Filed 5/23/17 Andoh-Kesson v. San Juan Meadows Homeowners Assn. CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


BENJAMIN ANDOH-KESSON AND EMELIA ANDOH-KESSON,

Plaintiffs and Appellants,

v.

SAN JUAN MEADOWS HOMEOWNERS ASSOCIATION,

Defendant and Respondent.


G052587

(Super. Ct. No. 30-2014-00739625)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed.
Benjamin Andoh-Kesson and Emelia Andoh-Kesson, in pro. per for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffrey S. Ranen, Alexander J. Harwin and Caroline E. Chan, for Defendant and Respondent.
Plaintiffs and appellants Benjamin Andoh-Kesson and Emelia Andoh-Kesson (plaintiffs) appeal from a judgment awarding attorneys fees to defendant, San Juan Meadows Homeowners Association following plaintiffs’ dismissal of their first amended complaint on the eve of a demurrer hearing. Plaintiffs contend the lower court erred in determining (1) plaintiffs’ case was based on enforcing governing documents under Civil Code section 5975, subdivision (c) (all further undesignated statutory references are to this code); and (2) defendant is the prevailing party. In an undeveloped argument difficult to discern, plaintiffs also request we undertake a merits review. We deem this a request to review the trial court’s pre-dismissal grant of defendant’s motion for judgment on the pleadings. We find no error and accordingly affirm.
FACTS AND PROCEDURAL HISTORY
In 2005, plaintiffs purchased a home in a common interest development on San Juan Street in Tustin, California. The community is governed by a Declaration of Covenants, Conditions, and Restrictions (CC&R’s), which state owners agree to pay regular maintenance assessments or charges and special assessments. As relevant to this appeal, the CC&R’s give defendant the authority to impose late fees, file liens and pursue nonjudicial and judicial foreclosure. The CC&R’s also provide defendant shall have the exclusive right to collect unpaid assessments and enforce assessment liens.
In 2011, defendant filed an action against plaintiffs in the Superior Court of Orange County, case No. 30-2011-00487495 (the 2011 Action). Defendant sought to collect unpaid assessments, late charges, interest, and attorneys fees. Plaintiffs filed a cross-complaint alleging violation of the Unruh Civil Rights Act. They claimed they are of African descent, a protected class. They alleged they received less yard care services than other members of the association, and during a board meeting in 2008, someone made a derogatory remark concerning their national origin. Defendant dismissed its claims in the 2011 Action, and instead pursued nonjudicial foreclosure. Plaintiffs later dismissed their cross-complaint.
Defendant was the highest bidder at the foreclosure sale and in June 2014 recorded a Certificate of Foreclosure Sale Subject to Redemption. Plaintiffs failed to redeem, so in August 2014, defendant recorded a Trustee’s Deed Upon Sale.
That same month, August 2014, plaintiffs filed the present lawsuit. Their complaint alleges causes of action for breach of contract, wrongful foreclosure, violation of the Fair Debt Collection Practices Act (FDCPA), and statutory fraud (§ 1572). In essence plaintiffs complain defendant conducted a nonjudicial foreclosure sale in violation of the CC&R’s and breached the CC&R’s by erroneously including unauthorized fees, charges, and penalties within the assessment lien that was foreclosed. Plaintiffs requested compensatory, statutory and exemplary damages, a declaration the foreclosure was wrongful, a restraining order to bar future enforcement of any foreclosure-related remedies, and attorneys fees and costs. Attached to plaintiffs’ complaint were excerpts from the CC&R’s.
In October 2014, defendant filed an answer denying the allegations and asserting 51 affirmative defenses. Shortly thereafter, defendant filed a motion for judgment on the pleadings and two requests for judicial notice of multiple documents, including pleadings from the 2011 Action, the Certificate of Foreclosure Sale Subject to Redemption, and the Trustee’s Deed Upon Sale. As to the FDCPA cause of action, defendant argued it is not a debt collector and the debt does not qualify as a debt under the FDCPA. Plaintiffs opposed the motion. The court granted the motion without leave to amend as to the FDCPA cause of action but allowed leave to amend on the others. As to the FDCPA, the court found homeowners dues are probably “debts” subject to regulation under the FDCPA, but the FDCPA excludes from the definition of “debt collector” a debt owing directly to the person attempting to collect. (See 15 U.S.C. § 1692a(6)(F).) Therefore, since plaintiffs were only suing the homeowners association for conduct relating to its own collection efforts (even if performed vicariously through a law firm), the cause of action failed as a matter of law.
