Filed 12/ 23/ 15 Wasserman v. Ketelhut CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 r ule 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

MORREY WASSERMAN, ET AL,,
Plaintiffs and Appellants,

v.
JEFFREY KETELHUT, ET AL.,,
Defendants and Respondents. 2d Civil No. B258642 (Super. Ct. No. 56

- 2011

- 00403140 CU

OR

- VTA) (Ventura County) MODIFICTION OF OPINION ON DENIAL OF REHEARING (No Change in Judgment)

THE COURT:

It is ordered that the opinion filed herein on December 1, 2015, be modified as
follows: Delete the last paragraph on page 6 beginning with the words " 'whereas forfeiture ' " and ending on page 7 with the words "remaining plaintiff." Th e following three paragraphs and footnote 2 are inserted in its place.

" '[W]aiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]" ( People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) By

re questing an immediate ruling on their attorney fees motion, respondents did not intentionally relinquish or abandon their right to seek a deferred ruling if it were determined, as we have determined here, that their request was premature. Accordingly, the re was no waiver.
Nor was there a forfeiture. " '[F]orfeiture is the failure to make the timely assertion of a right.' " ( People v. Simon
, supra , 25 Cal.4th at p. 1097, fn. 9.) A forfeiture could have2

occurred only if, when respondents filed their motio n for attorney fees, they were required to request a deferred ruling at that time. Appellants have cited no authority supporting such a requirement. As respondents allege in their brief, they were not "under any obligation to concede that a ruling should be deferred until after the case had been adjudicated against every remaining plaintiff." Moreover, a forfeiture would be inequitable to the remaining plaintiffs. If respondents were to prevail in the case, the remaining plaintiffs would have to bear t he
[1] entire burden of paying respondents' attorney fees and costs even though appellants were partly responsible for incurring them. A deferred ruling, on the other hand, would assure that appellants would be held responsible for paying their share. [2] There is no change in the judgment.

NOT FOR PUBLICATION

[2] In their petition for rehearing, appellants allege, "It now appears likely that respondents will file an attorneys' fees motion upon completion of the case because the trial court issued a 'statement of intended decision' in respondents' favor on December 11, 2015."Filed 12 /1/15 Wasserman v. Ketelhut CA2/6 (unmodified version)
NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION SIX

MORREY WASSERMAN, et al., Plaintiffs and Appellants,

v. JEFFREY KETELHUT, et al.
, Defendants and Respondents. 2d Civil No. B 258642 (Super. Ct. No. 56

- 2011

- 00403140

- CU

OR

- VTA) (Ventura County)

Morrey Wasserman and Eileen Gabler appeal from an order requiring them to pay

atto rney fees incurred by respondents Jeffrey Ketelhut and Marcella Ketelhut . Appellants and other plaintiffs sued respondents to enforce the governing documents of a common interest development. The attorney fees order was entered after appellants' voluntar y dismissal of their lawsuit . The order was pursuant to Civil Code section 5975, subdivision (c), 1 which provides, "In an action to enforce the governing documents [of a common interest development] , the prevailing party shall be awarded reasonable attorn ey's fees and
costs." The trial court determined that, as to appellants, respondents were the prevailing party. After a ppellants ' v oluntary dismissal , other plaintiffs in the same action continued to seek the same relief tha t appellants had been seeking. Appellants argue that the voluntary

1 All statutory references are to the Civil Code.2

dismissal did not result in the achievement of respondents' litigation objectives because they
still had to defend against the other plaintiffs' identical claims. Therefore, appellants
contend
, respondents are not the prevailing party within the meaning of section 5975
, subdivision (c). We agree and reverse. Common Interest Development A "common interest development" includes "a real property development" that has a "[c]ommon area that is owned either by an association or in common by the owners of [the lots in the development] who possess appurtenant rights to the beneficial use and enjoyment
of the common area." ( §§ 4100, subd. (c), 4175, subd. (a), 4185, subd. (a)(3).) "Governing documents" means "documents, such a s bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development . . .
." (§ 4150.) Factual and Procedural Background In August 2011 Felipa Richland Eith and Stacy Wasserman, the wife of appellant Morrey Wasserman, filed a complaint against respondents. A first amended complaint was filed in April 2012. It named 13 plaintiffs, including appellants, and alleged nine causes of
action.
The first amended complaint alleged as fo llows: The parties are owners of lots in a
28

- lot development that "is governed by the Davis Stirling Common Interest Development
Act." ( § 4000 et seq.) The governing documents of the development provide that each lot shall be used only " 'for the reside nce of one family and its domestic servants.' " In violation of the governing documents, respondents are maintaining a commercial vineyard

