TRACT 19051 HOMEOWNERS v. KEMP

Respondent, Eric Yedell, Petition for Review

Cal.June 25, 2013

§ 211596 2 Supreme Court case no. SUPREME COURTofCALIFORNIA Tract 19051 Homeowners Associationet al., Plaintiffs and Appellants, Vv. Maurice Kempet al., Defendants and Respondents Petition after a Decision by the Court of Appeal, Second Appellate District, Div. 4 PETITION FOR REVIEW TURNER LAW FIRM, APC Keith J. Turner [SBN152685] 429 Santa Monica Blvd., Suite 500 Santa Monica, California 90401 Phone: 310.454.6190 Fax: 310.882.5563 Email: kjt@turnerlawapc.com Attorneysfor Respondent Eric Yeldell SUPREME COURT FILED JUN 25 2013 Frank A. McGuire Clerk “eouty Supreme Courtcase no. SUPREME COURTofCALIFORNIA Tract 19051 Homeowners Associationet al., Plaintiffs andAppellants, V. Maurice Kempetal., Defendants and Respondents Petition after a Decision by the Court of Appeal, Second Appellate District, Div. 4 PETITION FOR REVIEW TURNER LAW FIRM, APC Keith J. Turner [SBN152685] 429 Santa Monica Blvd., Suite 500 Santa Monica, California 90401 Phone: 310.454.6190 Fax: 310.882.5563 Email: kjt@turnerlawapc.com Attorneysfor Respondent Eric Yeldell TABLE OF CONTENTS I. ISSUES PRESENTED..............sccscscossossscnsesescsssnesesstsesecsenessssnsesssesenesesessesceeseees 1 Il. REVIEW SHOULD BE GRANTED TO RESOLVEA SPLIT BETWEEN THE COURTSOF APPEAL AND TO SETTLE AN IMPORTANT QUESTIONOF LAW. ........ccsssscssssssssssessssssscscsesssssssssessserscssense 1 THT. STATEMENT OF THE CASEQscccssssssssssssssssesssecssesesesssessssesssecasesaseesseesssesencenseese 6 A. Factual Background And Procedural Historry...............sssccsscsssrsssressscees 6 B. The SecondDistrict, Division 4’s Decision ..............cccccccccssscsccssssssscssessees 8 C. The Petition For Rehearing...............csccccssscsssecesrsessesscsessrsesssssscesessseesens 8 IV. ARGUMENT FOR REVIEW TO DETERMINEA PREVAILING DEFENDANT’S RIGHT TO STATUTORY ATTORNEY’SFEES................ 9 A. Review Should Be Granted to Decide the Important Legal Question of Whether Civil Code Section 1354 is Truly A Reciprocal Attorney’s Fees Provision ............sccccsssccsscsscssecesscnssescessoeseees 9 B. The Court of Appeal Decision Here Held that Civil Code Section 1354 is Not a Reciprocal Attorney’s Fees Provision ..............cssscesseees 10 C. The Court of Appeal Decision Here and in Mount Olympus Conflicts With Existing Case Law on the Interpretation of Statutory Attorney’s Fees Provisions...........csccsccsssecccssscssssssseesessonees 12 D. The Rule of Law Should Be That a Prevailing Defendant’s Right to Attorney’s Fees is Determined Based on Whetherthe Plaintiff Would Have been Entitled to Attorney’s Fees if the Plaintiff Had Prevailed .............ssssscccsssscsssserssssscssesscrasessssscssesccesecescscensncasesesssscossssoesees 20 EK. Denying The Prevailing Defendant the Right to Prevailing Party Attorney’s Fees Would be an Absurd Result...esssssssssccseenceeeees 22 V. ARGUMENT FOR REVIEW OF COURT OF APPEAL’S DECISION DENYING RESPONDENT’S REQUEST FOR REHEARING........ cc cccssees 24 VI. CONCLUSION.....ceeccccscstecseserssenscscssncssscsesceecsssscecsencesscsesensascssssssecsenseneceoses 26 i TABLE OF AUTHORITIES CASES Aleman v. Airtouch Cellular (2012) 209 Cal.App.4" SSO. eeeeceseseteeseeorseeeecetsesersesensneeeeaae 16 Blickman Turkus, LP v. MFDowntown Sunnyvale, LLC (2008) 162 CalApp.4th 858.00... cccceseeceseessneesssesseessnesserssesseesseeseesonseesacesaessaesasessesnseaeessaesegs 18 Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832 oo...eeee 13 Care Constr., Inc. v. Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d TOL eeeesescescceceeseeeseesecseesecsnecsseenssenecseceaecsecsecsseseesasseessaeseseseeescesassuesaeaserseaeeaae 13, 23 Hart v. Autowest Dodge (2007) 147 Cal.App.4th 1258 ooo. eeceessssesnessreesseeeseeteneeeeees 16 Hsu v. Abarra (1995) 9 Cal 4" 863 vvcccecccssssscessssssssesssessesessesessesessessessnssessesseessesseeseenees 13 Huscher v. Wells Fargo Bank (2004) 121 Cal-App.4th 956 oo...eeeeeseneereeeeeeeeeee 11 Jankey v. Song Koo Lee (2012) 55 Cal.4th 1038 occcesscceesseeeesecessesssectsenesaeees 14, 20 Jones v. Drain (1983), 149 CalApp.3d 484... eeeesesessressseesesecessseresssecseeesseseeeeesseeeres 13 Mechanical Wholesale Corporation v. Fuji Bank Limited (1996) 42 Cal.App.41647 ...ccccessecssessssessessessesssssessssessuessecsucsessssessscensseesesseeaeaseesessees 13, 17, 18 MepcoServices, Inc. v. Saddleback Valley Unified School Dist. (2010) 189 CalApp.4th 1027.0... cceeeecssccssesesseeeesesnecsersecerseseeessecesaeesaeeeseseeseaeseeneneeeneees 18, 19 Mt. Olympus Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4™ 885 wu.passim Newmanv. Checkrite California, Inc. (E.D.Cal. 1994) 156 F.R.D. 659...eeeeeeeee 14 North Associates v. Bell (1986) 184 Cal.App.3d 860 00... eeesceeeseecneseeseeceeeesesenseeeees 14 PLCM Group v. Drexler (2000) 22 Cal4th 1084 oo.ccseeceseceseeceseescesceeneesasennevsneees 14 ii Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 wo. eecescsseseccseeseseeeeeseeeeneens 14 Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App. 4th 187 oo...eeeeseeeeeseeees 11 Salehi v. Surfside IIT Condominium Owners’ Assn. (2011) 200 Cal.App.4th L146 oecceessesseecseeesecceseeeeseessceessecseeseeacenesseeeseeseesesscesseesaesaesaecseeeeeseeeaeeseseaeesae® 22 Santisas v. Goodin (1998), 17 Cal.4” 599 v.ccsesscsssssssssssssssssessessveseesssssesutsecsetsassecans 4,21 Sears v. Baccaglio (1998) 60 Cal.App.4” L136eeeeeeeeeeeeescceeeseeeeesseeetsneeeessaaeees 20, 21 Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305 ...cccseseeeceees 13 STATUTES Civ. Code § 51785.31(d)....ceseecessesesscececcesseesecsceseesecsseeeceeseceecsesncenseaetaceaesnensecseesaeesseeeas 13 Civ. Code § S2(a)..cccccccccccesecessnecseneeessanececeeeeesaeecscesesaaceesossaeecesaaeesensaeerensceeesssesesaeeseesesaaeess 13 Civ. Code § 1350 @t SCG ciccccscsscsescssscessceesnseceseeseeseceseesansesneesneecseesinessasesdeeseasenesaerseteeneessaeoes 6 Civil Code § 1354(C)...ccccccscccssesscccsccsseceessseeeenseesecsaaecessaceseeeeesaaeeeeeeseseeseeeeenseecaneseeaeeseseeeeees 9 Code Civ. Proc. §§391(C) vcccscccscccssessscceeecessecenessecenseessseeeeesecseeecesaeseeeeseaeeeeeenaeeesseserseneess 13 Code Civ. Proc. § 399 viccccccccccsccccsssceesssncccneccsseeensecessaeeecenaneesessaeseeseneeseeaneeeessesetennaeseeeenaes 13 Code Civ. Proc. § 490.020 ...ccccccescccssscccecssseeseceseccnseecscaeeesseeeeusessceceseeesseeseaersueeteeaneetenees 13 Government Code § 68081 ......ccccccscccsscccecsssccessessecseceseaeecseeseseeeceneeseaseseeseseressseesssneeeens 8, 24 OTHER AUTHORITIES California Law Revision Commission, Staff Memo 99-32, “Award of Costs and Contractual Attorney Fees to Prevailing Party (June 17 1999)oe23 ill I. ISSUES PRESENTED This Petition for Review presents an important question of law regarding the interpretation of reciprocal statutory attorney’s fees provisions. 