Plaintiffs filed a first amended complaint alleging causes of action for breach of contract, wrongful foreclosure, and fraud. Like the original complaint, the allegations of the first amended complaint were premised upon the nonpayment of assessments and fees and the foreclosure. Defendant demurred to the first amended complaint and filed another request for judicial notice. Defendant also filed a motion to strike and a motion for an order reclassifying jurisdiction from unlimited civil to small claims. The hearings were set for April 9, 2015. Plaintiffs did not oppose the demurrer or motions but instead filed a request for dismissal the day before the scheduled hearings.
In June 2015, defendant filed a motion to recover $38,786 in statutory attorneys fees pursuant to section 5975. Defendant argued it had realized its litigation objectives and was the prevailing party. Plaintiffs opposed the motion on grounds defendant was not the prevailing party, because rather than conceding the case, they sought to continue litigating their claims by filing a new lawsuit in United States District Court, case No. SACV-15-00398 JVS-JCG (the Federal Action). The Federal Action, filed in March 2015, alleged causes of action against defendant for violation of FDCPA, breach of contract, action to set aside and vacate foreclosure sale and deed, wrongful foreclosure and other declaratory and injunctive relief. Further, according to plaintiffs there could be no prevailing party determination because they had not yet filed their second amended complaint and the court could not “make a practical level determination of the prevailing party.”
The court granted defendant’s motion and awarded defendant $30,100 in attorneys fees. The court concluded the litigation was sufficiently related to enforcement of the CC&R’s and defendant was the prevailing party, because a dismissal was entered in its favor and because plaintiffs did not achieve any of the remedies they sought in the operative pleading.
In September 2015, the court entered judgment for $31,726 consisting of $30,100 in attorney’s fees and $1,626 in costs. Plaintiffs timely appealed.
DISCUSSION
1. The Davis-Stirling Act’s Mandatory Attorneys Fees Provision
As a common interest development, defendant is subject to the provisions of the Davis-Stirling Common Interest Development Act (Davis-Stirling Act). (See Villa De Las Palmas Homeowners’ Assn. v. Terifaj (2004) 33 Cal.4th 73, 81.) Enacted in 1985 and codified at sections 4000-6150 (formerly §§ 1350-1376), the Davis-Stirling Act governs the creation and operation of common interest developments. (Ibid.; see § 4000, et seq.) Common interest developments are required to be managed by a homeowners association which homeowners are generally mandated to join. (Ibid.) Here, as homeowners, plaintiffs were members of defendant.
Section 5975 provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (§ 5975, subd. (c).) “Reviewing courts have found that this provision of the Davis-Stirling Act ‘“reflect[s] a legislative intent that [the prevailing party] receive attorney fees as a matter of right (and that the trial court is therefore obligated to award attorney fees) whenever the statutory conditions have been satisfied.”’” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773 (Almanor), original italics.)
Plaintiffs attack both statutory conditions for an award of attorneys fees under section 5975, subdivision (c). They argue this action was not one to enforce governing documents and defendant was not the prevailing party. We review the trial court’s decision for abuse of discretion. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1154 (Salehi).)
a. Actions to Enforce Governing Documents
Plaintiffs concede one of their legal theories was breach of contract but nevertheless contend because the other three theories were not based on “enforcing the governing documents,” their overall goal and objective was to prevail on the FDCPA, wrongful foreclosure and misrepresentation based on overcharges and erroneous accounting. The argument is a nonstarter. We need only review the allegations in plaintiffs’ breach of contract causes of action to conclude this was an action to enforce the governing documents. In the complaint, plaintiffs allege defendant breached the CC&R’s by falsely including fees, charges, and penalties not provided therein, defendant unreasonably and falsely incurred expenses in violation of the CC&R’s, and defendant’s refusal and failure to perform its obligations under the “CC&R contract” directly damaged plaintiffs. The complaint also alleges defendant failed to adhere to the mandates set forth in the CC&R’s before a foreclosure sale could be executed. In the first amended complaint, plaintiffs allege defendant breached the CC&R’s by excessively and incorrectly charging fees, failing and refusing to make repairs requested by plaintiffs that are covered under the CC&R’s, and restricting and refusing plaintiffs access to the amenities and common areas authorized under the CC&R’s. Plaintiffs attached excerpts from the CC&R’s to both pleadings.
