Parties’ Inability To Mediate Was A Discretionary Factor To Weigh In The Fee Calculus.
HOA, in Country Glen Oak Park Homeowners Assn. v. Garrett, Case No. B303220 (2d Dist., Div. 6 July 6, 2021) (unpublished), won a case to require removal of a pool equipment encroachment by homeowners as well as $820 in compensatory damages. The trial court then awarded HOA $318,426 out of a requested $323,579 in attorney’s fees under the Davis-Stirling Act fee shifting provision (Civil Code section 5975(c)). That award was affirmed on appeal. HOA’s failure to mediate was only a discretionary factor to weigh in a fee assessment, Civil Code section 5960, with the record showing both sides could not come to terms on how to approach a mediation. With respect to the award itself, HOA did prevail on the overriding encroachment issue so to enforce CC&Rs, and the record showed the lower court did look closely at the amount being requested as far as fashioning an award. This case goes to show you how HOA disputes can be costly and earth-shattering with regard to fee award allocations.
BLOG COMMENT—It is with sadness that we announce that Hon. Edward J. Wallin (Ret.) recently passed away in late May of this year. He was a long-time former sitting justice of the 4/3 DCA and a JAMS neutral, who co-contributor Mike appeared in front of, from time to time, during his tenures as an appellate justice and neutral. He also is the author of our Mission Statement quote--"All too often attorney fees become the tail that wags the dog in litigation," Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993), which has been quoted often by both California and out-of-state decisions.
Comments