1. If a plaintiff sues under a statute, which provides for a mandatory award of attorney’s fees to the “prevailing party,” should the defendant be denied its attorney’s fees if the defendant prevails by proving that the statute does not apply to the plaintiff? 2. Should the Court of Appeal have granted petitioner’s Petition for Rehearing because the Court of Appeal based its decision on an issue not briefed or argued by either of the parties? Il. REVIEW SHOULD BE GRANTED TO RESOLVEA SPLIT BETWEEN THE COURTSOF APPEAL AND TO SETTLE AN IMPORTANT QUESTION OF LAW Rule 8.500 of the California Rules of Court provides that the Court may order review of a Court of Appeal decision “[w]hen necessary to secure uniformity of decision or to settle an important question of law.” This case meets both criteria. Here, Plaintiffs sued under the Davis Stirling Common Interest Development Act (Civ. Code §§1350, et seq.) (the “Act”). Section 1354(c) of the Act providesthat “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” The initial issue presented by this Petition is of the first impression before this Court — can the Defendant be denied its fees under that mandatory, reciprocal attorney 1 fees provision (§1354(c)) because the Defendant proved that the Plaintiff, which had claimed it was a Common Interest Development (“CID”) as that term is defined by the Act, had soughtits attorney’s fees under section 1354(c) and would have been entitled to attorney fees if it had prevailed, was in fact not a CID and therefore was not entitled to any relief under Act. Here, Plaintiff was specifically seeking relief under section 1357(b) of the Act, which provided the only way by which the governing documents for Tract 19051 could have been extended by less than 100% approval of the homeowners. In this case, Division Four of the Second Appellate District, in an unpublished case that relies on a prior published decision issued by that same Division, Mt. Olympus Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4™ 885, reversed the Superior Court’s award of attorney’s fees to petitioner (Respondent/Defendant), holding that because the Act did not apply (because Defendant proved that Plaintiffs/Appellants were not a CID), the reciprocal attorney’s fees provision contained in the Act, section 1354(c), also did not apply. That decision by the Court of Appeal (the “Decision”), and the decision in Mt. Olympus, supra (to the extent it is interpreted as it was by the Decision), are in direct conflict with all of the other holdings under analogouscases. This Court and other Courts of Appeal have many times considered this question in analogous cases relating to the application of a reciprocal attorney’s fees provision in actions “on a contract” under Civil Code section 1717, and it has been consistently held that when a party litigant prevails in an action on a contact by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that 2 party’s recovery of attorney’s fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. Division Three of the Second Appellate District has also applied the reasoning of the section 1717 cases in an analogouscase arising under anotherstatute, former Civil Code section 3176. That court upheld an award of attorney’s fees to a prevailing defendant under a mandatory, reciprocal attorney’s fees provision in connection with a plaintiffs action to enforce a “bonded stop notice,” even though the defendant in that action proved plaintiff was not entitled to claim the benefits of the bonded stop notice statutes. Review of the Decision is necessary to secure uniformity of the law with respect to the interpretation of reciprocal attorney’s fees statutes. Also, this case presents important public policy considerations and important questions of law and statutory construction. In California, the general rule regarding the award ofattorney’s feesis that there is no fee-shifting unless allowed by contract or statute (the “American Rule”). However, in specific cases the Legislature has authorized an award of attorney’s fees either to one party only (typically the plaintiff — a unilateral provision) or to the “prevailing party” (a reciprocal provision). In limited cases, the Legislature has enacted “hybrid” attorney’s fees statutes that generally are unilateral in favor of the plaintiff, but allow the defendant its attorney’s fees if the plaintiff's claim was frivolous or not in good faith. That is, the statute operates against the plaintiff making a “bad” claim. It is of course the Legislature that must decide, first, if an exception is to be made to the American Rule with respect to any specific cause of action or statutory scheme and, then, if fee-shifting is to be unilateral or reciprocal. When the Legislature elects to 3 enact a reciprocal attorney’s fees provision, the public policy underlying that decision is obviously different than the public policy underlying their enactment of a unilateral or hybrid attorney’s fees provision. The Decision, however, does something the Legislature did not elect to do, and creates something sui generis in California -- a fee-shifting hybrid statute that is generally reciprocal, but becomesunilateral in favor of a plaintiff that makes a frivolous, meritless or otherwise untrue claim that it is a CID. In no instance has the Legislature decreed that result, and this Court has made clear that a reciprocal provision should not be transformed into a unilateral provision. Santisas v. Goodin (1998), 17 Cal.4™ 599, 611. If the homeowners association for a true CID brings and action to enforce its Covenants, Conditions and Restrictions (governing documents) and loses, it is liable for the defendant’s attorney’s fees under section 1354(c). Under the Decision, however, if a group of homeownersfalsely claiming to be a CID bring an action to enforce alleged “soverning documents” and they lose, they are not liable for the defendant’s attorney’s fees under section 1354(c). No California public policy interest is served by putting homeownersfalsely claiming to be a CID in a better position than the true CID Association. As this Court and other courts have recognized time and time again under section 1717, the public policy underlying reciprocal attorney’s fees provisions is “mutuality of remedy” — to put plaintiff and defendant on an even playing field. The Decision supports the frivolous or unmeritorious claim. Also, in addition to being grossly unfair, the Decision can be used as a vehicle of oppression to force settlements of dubious or unmeritorious claims. A group of homeowners advancing a false claim of being a CID against a dissenting homeowner can say “if we win, you must pay both our fees and yours, but if you win, youstill have to pay your ownfees.” Further, California courts have many times noted that statutes must be construed to achieve a “practical and equitable result” rather than one resulting in “mischief or absurdity,” and it cannot seriously be argued that the Legislature intended to have the reciprocal provision that it enacted