These allegations bring this action squarely within the definition of a lawsuit based on “enforcing the governing documents.” (See Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1144 [When a lawsuit is brought to enforce what the complaint expressly alleges are the governing documents of a common interest development, the action would ordinarily be understood to be “‘an action to enforce the governing documents’” of a common interest development as used in § 5975, subd. (c)].) Moreover, plaintiffs sought to recover damages including attorneys fees. Notably, there is no attorney fees clause in the CC&R’s, so the only legal basis upon which either party could seek attorney fees is statutory. Plaintiffs prayed for this remedy and others, because it is widely available under section 5975. They cannot now escape its provisions.
b. Prevailing Party
Turning to plaintiffs’ argument defendant was not the prevailing party, plaintiffs primarily rely on an unpublished case in violation of California Rules of Court, rule 8.1115(a) (all further rule references are to these rules). Unpublished opinions may not be cited as precedential legal authority, so we decline to consider the case. (See Schmier v. Supreme Court (2002) 96 Cal.App.4th 873, 876.)
While the Davis-Stirling Act does not define “‘prevailing party’” or provide a rubric for that determination, “the test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” (Almanor, supra, 246 Cal.App.4th at p. 773.) Here, defendant easily meets that test. Defendant prevailed on a practical level and achieved its main litigation objective as argued in its motion for judgment on the pleadings and demurrer—to see the case dismissed or judgment entered in its favor on all plaintiffs’ claims. That is precisely what occurred when plaintiffs voluntarily dismissed the case. (See Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal.App.4th 873 [after homeowners voluntarily dismissed complaint against association, trial court correctly awarded association its attorney fees]; see also Salehi, supra, 200 Cal.App.4th 1146 [association was prevailing party entitled to attorney fees after plaintiff voluntarily dismissed most causes of action].) That the Federal Action was then pending has no bearing on the outcome of this case.
The lower court did not abuse its discretion in awarding defendant its attorney fees. Plaintiffs do not assert the attorney fees incurred by defendant were unreasonable, so we do not reach that issue.
2. Review of the Motion for Judgment on the Pleadings
Finally, plaintiffs seek “[a] review of Judgment for attorney fees on merits.” While the request is less than clear, we deem the argument to be an attack on the court’s order granting defendant’s motion for judgment on the pleadings on the FDCPA claim without leave to amend. Defendant responds the court’s granting of the motion for judgment on the pleadings without leave to amend is not appealable. Not so. An order granting or denying a motion for judgment on the pleadings is not appealable as an interlocutory order. (See Code Civ. Proc., § 904.1; Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4 [order granting or denying motion for judgment on the pleadings not appealable because not final, but only preliminary or interlocutory; proper appeal is from actual judgment].) Yet, if a motion for judgment on the pleadings is denied or granted, an appeal from that ruling may be taken from the judgment. (Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 207 [order denying motion]; Campbell v. Jewish Com. for Personal Service (1954) 125 Cal.App.2d 771, 773 [order granting motion].) Here plaintiffs appeal from the judgment. We are not precluded from reaching plaintiffs’ claim of error on the earlier ruling.
However, plaintiffs’ argument is unavailing. Without explanation, they contend when state and federal laws conflict, federal law will prevail. Plaintiffs cite only 15 U.S.C. sections 1692e(2) and (5), and 1692f(6) as authority. Plaintiffs reason because federal violations were alleged in their complaint, the court should have applied federal law, which would have allowed law firms to be treated as debt collectors.
To demonstrate error, an appellant must present meaningful legal analysis supported by citations to authority on the points made. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) These principles apply equally to appellants representing themselves in propria persona. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639 [litigants representing themselves in propria persona are held to same standards as lawyers].) Nothing in the United States Code sections cited by plaintiffs addresses conflict of law. Having failed to properly brief the issue, we deem it waived. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s failure to support contention with meaningful legal analysis waives issue on appeal].)
DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.



THOMPSON, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.