1 Filed 10/31/13 Reynolds v. Auburn Country Villa HOA CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer)

----

DEBORAH J. REYNOLDS, as Trustee, etc., Plaintiff and Appellant,

v.
AUBURN COUNTRY VILLA HOMEOWNERS ASSOCIATION et al., Defendants and Respondents. C068315 (Super. Ct. No. SCV0025861)

Plaintiff Deborah J. Reynolds is trustee for the Joan Martin Tr ust, which holds title to a condominium in a common interest community known as Auburn Country Villa. Reynolds sued the Au burn Country Villa Homeowners Association and various board members (collectively the A ssociation), challenging an amendment to the Covenants, Conditions and Restrictions (CC&Rs) that prevented the trust from renting the condominium.2 The trial court sustained the Associa tion’s demurrer without leave to amend, ruling that the action is barred by the four-y ear statute of limitations in Code of Civil Procedure section 343, 1 and that the rental restriction was reasonable and did not violate public policy. Reynolds now contends: 1. The trial court abused its discretion in denying leave to amend the complaint, because Reynolds can establish that the rental restriction is void ab initio , i.e., that her lawsuit is not barred by the statute of limitati ons and that the rental restriction can be challenged at any time. 2. The trial court erred in denying Re ynolds’s motion for reconsideration. 3. The trial court erred in awarding the Association its attorney fees. We conclude Reynolds fails to establish that the challenged CC&Rs provision is void ab initio or that the trial court erred in su staining the demurrer without leave to amend. She also fails to demonstrate that the trial court erred in denying her motion for reconsideration or in awarding the Associati on its attorney fees. Accordingly, we will affirm the judgment. BACKGROUND The Auburn Country Villa ’s CC&Rs initially permitted homeowners to rent their condominiums without significant restrictions; they only prohibited s hort term leases. However, in February 2003, a majority of the Association approved an amendment to the CC&Rs that limited the number of permissible re ntal units in the community to six. The amendment was approved to protect the valu e of the homes in the development and to retain eligibility requirements for secondary fi nancing. The restrict ion did not apply to any owners who were renting their con dominiums at the time the amendment was

1 Undesignated statutory references are to the Code of Civil Procedure.3 recorded, but once a “g randfathered” owner transferred title the rental restriction would apply to the condominium’s new owner. Gr andfathered units counted toward the six rental limitation. Those who subsequently de cided to rent their home were placed on a waiting list, and had to wait until the number of rentals fell below six. A variance could be requested for a short duration based on demonstrated hardship, such as pending probate proceedings, illness, or a reasonable pe riod of time in which to sell the unit. The amendment was recorded on March 27, 2003. Reynolds sued the Association in Sept ember 2009 for declaratory and injunctive relief. She filed a first and then a sec ond amended complaint after the Association successfully demurred twice to her pleading s. Her second amended complaint sought (1) to enjoin the application of the rental amendment; (2) to compel the Association to grant a hardship exemption; (3) a declaration that the rental amendment was void as applied; (4) a declaration that the amendment was void ab initio ; and (5) damages for breach of contract. Reynolds claimed the amendment was not approved by a majority of the Association, was not adopted in compliance with the amendm ent procedure set forth in the CC&Rs, and the solicitation for the amendm ent made false asser tions about the need for the amendment. She said this violated the contract be tween the original developer and all of the subsequent owners, as set forth in the original CC&Rs, by illegally revoking the right to rent or lease the reside ntial units. Reynolds fu rther maintained that the rental restriction was void as applied becau se it interfered with the property rights of homeowners in violation of public policy. She also sought to pursue a class action, alleging that the existence of the CC&Rs amendment was unknown to her and members of the class because it was not included in title documents provided to buyers. She said she learned of the restriction within five years of filing the lawsuit.4 According to a declaration filed by Re ynolds, which we reference solely to provide context, 2 her mother, Joanne Martin, purchased a unit in Auburn Country Villa in September 2004, but did not learn of the re ntal restriction until May 2006. After her health deteriorated, Martin m oved into an assisted living fa cility and sought a hardship exception to the rental restric tion in 2006. Reynolds also made an unsuccessful request for a hardship exemption after she became tr ustee of the Joanne Martin Trust. The Association demurred to the sec ond amended complaint on the ground it was barred by the statute of limitations. The Association argued all of the complaint’s allegations were premised on the invalidity of the CC&Rs amendment, but it was too late to raise such a challenge be cause the four-year statute of limitations in section 343 applied, and a manifest and palpable injury occurred more than four years earlier. The Association said there were no allegations demonstrating that the amendment was void ab initio , and rental restrictions in common intere st developments have been held to be reasonable. The trial court sustained the demurrer w ithout leave to amend, ruling that the CC&Rs amendment was recorded in 2003, bu t the complaint was not filed until 2009, which meant the lawsuit was barred by the st atute of limitations. The trial court also ruled that the rental restriction was reasona ble and did not violate public policy. The trial court subsequently denied Reynolds’s motion for reconsideration, observing that most of the documents on wh ich Reynolds relied for reconsideration were in her possession prior to the filing of the firs t amended complaint. The trial court ruled that Reynolds did not meet he r burden of showing that she could not have produced the evidence earlier in the ex ercise of reasonable diligence. Th e trial court said that although

