court should determine "which party had prevailed on a practical level." (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.)
The determination of the legal basis for an attorney fees award is a question of law we review de novo. (Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6.) Issues pertaining to the prevailing party determination, however, are subject to an abuse of discretion standard of review. (Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th at p. 1574; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 577; Ritter & Ritter, Inc. v. Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 126.)
II
Analysis
A
Woodbury contends her voluntary dismissal of the complaint's causes of action for damages is immaterial to the prevailing party determination because "attorney's fees are not recoverable for these tort claims." While the first cause of action was titled "Damages for Breach of Duty," it is effectively a contract claim based on the Association's alleged breaches of the CC&R's. (Treo @ Kettner Homeowners Assn v. Superior Court (2008) 166 Cal.App.4th 1055, 1066 ["CC&R's can reasonably 'be construed as contract' and provide a means for analyzing a controversy arising under the CC&R's"]; Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 512; Miller & Starr, Cal. Real Estate Digest (3d ed. 2009) Condominiums and Cooperative Apartment, § 1.) Accordingly, the court could properly consider the outcome of her quest for monetary damages.
B
Woodbury also contends that despite the judgment in favor of the Association and Brown on the complaint's causes of action for injunctive and declaratory relief, she prevailed on those claims as a practical matter because her lawsuit prompted the Association to perform or promise to perform "mostly all the maintenance, repair and reporting tasks" she sought in her complaint. Woodbury, however, omits material facts unfavorable to her position and supportive of the court's ruling. An appellant has a "duty to summarize the facts fairly" in light of the judgment or order. (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 50; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 9:140, p. 9-39.) Viewing the entire record, we find the court properly rejected the notion she was the prevailing party. Further, there is no indication the court failed to apply correct legal standards in its prevailing party analysis.
1. Roofing/Water Intrusion
Woodbury asserts the "priority item in her lawsuit was for the Association to inspect and fix her roof." The roofing on Woodbury's condominium consists of a large flat main roof that is covered by slate tiles, and a small flat crescent-shaped roof over windows in the master bedroom.
For many years Woodbury believed the main roof was leaking in the area of the master bathroom because there was mold in the shower. Brown testified the Association replaced the main roof in 1997, without performing any water testing, because Woodbury was threatening it with a lawsuit. After the roof was replaced, Woodbury still believed it was leaking. She called the roofing contractor back six to 10 times over 10 years and it never found a leak. Two years before trial, the Association had a roofing contractor inspect the roof again, and it found no leak.
At trial, Woodbury conceded "the [main] roof is not leaking." Her own expert, William Esser, performed a water test and found no leak. The Association's expert, Timothy DeLise, also found no leak. As to the mold in Woodbury's shower, DeLise testified: "[T]hat is an environmental issue by the homeowner.... The wood that's there is a crown molding inside the shower, that's an inappropriate material to put inside the shower. When you have steam and high humidity. So you're going to get some growth... and I did see a little growth on the surface of that crown molding.... [A]s time goes on... that molding is going to separate, and you're going to get cracks in the joints and elsewhere, because of the humidity." Esser agreed the mold in the shower was attributable to condensation.
The experts did find there were gaps between some of the slate tiles on the main roof where caulking between expansion joints had aged and shrunk. They agreed recaulking was needed, and DeLise estimated a cost of $1,656.41.
Brown testified the Association had authorized Jeff Jensen, a handyman who had been performing work at Seacrest Villas since 2001, to perform the recaulking, but Woodbury rejected his services. Woodbury's counsel, without objection, explained she was opposed to Jensen performing the work because he had previously appeared to perform some other type of work on her condominium without having an appointment.
Her main objective, however, was to force the Association to hire a licensed contractor to do the recaulking rather than a handyman. DeLise testified the "work is very minor actually," and Jensen could adequately perform it. The court agreed, finding the work was "not terribly complicated or difficult."
Woodbury also argued that because of the gaps between tiles on the main roof, the Association must perform destructive testing to determine whether water had infiltrated the roof membrane. Esser testified that to inspect the roof, the tiles would have to be removed to expose the membrane, and the membrane is covered by a significant amount of concrete. A roofing company recommended against destructive testing "since the interior did not have signs of leaks and the investigation would disturb the waterproofing." DeLise testified destructive testing was unwarranted because the "ultimate test was that [the roof] didn't leak. There's no reason to disturb that membrane; if you do, you're likely to cause leaks." The court responded, "I think that's pretty obvious." Brown did agree to have a roofing contractor inspect the main roof for leaks once again before the recaulking was done, but he explained the contractor does not perform caulking work and "would hire a guy like Jeff Jensen to do it." He also explained that Jensen had performed sealant work on another roof in the project and "it turned out just fine."
