CHAPALA
MANAGEMENT CORPORATION v. STANTON
Filed 7/29/10
CERTIFIED
FOR PARTIAL PUBLICATION*
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
CHAPALA MANAGEMENT CORPORATION,
Plaintiff and Respondent,
v.
THOMAS STANTON et al.,
Defendants and Appellants.
D055532
(Super. Ct. No.
37-2008-00079704-CU-OR-CTL)
STORY CONTINUE FROM
PART II….
The Stantons'
evidentiary challenge is in part based on an incorrect premise: that
Association's unrecorded exterior window color standards as reflected in
Exhibit 21 are "rules" or equitable servitudes that bind the
architectural review committee for purposes of all exterior windows at the
Association, rather than a recommendation or "guide for homeowners"
as the trial court found. As
recommendations or guides, the color standards are subject to the architectural
review committee's subjective views and aesthetic judgment that may be
exercised in accordance with Association's architectural guidelines, which
allow for more "individual expression" in the exclusive use
areas. The Stantons
do not contest the trial court's factual finding -- set out verbatim above --
that the Association had maintained a longstanding policy at Chapala (at least since 1999) of requiring street-facing
windows to be a darker brown color, but allowing owners to use lighter colors
on other, non-street-facing windows.
There is no evidence suggesting the presence of lighter colored windows
at Chapala was the result of
"invented exceptions" by the architectural review committee chairman,
as the Stantons
assert. We conclude as a matter of law
that it was not arbitrary, capricious or discriminatory for the architectural
review committee to reject the Stantons'
request for sandtone-colored front-facing windows and
at the same time permit other owners to have lighter colored windows in the
portions of their units facing exclusive use areas. Such decision is in keeping with
Association's longstanding policy, its architectural guidelines, and the
architectural review committee's broad grant of discretionary authority under
the CC&Rs.
Second,
there is no evidence suggesting, as the Stantons maintain, that the
architectural review committee chairman alone made the decision to deny their
window application. The evidence in fact
is to the contrary. Peter Masters was
the architectural review committee chairman during the time the Stantons submitted their window
applications in 2006 and 2007. At trial,
he testified he was appointed chairman in 2005 by the Board and served with two
other members, Eleanor Levi and Robert Balmet. Masters testified that the architectural
review committee was vested with the decisionmaking
process in maintaining the Association's originally-established architectural
integrity, and that committee was called upon to make subjective judgments
about color and design. According to
Masters, the committee considered the Stantons'
December 2006 window application and after denying it on grounds it did not
match the color of other similar windows in Chapala,
all three committee members met with the Stantons to explain the
architectural review committee's conclusion.
The trial court could reasonably infer from this evidence that the
committee collectively decided to deny the Stantons' application. To the extent the Stantons presented contrary
evidence, it is of no consequence on our review for substantial evidence.
The Stantons make much of the fact
that their expert, an Anderson
window representative, identified the Finneran home's
front windows as sandtone in color. The trial court, however, found the Finneran home had a lighter shade of brown on its windows,
and also found the fact the architectural review committee had approved that
window color "was not so inconsistent with the prior policy to constitute
any bar to the Stanton rejection by
the ARC." The Stantons
would have us ignore these findings, as well as the trial testimony of Brian Finneran that his windows were "brown" colored
and "much darker" than the Stantons'
windows. The testimony of the Stantons' expert merely raised a
conflict in the evidence that was properly resolved by the trial court. (See People ex rel.
Brown v. Tri-Union Seafoods, LLC (2009) 171
Cal.App.4th 1549, 1573 [trial court is arbiter of conflicts in testimony
including expert testimony; appellate court reviews trial court's conclusion
only for substantial evidence].) We will
not reweigh the evidence before the trial court merely because the Stantons presented evidence that
the Finneran home's windows were sandtone
colored. (See Kelly v. CB & I
Constructors, Inc. (2009)
Cal.App.4th 442, 454.) The substantial
evidence standard applies to both lay and expert testimony, and the trial court
was free to reject the opinion of the Stantons'
expert so long as it did not do so arbitrarily.
(People ex rel. Brown v. Tri-Union Seafoods, LLC,
at pp. 1567, 1568.) The Stantons do not claim, nor have
they shown, that the trial court acted arbitrarily or that there is reason to
reject Brian Finneran's testimony under the sufficiency
of the evidence standard.