2 In reviewing a demurrer, we consider all well pleaded facts and matters that may be judicially noticed ( Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 ( Zelig )), but that does not include a party’s declaration.5 Reynolds presented a “new” notice of hearin g issued in January 2011, in which the Association advised Reynolds to remove her for-rent sign and imposed a $50 per day fine, that did not establish wrongful conduct or exclusion from the board’s deliberations because the notice permitted Reynolds to a ttend and testify at the hearing. STANDARD OF REVIEW In reviewing the sufficiency of a co mplaint against a general demurrer, we consider matters that may be judicially no ticed and treat the demu rrer as admitting all material facts properly pleaded, but not conten tions, deductions, or conclusions of fact or law. ( Zelig, supra, 27 Cal.4th at p. 1126.) We dete rmine whether the complaint states facts sufficient to constitute a cause of action under any legal theory. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 ( Rakestraw ).) This does not mean, however, that the pl aintiff need only te nder the complaint to the reviewing court and hope that the appellate court can discern a cause of action. The plaintiff bears the burden of demonstrating th at the trial court erroneously sustained the demurrer as a matter of law. ( Rakestraw, supra, 81 Cal.App.4th at p. 43.) “[T]he plaintiff must show the complaint alleges fa cts sufficient to establish every element of each cause of action.” ( Ibid .; see also Everett v. State Farm General Ins. Co . (2008) 162 Cal.App.4th 649, 655 [“the burde n is on the appellant to de monstrate the existence of reversible error [and] we need only discuss whether a cause of action was stated under the theories raised on appeal”].) When a demurrer is sustai ned without leave to amend, we determine whether a reasonable possibility exists that amendment may cure the defec t; if it can we reverse, but if not we affirm. ( Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Again, “[t]he burden of proving such reasonable possibility is squarely on the plaintiff.” ( Ibid .; accord, Zelig,