The Association's agreement to have Jensen perform the minor sealant work on the main roof did not satisfy Woodbury's primary litigation objectives, which were to force the Association to perform destructive testing and to hire a roofing contractor to perform the recaulking rather than a handyman. The court denied Woodbury any relief on those issues, explaining "there's been credible testimony that the roof is structurally sound, that the roof doesn't leak, that there's not one problem with the roof except for caulking coming out of the expansion joints.... Brown has indicated the [Association] is ready, willing and able to take care of that repair." The court found "absurd" Woodbury's argument the main roof could collapse if destructive testing were not done, and found the supporting testimony of her expert not credible. Woodbury's attorney conceded that argument was an exaggeration. As to the Association's plan to hire a handyman rather than a licensed contractor to perform the recaulking, the court deferred to its decision on mode of repair under Lamden.
In Lamden, a condominium owner sued the community association for diminution in value of her property after it decided to spot-treat termite infestation rather than fumigate. The court held as follows: "Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decision making that applies, regardless of an association's corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations' boards of directors." (Lamden, supra, 21 Cal.4th at p. 253; see also Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361, 374 ["Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development's governing documents, and comply with public policy."].)
Woodbury asserts she prevailed on the recaulking issue because months after the court's ruling on the merits the Association hired a licensed contractor to perform the work. At the hearing on attorney fees the court reasonably rejected that notion, explaining the supposedly "significant roof problem was there was some caulking between the tiles that over time had dried up and needed to be replaced, which like it or not is more of a handyman kind of a job. And your client, for reasons I still don't quite understand, wanted a... licensed roofing contractor to do that work." The Association's ultimate use of a contractor does not indicate litigation success as the court imposed no such requirement, and in any event, this is but one issue among numerous issues on which Woodbury achieved no success.
Additionally, Woodbury asserts she was the prevailing party in the litigation because the small crescent roof over the bedroom windows of her master bedroom "was indeed leaking, [and] was finally inspected just days before trial," and "[w]hile the parties were in court, the Association hired a contractor to repair the crescent roof and the resulting dry rot damage."
The Association replaced the crescent roof in January 2008 because Woodbury complained of "leaking in the master bedroom in the area of the windows." The evidence, however, shows replacement was not required because of any leak in the crescent roof. Esser testified he inspected the crescent roof before its replacement and "it appeared to be watertight and functional," and he conducted a water test that revealed no leak. DeLise likewise testified the crescent roof did not leak. About two years before trial, a roofing contractor performed a water test on the crescent roof at Woodbury's request and it revealed no leak.
DeLise determined water intrusion into Woodbury's condominium was actually caused by her windows and doors, which were not properly waterproofed. Esser also performed a water test on a window and found it leaked. DeLise testified that the replacement of windows was a priority because water from them was "leaking into the stud base.... You want to stop that so that you don't have continued damage to, or damage to framing." He estimated the cost of replacing the windows and doors at more than $42,000. Woodbury acknowledged her responsibility for the windows and doors and agreed at trial to replace them at her own cost. Her attorney stated, "We're saying we'll replace them. No disagreement anymore." Woodbury conceded her agreement to replace the doors and windows was "a major part" of the judgment.
DeLise testified there was dry rot and fungus on plywood sheathing under the crescent roof membrane caused by a minor leak attributable to the misapplication of building paper on a parapet wall above the crescent roof. Esser testified it was "[v]ery common" for older roofs to have areas of dry rot. When the crescent roof was replaced, the affected sheathing was also replaced.
Woodbury was not satisfied, however, and argued that because of the condition of the sheathing the Association was required to have destructive testing done to determine whether dry rot or mold had infiltrated her condominium in the area of the crescent roof. She argued "it's evident that it's [mold] elsewhere," and "you don't know whether it has gone down into the wall." She conceded, however, that she had not formally asked the Association to inspect for mold. Moreover, DeLise explained he inspected the interior of the unit when the original crescent roof was removed and the minor leak at the parapet wall had not caused any water infiltration or damage to the walls or interior of the unit. The Association did not agree to destructive testing and the court granted Woodbury no relief on the issue, finding "there's no evidence of mold."