V. Attorney
Fee Award
The Stantons do not meaningfully
challenge the propriety and amount of the trial court's attorney fee award to
Association. They contend that if they
prevail on this appeal, Association will no longer be the prevailing party and
thus the fee order should be reversed.
As this
court explained in Rancho Santa Fe Assn.
v. Dolan-King (2004) 115 Cal.App.4th 28, 46 (Dolan-King II), an award of attorney fees under a statutory
provision such as Civil Code section 1354, subdivision (f) is reviewed for
abuse of discretion. Based on our
foregoing conclusions, Association remains the prevailing party. Having no claim by the Stantons that the trial court
abused its discretion with respect to the time expended, the hourly rate
billed, or the nature of the costs assessed, we shall uphold the award. (Dolan-King
II, at p. 46.)
VI. Petition
for Writ of Supersedeas
A.
By a
petition alternatively seeking a writ of mandate, supersedeas
or other appropriate relief,[1] the Stantons
challenge the trial court's order requiring them to post a bond or undertaking
to stay execution of the costs awarded in the underlying action, including the
award of attorney fees in Association's favor.
They contend that under Code of Civil Procedure section 916,[2] costs in injunctive relief actions are stayed
on appeal. They maintain that both
authorities cited by the trial court -- Bank
of San Pedro v. Superior Court (1992) 3 Cal.4th 797 (Bank of San Pedro), and Chamberlin v. Dale's
RV Rentals, Inc. (1986) 188 Cal.App.3d 356 (
reliance on them to hold that attorney fees are not ordinary or routine
costs. They argue that in this case
involving attorney fees awarded under the Davis-Sterling Common Interest
Development Act enacted in 1985 (Civ. Code, § 1350),
the trial court should have followed Nielsen
v. Stumbos, supra,
226 Cal.App.3d 301.
In its
opposition to the petition, Association contended the matter is governed by
section 917.1, subdivision (a), which specifically requires an undertaking to
stay a monetary award pending appeal. It
maintained the trial court did not abuse its discretion by requiring an undertaking
under its cited authorities. It further
argued that this court in Dowling v.
Zimmerman (2001) 85 Cal.App.4th 1400 (Dowling)
Division Three in Beniwal
considered the conflict in authorities and conclude that Bank of San Pedro, supra,
3 Cal.4th 797 and Chamberlin,
supra, 188 Cal.App.3d 356 are
controlling on the issue of whether attorney fees are nonroutine
costs requiring an undertaking. Though
Association elected to concede this issue at oral argument, we will address it
on the merits for the guidance of trial courts.
B.
Section
916, subdivision (a), provides in part:
"(a) Except as provided in Sections 917.1 to 917.9, inclusive, and
in Section 116.810, the perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced
therein or affected thereby, including enforcement of the judgment or
order." "The purpose of the
automatic stay rule is 'to protect the appellate court's jurisdiction by
preserving the status quo until the appeal is decided. The rule prevents the trial court from
rendering an appeal futile by altering the appealed judgment or order by
conducting other proceedings that may affect it.' " (Dowling,
supra, 85 Cal.App.4th at p. 1428.)
Section
917.1, subdivision (a)(2) provides an exception to the stay otherwise imposed
by section 916. (Dowling, supra, 85
Cal.App.4th at p. 1428 [referring to exception as the "money judgment
exception"].) Under that provision,
an appeal will not stay the enforcement of a judgment or order, and thus an
undertaking is required, if the judgment or order is for " '[m]oney or the payment of money, whether consisting of a
special fund or not, and whether payable by the appellant or other party to the
action.' " (
1429, quoting § 917.1, subd. (a)(1).)
Section
917.1 contains another exception in subdivision (d), specifying that no
undertaking is required for a judgment consisting of only costs awarded under
section 1021 et seq. (
469, fn. 5.) In Dowling, this court pointed out that section 917.1, subdivision (d)
does not expressly refer to attorney fees awards, but a commentator suggests
that " 'a judgment solely for attorney fees (or [section] 1021 et seq. costs and attorney fees), when awarded
pursuant to contract, statute or "law,"
should likewise be stayed automatically on appeal . . . because such fee
awards are expressly denominated by [section] 1021 et seq. as recoverable costs
of suit.' " (
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2009) ¶ 7:133, p. 7-34.1, citing § 1033.5, subds.
