Brook Hills Homeowners Assn. v. Bass

Filed 6/2/06 Brook Hills Homeowners Assn. v. Bass CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

James and Sonni Bass appeal from a judgment in favor of the Brook Hills Homeowners Association (the Association) arising from their violation of landscaping provisions in the Declaration of Covenants, Conditions, and Restrictions (CC&R's) governing the common interest development where they reside. The Basses: (1) challenge the reasonableness of a provision in the CC&R's creating a 180-day time requirement for completion of landscaping; (2) raise various challenges to the court's factual findings that they breached the CC&R's and to the court's granting of injunctive relief to the Association; and (3) challenge the attorney fees awarded to the Association. We reject their arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2000, the Basses purchased a new home on a two-acre, unlandscaped lot in the Brook Hills development. The development's CC&R's require the owners to landscape their individual lots and set forth time frames to complete the landscaping. The sales agent who sold the lots to the various buyers informed them about the CC&R's landscaping requirements and time frame for completion.

Article 7.12 of the CC&R's requires that the homeowner (1) within 60 days after conveyance of the lot submit plans for landscaping the lot, (2) diligently pursue obtaining approval of the plans from the Association's Architectural Committee (the Architectural Committee), and (3) within 180 days after conveyance "plant a lawn and otherwise landscape and irrigate the yard" in accordance with the owner's approved plans. The article provides that the landscaping must be sufficient to prevent soil washing off onto adjacent areas and neatly trimmed and maintained in an attractive condition.^[1]

The CC&R's provide that the Architectural Committee shall adopt Architectural Guidelines for "review and approval or disapproval" of all proposed construction, and that "[n]o Improvements may be installed within the Project unless plans and specifications . . . are submitted in accordance with the Architectural Guidelines and the Improvements are approved by the Committee."

The Association promulgated Architectural Guidelines (the Guidelines) to implement the provisions for landscaping and other improvements set forth in the CC&R's. The Guidelines refer to the 60-day plan submittal and 180-day completion requirements; state that "[p]hasing of improvements must be clearly identified on the plans"; and provide that a "[N]otice of [C]ompletion" of the landscaping must be submitted within the 180 days.

On August 1, 2001, the Association revised the Guidelines, and on or about August 10, 2001, sent a copy of the revised version to the homeowners. The revised Guidelines specify that the owners need to landscape only the "useable pad area" of their lots, defined as "the front, rear and side yard building pad areas." The revised Guidelines also expand on the provision regarding phasing of improvements. The revised provisions allow for the phasing to extend beyond the 180-day completion deadline, if the area to be improved at a later date is "covered with grass or bark, esthetically enhanced with shrubs and/or flowers, until such time as phased in construction commences."^[2]

Basses' Submittal of Landscaping Plans

The grant deed conveying the residence from the developer to the Basses was recorded on December 29, 2000. By letters dated May 17, 2001 and August 24, 2001, the Association notified the Basses that the Association had not received their landscaping plans within the required 60 days after close of escrow, and that they should either take corrective action or notify the Association's Board of Directors (Board) in writing if they believed they were not in violation. The Basses did not respond to these letters.

By letter dated October 12, 2001, the Association again wrote to the Basses, stating that if the problem was not resolved within 10 days the matter would be referred to legal counsel. On November 6, 2001, the Basses submitted their landscaping plans. The plans provided for improvements to the front, side, and rear yards, including landscaping, a pool and spa, a circle driveway, a patio, a recreation building, a second garage, and a basketball hoop.

In December 2001 and January 2002, the Architectural Committee conditionally approved the Basses' landscaping plans. The conditions of approval included screening of the pool and spa equipment, submission of architectural plans for the second garage and recreation building, and screening of the basketball backboard from the street and adjacent neighbors with plant material. The Basses were notified that once they satisfied the conditions and completed the improvements, they should submit a Notice of Completion to allow for a site visit to their home.

Violation Letters for Basses' Failure to Complete Landscaping

Starting on February 22, 2002, the Association sent the Basses several letters notifying them that they were in violation of the community's governing documents because they had not submitted a Notice of Completion. Board president John Nilsson testified that the letters were sent because there was no landscaping activity occurring at the Basses' residence and the lot was just dirt.

The February 22, 2002 letter specified that the Basses were required to take corrective action by March 4, 2002, and that they should write to the Board if they believed they were not in violation. Nilsson testified that when the Basses failed to respond and there was still no landscaping activity occurring, the Association referred the matter to its legal counsel.

By letter dated April 9, 2002, the Association's legal counsel (Attorney Mark Guithues) wrote to the Basses. Attorney Guithues cited the 180-day requirement for completion of landscaping for "all usable yard areas," and stated the Basses were in violation of the Association's governing documents because they had failed to install landscaping. The letter stated that if the Basses failed to cure the violation within 15 days, the Association would take further action including filing a lawsuit, and that the Association would seek an award of attorney fees if such legal action was necessary to obtain compliance. Further, the letter explained that the Association intended to assess a $200 charge to the Basses for the legal fees incurred in sending the violation letter, and that the Basses could dispute this assessment at a hearing before the Board.^[3]

The Basses requested a hearing to review the $200 assessment. A hearing was held at the August 12, 2002 Board meeting. The Basses attended the meeting, but agreed to have their views presented to the Board in closed session by the Architectural Committee member with whom they had been communicating. The Board voted to impose the assessment.