Woodbury obtained no relief on her demand for destructive testing of the crescent roof. Although the Association voluntarily replaced the crescent roof, her claim that replacement was required because it was leaking and causing water infiltration into her unit was unfounded. The determination of litigation success is guided by equitable considerations (Silver Creek, LLC v. Blackrock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1539), and the court could reasonably find the equities tipped in the Association's favor on the crescent roof issue. The mere discovery during replacement of the crescent roof of some dry rot on underlying sheathing does not lend credence to her demand that the roof be replaced. The condition of the sheathing was unknown to her when she filed the complaint, and it did not cause any water intrusion or other damage.
2. Painting/Termite Damage
Further, Woodbury asserts she met her litigation objectives because during trial the Association agreed to paint exterior wood trim on her condominium, and to patch minor termite damage on the trim. The evidence showed, however, that the Association had offered to have Jensen paint the trim, but Woodbury again objected to him performing the work. She argued she "has a right not to accept a handyman who is going to go up on a ladder three stories and paint," because he may fall. The court responded, "He's a painter. He's going to go up and paint the trim around the windows, and if he falls off the ladder, I guess he's going to have a problem, but it's not her problem." The court noted Woodbury simply "doesn't like who is going to do" the painting. Woodbury argued the painting "should be done by a professional," and Brown responded it "will be done by... Jensen." Brown testified Jensen had painted the other nine condominiums in the project and "[h]e's done a great job. That's why you don't see nine other homeowners complaining because he does great work."
Additionally, there was no evidence of active termite infestation in the wood trim. DeLise testified there was termite damage in some trim around the bedroom windows, but it did not cover a large area; the "typical repair would be to use Bondo, fill it in and repaint it"; and the repair did not require a specialty contractor. Woodbury's attorney conceded "these are not major items." She testified there was "[h]uge" termite damage, but the court noted that the sole photograph she submitted on the issue showed "a couple of little holes." The court found her testimony not credible on the termite issue.
Woodbury did not prevail as a practical matter on her painting and termite damage claims. Woodbury relies on Brown's testimony that he would have the work performed "any day she wants." She neglects, however, to cite evidence showing the Association had not refused or failed to perform the repairs, but she insisted it hire a licensed contractor instead of Jensen. The Association never agreed to have someone other than Jensen perform the work, and the court issued no such order. Woodbury's lawsuit was unnecessary on these issues.
3. Planters
Woodbury's condominium has large exterior planters with cinderblock walls that are covered in stucco and painted. When she filed suit, the planters needed waterproofing and repairs as water had leached through the cinderblock causing efflorescence and peeling of the stucco and paint.
Brown, however, testified that before January 2008 Woodbury would not allow the Association to check the sprinkler systems in the planters. When she finally allowed an inspection, the Association found broken pipes. Jensen sealed the pipes, removed the peeling stucco and paint from the cinderblock walls and applied a waterproofing product called Thoroughseal. Brown explained, "[w]e've always been allowed to do that with the other nine homeowners. We have always been prohibited by Ms. Woodbury. The minute she allowed us to we were able to fix the problem within two to three days, it took us a little while to do the cosmetic part of it but we stopped the problem immediately." Brown testified the Association had repaired planters at other units in the same manner without any complaint. He said the cosmetic repairs are good for three to four years. The court found the repaired planters "look[] fine in the photographs."
Woodbury, however, objected to the Association's repair method. Esser testified that a superior repair would be removing the soil and plants from the planters, waterproofing the interior walls of the planters, "putting in a French [drain] and some drain holes down at the bottom grade level in a small bed of gravel," and then replacing the soil and plants. Esser admitted, however, that if done properly the Association's cosmetic repair will "buy time and waterproof the wall."
DeLise testified the Association's cosmetic repairs were appropriate and cost effective. When asked whether Esser's recommended repair would be more costly, DeLise testified it was "God awful" and "extremely expensive." He did not recommend Esser's repair unless the Association is "flush with cash." When asked if Jensen could do the cosmetic repairs, he testified, "Successfully already done." Under the court's questioning, DeLise testified it was common for stucco to peel from planters.