transformed into a unilateral provision and, among other things, support frivolous or unmeritorious claims and put plaintiffs making a false claim of being a CID in a better position that the true CID. It is petitioner’s hope that this Court will overturn the Decision and take this opportunity to set forth a clear, general rule with respect to the application of reciprocal attorney’s fees statutes, whether the statute is Civil Code section 1717, 1354(c) 3176 or any of the other numerousreciprocal attorney’s fees statutes. That general rule should be, as is already the case under section 1717, that reciprocal means there is to be “mutuality of remedy” andthat if the plaintiff would have been entitled to attorney’s fees if plaintiff had prevailed, then the defendantis entitled to attorney’s fees if the defendant prevails. //] //1 // Wt. STATEMENT OF THE CASE A. Factual Background And Procedural History This is a lawsuit to stop a remodeling project of a home at Lot 22 of Tract 19051, which “is a subdivision of 94 single family homes in the Baldwin Vista area of Los Angeles.” (Decision, p. 5) “When Tract 19051 was subdivided in 1958, the developer recorded the declaration of restrictions [“DORs”] that is the subject of this litigation. Although the [DORs] allowed any homeowner to sue to enforce its restrictions, the [DORs] expired by its own terms on January 1, 2000, and contained no provision for extending that date.” (Id.) In September 2008, the “voluntary” Association and the owners of 32 lots (Plaintiffs/Appellants) filed this action to stop the remodeling project — they alleged that it was in violation of the height and setback restrictions contained in the DOR’s. (Id.) A first amended complaint was filed, which added twenty more property owners as plaintiffs, for a total of 52. (Decision, p. 6) Because the DORshad expired on January 1, 2000, the gravamen ofthis action, including Appellants’ original and first amended complaints, was whether the Association and Tract were a “commoninterest development” as that term is defined in the Davis-Stirling Common Interest Development Act (Civ. Code, §§ 1350 et seq.) (the “Act’). As this Court stated in its Decision: “During a court trial, the main issue was whether the declaration, which had a January 1, 2000 expiration date, was properly renewed by a majority of homeowners in 1999. The answer turned on whether the subdivision is a ‘common interest development’ under the ... (Act), such that the 6 majority’s renewal of the declaration was permitted by Civil Code section 1357.1” (Decision,p. 2) Appellants sought at all times to recover their attorney’s fees pursuant to Civil Code section 1354(c). (RA 90-421 and 92-930; RA119-§23 and 121-932). They specifically alleged and claimed they were entitled to attorney’s fees pursuant to Civil Code section 1354(c) in their first cause of action for breach of the [DORs] andthird cause of action for injunctive relief. (Id.) Attorneys/former Appellants Marcia Brewer and Kenneth Mifflin prepared an Interlocutory Judgment in which they sought and were awarded $112,000 in attorney’s fees “pursuant to Civil Code Section 1354.” (RA 126, 130). Respondent Eric Yeldell purchased Lot 22 at a foreclosure sale, and sought to intervene and vacate the Interlocutory Judgment. Intervention was granted and the Interlocutory Judgment was vacated on the grounds that Appellants were not a common interest development. (Decision, p. 8-10) There is no dispute that if Appellants won this action, they would have sought and been awarded attorney’s fees pursuant to Civil Code section 1354(c). Accordingly, the Superior Court awarded Yeldell his attorney’s fees under that statute. (Decision, p. 10) Attorney/former Appellant Mifflin filed two notices of appeals on behalf of all of the Plaintiffs as Appellants from the Superior Court’s two decisions: [1] finding that Tract 19051 was not a commoninterest development; and, [2] awarding Respondenthis attorney’s fees. (Ct.App. Docket, 8/8/11 and 3/8/12.) Since the two appeals were filed, thirty-one (31) of the Plaintiffs/Appellants filed requests for dismissal, including 7 Appellants/attorneys Brewer and Mifflin. (Decision p. 2, n. 2) B. The SecondDistrict, Division 4’s Decision The Court of Appeal’s Decision affirmed the Superior Court’s Judgment for Yeldell on the Plaintiff's substantive claim to enforce the DORs, but it reversed as to the remaining Appellants the attorney’s fees award in favor of Yeldell. The Decision on the attorney’s fees issue was based on the SecondDistrict’s reported decision in Mt. Olympus Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4" 885. However, neither side had briefed that case in their appellate briefs. For the reasons discussed below, that case does not preclude Yeldell’s right to prevailing party attorney’s fees. C. The Petition For Rehearing Because neither side had briefed Mt. Olympus Property Owners Assn. v. Shpirt, 59 Cal.App.4” 885 (1997) on the attorney’s fees issue, Yeldell brought a Petition for Rehearing, pursuant to Government Code § 68081, which statute provides: “Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental! briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.” However, the Court of Appeal denied the Petition in an one-sentence order dated June 5, 2013, which was received on June 13. IV. ARGUMENT FOR REVIEW TO DETERMINE A PREVAILING DEFENDANT’S RIGHT TO STATUTORY ATTORNEY’S FEES A. Review Should Be Granted to Decide the Important Legal Question of Whether Civil Code Section 1354 is Truly A Reciprocal Attorney’s Fees Provision Supreme Court review is sought because the Court of Appeal held in this case that Civil Code section 1354(c) is not truly a reciprocal attorney’s fees provision, despite its express language: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (italics added.) There is no dispute that this was an “action to enforce”’ the Tract’s “governing documents,” and that Respondent was the “prevailing party.” The Court of Appeal’s Decision to reverse the attorney’s fees award to Respondent wasa substantial error of law. The Court of Appeal concluded that because the Defendant (Respondent) prevailed in this action by proving that the Plaintiffs (Appellants) were notentitled to any relief under the Act, the Defendant was also not entitled to the right to reciprocal attorney’s fees provided by section 1354(c). There is no dispute that if the Plaintiffs had won, they would have been entitled to their attorney’s fees. Denying the prevailing Defendant the right to statutory attorney’s fees is contrary to California law and fundamental logic and fairness. Supreme Court review is necessary to provide clear guidance on howto interpret and apply such a statutory attorney’s fees provision. As discussed in the following sections, the Court of Appeal’s Decision is contrary to California law and conflicts with 9 the decisions issued in other statutory attorney’s fees cases. B. The Court of Appeal Decision