Association's Request for Alternative Dispute Resolution

In June or July 2002, the Basses commenced construction on their landscaping. However, according to the Association's witnesses, at that time the lot was still "bare dirt."

On July 23, 2002, the Association's legal counsel served the Basses with a "Request for Resolution" by alternative dispute resolution (Request for ADR), offering to submit the dispute over their failure to landscape to nonbinding arbitration with the costs to be split equally between the parties. The Request for ADR advised the Basses that they must respond to the request within 30 days, and if they failed to respond, the Association would be allowed to proceed with a lawsuit. (See Civ. Code,^[4] §§ 1369.520-1369.540.)

In response, Sonni Bass (Sonni) called Attorney Guithues inquiring about the Request for ADR. According to Sonni, she told Attorney Guithues that she and her husband were working with a contractor and that the target date for completion of the landscaping was the end of October 2002. Attorney Guithues told her she had 90 days to complete the landscaping before any legal action would be taken. Sonni testified that during this conversation she offered to have the Association come and inspect their property, but no one ever came.

As to the issue of arbitration, Sonni told Attorney Guithues she wanted to think about the matter before responding. By letter dated July 29, 2002, Attorney Guithues requested that Sonni give him an answer before August 20, 2002.

By letter dated August 20, 2002, Attorney Guithues requested payment within 30 days of the $200 penalty that had been assessed by the Board at the August 12 meeting. Further, the letter stated that the $200 penalty did not include the cost for the Request for ADR nor additional legal costs, and again asked the Basses to respond to the Association's Request for ADR.

By letter dated August 22, 2002, Sonni responded to Attorney Guithues's letter, stating that they had been under construction on their property since June 2002 and she had informed him of their progress during three telephone conversations following his letters. Sonni inquired whether he had made the Board aware of their construction progress, and noted that the Board was aware of the size of the lots and the lengthy process for landscaping the property. She stated they were "consistently moving forward in [their] landscape progress"; offered to give a Board representative a tour of their property and the current construction; and asserted that she and her husband were under no obligation to pay for attorney fees or costs.

In a follow-up letter dated August 26, 2002, Attorney Guithues pointed out that the 30-day period had passed for the Basses to respond to the Request for ADR, and "invite[d] [their] acceptance [of ADR] at [their] next convenience." At trial, Sonni testified that they did not respond to the Request for ADR because they believed the dispute would be resolved if they finished their landscaping within the 90-day period identified by Attorney Guithues in the July telephone conversation.

In their October 2002 homeowner fee statement (billed on September 20, 2002), the Association charged the Basses $985 to pay for additional attorney fees incurred in connection with the Request for ADR.

Association's Adoption of a Fine Schedule

In addition to the Basses, many other homeowners in the development were having trouble completing their landscaping within the 180-day time period. Some homeowners were pressuring the Board to enforce the landscaping time requirements in the CCR's. Although the Board was sending out violation letters to owners who were not complying, the letters alone were not effective in achieving compliance. Accordingly, the Board decided to institute a fine schedule (Fine Schedule) to increase compliance with the landscaping requirements and defray the legal costs that the Association was incurring for the violation letters. The CC&R's give the Board "the authority to adopt a reasonable schedule of Enforcement Assessments for any violation of the Project Documents."

On September 5, 2002, Attorney Guithues wrote to the homeowners informing them of the Board's decision to institute the Fine Schedule. The letter advised the owners that the fines would go into effect in 90 days (December 10, 2002) and encouraged owners to bring their properties into compliance prior to that date.

The letter explained that some homeowners had installed landscaping without approval, failed to install landscaping in a timely manner, or failed to install landscaping altogether, and the Association had incurred substantial legal costs to bring the owners into compliance. The letter stated the fines would be imposed on all owners who had not submitted a Notice of Completion, even if an owner had requested or received an extension or filed a status report with the Architectural Committee. Further, the letter stated the fines did not replace the Association's regular violation schedule or its right to pursue alternative dispute resolution or the filing of a lawsuit.

The Fine Schedule included a $500 fine for the failure to provide plans within six months of close of escrow; a $1,000 fine for the failure to install landscaping within one year of close of escrow (refundable if improvements are thereafter completed within three months); a $2,500 fine for the failure to install landscaping within two years; and a $1,000 fine for significant architectural change without approval by the Architectural Committee.

Architectural Committee member Ronald Carroll testified at trial that the Fine Schedule essentially gave owners a 15-month time period from the date of close of escrow to complete their landscaping without a nonrefundable penalty. Carroll explained that the Fine Schedule was designed to "put teeth" into the landscaping time requirements, while still not being unfair to the owners who were having problems completing their landscaping.

Basses' Construction of a Sport Court

In late September 2002, a contractor working for the Basses constructed a 29-by-61-foot sport court on their property. The court included a 17½-foot-high light pole with a bulb providing 1,000 watts of light. According to the landscape designer who drew the plans for the Basses, the sport court and light were not included in the plans approved by the Architectural Committee.

