Roy v. Highlands Community Assn.
Filed 6/29/06 Roy v. Highlands Community Assn. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THOMAS ROY et al., Plaintiffs and Appellants, v. THE HIGHLANDS COMMUNITY ASSOCIATION, Defendant and Respondent. | G036084 (Super. Ct. No. 03CC10607) O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Kim Garland Dunning, Judge. Reversed and remanded.
Law Offices of Roger E. Naghash and Roger E. Naghash for Plaintiffs and Appellants.
Gates, O'Doherty, Gonter & Guy, F. X. Sean O'Doherty and Thomas A. Scutti for Defendant and Respondent.
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Plaintiffs Thomas and Wendy Roy appeal from a postjudgment order awarding attorney fees to defendant The Highlands Community Association after plaintiffs sought to dismiss their complaint without prejudice. They contend that they were not required to file a request for dismissal, but only a notice of entry of dismissal, after the court granted their oral motion, and that the court's subsequent order that they file such a request and its ultimate dismissal of the case with prejudice were error. They also contend the court erred in granting defendant's motion for attorney fees on several grounds: the motion was an improper motion for reconsideration of a prior motion for fees under Civil Code section 128.7, the motion was untimely, and the motion was barred by Civil Code section 1717.
We agree plaintiffs complied by filing a notice of entry of dismissal and the court's subsequent dismissal with prejudice was error. In addition, the motion for attorney fees was untimely. We reverse on those grounds and remand for entry of an appropriate order to effect a request for dismissal without prejudice and order thereon as of the date the oral motion was made.
FACTS AND PROCEDURAL HISTORY
The record does not contain a copy of the complaint. We rely on statements in the briefs as to its contents to the extent the parties agree. (Native American Sacred Site and Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 963-964.) Plaintiffs sued defendant after it required them to obtain the consent of their neighbors to add a second story to their home. The complaint sought declaratory relief as to whether the CC&R's required such approval.
On March 29, 2005, after several days of trial, when plaintiffs had rested and defendant had moved for non-suit, plaintiffs made a motion to dismiss the complaint
without prejudice. The court inquired, â€