Here Held that Civil Code Section 1354 is Not a Reciprocal Attorney’s Fees Provision Although neither party briefed or argued Mount Olympus, supra, in their appellate briefs, the Court of Appeal, sua sponte, decided the entire §1354(c) attorney’s fees claims based on that case. The court stated: “In Mount Olympus, supra, 59 Cal.App.4th at pages 895-896, we found that because the Act did not apply, the trial court had erred in awarding attorney fees under section 1354 ... Because the same rationale applies to this case, the attorney fee award under section 1354 must be reversed.” (Decision pp.12-13, citation omitted) For the reasons discussed below, the Mount Olympus case was wrongly applied here andits interpretation of statutory attorney’s fees provisions is contrary to California law and fundamental fairness. Mount Olympus was a lawsuit by an individual lot owner (Michael Ross) and the tract’s owners association (the Mount Olympus Property Owners Association [MOPOA]) against another lot owner (Boris and Jenny Shpirt). Jd, 59 Cal.App.4th at 889. The plaintiffs sought an injunction preventing the defendants from erecting or constructing a house without the association’s approval or from erecting or constructing a house which interfered with or reduced the view from the individual plaintiff’s property. Jd. The plaintiffs did not apparently allege that the tract was a commoninterest development under the Act and they apparently did not allege they were entitled to attorney’s fees under Civil Code section 1354(c), like Appellants here did. 10 In Mount Olympus, the individual plaintiff prevailed at trial and after judgment wasentered, he claimed attorney’s fees on four separate grounds, one of which wasbased on Civil Code section 1354(c). Jd., at 893. The trial court granted the plaintiff's motion for attorney’s fees under Civil Code section 1354(c). However, the court of appeal in Mount Olympus reversedthat decision. The court of appeal in Mount Olympusheld that in order for a prevailing plaintiff to be entitled to attorney’s fees under Civil Code section 1354(c), the tract must be a “common interest development for purposesof the” Act. Id., 59 Cal.App.4th at 894. The court of appeal in Mount Olympus did not consider whether a prevailing defendant would be entitled to attorney’s fees under Civil Code section 1354(c) by proving that the tract wasnot a “commoninterest development for purposes of the” Act. Because there was no discussion in Mount Olympus of whether Civil Code §1354(c) would apply to a prevailing defendant in an action to “enforce the governing documents”if the association or tract was not a commoninterest development under the Act, Mount Olympus should be irrelevant to Respondent’s right here to prevailing party attorney’s fees." Asdiscussed in the following sections, a prevailing defendant’s right to statutory attorney’s fees under Civil Code §1354(c) should be determined by the principles and The Mount Olympus case does not apply because a “case is not authority for a proposition not considered.” Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App. 4th 187, 198. The Court in Mount Olympus did not consider whethera prevailing defendant, such as Respondent here, is entitled to statutory attorney’s fees under §1354(c). Furthermore, “the language of an opinion must be construed with reference to the facts of the case, and the positive authority of a decision goes no farther than those facts. A decision is not authority merely for whatit says, but for the points actually involved and actually decided.” Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 962 (citing Trope v. Katz (1995) 11 Cal.4th 274, 284). 11 rationales from other California cases construing other statutory attorney’s fees provisions. Specifically, a prevailing defendant’s right to statutory attorney’s fees should not be denied because the defendant prevailed on the substantive merits of the plaintiff's statutory claim by proving that the plaintiff was not entitled to relief under the statute it sued on. Cc. The Court of Appeal Decision Here and in Mount Olympus Conflicts With Existing Case Law on the Interpretation of Statutory Attorney’s Fees Provisions Supreme Court review is needed to address whether fundamental principles of statutory interpretation apply to statutory attorney’s fees provisions. These principles and holdings compel the conclusion that Civil Code section 1354(c) should apply to a prevailing defendant in an action brought under the Act to enforce the “governing documents” (e.g., Covenants, Conditions and Restriction — “CC&Rs” -— or DORs), whetheror not the association or tract was entitled to relief under the Act, i.e., whether or not it proved that it was a commoninterest development. A prevailing defendant’s right to attorney’s fees under Civil Code section 1354(c) should be determined as under other statutory attorney’s fees provision. Therefore, Petitioner discusses the following fundamental interpretation rules in order to frame the issue here, which is how Civil Code section 1354(c) is to be interpreted and applied for a prevailing defendant. 12 In all other California decisions regarding “reciprocal” attorney’s fees provisions,” it has been held that even though the statutory scheme containing the reciprocal attorney’s fees provision was not applicable, the prevailing defendant was nevertheless entitled to recover defendant’s attorney’s fees if the plaintiff would have been entitled to recover plaintiff's attorney’s fees if plaintiff had prevailed. See, e.g, Hsu v. Abarra (1995) 9 Cal 4" 863, 870-871; Mechanical Wholesale Corporation v. Fuji Bank Limited (1996) 42 Cal.App.4" 1647, 1661; Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832, 842; Jones v. Drain (1983), 149 Cal.App.3d 484, 489-490; Care Constr., Inc. v. Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d 701, 707. A few examples of other reciprocal statutory attorney’s fees provisions that have been interpreted in California cases are discussed below. However, missing from the caselaw are some clearly articulated rules and principles for interpreting reciprocal statutory attorney’s fees provisions outside of the context of Civil Code section 1717. For a reciprocal attorney’s fees provision or right to function as intended, parties need reasonable prospective assurance of whether they will or will not be able to recover their attorney's fees if they win, and whetherthey will have to pay their opponent's fees if 2 In California, the general rule regarding the award of attorney’s fees is that there is no fee-shifting unless allowed by contract or statute (the “American Rule.”). Sears v. Baccaglio (1998) 60 Cal.App.4" 1136, 1139. However, the Legislature has enacted many exceptions to the American Rule. There are numerous “reciprocal” attorney’s fees statutes, under which the Legislature has authorized an award of attorney’s fees to the “prevailing party” (see Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal.App.3d 1305, 1311, citing over 25 examples of statutory “prevailing party” attorney’s fees provisions, such as Civil Code, §§ 55, 86 789.3(d) and 815.7). But certain statutes are “unilateral” — they only authorize the award of fees only to one side, which the Legislature defines by using such terms as “plaintiff” .... or “defendant.” Id. (see e.g., Civ. Code §§ 52(a) and 1785.31(d) and Code Civ. Proc. §§391(c) 399, and 490.020). 