(a)(10)(A), (B), (C) & (c)(5).)[3]
In Bank of San Pedro, supra,
3 Cal.4th 797, the California Supreme Court explained the longstanding rule
automatically staying costs awards pending appeal: "Costs of suit are awarded to the
prevailing party in nearly every civil action or proceeding. This reality arises from section 1032,
subdivision (b), which states, 'Except as otherwise expressly provided by
statute, a prevailing party is entitled as a matter of
right to recover costs in any action or proceeding.' (Italics added.) We relied on this circumstance in construing
the statutory antecedent of section 917.1 (former section 942): 'A judgment for costs is not the judgment
directing the payment of money contemplated by section 942. If such were the fact, a stay bond would be
required in almost every conceivable case, when, to the contrary, it is only
required in the four cases covered by sections 942 to 945 of the code . . .
.' [Citation.] In other words, if a judgment for costs
awarded under section 1032 were a money judgment within the meaning of section
917.1, virtually every judgment would be within the scope of section 917.1, and
an undertaking would be required to stay every judgment pending appeal. The exception in section 917.1 to the
automatic stay provision of section 916 would cease to be an exception; it
would subsume the general rule. Such a
result could not have been consistent with the Legislature's intent. We therefore have held that a judgment for
costs alone was not a judgment directing the payment of money within the
meaning of former section 942 (now section 917.1, subdivision (a)) and was
therefore stayed without the need for an undertaking. [Citations.]
This rule has become well established." (Bank
of San Pedro, supra, 3 Cal.4th at
pp. 800-801.) The high court emphasized
that in each of its prior decisions on this point, however, "the costs
were of a routine nature, such as those
awarded as a matter of right under section 1032." (Bank
of San Pedro, at p. 801, italics added.)
Thus, in
framing the issue, which there involved an award of expert witness fees under
section 998, subdivision (c), the court looked to whether the costs at issue
were routine or not routine, finding them to be nonroutine
and thus not automatically stayed without an undertaking. (Bank
of San Pedro, supra, 3 Cal.4th at
pp. 803-805.)[4] The court reasoned the expert witness fees
were a nonroutine cost because (1) a
under the statute, and (2) an award of
expert witness fees is "always within the trial court's
discretion" in contrast to costs awarded under section 1032, which are
awarded " 'as a matter of right.' "
(Bank of San Pedro, at p.
803.)
This court
applied the above statutes and the Bank
of San Pedro "routine costs" standard in Dowling, supra, 85
Cal.App.4th 1400, to decide whether an appeal bond or undertaking was required
to stay the enforcement of a judgment
for reasonable attorney fees and costs awarded to a prevailing defendant under
section 425.16, commonly known as the anti-SLAPP statute. (Dowling
at p. 1432.) We held under the
express language of section 917.1, subdivision (a)(1), that such a judgment was
unquestionably a judgment for payment of money so as to require an undertaking
to stay enforcement of the judgment. (
Looking to the operation of the anti-SLAPP statute, this court reasoned the judgment "cannot be construed as an
award of routine or incidental costs subject to the automatic stay rule"
under subdivision (d) of section 917.1.
(Dowling, at p. 1432.) There were two basic reasons for our
holding. First, we held the statutory
award under the anti-SLAPP statute is not routine because the award is not
reciprocal: the anti-SLAPP statute authorized only the SLAPP
fees after prevailing on a special motion to strike under the statute; a
prevailing plaintiff is not entitled
to recover fees and costs unless he or she shows the defendant's motion was
frivolous or solely intended to cause unnecessary delay. (Dowling,
at pp. 1432-1433.) Second, we looked to
the legislative intent "to provide SLAPP defendants an efficient tool to
quickly and inexpensively unmask and defeat SLAPP suits." (Id.
at p. 1433.) We were "persuaded the
Legislature intended to deter SLAPP litigation not only at the trial court
level, but also in the appellate courts in order to protect the proper exercise
of First Amendment rights. Requiring a
SLAPP plaintiff who appeals from an adverse judgment
under the anti-SLAPP statute to give an undertaking to stay enforcement of the
portion of the judgment awarding reasonable attorneys fees and costs to the
prevailing defendant under section 425.16, subdivision (c), will promote
meritorious appeals, and will deter continued SLAPP litigation at the appellate
level." (Dowling, at pp. 1433-1434.)