By letter dated October 9, 2002, Attorney Guithues "demand[ed]" that the Basses cease and desist from further construction on nonapproved improvements. The letter stated that substituting a sport court for a garage was a change that required approval, and the large light was of particular concern. Further, the letter requested that the Basses submit a plan for screening of the sport court to the Architectural Committee. Finally, the letter noted the open Request for ADR for the Basses' lot, and emphasized that the letter did not constitute an extension of time to install the approved landscaping.

Sonni testified that the day after receiving the cease and desist letter she called two Board members and the chair of the Architectural Committee. When she was advised that they needed to submit a plan to the Architectural Committee, Sonni agreed not to turn on the light until the matter was resolved. Board president Nilsson acknowledged that Sonni called him after receiving the cease and desist letter. He explained to her she could continue with installation of the approved plans and that the cease and desist letter pertained only to the unapproved sport court and light.

According to Nilsson, after the Basses received the cease and desist letter, he received complaints from neighbors that the light at the sport court had been turned on. A neighbor testified she saw the light on about five or six times, and that it was very bright and shone into her kitchen. Nilsson called the Basses and told them to adhere to their promise not to turn on the light.

The Association's Lawsuit Against the Basses

As of October 2002, the Basses' target date for completion, they were experiencing problems with their contractor finishing the work, and their landscaping was not completed. The yard had apparently still not been planted with grass, and the matter of the unauthorized sport court and light was still pending.

In about November 2002 (almost two years after the close of the Basses' escrow), the Board authorized the filing of a lawsuit against the Basses. Association witnesses testified that the Board voted to authorize the lawsuit because the Basses had not paid the fines they had been assessed (i.e., $985); their landscaping was progressing very slowly; they had built an unapproved sport court, and more importantly, installed a bright light on the sport court. According to an Association witness, the condition of the Basses' lot was visible from the street.

The Association's complaint against the Basses (filed on December 18, 2002, and amended on January 30, 2003 and July 9, 2004) alleged breach of covenant and nuisance and requested injunctive and declaratory relief. The complaint alleged that the Architectural Committee had approved the Basses' landscape plans with conditions; the Association had sent letters to the Basses advising them to commence installation of the landscaping; the Basses had not responded to a Request for ADR, and the Basses had not installed their landscaping pursuant to the approved plans. Further, instead of installing landscaping pursuant to their approved plans, the Basses installed "certain hardscape," including a sport court and light that was not in their approved plans, and they had failed to pay $985 in assessments. The Association requested declaratory relief and an injunction requiring the Basses to install landscaping in accordance with their approved plans and to remove the sport court, and requested an award of attorney fees and costs.

In their answer to the complaint filed on July 2, 2003, the Basses alleged that the Association had selectively enforced the CC&R's; that the landscaping time frame in the CC&R's was unreasonable; that the Fine Schedule was unreasonable and unnecessary; and that the Association had breached its fiduciary duty. The answer also challenged the Association's allegations regarding the sport court and light.^[5]

Events After Filing of the Lawsuit

Planting of Grass, Attempts at Settlement, and Submittal of Notice of Completion and Sport Court Plans

Shortly after the December 2002 filing of the lawsuit, on January 3, 2003, the Basses authorized their contractor to seed their front yard with grass, and on January 20, 2003, authorized the contractor to plant ground cover in their back yard.

In January 2003, Sonni called the Association's legal counsel and discussed the possibility of resolving the lawsuit. Although there were attempts to reach an agreement at this time, as well as subsequent mediation and plans to pursue binding arbitration, these avenues were ultimately unsuccessful or abandoned, and the litigation continued.

On February 18, 2003, the Basses submitted a Notice of Completion of their landscaping of the pad area to the Architectural Committee. On March 28, 2003, the Basses submitted plans and a request for approval for a sport court and light, with plant and tree screening, and for a sport court fence.

A landscape architect retained by the Association inspected the Basses' lot for compliance. By letter dated May 8, 2003, the Basses were notified that their landscaping was not in compliance because plans for the sport court and light standard needed to be submitted to the Architectural Committee for review and approval, and the screen wall around the pool equipment needed to be stuccoed to match the color and texture of the residence. The letter instructed the Basses to submit another Notice of Completion once they addressed these items to allow another site visit to verify compliance.

Imposition of Fines Pursuant to the Fine Schedule

The Basses' February 2003 Notice of Completion was submitted after the December 2002 effective date of the Fine Schedule. Accordingly, by letter dated May 23, 2003, the Association's legal counsel notified the Basses that they were subject to a $2,500 fine pursuant to the Fine Schedule adopted by the Association effective December 10, 2002. The letter notified the Basses that a hearing would be held on the proposed fine on June 14, 2003.

The Basses, represented by an attorney, appeared at the June 2003 hearing to dispute the proposed fine. The Board voted to assess the fine against the Basses. The Basses' August 2003 homeowner fee statement, billed on July 21, 2003, included a charge for the $2,500 fine, as well as the unpaid $985 assessment that had been charged in their October 2002 statement.

