Filed 9/13/17 Mims v. Park Hill on Pepper Ave. Community Assoc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Larry Rothman & Associates and Larry Rothman for Defendant and Appellant.

Law Offices of Charles L. Smith and Charles L. Smith for Plaintiff and Respondent.

Plaintiff and respondent Latricia Mims sued defendant and appellant Park Hill on Pepper Avenue Community Association (Park Hill), and others, for (1) injunctive relief; (2) unfair trade practices; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) breach of fiduciary duty; (6) failure to make necessary disclosures; and (7) declaratory relief. Mims dismissed Park Hill as a defendant. Park Hill moved for an award of attorney’s fees. The trial court denied Park Hill’s motion. Park Hill contends the trial court erred. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

A. FIRST AMENDED COMPLAINT

The facts in this section are taken from Mims’s First Amended Complaint (FAC), which was filed on May 17, 2013. Park Hill is a homeowner’s association (HOA). In December 2008, Mims entered into a purchase agreement for real property located in Rialto (the property). Mims did not receive documents or information reflecting the property was within the HOA and/or subject to HOA fees. Due to the lack of disclosure, there were unpaid HOA fees and the property was in foreclosure. A foreclosure notice was attached to the FAC. The foreclosure proceedings were instituted by Park Hill.

Mims alleged Park Hill’s omission regarding the existence of an HOA was deceitful and a material omission. Mims asserted the purchase agreement was void due to the failure to disclose information about the HOA and the fees associated with the HOA. Mims alleged the property could not be foreclosed due to failure to pay HOA fees because Mims did not have notice that HOA fees were owed. Mims sought an injunction (1) requiring “all relevant documents” about the HOA to be disclosed to Mims, and (2) restraining the foreclosure process. Mims also sought general and exemplary damages.

B. ANSWER AND DISMISSAL

Park Hill filed an answer. Park Hill denied Mims’s allegations and raised 14 affirmative defenses, such as assumption of the risk, failure to mitigate damages, and unclean hands. On May 29, 2014, Mims dismissed Park Hill from the lawsuit, without prejudice.

C. MOTION FOR ATTORNEY’S FEES

Park Hill moved for an award of attorney’s fees. Park Hill asserted it was statutorily entitled to attorney’s fees. Park Hill cited to Civil Code section 5975, subdivision (c): “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Boldface and underscore omitted.)

Mims opposed the motion. Mims asserted her lawsuit did not concern the governing documents/covenants, conditions, and restrictions (CC&Rs) or an attempt to enforce the CC&Rs. Mims contended her lawsuit concerned the failure to provide her notice that the property was within the HOA and subject to HOA fees. Mims reasoned that because her lawsuit was not about enforcing CC&Rs, Park Hill was not entitled to attorney’s fees.

Park Hill filed a reply. Park Hill asserted that, in Mims’s FAC, Mims alleged the CC&Rs were invalid and could not be enforced against her. Park Hill concluded it was statutorily entitled to attorney’s fees.

The trial court denied Park Hill’s motion. The trial court’s order reads, “The court denied the Motion since the Complaint against Park Hill was based upon Misrepresentation and not on the Covenants, Conditions, and Restrictions of that homeowner’s association. Mims had sued Park Hill claiming that Park Hill failed to notify her that her property was in that Association.”

DISCUSSION

Park Hill contends the trial court erred by denying its motion for attorney’s fees because it is statutorily entitled to an award of fees. (Civ. Code, § 5975, subd. (c).)[1]

“‘On review of an award of attorney fees . . . the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination . . . amounts to statutory construction and a question of law.’” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1176.) Because we are primarily interpreting Mims’s FAC in light of section 5975, we will apply the de novo standard of review.

Park Hill relies on section 5975, subdivision (c), which provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” An action is one to enforce the governing documents when the complaint contains a claim “based on a right or remedy under the governing documents.” (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 670.) “[D]efenses asserting the governing documents do not constitute ‘action[s] . . . to enforce the governing documents.’” (Ibid.)

In Mims’s FAC, she asserts there were outstanding HOA fees due on the property, and, as a result, foreclosure proceedings were instituted. Mims alleges the fees were unpaid because she was unaware of the fee obligation due to Park Hill’s failure to provide notice of the fee obligation. Thus, Mims is asserting she is exempt from HOA fees due to a lack of notice. Mims is not asserting the governing documents required notice be provided to her; rather, she is asserting a variety of laws required notice be provided, e.g., The Truth in Lending Act (12 C.F.R. § 226.1). Mims’s FAC does not seek to enforce the governing documents, rather, she is seeking an exemption from the governing documents due to alleged violations of disclosure laws as well as misrepresentation.

Notably, the governing documents are not cited in Mims’s FAC and a copy of the governing documents is not attached to Mims’s FAC. This lack of inclusion supports the determination that Mims was not relying on the governing documents as the basis for notice being required, and she was not seeking to enforce the governing documents. Rather, attached to Mims’s FAC is a copy of the foreclosure paperwork, because Mims was seeking to restrain the foreclosure proceedings.

It appears the foreclosure proceedings, brought by Park Hill, are the proceedings by which the governing documents are being enforced because via the foreclosure process Park Hill is enforcing the payment of the HOA dues. (§ 5705.)

In the instant case, Mims sought to stop that enforcement. Thus, this case is not a case to enforce the governing documents. Rather, it is a collateral matter designed to stop the collection of the HOA fees. Mims is not seeking to enforce a right or obtain a remedy under the governing documents. Therefore, this is not an action to enforce the governing documents. We conclude the trial court did not err.

Park Hill writes in its appellant’s opening brief, “The action in this case was to negate enforcement of the [CC&Rs].” We agree with Park Hill—in this case Mims was seeking to stop the foreclosure process based upon being exempt from the HOA dues. Park Hill does not explain how an action seeking an exemption from the CC&Rs qualifies as an action to enforce the governing documents. (See Provost v. Regents of University of Cal. (2011) 201 Cal.App.4th 1289, 1300 [provide reasoned legal analysis]; Cal. Rules of Court, rule 8.204(a)(1)(B) [provide argument].) Park Hill’s assertion that the trial court erred is unpersuasive due to Park Hill’s lack of analysis.

DISPOSITION

The order is affirmed. Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.