- Los Robles Hills Winery

- on their lot and are selling wine to the public. Their operations have expanded into th e development's common area.
The first amended complaint sought an injunction prohibiting respondents from operating a commercial vineyard and from encroaching upon the common area. It also sought general and exemplary damages. In March 2014 appellants voluntarily dismissed their causes of action without prejudice. Respondents moved for an award of attorney fees on the ground that , as to3

appellants, they were the prevailing party within the meaning of former section 1354, subdivision (c), now section 5 975, subdivision (c). Respondents sought an award of $190,208.27. Their present counsel declared that,

up to the date of appellants' voluntary dismissal, he had billed $114,278.22 in attorney fees. Respondent Jeffrey Ketelhut declared that his former c ounsel had billed $75,930.05 ($114,278.22 + $75,930.05 = $190,208.27). In their opposition to the motion for attorney fees, appellants noted that seven plaintiffs (including appellants) had " dism issed their claims against [respondents]

. " But " the
claims against [respondents] continue to be prosecuted by six plaintiffs. " Therefore, appellants argue d , respondents "plainly have no t achieved their litigation aims. The action against them is still being prose cuted by the remaining plaintiff s who may (and it is contended will) win." Appella nts continued: "Moreover, [ appellants ] did not dismiss their claims because they have conceded the merits of [respondents'] case

. . . . Both are in the process of selling their homes and, once their homes have sold, neithe r of them will have standing to continue prosec uting this a ction . . . . Further, former counsel never obtained
their consent to file a lawsuit against [responden ts] and neither understood the true nature of the First Amended Complaint that was being pros ecuted." Appellants requested that the trial court either deny the motion for attorney fees or continue it "until after a determination of the claims of the remaining plaintiffs ." Appellants did not submit declarations in support of their opposition to t he motion for attorney fees. In concluding that respondents were the prevailin g party , the trial court found "not persuasive" appellants' contention that they had dismissed their causes of action because they were selling their homes. It noted that this contention was "unsupported by a declaration." The court rejected appellants' assertion that they had not consented to the lawsuit against respondents : Appellants "knew they were plaintiffs . . . . In any case, there is no evidence from them as a part o f the opposition to this motion that establishes " that they
did not understand " what was being sought on their behalf ." The trial court ordered appellants to pay attorney fees of $156,614.47. This amount "excludes all fees incurred before [appellants] b ecame plaintiffs" upon the filing of the first4

amended complaint. The court stated, "If [respondents] end up being prevailing parties as to other pla intiffs, the issue of what they may be entitled to recover will be addressed at the
time those events occu r." Meaning of "Prevailing Party" "In determining who is the 'prevailing party' within the meaning of section 1354 [now section 5975] , the trial court should analyze ' which par ty . . . prevailed on a practical
level.' " ( Salehi v. Surfside III Condominiu m Owners' Assn. (2011) 200 Cal.App.4th 1146,
1153 ( Salehi ) , quoting from Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568
, 1574.) Whether a party has prevailed on a practical level depends upon
whether it has realized its " ' litigatio n objectives. ' " ( Salehi
, supra , 200 Cal.App.4th at p. 1150; see also Santisas v. Goodin (1998) 17 Cal.4th 599, 622 [where a " contract allows the prevailing party to recover att orney fees but does not define 'prevailing party'
. . . , a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settle ment, or otherwise "].)
" ' In assessing litigation success, Hsu v. Abbara (1995) 9 Cal.4th 863, 8 77 . . . , . . . instructs:

" [C]ourts should respect substance rather than form, and to t his extent should be guided by 'equitable considerations.' " ' [Citation.]" ( Salehi
, supra , 200 Cal.App.4th at p. 1156,

quo ting from Castro v. Superior Court (2004) 116 Cal. App.4th 1010, 1019 .) Standard of Review A trial court's determination of who is a prevailing party under section 5975, subdivision (c) " should be affirmed on appeal absent an abuse of discretion ." ( Heather
Farms Homeowners Assn. v. Robinson
, supra , 21 Cal .App.4th at p. 1574 ; accord, Salehi
, supra , 200 Cal.App.4th at p. 1154 .) " ' " [D] iscretion is abused whenever . . . the court exceeds the bounds of reason, all of the circumstan ces before it being considered." [Citation.]' [Citation.] " ( Ibid .) We reje ct appellants' contention that the standard of review is de novo or independent
review. As discussed in the preceding section of this opinion, the legal question of statutory construction has been decided in previous cases.5 The Trial Court Abused Its Disc retion In its ruling the trial court observed , "Prevailing party status is determined by an analysis of whether or not the party claiming to be a prevailing party has achieved its objects [sic objectives] in the litigation." The trial court exceeded the b ounds of reason in concluding that respondents had achieved their litigation objective