13 they lose. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1090-91; Santisas, supra, 17 Cal.4th at 610. The “fundamental purpose” of making by statute an attorney’s fees provision to be mutual or reciprocal is “to insure mutuality of a prevailing party's access to an award of attorney's fees.” North Associates v. Bell (1986) 184 Cal.App.3d 860, 865. Because of the “mutuality of remedy” doctrine, a prevailing defendantis entitled to attorney’s fees if the defendant is sued on a contract or statute that provides for attorney’s fees, even if the defendant prevails by successfully arguing the inapplicability, invalidity, unenforceability, or nonexistence of the contract or statute. Santisas, supra, 17 Cal.4th at 611; Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129; North Associates, supra, supra, at 865. In other words: “Sauce for the goose is sauce for the gander” or, “Same monks, same haircuts.” (See Newman v. Checkrite California, Inc. (E.D.Cal. 1994) 156 F.R.D. 659, 660, fn. 1.) This Court in Jankey v. Song Koo Lee (2012) 55 Cal.4th 1038 recently discussed the broad interpretation to be provided to a reciprocal statutory attorney’s fees provision. Jankey concerned Civil Code section 55, which provides that “the prevailing party” in a statutory disability access discrimination case “shall be entitled to recover reasonable attorney’s fees.” The Court discussed two main attorney’s fees interpretation principles in affirming a holding that the prevailing defendant wasentitled to attorney’s fees. First, the Court discussed the broad reach of reciprocal attorney’s fees provisions. “The Legislature knows how to write both unilateral fee statutes, which afford fees to either plaintiffs or defendants, and bilateral fee statutes, which may afford fees to both plaintiffs and defendants.” Jd, 55 Cal.4th at 1045. The Court continued, quoting an 14 earlier case: “’When the Legislature intends that the successful side shall recover its attorney's fees no matter who brought the legal proceeding, it typically uses the term ‘prevailing party.’’” Jd. (quoting Stirling, supra, at 1311.) Second, the Court discussed that the reciprocal attorney’s fees provision was mandatory because the Legislature used the word “shall,” which meant the Court had to award attorney’s fees to the prevailing party. Civil Code section 55 was a mandatory fee award: “a ‘prevailing party’ ‘shall be entitled’ to ‘reasonable attorney’s fees.’” Jd., at 1045-46. Here, the Legislature made Civil Code section 1354(c), like Civil Code section 55, a mandatory reciprocal attorney’s fees provision. Twoadditional interpretation rules or principles should be expressly considered in formulating a rule for interpreting a reciprocal statutory attorney’s fees provision with respect to a prevailing defendant. First, “we are required to ... avoid an absurd result” (Mechanical Wholesale Corporation, supra, 42 Cal.App.4" 1647, 1661). Here, that meansthat a prevailing defendant should not be denied the right to statutory attorney’s fees merely because he prevailed by proving that the plaintiff was not entitled to statutory relief. Rather, the logical criteria for determining the prevailing defendant’s right to attorney’s fees is if the plaintiff would have been entitled to attorney’s fees is if the plaintiff had prevailed. The second principal is that if the attorney’s fees statute is ambiguous or susceptible to differing constructions, it should be interpreted to give a “practical and equitable result” rather than one resulting in “mischief or absurdity.” Aleman v. Airtouch 15 Cellular (2012) 209 Cal.App.4"™ 556, 583-584. Similarly stated: ‘When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequencesthat will flow from a particular interpretation. In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences.’” Hart v. Autowest Dodge (2007) 147 Cal.App.4th 1258, 1262 (citation omitted). Here, the Court of Appeal’s Decision is contrary to all said decisions (as discussed, supra, the Mount Olympus court did not deal with this situation — that case dealt only with a prevailing plaintiff; it did not deal with a prevailing defendant). No other reported decision has held that a prevailing defendant wasnotentitled to attorney’s fees underthe statute that plaintiffs sued on. In Mechanical Wholesale, supra, for example, the court was faced with an analogous scenario under former Civil Code section 3176 (now Civil Code section 8558) which provides that the prevailing party shall recover its attorney’s fees “In any action against ... [a] construction lender to enforce ...a bonded stop notice.” (italics added.) (Civil Code §1354(c) provides: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”) In that case, a contractor, brought suit against a construction lender to enforce a bonded stop notice. The plaintiff alleged that it was entitled to attorney’s fees pursuant to Civil Code § 3176. However, the plaintiff's claims were defeated by the defendants, on demurrer, by showing that no bonded stop notice existed. As the prevailing defendant, the lender moved for attorney’s fees pursuant to Civil Code section 3176. Id, 42 Cal.-App.4"at 16 1660. The plaintiff argued that because the court found that the statutory schemeat issue did not apply to plaintiffs and that no bonded stop notice existed, the defendant could not recover attorney’s fees under Civil Code section 3176. That is the exact type of argument the Appellants are making here: because the Association/Tract was not a commoninterest development, Respondentas the prevailing party is not entitled to attorney’s fees. The Mechanical Wholesale Court held that because the plaintiff would have been entitled to attorney’s fees had it prevailed in enforcing the alleged bonded stop notice, the defendant was similarly entitled to statutory attorney’s fees as the prevailing party, whetheror not the statute sued on applied. /d., 42 Cal.App.4th at 1660-61. The Court’s reasoning was guided by the fundamental principle that in interpreting and applying the statutory attorney’s fees provision, “we are required to ... avoid an absurd result.” Hence, the Court said that it “can only come to the commonsense conclusion, that the Legislature intended that either party could be a prevailing party. Thus, a construction lender who successfully defends a suit on an invalid stop notice claim, can legitimately claim to have recovered “a greaterrelief” and is a prevailing party entitled to receive its attorney's fees.” Jd, at 1661. “We need not be concerned as to