Approval of the Sport Court Conditioned on Fencing and Screening, and Disapproval of the Sport Court Light

By letter dated August 18, 2003, the Basses' attorney was notified that the Association had approved their application for the sport court and fence, on condition that the fence be screened with plant material. However, the application for the sport court light was rejected. The letter instructed that the Basses should remove the light standard, and that the Association's legal counsel should be notified when the Basses were in compliance with the Association's directives.

Trial Court's Decision

By the time trial commenced in August 2004, the Basses had planted grass and obtained conditional approval of the sport court. However, they had not fenced the sport court or (according to Association witnesses) adequately screened the court with plant material. Further, they had not removed the sport court light as directed by the Association.

After a bench trial, the trial court ruled that the Basses had breached the CC&R's and created a nuisance "by failing to submit landscaping plans and install that landscaping in a timely fashion; by installing, without approval, a sport court light; and by failing to comply with the requirement to screen and fence the sport court." The court rejected the Basses' contention that the timelines in the CC&R's were unreasonable. The court found that the Association had sent letters to the Basses advising them of the problems and a Request for ADR; the Basses did not respond to the Association's communications; the Basses installed an unapproved sport court and light; and the Basses failed to remove the light and fence and screen the sport court when directed to do so by the Association.

As to remedy, the court ordered that the Basses remove the light standard, and screen and fence the sport court. Several weeks after the judgment, the Basses filed a declaration with the court stating that they had removed the sport court light and constructed fencing and screening around the sport court.

Award of Attorney Fees to the Association

The court awarded attorney fees to the Association as the prevailing party. The court ruled that the Association prevailed because the Basses were found to be in breach of the CC&R's and ordered to remove the unapproved structures on their property. The court concluded that "[w]hen the relief awarded is compared with the parties' demands on their claims and their litigation objectives as disclosed by the pleadings, opening statements, etc., it is clear Plaintiff is the prevailing party for purposes of awarding fees." However, the court found that the Association's request for $123,019 fees was unreasonable, because it included "fees not requested or mentioned in the moving papers, but only raised for the first time in the reply; fees for excessive interoffice attorney conferences, unnecessary and duplicative trial work; charges unrelated to Plaintiff; charges unrelated to this action; charges for work performed on behalf of other cross-defendants and for which Plaintiff['s] counsel was reimbursed, and charges which should have been sought much earlier in this lawsuit . . . ." The court awarded the Association $85,175.50 in attorney fees.

DISCUSSION

To support their challenge to the judgment the Basses contend: (1) the 180-day landscape completion requirement in the CCR's is unreasonable; (2) the Association breached its good faith duty to them by singling them out for selective enforcement of the CC&R's; and (3) the Association breached its duty to them by failing to provide guidance and assistance to help them comply with the community's governing documents. Alternatively, the Basses contend they were in compliance with the community's governing documents because their landscape pad was covered in bark during the construction of the landscaping improvements. Regarding the sport court and light, the Basses assert the Association failed to comply with its due process procedures and thus the Association was not entitled to injunctive relief.

Finally, the Basses challenge the attorney fees award to the Association, contending (1) the Association should not have prevailed in the litigation, as shown by the Basses' appellate challenges to the merits of the case, and (2) the Association's pursuit of the litigation was unreasonable.

Claim of Unreasonableness of the 180-Day Landscape

Completion Requirement

The Basses argue the requirement that the landscaping be completed in 180 days from close of escrow is unreasonable, as shown by the fact that almost all of the homeowners in the community failed to complete their landscaping in this time period. A chart submitted by the Basses at trial revealed that only two of 66 homeowners in the development filed their Notices of Completion within the 180-day period after the close of escrow.^[6] The two owners who filed their Notices of Completion within the 180-day period filed within four and six months, respectively. Fourteen owners took seven to 12 months to file; 15 owners took 13 to 15 months; 18 owners took 16 to 24 months; four owners (including the Basses) took 26 months; and seven owners took 27 or more months.

Provisions in CC&R's are enforceable unless they are unreasonable. (Nahrstedt v. Lakeside Village Condominium Assoc. (1994) 8 Cal.4th 361, 380 (Nahrstedt); § 1354.) CC&R's provisions are presumed to be reasonable, and the party challenging them has the burden to prove otherwise. (Nahrstedt, at p. 380.) Courts do not normally question the wisdom of an agreed-upon land-use restriction. (Id. at p. 381.) The restriction will be enforced unless it violates public policy, bears no rational relationship to the protection or operation of the affected land, or otherwise imposes burdens on the affected land that are disproportionate to the restriction's beneficial effects. (Id. at pp. 381-382.)

The reasonableness of CC&R's provisions are evaluated in light of the effect on the project as a whole, not on the individual homeowner. (Nahrstedt, supra, 8 Cal.4th at p. 386; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 975.) We independently review the reasonableness of CC&R's provisions to the extent the issue involves interpretation of the language of the governing documents or rests upon undisputed facts. (Dolan-King, at p. 974.)

There is no dispute that the landscaping requirement in the CC&R's benefits the community, based on such factors as aesthetics, prevention of soil runoff, and preservation of property values. The only issue is whether the CC&R's unreasonably require owners to complete their landscaping within six months of close of escrow.

