Filed 4/9/18 Hup v. Solera Oak Valley Greens Assn. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO



ARISTEA HUPP et al.,

Plaintiffs and Respondents,

v.

SOLERA OAK VALLEY GREENS ASSOCIATION,

Defendant and Appellant.


E066366

(Super.Ct.No. RIC1512779)

OPINION


APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Dismissed.
Richardson Harman Ober, Kelly G. Richardson, Theodore H. Dokko and Jonathan R. Davis for Defendant and Appellant.
Aristea Hupp, in pro. per., for Plaintiff and Respondent.
No appearance for Plaintiff and Respondent, Paul Hupp.
I
INTRODUCTION
Defendant and appellant, Solera Oak Valley Greens Association (Solera) appeals the trial court’s ruling on Solera’s motion for attorney’s fees and costs (collectively referred to as attorney’s fees). After plaintiff and respondent Aristea Hupp filed a notice of appeal of the dismissal of her first amended complaint (Aristea’s appeal, Hupp v. Solera Oak Valley Greens Association (2017) 12 Cal.App.5th 1300), Solera filed a motion for attorney’s fees. In the instant appeal (Solera’s appeal), Solera contends the $3,000 attorney’s fees award constitutes an abuse of discretion because it is unreasonably low.
Because in Aristea’s appeal, we partially reversed the dismissal of Aristea’s first amended complaint, the instant appeal is moot. Solera is no longer the prevailing party and an award of attorney’s fees as to Aristea is premature. The $3,000 order for attorney’s fees must be vacated, if the trial court has not done so. Under these circumstances, Solera’s objection to the amount of the attorney’s fees award is therefore moot and Solera’s appeal is dismissed.
II
FACTS AND PROCEDURAL BACKGROUND
We incorporate by reference our discussion of the underlying facts and pretrial and trial proceedings stated in our opinion in Aristea’s appeal (Hupp v. Solera Oak Valley Greens Association (2017) 12 Cal.App.5th 1300, 1303-1304).
Following entry of judgment of dismissal of the first amended complaint on March 1, 2016, Solera moved for an award of attorney’s fees jointly against Paul and Aristea Hupp. Solera’s attorney’s fees request was brought under the attorney’s fees clause in Solera’s CC&Rs, and Civil Code sections 1717 and 5975, subdivision (c). Solera sought $90,472.50 in attorney’s fees (239.1 hour at $375 per hour and 1.8 hours at $450 per hour).
On May 4, 2016, the trial court heard Solera’s motion for attorney’s fees and found that Solera was the prevailing party. The court granted Solera’s motion for recovery of attorney’s fees but rejected Solera’s request for $90,472.50 in attorney’s fees. Instead, the trial court awarded Solera $3,000 in attorney’s fees (10 hours at $300 per hour). Solera timely appealed the attorney’s fees order entered on June 10, 2016.
III
ATTORNEY’S FEES AWARD
Solera contends the trial court abused its discretion by awarding Solera only $3,000, which amounts to approximately 3 percent of the attorney’s fees requested in Solera’s motion for attorney’s fees. Solera argues that as the prevailing party, it is entitled to attorney’s fees and costs pursuant to contract, under the CC&Rs, section 13.03 (“Costs and Attorneys’ Fees”) of Article XIII (“Breach and Default”) and Civil Code section 1717, and under Civil Code sections 5235 and 5975, which govern common interest development associations such as Solera. But the award of attorney’s fees was premature.
As the trial court correctly noted during the hearing on Solera’s motion for attorney’s fees, “[T]he motion for attorneys’ fees is going to be subject to – to relief on appeal. If there’s relief on appeal, then the attorneys’ fees go away.” The trial court was referring to potential relief that might be provided in Aristea’s pending appeal of the judgment of dismissal.
On June 23, 2017, during the pendency of the instant appeal, this court entered its decision in Aristea’s appeal, granting relief to Aristea. In our decision (Hupp v. Solera Oak Valley Greens Association (2017) 12 Cal.App.5th 1300, 1303-1304), we held that, although the trial court properly dismissed all remaining claims and allegations as to Paul because he was a vexatious litigant, the trial court erred in dismissing Aristea’s claims because she was not a vexatious litigant. Therefore, she was entitled to proceed with her claims alleged in the first amended complaint against Solera.
The underpinnings of the joint attorney’s fees award therefore significantly changed with the reversal of dismissal of Aristea’s claims, resulting in the attorney’s fees award becoming premature. (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 309-310, 314.) Because of our decision in the Aristea appeal and partial reversal of the judgment of dismissal, there now exists the possibility that Solera might not prevail under the contract (CC&Rs) on Aristea’s claims against Solera. Under such circumstances, in which there was a postjudgment joint award of attorney’s fees, and subsequent partial reversal of the judgment of dismissal as to Aristea, we conclude the joint award of attorney’s fees, if still existing, must be vacated, and Solera’s appeal shall be dismissed as moot.
IV
DISPOSITION
Solera’s appeal of the award of attorney’s fees and costs is dismissed as moot. The trial court is directed to vacate the $3,000 attorney’s fees award, if the trial court has not already done so. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.