C. Standard
of Review and Analysis
The
question at hand is whether, looking to the operation of the applicable
statutes and the Legislature's intent (Bank
of San Pedro, supra, 3 Cal.4th at
pp. 800, 803-804), the trial court's judgment for attorney fees and costs here
is a judgment for " 'money or the payment of money' " under section
917.1, subdivision (a)(1) or whether it is a judgment
" 'solely for costs awarded under Chapter 6 (commencing
with Section 1021) of Title
14' " within the meaning of section 917.1, subdivision
(d). (Dowling, supra, 85
Cal.App.4th at p. 1432.) The answer
requires us to decide whether the costs awarded to Association here were
routine or nonroutine costs. (Bank
of San Pedro, at pp. 803-804.)
Here, we
conclude the Association's judgment for attorney fees is automatically stayed
pending any appeal on grounds the attorney fees awarded are a routine or
incidental item of costs, awarded as a matter of right to the prevailing
party. The Association prayed for
recovery of their attorney fees "pursuant to statute and
contract." As recounted above, the
trial court found Association to be the prevailing party, and, determining that
its action was one to enforce express provisions in the CC&Rs,
awarded it attorney fees and costs under Civil Code section 1354. Civil Code section 1354, subdivision (c),
provides: "In an action to enforce
the governing documents, the prevailing party shall be awarded reasonable
attorney's fees and costs." Under
section 1033.5, when attorney fees are authorized under "any" California
statute that refers to the award of "costs and attorney's fees," such
fees are recoverable under section 1032 as "an item and component of the
costs. . . ." (§ 1033.5, subd. (c)(5); see Dowling,
supra, 85 Cal.App.4th at p. 1433; Ziello
651, 655, fn. 2 ["section 1033.5, also part of chapter 6, includes
attorney's fees authorized by a contract as an item of costs (subd. (a)(10)(A))"].)
Unlike the
attorney fee award under the anti-SLAPP statute in Dowling, supra, 185
Cal.App.4th 1400 or the section 998 expert witness fee award in
Civil Code section 1354 is expressly awarded to the prevailing party (i.e., it is reciprocal), such attorney fees are
awarded as a matter of right, and there is no discretion afforded to the trial
court in granting or denying such fees, other than as to their reasonableness
and amount. In our view, if we were to
characterize the attorney fee award here as a judgment in substance
"directing the payment of money," we would write out of section
917.1, subdivision (d) any attorney fees awarded as costs under section
1032. The Legislature has not provided
for such an exception, and we will not rewrite the statute to create it. (California
Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14
Cal.4th 627, 633 [" 'This court has no power to rewrite the statute so as
to make it conform to a presumed intention which is not expressed'
"].) Thus the Stantons' appeal from the costs
and fee order stayed its enforcement under section 916. "Since the appeal is limited to the
order awarding costs, including attorney's fees, it is within the exclusion of
the final provision of section 917.1, subdivision (d). As we have discussed, that provision
eliminates the requirement of an undertaking when the appeal is solely from an
award of costs." (Ziello
We decline
to read Bank of San Pedro,
attorney fee awards with expert witness fees, as did the court in Behniwal
the expert fees awarded under section 998, and its reasoning was based on the
operation of that statute. Further, Behniwal
issue was not for the purpose of squarely deciding whether or not an
undertaking was required, but only relevant to demonstrate the flaws in one of
the parties' arguments. (Behniwal,
do not follow Behniwal
to encompass a judgment solely for costs and attorney fees awarded to the
prevailing party under Civil Code section 1354.
In sum,
under section 916, subdivision (a) the trial court should have granted the stay
of execution of the judgment in its entirety.
DISPOSITION
The
judgment and postjudgment orders are affirmed. The temporary stay issued on October 29, 2009, is vacated. The petition for writ of supersedeas
staying enforcement of the judgment for attorney fees and other costs is
granted. The parties shall bear their
own costs on appeal.
O'ROURKE, J.
WE CONCUR:
HUFFMAN,
Acting P. J.
McINTYRE, J.
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* Pursuant to California Rules of
Court, rule 8.1110, this opinion is certified for publication with the
exception of parts I, II, III, IV, and V.
[1] "Supersedeas" is the appropriate remedy for a refusal
to acknowledge the applicability of statutory provisions automatically staying
the judgment while an appeal is pursued.
(Nielsen v. Stumbos
(1990) 226 Cal.App.3d 301, 303.)