The CC&R's do not require an elaborate landscaping plan, but merely require the owners to plant a lawn sufficient to prevent soil run-off and to maintain their landscaping in an attractive condition. The record suggests the lengthy time periods that many homeowners took to complete their landscaping were more a function of the elaborate nature of the plans they selected rather than a result of their inability to meet the minimal standard set forth in the CC&R's.

Further, the revised Guidelines provide a reasonable means for homeowners who had elaborate plans to meet the 180-day requirement simply by covering the yard with grass or bark and planting shrubs or flowers pending completion of their more extensive projects. The record does not show that homeowners would not be able to satisfy the landscaping requirements within six months of close of escrow if they elected to use the interim-landscaping measure offered as an option in the revised Guidelines for phased improvements.

The record also fails to show the 180-day time requirement was unreasonably enforced by the Association vis-à-vis the homeowners as a whole. (We will discuss the Association's enforcement as to the Basses in particular when we evaluate the Basses' contention of selective enforcement.) The Fine Schedule adopted by the Association gave the homeowners a six-month grace period after the first 180-day period to complete their landscaping before a fine would be imposed, as well as an additional three months to complete it and obtain a refund of the fine.

The Basses contend that the reasonableness of the 180-day period cannot be evaluated based on the Association's revision of the Guidelines to define the area of the lot that must be landscaped as the "usable pad area." They assert that this constituted a change in the definition of the term "lot" used in the CC&R's, which could only be altered by amendment of the CC&R's.^[7] (See MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 628.) Our conclusion that the 180-day landscaping completion requirement was reasonable does not necessarily hinge on the "usable pad area" definition. In any event, there is ambiguity in the language of Article 7.12 of the CC&R's, which broadly refers to the owner's duty to landscape the lot, but also refers to the duty to "plant a lawn and otherwise landscape and irrigate the yard . . . ." (Italics added.) "Yard" is not defined. The revised Guidelines clarify that the landscape requirement extended only to the "usable pad area." Because this Guideline provision is not inconsistent with the CC&R's and does not alter its express terms, it was not necessary to amend the CC&R's on this point. The restriction of the landscape requirement to the usable pad area further supports the reasonableness of the 180-day completion requirement.

We conclude that the trial court properly ruled that the Basses did not carry their burden to show the 180-day time requirement was unreasonable.

Claim of Association's Selective Enforcement of the 180-Day Requirement

A homeowners association is afforded the power and duty to enforce the community's rules, and "[g]enerally, 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." (Nahrstedt, supra, 8 Cal.4th at pp. 373-374, 383.) The homeowners association's enforcement of CC&R's must be "in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied." (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1610; Nahrstedt, supra, 8 Cal.4th at p. 383; Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-652 (Cohen).)

To the extent the Basses' assertions of selective enforcement involve resolution of disputed facts or inferences, we apply the substantial evidence standard of review. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 43; Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) When a ruling is challenged on appeal for lack of substantial evidence, our power begins and ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, to support the trial court's findings. (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166.) We must view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Ibid.) When two or more inferences can reasonably be deduced from the facts, a reviewing court cannot substitute its deductions for those of the trial court. (Shapiro, supra, 96 Cal.App.4th at p. 912.)

Preliminarily, the Basses argue that the trial court's decision reveals that it was unaware of the requirement that CC&R's cannot be enforced unless they have been applied uniformly, fairly, and in good faith, because the court did not make an express finding in this regard in its written decision. As the Basses recognize, this was one of the issues litigated at trial and it was extensively addressed by the Basses in their written closing arguments. The Basses did not object to the trial court that the court's written decision was deficient for failing to specifically address the point. The trial court's findings that the Basses received letters advising them of the problems and a Request for ADR and that they failed to respond to the Association's communications shows that the court was aware of the Basses' contentions that they were being treated unfairly. We are satisfied the trial court knew it was required to rule on this issue, and that it resolved the matter in the Association's favor.

As to the merits of their argument, the Basses contend the Association's lack of uniform enforcement is shown by the fact that they were the only homeowners who were sued, whereas the Association did not sue other homeowners who took just as long or longer to complete their landscaping. The record shows that several other homeowners who were having ongoing problems complying with the landscaping requirements were, like the Basses, served with Requests for ADR. The other owners' compliance problems were resolved without having to pursue litigation. According to the Association's witnesses, the difference between the Basses and the homeowners who were not sued was that the other homeowners communicated with the Association to obtain extensions and address the compliance problems and they showed progress in their landscaping efforts, whereas the Basses did not.

The fact that the Basses were the only homeowners who were sued does not, standing alone, compel a finding of unfair treatment. There can be a myriad of factors that influence a homeowners association's decision to sue one homeowner and not another for breach of the CC&R's, including such matters as the extent and egregiousness of the violation, the homeowner's cooperation or reticence in responding or correcting the violation, and the success or failure of settlement efforts and alternative dispute resolution. Further, a homeowners association owes a good faith duty to the entire group of homeowners, and must consider this duty when deciding what actions to take regarding a particular owner who is in violation, including the possibility of filing a lawsuit if the association concludes this step is necessary to obtain compliance. (See Nahrstedt, supra, 8 Cal.4th at p. 383.) Absent some other evidence in the record establishing unfair treatment, the mere fact that litigation is commenced against one homeowner but not another homeowner who engaged in a similar violation does not require a trial court to find unfair enforcement.

