Estoppel, Fee Clause Interpretation, Section 1717: Lower Court’s Denial Of Attorney’s Fees To Prevailing Plaintiffs In CC&R Flag Pole Placement Dispute Was An Abuse Of Discretion

Judicial Estoppel Applied And Plaintiffs Were The Unqualified Winners.

               In Rowan v. Hilliard, Case No. D081687 (4^th Dist., Div. 1 Feb. 29, 2024) (unpublished), plaintiffs prevailed against defendants/cross-complainants in a flag pole placement dispute under CC&Rs, which had a fees clause giving the lower court the authority (“shall have the authority”) to award reasonable attorney’s fees to the prevailing party.  The trial judge found that this clause was only discretionary even though plaintiffs prevailed.

               The 4/1 DCA reversed.  It initially determined that defendants were judicially estopped from denying the fee clause applied, because they previously convinced a judge to award fees after winning a summary judgment motion (a win reversed earlier by the appellate court).  Further, it was an abuse of discretion not to award fees because plaintiffs were the unqualified winners and Civil Code section 1717 applied so they were entitled to fees.