The court noted Esser's repair "would require removing significant vegetation including what looks like a palm tree. And I mean, you'd have to be pretty ignorant not to see that's going to require a lot of work." The court determined "it would be beyond the jurisdiction of the court to tell the [Association] what to do," and Woodbury's counsel responded, "I agree." The court added, "I'm just saying that the [Association] has determined to fix these planters in the manner in which they were fixed every few years. And I suppose if the [Association] determines that that's cost inefficient or that it would be better to remove all of this vegetation, which looks pretty intensive from a particular planter and do a much more extensive, much more intrusive fix, I suppose that is what they can do. But I don't think it's the province of the court to tell them what to do." Woodbury's counsel stated, "I agree with that, your honor," after which the court wondered out loud, "[t]hen what are we doing?"
Woodbury now asserts there was only a "minor dispute at trial as to what was the 'right' repair" of the planters, and she achieved her litigation objective through the Association's chosen repair. The record shows, however, that the method of repair was the principal ground of the dispute. As the court noted in its statement of decision, Woodbury's "complaints about the planters were unfounded. The Association's expert testified that waterproofing the planters on the negative side is acceptable. [Woodbury's] argument that the cost to waterproof from the positive side (from inside) is minimal is not persuasive and the Court finds the evidence to be to the contrary." Further, Woodbury ignores evidence that she was uncooperative with the Association in allowing it to inspect and repair the planters. The planter issue is governed by Lamden, and she did not prevail on it as a practical matter.
We decline to discuss other minor claims pertaining to the Association's maintenance of the common areas of the condominium project.
4. Association Documents
Woodbury asserts an important part of her lawsuit was her demand for the Association's timely dissemination of board minutes and financial information, and Brown "agreed in open court to give the minutes to the homeowners and promised to provide this requested information to [her] specifically." Woodbury testified she asked the Association and Brown for information that was denied. She testified, "Right now we can't decipher if there are dollars and where they are. I have not seen a financial record in years." She later admitted, however, that she had "received some financial reports." Woodbury admonished her attorney to not belabor the point, and said "[i]t's painful for everyone."
The Association is statutorily required to make board meeting minutes and financial records available to homeowners. (Civ. Code, § 1365.2.) The parties agree the CC&R's also require disclosure, but again, the record contains no copy of the document.
Brown testified that Woodbury is "allowed full disclosure 100 percent of the time as are all other homeowners." Woodbury said she had written a letter requesting financial information, but Brown denied ever receiving such a letter. The Association's property management company prepares the financial documents, and Brown testified that when he receives them he scans them into his computer and sends them electronically to all homeowners. Woodbury's attorney argued, "[e]xcept one," and Brown responded, "[n]o, I know Barbara [Woodbury] is on my list. She gets my e-mails." Brown testified that the "board always has, and always will abide [by] the CC&R's" pertaining to dissemination of information to homeowners.
The court asked Woodbury to produce "the last request in writing or by e-mail where she said I demand to see these, where... Brown or anyone else has refused to give them to her." The court said to Woodbury's attorney, "you've made a representation that your client demands these documents and has been refused. And I, frankly, don't believe it." The court asked Brown, "Is it your sworn testimony that you've never refused to provide her with financials or minutes?" He responded, "Absolutely, your honor." Brown also denied ever directing the management company to deny her any information.
The only written request Woodbury cited was a March 13, 2003 e-mail she sent to Jay Kacirk of the management company complaining about not receiving financial information she requested. Kacirk wrote back, "Your statement that you have been ignored and stonewalled by us is both flatly untrue, unfair and insulting. Why you would make a statement like that given the hours that Tawn and I have spent on the phone, fax machine and personal visits to the property and/or your office to try to satisfy your demands, I do not understand." Brown pointed out that the letter was not to him, and stated "[y]ou can't send a letter to somebody else and think I'm going to respond." Further, the e-mail to Kacirk was from 2003, nearly five years before trial.
The court's statement of decision states: "Plaintiff complained that defendants did not deliver financials and minutes to her. Ms. Woodbury did not produce a document where she made a request for financial documents which was denied. Evidence was presented that all other [home]owners got minutes and financials either by electronic or other means."
It is not this court's province to reassess the credibility of witnesses. "The trier of fact is the sole judge of the credibility and weight of the evidence." (Estate of Teel (1944) 25 Cal.2d 520, 526.) Under the court's assessment, Woodbury was not forthright and was not required to sue the Association to obtain documentation. The court could reasonably find her claim pertaining to this issue was unfounded.