The Basses challenge the trial court's findings that they did not respond to the Association's communications, and suggest that the Association's actions against them cannot be justified based on their alleged lack of communication. Although the record does show communications by the Basses to various Association representatives, the Basses failed to accept the Association's repeated requests for alternative dispute resolution. The trial court could reasonably infer that this failure to respond was a key factor that resulted in litigation being pursued against the Basses, and created a strong inference that they were not being treated in an unfair manner.^[8]

To support their claim of unfair treatment, the Basses also assert that the Association failed to give them the benefit of the extended period of compliance under the Fine Schedule afforded to other owners but instead sued them. They point out that the complaint (filed on December 18, 2002) was signed on December 4, 2002, which was before the December 10, 2002 effective date of the Fine Schedule. The fact that the Association authorized and prepared the complaint against the Basses before the effective date of the Fine Schedule suggests that the Association had decided to sue the Basses independent of the Fine Schedule avenue of enforcement. As we stated, a homeowners association's decision to institute litigation against a particular homeowner can be based on a consideration of a variety of factors, and this fact alone does not show unfair treatment. The Basses have not cited any law or rule that prohibited the Association from pursuing coexistent avenues of enforcement--i.e., both fines and litigation.

The Basses further contend discriminatory treatment was shown because although the Association imposed fines on them and several other owners who took over 20 months to file their Notices of Completion, 12 owners were not fined who likewise took over 20 months to file their notices.^[9] The chart submitted by the Basses shows that nine other homeowners in addition to the Basses were fined. The Fine Schedule became effective on December 10, 2002. The Basses were not in compliance by December 10, 2002; accordingly, they, as well as other homeowners who were not in compliance by this date,^[10] were fined. With one exception, the 12 owners who took more than 20 months to complete their landscaping but who were not fined, all filed their Notices of Completion before the December 10, 2002 effective date. Thus, the distinction between owners who were fined and those who were not fined was properly tied to the effective date of the Fine Schedule.^[11] The record supports a finding that with one exception the fines under the Fine Schedule were imposed in a uniform manner.

The Basses also argue unfair treatment was shown by the fact that they were fined $2,500 in May 2003 even though they were cooperating with the Association to achieve compliance. The record can be construed as showing that the $2,500 fine (imposed in May and June 2003) occurred at a time when the Basses were cooperating (i.e., by planting grass in January or February 2003 after the lawsuit was filed). Nevertheless, the imposition of the fine, notwithstanding current cooperation, was in accordance with the terms of the Fine Schedule. The Fine Schedule gave the homeowners until December 2002 to file their Notices of Completion, and provided that thereafter the fines would be imposed regardless of any extensions or status reports filed with the Architectural Committee. Because the Basses had not completed their landscaping by December 2002, the Fine Schedule authorized imposition of the $2,500 fine. The Association's adherence to the terms of the Fine Schedule does not show unfair treatment.

The Basses additionally support their claim of lack of good faith enforcement by contending that the Association did not impose fines on any other homeowners until six months after the Basses were sued and the Basses had raised their selective enforcement defense.^[12] The Basses assert that the fines were imposed on other homeowners to cover up the selective enforcement being pursued against them via the litigation. The record shows the Fine Schedule was sent to the homeowners in September 2002, which was before the Board voted to sue the Basses in about November 2002 and before the lawsuit was filed in December 2002. The trial court could reasonably conclude that the subsequent imposition of fines on other homeowners in June 2003 constituted routine enforcement of the Fine Schedule, and was not a subterfuge to a discriminatory lawsuit against the Basses.^[13]

The Basses posit that unfair treatment is shown by the fact that the Association charged them $985 for legal fees in October 2002 without affording them notice and an opportunity for a hearing as required by the Association's governing documents. Section XXVII of the Association's Rules and Regulations (Rules) provides that prior to a charge of legal fees as a special assessment against an owner, the owner shall be given 15 days' notice of the violation and intended penalty and opportunity for a hearing. Section 6.7 of the CC&R's provides that if after the notice and hearing the owner continues the violation, "the Association may impose an additional fine each time the violation is repeated" and the Board may establish a "hearing committee . . . to administer" the fine.

The $985 charge was for the same violation (failure to install the approved landscaping) as the earlier $200 charge. Notice and a hearing were provided for the $200 assessment, but not for the $985 assessment. It is not clear from the Rules whether the Association is required to give notice and a hearing for each legal fee charge assessed for a continuing violation requiring additional legal work. Assuming that such additional notices and hearings are required, the trial court was not required to conclude this procedural violation established that the Basses were being singled out for selective enforcement of the landscaping rules. Notice and a hearing were provided for the first $200 charge, and the increase in the charge to $985 was supported by additional legal services (the Request for ADR) provided by counsel in an attempt to obtain compliance. The trial court could reasonably conclude that any procedural deficiency arose from a lack of clarity in the governing documents, and that it did not show that the Association was treating the Basses unfairly as compared to other owners.