. Respondents' goal was to defeat the instant action to enjoin them from operating a commercial vineyard and from encroaching upon the development's common area. D espi t e a ppellants' voluntary dismissal
of their causes of action
, six remaining plaintiffs continued to litigate the identical causes of
action. If they succeeded, respondents would lose everything that they had fought for in the litigation. Moreover, the tria l court's ruling was inequitable. Although at least six other plaintiffs had been involved in the litigation from the filing of the first amended complaint in April 2012 until appellants ' voluntary dismissal in March 2014, the trial court imposed on appel lants the entire burden of paying respondents' attorney fees for this period. At the hearing on the motion for attorney fees, the trial court pondered the inequity of placing the entire burden on appellants: "My bigger problem is the action isn't conclud ed.
And do I work . . . an [in] equity if I award fees against two people who have dismissed the case and that potentially gives a free ride to those who are remaining in it who may also either dismiss or have the case decided against them. So how do I ba lance those factors?" Respondents' counsel replied: "If the Court grants the motion, then . . . the two people [appellants] who pay. . . would certainly, under the equities, be entitled to a recovery from the joint plaintiffs in this case. . . . [¶] . . . [T] he burden should not be borne [by] my client, who's done everything right." Counsel was assuming that respondents would eventually prevail against the rema ining plaintiffs, so that they and appellants would be jointly liable for respondents' attorney fees. " ' When several parties . . . are jointly liable, and one has paid more than his share, he may enforce contribution from the others.' [Citation.]" ( Graphic Arts Mutual Ins. Co. v. Time Travel International , Inc. (2005) 126 Cal.App. 4th 405, 415 .) But there was no basis for counsel's assumption that his client would eventually prevail

. The court should have considered the inequity of requiring appellants to pay6

respondents' attorney fees when the litigation might be resolved in favor of the remain ing plaintiffs

. If this were to occur , appellants would not be able to enforce contribution from
them

. Even if respondents were to prevail against the remaining plaintiffs, it would be inequitable to require appellants to pay respondents' entire attorney fees up front and to await the final resolution of the case before enforcing contribution from the other plaintiffs.
In Salehi this court observed: " At no time has Salehi claimed that the trial court should have awaited outcome of the two remaining causes of action before decidin g who was the prevailing party '[i]n [the] action.' (§ 1354, subd. (c) [now § 5975, subd. (c)].) We only point out that prudence may dictate that the trial court postpone ruling on an attorney fees request until all causes of act ion have been resolved. " ( Salehi
, supra , 200 Cal.App.4th at p. 1156 .) Unlike Salehi , appellants requested that the trial court postpone ruling on responde nt s ' mo tion for attorney fees until the resolution of the remaining plaintiffs' causes
of action

. T he court abused its discretion in not granting the request.

Respondents Did Not Waive or Forfeit Their Rights Appellants argue that, because respondents "fail[ed] to seek a deferred ruling on their attorneys' fees motion and oppos[ed] [ appellants' ] effor t to defer a ruling, " they waived or

" forfeited the right to seek a ruling after the enforcement action is resolved." (Italics omitted.) Thus, "this court should reverse the trial court's ruling and compel it to enter an order denying the fees motion wit h prejudice." (Bold and capitalization omitted.)
" ' Whereas forfeiture is the failure to make the timely asser tion of a right, waiver is
the " intentional relinquishment o r abandonment of a known right." [Citations.]' [Citation.]" ( People v. Simon (200 1) 25 Cal. 4th 1082, 1097, fn. 9.) The doctrines of waiver and forfeiture are inapplicable here

. Respondent s moved for an award of attorney fees on the ground that, as a result of appellants' voluntary dismissal, respondents were the prevailing party. Ap pellants, not respondents, had the right to seek to defer a ruling on the motion until
after the resolution of the litigation involving the remaining plaintiffs

. If appellants had
failed to invoke this right below, they arguably would hav e waived or forfe ited it. The right was not respondents' to waive or forfeit. As respondents allege in their brief, they were not7

"under any obligation to concede that a ruling should be deferred until after the case had been adjudicated against every remaining plaintiff ." Disposition The order requiring appellants to pay respondents' attorney fees is reversed. The
matter is remanded with directions to defer ruling on respondents' motion for attorney fees
until after the litigation among the various parties has been re solved. Appellants shall recover their costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.8 Henry J. Walsh, Judge
Superior Court County of Ventura

______________________________

Thomas R. Freeman; Bird , Marella, Boxer, Wolpert, Nessim, Brooks, incenberg & Rhow, for Appellants.

Christopher E. Farenza, JeffreyJ. Gordon , Nicholas von der Lancken; Yoka & Smith, for Respondents.