why the stop notice claim wasinvalid; it is only necessary for Fuji Bank to have shownthatit defeated the claim. Such invalidity will not bar fees to which a prevailing party is otherwise entitled.” Jd., 42 Cal.App.4th at 1661. In rendering its decision, the Mechanical Wholesale Court expressly noted that in “a different but analogous context, courts have sustained a right to recover attorney fees 17 under section 1717, even though the contract which contained the relevant attorney fee clause was found to be invalid or unenforceable.” Jd. at 1662, n. 14 (citing Jones v. Drain (1983) 149 Cal.App.3d 484, 490; Care Constr., Inc. v. Century Convalescent Centers, Inc. (1976) 54 Cal.App.3d 701, 707.) Because of the principles of “mutuality of remedy” and fundamental fairness, the right to attorney’s fees is determined by whetherthe plaintiff would have been entitled to attorney’s fees if plaintiff had prevailed; not whether the plaintiff ultimately prevailed in proving that the statutory schemeapplied or that the contract was valid and enforceable. Other court of appeal decisions have recognized that the doctrine against absurd results also mandates that a prevailing defendant’s right to statutory attorney’s fees is determined by whether the plaintiff would have been entitled to attorney’s fees if it had won. See, é.g., Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894. In 2006, defendant Maurice Kemp acquired lot 22 ofTract 19051, which has a street address of4085 Cloverdale. Lot 22 contained a single story residence that Kemp essentially demolished in order to build a much larger 7,000 square foot two-story home. After construction began, the attorney for a fellow homeowner informed Kempthat the remodeling project wasin violation ofthe height and setback restrictions contained in the DOR’s. In September 2008, Kemp was sued by the Association and the owners of 32 lots (plaintiffs) for breach of the DOR’s, nuisance, injunctive relief; and declaratory relief. Plaintiffs sought a temporary restraining order (TRO)to halt the remodeling project. In opposition, defense attorney Keith Turner argued the DOR’s had expired by its own terms on January 1, 2000. Plaintiffs countered that a majority ofhomeowners had voted 3 The DOR’sstated in relevant part: “Each and all ofthe conditions herein contained shall in all respects terminate and end and be ofno further effect, either legal or equitable, either on said property or any part thereof, or on the parties thereto, their heirs, successors, devisees, executors, administrators or assigns, on or after January 1, ofthe year 2000.” in December 1999 to extend the DOR’s to December 31, 2010.4 Thetrial court (Judge David P. Yaffe) denied the TRO after noting that only 32 of the 94 homeowners were seckingrelief as plaintiffs. After 48 ofthe 94 homeowners filed an amended complaint, which was later increased to 52 of94 homeowners,plaintiffs requested a preliminary injunction to halt the remodeling project.5 Thetrial court (Judge Yaffe) denied the preliminary injunction on January 6, 2009. The court stated in relevant part: “An amendmentto the declaration ofrestrictions was made on December 29, 1999, that purports to extend the force and effect of the declaration ofrestrictions to December 31, 2010. The amendmentrecites that it is agreed to by, ‘at least 50 percent, plus one, of the total voting power ofthe members....’ [§] Plaintiffs contend that the amendmentis sufficient to extend the term of the declaration ofrestrictions under section 1355 of the Civil Code, a portion of the Davis-Stirling Common Interest Development Act. The contention is without merit because Tract 19051 is not a common interest development, and therefore the Davis- Stirling Act has nothing to do with it. Tract 19051 is a tract of individually owned single family residences that border upon streets that are dedicated to the public and are not owned in common by the homeowners or by the homeowners’ association.” As to the statutory requirements of a common interest development, the trial court found no evidence that the tract had any common areas, that membership in the Association had 4 According to the amended judgment, “[p]laintiffMARCIA BREWERrecorded a document entitled CERTIFICATION OF AMENDMENT TO DECLARATION OF RESTRICTIONS AND AMENDMENTTO DECLARATIONOF RESTRICTIONS, which purported to extend the DORs to December 31, 2010.” 3 On December11, 2008, the court added four plaintiffs to the amended complaint, bringing the total number ofhomeownerplaintiffs to 52. The amended complaint added Douglas Higgins, who was Kemp’s contractor, as a defendant. According to plaintiffs’ opening brief, Higgins died before trial. Although plaintiffs continue to refer to Higgins as a defendant, there is no indication that either the executor of his estate or his personal representative has appearedin this litigation. been conveyed to the homeowners, or that the Association was authorized to collect assessments and imposeliens. Before the case was tried, Kemp defaulted on his construction loan and the lender recorded a notice ofdefault on February 3, 2009. In light ofthe impending foreclosure sale, Kemp ceased defendingthis action and his attorney was allowed to withdraw from the case on August 12, 2009. The court (Judge Richard L. Fruin) conducted a benchtrial on January 25 and 28, 2010. Kemp, who was on the verge of losing his property, did not appear attrial. Plaintiffs, who appeared through their attorneys Marcia J. Brewer and Ken Mifflin (who are plaintiffs but not appellants in this action), provided documentary evidence and testimony in support oftheir claim that Kemp’s home was being enlarged in violation of the height and setback restrictions in the declaration, which a majority ofhomeowners had extended to December 31, 2010. At the conclusionoftrial, the court entered aninterlocutory judgmentfor plaintiffs, who were granted $112,000 in attorney fees and costs under section 1354.6 Because the DOR’s were scheduled to expire on December 31, 2010, the trial court 6 Subdivision (a) of section 1354 provides: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit ofand bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any ownerofa separate interest or by the association, or by both.” Subdivision (c) ofsection 1354 provides: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” The term “declaration” as used in section 1354 is defined as “the document, however denominated, which contains the information required by Section 1353.” (§ 1351, subd. (h).) Section 1353, subdivision (a)(1) provides: “A declaration, recorded on or after January 1, 1986, shall contain a legal description ofthe common interest development, and a statement that the commoninterest development is a community apartmentproject, condominium project, planned development, stock cooperative, or combination thereof. The declaration shall additionally set forth the name of the association andthe restrictions on the use