The Basses also refer to the specific situations of several homeowners to support their claim of unfair enforcement. They cite property owner Scott, who installed an unscreened, unfenced basketball court with two lights on each side, but who was not fined or sued. The Association's witnesses testified that Scott's basketball court was not a sport court and the light poles were much shorter and the bulbs much dimmer than the Basses' light. The Basses also cite property owner Zalar, who was not fined or sued but who still had bare dirt on his yard after he filed his Notice of Completion. An Association witness testified that the bare dirt on Zalar's yard (which was eventually constructed as a pool) was not visible from the street but could only be seen if a person viewed the property "from a difficult position." In contrast, according to an Association witness, the Basses' lot was visible from the street. The record supports a conclusion that the situation of owners Scott and Zalar was qualitatively different from the Basses' situation. Accordingly, the trial court was not required to infer unfair treatment based on this evidence.

Finally, the Basses cite to the situation of the Whangs. The Whangs submitted their Notice of Completion on June 27, 2003, 39 months after they closed escrow. Thus, they did not comply with the December 2002 cut-off date for the Fine Schedule, and they exceeded the 15 months allowed under the grace period defined by the Fine Schedule; yet they were not fined or sued. We agree that this evidence, viewed in isolation, could suggest unfair treatment. However, the record also shows the Whangs were one of the first owners who purchased in the development, closing escrow in March 1999. Further, Association witnesses testified that there was substantial communication between the Whangs and the Board about the Whangs' landscaping problems and how they could achieve compliance. Viewing the record in its entirety, the trial court could reasonably conclude that the Board made an exception in the Whangs' situation because of considerations peculiar to their circumstances, and that the exception did not show unfair treatment of other owners such as the Basses.

Claim of Association's Failure to Provide Guidance and Assistance

The Basses raise several specific arguments which they contend show that the Association failed to provide guidance and assistance to them and thereby breached its duty to treat them fairly and in good faith.

A homeowners association owes a good faith duty to individual homeowners as well as to the homeowners as a group. (Cohen, supra, 142 Cal.App.3d at p. 652.) The Basses contend the Association breached its duty to them because it did not tell them they could complete their landscaping in phases. Although the Basses may not have been verbally advised of the phased landscaping option, both the original and revised Guidelines refer to this option. Because there is no contention that the Association did not provide the Basses a copy of these documents, or that the Association had any reason to believe the Basses could not understand them, the trial court could reasonably conclude the Basses were given notice of the phased landscaping option and the Association was not required to engage in any additional communication on this point.

The Basses also assert that the Association failed to give them a time allowance even though it was aware of the landscaping delays caused by their contractor.^[14] The record shows that the first $200 legal fee charge against the Basses was proposed on April 9, 2002, which was approximately 15 months after they closed escrow. Thus, prior to the Association's referral of the matter to legal counsel, the Basses were given an extension of more than six months from the 180-day completion requirement. Thereafter, during the months of July through October 2002, the Association repeatedly communicated by letter to the Basses that it wanted to try to resolve the matter by arbitration. When no response to the Request for ADR was received, the Association authorized the lawsuit in November 2002 and filed the complaint in December 2002. This second time period before the lawsuit gave the Basses about another six months to complete the landscaping. In short, the Basses were given more than a year longer than the 180-day period to complete the landscaping before the Association filed the lawsuit. This evidence supports a finding that the Association reasonably accommodated any delays suffered by the Basses because of problems with their contractor.

The Basses further assert the Association breached its good faith duty by failing to tell them at the time of the cease and desist letter (sent for the sport court and light in October 2002) that they should take down the light and screen and fence the sport court to avoid a lawsuit. The fallacy of this argument is that at the time of the cease and desist letter, the Basses had not yet submitted plans for this construction and the construction had not yet been reviewed by the Architectural Committee.^[15] Thus, the Association's representatives with whom the Basses communicated did not yet know what the Architectural Committee's position would be regarding the unapproved project. Because the Basses had failed to obtain approval before construction, the trial court could reasonably conclude that the Association was not required to advise them about a project that the Architectural Committee had not yet been given an opportunity to evaluate.

Finally, the Basses argue that when the Association inspected their site and observed that palm trees planted by them would not provide adequate screening, it should have advised them about what type of trees would suffice. The trial court could reasonably infer that if the Basses needed this information, they could have requested it from the Architectural Committee. The trial court was not required to conclude that the Association breached its good faith duty to the Basses because it failed to initiate communication about specific trees that would create a screening effect.

We reiterate that to the extent the Basses' selective enforcement and lack of good faith assertions are premised on disputed facts and inferences, we resolve all conflicts and draw all reasonable inferences in favor of the trial court's rulings. Although there is evidence in the record that could support the Basses' view of the facts, they have not cited to any information in the record that conclusively defeats the evidence supporting the trial court's ruling in favor of the Association.^[16]

Claim of Compliance Based on Existence of Bark

As an alternative argument, the Basses contend that they did not breach the governing documents because their lot was covered with bark when they purchased it from the developer, which they contend is an acceptable landscaping option under the Guidelines. Even assuming that bark left on the lots by the developer might comply with the Guidelines provision for the use of bark for a phased project, the trial court was not required to find there was bark remaining on the Basses' pad. Witnesses for the Association testified that the Basses' lot was bare dirt, and the court could properly rely on this testimony.