5. Amendments to CC&R's
The complaint's prayer for an injunction or declaration to preclude the Association from implementing amendments to the CC&R's the Association adopted after Woodbury filed her lawsuit, which she asserts were wrongfully directed to her alone, is moot. The evidence shows the Association never implemented the amendments, and instead redrafted CC&R's, which at the time of trial were subject to homeowner vote. Obviously, injunctive relief was unavailable under the circumstances.
In sum, we cannot say the court abused its discretion by finding Woodbury was not the prevailing party as a practical matter. "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The court properly found the Association and Brown are prevailing parties, and Woodbury does not challenge the amount of the fee award.
B
Woodbury's reliance on Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168 (Cafe Royale) is misplaced. In Cafe Royale, the plaintiff was a quadriplegic confined to a wheelchair who sued Cafe Royale alleging a restaurant it operated had not complied with pertinent handicap access statutes. All parties agreed the restaurant's seating capacity violated access requirements, but Cafe Royale asserted a defense of good faith. (Cafe Royale, supra, 218 Cal.App.3d at p. 174.) The trial court denied injunctive relief on the ground that during the litigation Cafe Royale became insolvent and went out of business. The court determined its "decision to go out of business rather than to proceed with efforts to bring the restaurant into compliance was a reasonable business decision." (Id. at p. 175.) The court then awarded Cafe Royale $12,000 in attorney fees as the prevailing party. (Id. at pp. 184-185.)
The Court of Appeal reversed the attorney fees award, concluding the trial court's prevailing party determination was an abuse of discretion since Cafe Royale was indisputably in violation of the handicap access requirements. (Cafe Royale, supra, 218 Cal.App.3d at p. 185.)The court added that the "definition of 'prevailing party' in section 1032, subdivision (a)(4) of the Code of Civil Procedure includes 'a defendant where neither plaintiff nor defendant obtains any relief.' However, this definition is qualified by the limitation 'unless the context clearly requires otherwise.' (Code Civ. Proc., § 1032, subd. (a).) Moreover, a plaintiff will be considered a prevailing party where the lawsuit was the catalyst motivating the defendants to modify their behavior or the plaintiff achieved the primary relief sought." (Cafe Royale, supra, at p. 185.) Cafe Royale is inapplicable here because, as discussed above, Woodbury's lawsuit was not the catalyst for change.
Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847 (Katella) is likewise unavailing. In Katella, an owner (Arias) sued the homeowners association for failing to maintain the common areas, causing toxic mold to develop around her unit. At trial, the parties stipulated to facts read to the jury, including that the association admitted it had breached its contractual, statutory and common law duties to maintain the common areas, and it agreed to pay for the resulting damages to her unit and other costs. (Id. at p. 850.) The association had made an offer to compromise Arias's claims under Code of Civil Procedure section 998 for $50,001, which she did not accept, and the question on appeal was whether the $88,939.75 in voluntary prejudgment payments the association made to her should be considered in determining whether she obtained a more favorable result. (Katella, supra, at p. 851.) If she did not obtain a more favorable judgment, she would not be entitled to recover her postoffer costs and would be required to pay the Association's postoffer costs. (Id. at p. 853.) The court answered the question in the affirmative, explaining that "[t]o refuse to consider the Association's postoffer payments as part of Arias's total recovery would result in an inequity, because Arias could not have recovered the property damage payments as part of the jury's verdict." (Id. at p. 856.)
Woodbury asserts that under Katella, "the value of the Association's actions and concessions immediately before trial and during trial must be 'added' to the judgment to determine if [she] achieved her litigation objectives and is the prevailing party." Katella, however, is easily distinguishable. Here, the Association made no stipulation to satisfy Woodbury's demands, she dismissed her damages claims during trial, and she lost on her legal claims. For all the reasons explained above, Woodbury's litigation objectives were either unreasonable or she did not achieve them, and there is no inequity in requiring her to pay the Association's attorney fees and other costs. As the court explained at trial, her action was the "a vague conglomeration of shifting issues," and "[i]t can be argued that [she] wants her own private CC&Rs that essentially require the board to never say no to anything she wants."
DISPOSITION
The judgment and the order are affirmed. The Association and Brown are entitled to costs on appeal.
WE CONCUR: HUFFMAN, J., McDONALD, J.