or enjoyment ofany portion ofthe common interest developmentthat are intended to be enforceable equitable servitudes. . . .” continued the matter in order for plaintiffs to show that the DOR’s would be extended beyondthat date. In March 2010, defendant Eric Yeldell purchased Kemp’s homeata trustee’s foreclosure sale. In August 2010, a majority ofhomeowners voted to extend the DOR’s to December 31, 2030. In October 2010, Yeldell moved to intervene as a defendant and vacate the interlocutory judgment on the ground that the DOR’s had expired in January 2000 and were therefore unenforceable. Thetrial court granted Yeldell’s motion to intervene on December3, 2010. It issued an order to show cause and requested furtherbriefing on whether “to: (1) vacate the Interlocutory Judgment; (2) whetherto enterjudgment against plaintiffs on the evidence already presented; and (3) whether to hold a further evidentiary hearing to receive new evidence that may be offered in support ofPlaintiffs’ claims.” Ata February 10, 2011 evidentiary hearing, Yeldell was represented by Kemp’s former attorney Turner. Yeldell argued that because the development did not qualify as a commoninterest development under the Act, section 1357 did not apply and the vote by a majority ofhomeowners to extend the DOR’s to December 31, 2010, was ineffectual. The parties litigated the following issues: The 1946 Grant Deed. Plaintiffs argued that a newly discovered 1946 grant deed had created a common area by providing an “express permanent easement over Parcel No. 1 ofthe developmentthat is appurtenant to the separate interests of the owners. therein for use as a means ofingress and egress to and from the neighboring park.”? 7 In his declaration, plaintiffs’ attorney Ken Mifflin explained that “[sJeveral weeks before the evidentiary hearing, I sent the subdivision map to Fidelity Title Company to see ifthey could assist in locating any easements in favor ofTract 19051 .... They were unable to find anything. [{] ...On or about January 5, 2011, I went to Norwalk to search the grantor/grantee index files for conveyances from the Baldwin Hills Company to the City ofLos Angeles that reserved any easement rights to the grantor. I was unable to find anything. [{] ...On or about January 20, 2011[,] I went back to Norwalk to the County Records office to see if ] could find the deed that referenced the subdivision map (Fn. continued.) sor th i, a i i d c e S i t O E O H However, Yeldell’s evidence showed that Parcel No. 1 is not in Tract 19051, but in the state park that abuts Tract 19051. Plaintiffs did not refute Yeldell’s evidence. Accordingly, plaintiffs conceded that they were attempting to show the existence of a common area based on an easement that runs from the edge ofTract 19051 through the Kenneth Hahn State Park and does not burden any property within the tract. The Subdivision Map. Plaintiffs argued that the subdivision map for Tract 19051 had created a common area by depicting public streets and utility easements, which they claimed were mutual or reciprocal easements that are appurtenant to the separate interests and necessary to the use and enjoyment ofeach lot. Yeldell disagreed. Yeldell argued that public streets and utility easements do not create mutual or reciprocal easements that are appurtenantto the separate interests of the property owners. The Association’s Powers to Assess and Levy. Under section 1351, subdivision (k)(2), one indication of a planned developmentis the Association’s power “to enforce an obligation ofan owner of a separate interest with respect to the beneficial use and enjoyment ofthe common area by means of an assessment which may becomea lien upon the separate interests in accordance with Section 1367 or 1367.1.” In support of their contention that Tract 19051 is a planned development, plaintiffs pointed out that the Association was authorized by its bylaws to assess and collect dues and levy special assessments to meet any unanticipated needs. Yeldell argued that this was insufficient to show that Tract 19051 is a planned development. Yeldell asserted that in a planned development, any conveyance of the owner’s entire estate also includes the owner’s membership interest in the association. (§§ 1352, 1358, subd. (c).) In this case, however, there was no evidence that membership in the Association, which was purely voluntary, was transferred with the sale ofany ofthe lots in the tract. At the conclusion oftrial, thecourt found that plaintiffs had failed to show that Tract 19051 is a planned development. Accordingly, the court held that the majority that I observed by use ofa magnifying instrument. With the assistance ofan employee, I located that attached deed (Exhibit C).” homeowners’ attempts to extend the DOR’s under section 1357 were ineffectual. Because the DOR’s had expired and were unenforceable, the trial court vacated the interlocutory judgmentforplaintiffs and entered judgment for defendants. The trial court awarded defendants costs under Code of Civil Procedure sections 1032 and 1033.5, plus attorney fees under section 1354. We consolidated plaintiffs’ separate appeals from the judgment (B235015) and attorney fee award (B239588). DISCUSSION Plaintiffs contend: (1) “Tract 19051 is a common interest development under the Davis-Sterling Act because the owners in the development possess appurtenant easement rights to a portion of the development and an association with authority to enforce the DORS”; and (2) “Even if the court affirms thejudgment that the Davis-Sterling Act does not apply, the award ofattorneys’ fees should be reversed because there is no basis for recovery of attorney’s fees.” 1. Tract 19051 Is Not a Common Interest Development Plaintiffs contend the undisputed evidence showsthat, as a matter oflaw, Tract 19051 is a planned development. We conclude the contention lacks merit. In Mount Olympus, supra, 59 Cal.App.4th 885, we stated that in order for “a developmentto fall within the governance of the Act, the statutory requirements are clear: (1) there must exist a common area ownedeither by the association or ‘by the owners of the separate interests who possess appurtenantrights to the beneficial use and enjoyment of the commonarea’ (Civ. Code, §§ 1351, subd. (k)(1), 1374); (2) there must have been recorded ‘[a] declaration,’ ‘[a] condominium plan,ifany exists,’ and ‘[a] final map or parcel map’ (id., § 1352); and (3) there must have been conveyed ‘a separate interest coupled with an interest in the common area or membership in the association’ (ibid.).” (Id. at pp. 895-896.) 