Claim of Association's Lack of Compliance with Due Process Procedures

Regarding Sport Court and Light

The Basses argue that the Association was not entitled to an injunction regarding the sport court and light because the Association did not comply with the due process procedures in the Rules, which they construe as requiring 15 days' notice of a violation and intended penalty or enforcement action and an opportunity for a hearing. A homeowners association's request for judicial enforcement of CC&R's may be denied if the record does not show the association's actions were "regular, fair and reasonable," including a showing that the association followed its own enforcement standards and procedures prior to pursuing legal action. (See Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772-773.)

Section XXVII of the Rules provides that "[d]epending on the severity and frequency of the violation and the violator, the choice of enforcement procedure(s) and/or the enforcement remedy may vary." The Rules provide that "[g]enerally, though not necessarily," enforcement of CC&R's will consist of one or more warning letters and requests for correction; and if the violation continues and is not corrected, referral of the matter to an attorney, an offer of submittal to alternative dispute resolution, and finally, legal action. The Rules reiterate that "[t]hese steps may vary, and legal action may be immediately sought in the form of a Temporary Restraining Order where appropriate." Additionally, the Rules specify that if the matter is sent to an attorney, "[a]ny cost or attorneys' fees incurred will be charged as a special assessment against the owner, after he/she has been provided Due Process." Thereafter, the Rules define "Due Process" as "at least fifteen (15) days notice as to the nature of the violation and intended penalty/enforcement action, and an opportunity for a hearing before the Board or its designated committee no less than five (5) days before the effective date of such action."

The Rules provide for the 15-day notice and hearing procedure for assessments for legal fees, and do not expressly state that this procedure will be afforded for every action taken against a homeowner for noncompliance with the CC&R's. To the contrary, the Rules contemplate that enforcement procedures and remedies may vary depending on the situation. However, arguably, the broad language of the "Due Process" definition, referring to "intended penalty/enforcement action" (italics added), can be construed as generally requiring notice and a hearing before any significant enforcement action is taken against a homeowner. Nevertheless, the circumstances here show no deficiency in the notice and opportunities given to the Basses to address the sport court and light issue in a forum outside of formal litigation.

When legal counsel for the Association first communicated with the Basses in the April 2002 violation letter, the cited violation was the failure to install landscaping. The Basses were notified that the Association might file a lawsuit if the matter was not corrected and that the Association intended to charge them $200 legal fees for the compliance costs incurred to date, and a hearing was provided for this charge. In July and August 2002, the Association offered arbitration regarding the continuing landscaping violation, but the Basses chose not to accept the offer. In September 2002, the Basses constructed the sport court and light without obtaining approval, and the cease and desist letter sent to them in October 2002 about this project again offered arbitration.

The record shows that by the time the sport court and light were constructed, the Association and the Basses were already involved in an ongoing dispute about the Basses' failure to install the landscaping. Construction of the sport court and light added another dimension to the dispute; i.e., raising the issue of unapproved construction in addition to failure to complete the landscaping. The Association had repeatedly offered arbitration, and in its cease and desist letter regarding the sport court and light, again offered arbitration.

We conclude the Association was not required to give the Basses additional notice and opportunity for a hearing prior to pursuing the issue of the sport court and light by legal action. The unapproved project was simply another aspect of the ongoing dispute over the failure to properly landscape the property. The Basses had notice of the Association's disagreement with their landscaping efforts and they had repeated opportunities to address the matter short of litigation.

We conclude the procedures followed by the Association were not deficient under the Rules nor from a basic due process perspective. There was no due process barrier to the adjudication of the sport court and light issues in the lawsuit.

Challenge to Attorney Fees

Section 1354, subdivision (c) provides for an award of attorney fees to the party prevailing in an action to enforce CC&R's. Our rejection of the Basses' challenges to the court's rulings on the merits of the lawsuit defeats their argument that the Association was not the prevailing party for purposes of an attorney fee award. (See Rancho Santa Fe Assn. v. Dolan-King, supra, 115 Cal.App.4th at p. 47.)

To further support their challenge to the attorney fee award, the Basses contend that the Association's attorney maintained unreasonable positions to protract the litigation; the Basses tried to settle the litigation in its early stages; the Basses' attorney repeatedly asked the Association's counsel how the Basses could bring their lot into compliance; they complied with most of the landscaping requirements shortly after the complaint was filed except for the sport court matter; and the Association should have abated the lawsuit pending its review of the sport court plans.

A trial court has broad authority to determine the amount of a reasonable fee, and the court's judgment will not be disturbed on appeal unless it is shown to be clearly wrong. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) It was the trial court's prerogative to decide what weight to give the Basses' various claims for purposes of deciding the extent to which attorney fees were reasonably incurred by the Association. The trial court did find the Association's request was excessive, citing a variety of reasons including that there was "unnecessary and duplicative trial work," and reduced the award from the requested $123,019 to $85,175.50. The Basses have not shown the trial court abused its discretion.

DISPOSITION

The judgment is affirmed. The Basses to bear the Association's costs on appeal. The Association's request for attorney fees on appeal is to be determined by motion before the trial court.