10 a e s , As previously mentioned, plaintiffs sought to establish the existence ofa common area based on the statutory definition that “the common area for a planned development specified in paragraph (2) of subdivision (k) may consist ofmutual or reciprocal easementrights appurtenant to the separate interests.” (§ 1351, subd. (b).) In order to show the existence of“mutual or reciprocal easement rights appurtenantto the separate interests” (ibid.), plaintiffs relied on (1) a roadway easement outside Tract 19051, and (2) public roads and utility easements within Tract 19051. Weconclude that the roadway easement outside Tract 19051 fails to establish the existence of a common area. As stated in Comm. to Save the Beverly Highlands Homes Ass'n v. Beverly Highlands Homes Ass'n (2001) 92 Cal.App.4th 1247, “there must be, at a minimum, appurtenant easementrights to a portion ofthe development.” (/d. at p. 1271.) Because the roadway easementlies outside the development, it does not create any “appurtenant easementrights to a portion of the development.” (/bid.) Plaintiffs have cited no authority for the proposition that public streets create “mutual or reciprocal easement rights appurtenant to the separate interests.” (§ 1351, subd. (b).) The fact that property owners have a right of ingress and egress overthe city streets abutting their lots does not transform the municipality’s roads into a commonarea for purposes ofthe Act. There was no evidence that any ofthe plaintiffs treated the public streets as a common area that was to be maintained by the Association. Although there are no cases that have decided this question, we agree with the view expressed by one commentator: “The often subtle but important distinction between a common interest development and a standard subdivision involves the manner in which common roads, recreational lots and other facilities are held by the owners ofinterests in a subdivision. Ifa subdivision includes only public streets and no commonareas,it is a standard subdivision.” (9 Miller & Starr, Cal. Real Estate (3d ed. 2007) § 25C:8, p. 25C-30.) Wesimilarly conclude that the homeowners in Tract 19051 have no appurtenant easementrights to the utility easements, which are for the benefit of the utility. (See, e.g., Uniwill v. City ofLos Angeles (2004) 124 Cal.App.4th 537, 544 [easement granted the 1] utility the exclusive right to occupy the property].) Even though theutilities provide water, gas, and electrical services that are necessary for the use and enjoymentofthe homesin the subdivision, the homeowners do not have appurtenant easementrights to the utility easements. Giventhe lack of any evidence ofa commonarea, the Association’s authority to assess and collect dues and levy special assessments to meet any unanticipated needsis insufficient to show that Tract 19051 is a planned development. A similar situation existed in Mount Olympus, supra, 59 Cal.App.4th at page 895, where, as here, there was no evidence that membership in the homeownersassociation was transferred with the sale of any of the lots in the tract. (§§ 1352, 1358, subd. (c).) In that case, the homeowners association (MOPOA) owned and maintained two small plots of land on which a sign was displayed. In rejecting MOPOA’s argumentthat the two small plots constituted a common aréa within the meaning of the Act, we stated that the association “did not establish that a ‘separate interest coupled with an interest in the common area or membership in the association’ had been conveyed. Indeed,it is clear from testimonyat trial that there was no mandatory membership in MOPOA,andthat it was a purely voluntary association ofhomeowners with no powerto charge or collect assessments.” (Ibid.) The same reasoningis equally applicable to this case.8 Il. Defendants Are Not Entitled to Attorney Fees Under Section 1354 Plaintiffs contend that ifwe determine that Tract 19051 is not a commoninterest development, the award of attorney fees under section 1354 must be reversed because the Act does not apply. The contention is well taken. In Mount Olympus, supra, 59 Cal.App.4th at pages 895-896, we found that because the Act did not apply,thetrial court had erred in awarding attorney fees under section 1354. (See 12 Miller & Starr, Cal. Real Estate (3d ed. 2008) § 34:66, p. 34-229 [“Ifthe property described in the restrictionsis 8 Yeldell filed a motion seeking leave to produce additional evidence. The request is denied. 12 -F ose o n e e e e not a ‘commoninterest development,’ this provision for the award of fees does not apply.”].) Because the same rationale applies to this case, the attorney fee award under section 1354 must be reversed. DISPOSITION The order awarding plaintiffs’ attorney fees under section 1354 is reversed. In all other respects, the judgmentis affirmed. The parties are to bear their own costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS SUZUKAWA,J. We concur: WILLHITE, Acting P. J. MANELLA,J. 13 B235015; B239588 IN THE COURT OF APPEAL OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION 4 Tract 19051 Homeowners Associationet al., Plaintiffs and Appellants, v. Maurice Kempetal., Defendants and Respondents On Appeal from a Judgmentofthe Superior Court of California Los Angeles County Superior Court No. BC398978 The Honorable Richard L. Fruin RESPONDENT ERIC YELDELL’S PETITION FOR REHEARING; DECLARATIONS OF ERIC YELDELL, MICHAEL THOMAS, JORGE DENEVE, HERB ANDREWS, AND DIANNE ISLAND ‘TURNER LAW FIRM, APC Keith J. Turner [SBN152685] 429 Santa:‘Monica Blvd., Suite 500 Santa Monica, California 90401 Phone: 310.454.6190 Fax: 310.882.5563 Email: kjt@turnerlawapc.com p t e g M Attorneysfor Respondent Eric Yeldell oe T a I s a r 1 1 H Wd OF AY N EI N W H O I S 4 0 L u n e ? w a e y a d d s Ss T e s d a Y 1S 10 QN UD 3 3 0 1 4 3 0 $ . N d 3 1 9 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION 4 June 5, 2013 Keith J. Turner Turner Law Firm A.P.C. 429 Santa Monica Blvd. Suite 500 Santa Monica, CA 90401 TRACT 19051 HOMEOWNERSASSOCIATIONetal., Plaintiffs and Appellants, v. MAURICE KEMPetal., Defendants and Respondents. B235015 Los Angeles County No. BC398978 THE COURT: Petition for rehearing is denied. cc: All Counsel File PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Tract 19051, et al.. v Maurice Kemp,et al. Court of Appeal Case Nos. B235015; B239588 I am over the age of 18 and not a party to the within action; I am employed in the County of Los Angeles at 429 Santa Monica Blvd., Suite 500, Santa Monica, CA 90401. On the date below I served the following document: PETITION FOR REVIEW The documentwasserved by the following meansonall parties listed in the attachedservicelist: [Vv] (BYU.S. MAIL) Iam “readily familiar” with my office’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on June 24, 2013 at Santa Monica, California. /s/Max Master Max Master SERVICE LIST Ken Mifflin, Esq. LAW OFFICE OF MIFFLIN & ASSOCIATES 4309 South Western Avenue Los Angeles, California 90062 Robert L Jones 4081 S. Cloverdale Ave. Los Angeles, CA 90008 Jorge Dneve 3939 S. Cloverdale Ave. Los Angeles, CA 90008 Office of the Clerk Los Angeles Superior Court For: The Honorable Richard L. Fruin, Dept. 15 Stanley Mosk Courthouse 111 North Hill Street Los Angeles, CA 90012 Office of the Clerk 2™District Court of Appeal, Division 4 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013