supra , 27 Cal.4th at p. 1126.) “T o satisfy that burden on appeal , a plaintiff ‘must show in what manner he can amend his complaint a nd how that amendment will change the legal6 effect of his pleading.’ [Citation.] The asse rtion of an abstract right to amend does not satisfy this burden. [Citation.] The plainti ff must clearly and spec ifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.]” ( Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.) “The burden of showing th at a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation. ] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]” ( Rakestraw, supra , 81 Cal.App.4th at p. 44.) The aforementioned rules are simply a specific application of the general rule that the trial court’s judgment is presumed correct , and it is the appellant’s burden to establish otherwise with legal analysis a nd citations to facts in the reco rd that support the claim of error. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Equilon Enterprises LLC v. Board of Equalization (2010) 189 Cal.App.4th 865, 881; In re S.C. (2006) 138 Cal.App.4th 396, 408.) It is th e appellant’s responsibility to support claims of error with citation and authority; we are not obligated to perform that function on the appellant’s behalf and may treat deficient contentions as forfeited. ( Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ( Badie ).) In addition, the appellant may not simp ly incorporate by reference arguments made in papers filed in the trial court ra ther than brief the arguments on appeal. ( Garrick Development Co. v. Hayward Unified School Dist . (1992) 3 Cal.App.4th 320, 334; see also Colores v. Board of Trustees (2003) 105 Cal.App.4th 12 93, 1301, fn. 2.) The7 appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Cal. Rules of Court, rule 8.204 (a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) This is not a mere technical requirement, but is “designed to . . . requir[e] the litigants to present their cause systematically and so arranged that those upon whom th e duty devolves of ascertaini ng the rule of law to apply may be advised, as they read, of the exact question under considera tion, instead of being compelled to extricate it from the mass.” ( Landa v. Steinberg (1932) 126 Cal.App. 324, 325; accord, Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at p. 1831, fn. 4.) DISCUSSION
I Reynolds contends the tria l court abused its discretion in denying leave to amend the complaint, because Reynolds can estab lish that the rental restriction is void ab initio , i.e., that her lawsuit is not barred by the statute of limit ations and that the rental restriction can be challenged at any time. But Reynolds does not clearly state how she could amend her complaint to add facts establis hing that any or all of her causes of action are not barred by the statute of limitations.
A Reynolds contends the CC&Rs amendment is void ab initio because the Association misled the community regarding the purpose of the amendment. She claims there was no manifest and palpable injury to the homeowners at the time the amendment was recorded. She does not present any anal ysis or authority, however, concerning when something may be considered void ab initio , as opposed to merely voidable. There are “limited circumstances in which a court may conclude that an instrument is a complete nu llity, as opposed to being voi dable pursuant to a timely challenge by a party, due to a deficien cy in the instrument’s creation.” ( Costa Serena8 Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1191 ( Costa Serena ).) Simply alleging that an ame ndment was enacted in a manner that failed to conform with the requirements fo r amending the CC&Rs would render the amendment voidable, not void ab initio . ( Id . at p. 1193.) Moreover , it is not enough to allege fraud; there must be fraud in the incepti on that induced the homeowners to agree to an amendment that was different than th e one that was actu ally recorded. ( Ibid .) The complaint does not allege such fraud, and Re ynolds does not demons trate that she could state factual allegations estab lishing fraud in the inducement. Reynolds alleged that the amendmen t adoption did not co mply with CC&Rs requirements, resulting in the illegal revoca tion of the owners’ right to rent their condominiums. But the record ing of the amendment in 2003 provided sufficient notice to anyone who wanted to challenge its validity, whether or not they had actual notice. ( Costa Serena, supra, 175 Cal.App.4th at p. 1196.) Moreover, even if the statute of lim itations had been tolled until Reynolds’s mother purchased the condominium in 2004, at that point she was presumed to have constructive notice of the CC&Rs amendment whether or not it was mentioned in her deed. ( Citizens for Covenant Co mpliance v. Anderson (1995) 12 Cal.4th 345, 349.) That was more than four years befo re the lawsuit was filed in 2 009. Once Reynolds’s mother purchased the property, she had constructive notice of the recorded CC&Rs restriction and suffered a “ ‘manifest and palpable’ ” injury. That triggered the statute of limitations. ( Costa Serena, supra , 175 Cal.App.4th at p. 1196.) She could not wait to sue until she decided to rent her condominium; th at is not a valid basis to toll the statute of limitations. ( Ibid .) Reynolds argues the statute of limitations does not apply here because there was uneven enforcement of the CC& Rs amendment. She appear s to believe the rental restriction is void ab initio because it was not applied uniformly and only burdened people who purchased units afte r the amendment. She relies on Villa De Las Palmas9 Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73 ( Terifaj ) to support her position, but that case holds that all owners, regardless of the purchase date of their homes, are subject to amended CC&Rs.
In Terifaj, supra, 33 Cal.4th 73, the homeowners association adopted an unrecorded rule banning pets prior to Terifaj’s purchase of her unit. ( Id. at pp. 79-80.) The homeowners association sued Terifa j when she violat ed the rule. ( Id. at p. 80.) Following an unsuccessful mo tion for preliminary injuncti on, and while the litigation with Terifaj was pending, the homeowners a ssociation adopted and recorded amended CC&Rs banning pets. ( Ibid. ) Terifaj maintained that the amendment did not apply to her because it was recorded after she purchased her home. ( Id . at p. 84.) The California Supreme Court held otherwise ( id. at p. 86), explaining: “To allow a declaration to be amended but limit its applicability to subsequent purchasers would make little sense. A requirement for upholding covenants and restri ctions in common interest developments is that they be uniformly applied and burden or benefit all interests evenly. [Citations.] This requirement would be severely undermin ed if only one segmen t of the condominium development were bound by the restriction. It would also, in effect, delay the benefit of the restriction or the amelioration of the ha rm addressed by the restriction until every current homeowner opposed to the restriction sold his or her interest. This would undermine the stability of the community, rather than promot e stability as covenants and restrictions are intended to do.” ( Terifaj, supra, 33 Cal.4th at p. 84.)
B Under an unrelated argument heading, Reynolds intimates that the statute of limitations does not apply because the rental restriction is unr easonable and hence violates public policy. “Use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environmen t of any shared owne rship arrangement. [Citations.]” ( Nahrstedt v. Lakeside V illage Condominium Assn. (1994) 8 Cal.4th 361,10 372-373 ( Nahrstedt ).) Such restrictions may “preclude alteration of building exteriors, limit the number of persons that can occupy each unit, and place limitations on -- or prohibit altogether -- the keepin g of pets. [Citations.]” ( Id. at p. 373.) “[S]ubordination of individual property rights to the collective ju dgment of the owners association together with restrictions on the use of real property comprise th e chief attributes of owning property in a common inte rest development.” ( Id. at p. 374.) Use restrictions contained in the CC&Rs of a common interest development are “enforceable . . . unless unreasonable . . . .” (Civ. Code, § 1354, subd. (a).) Such use restrictions are “cloaked . . . with a presum ption of reasonableness [which] shift[s] the burden of proving otherwise to the party challenging the use restriction. [Citations.]” ( Nahrstedt, supra, 8 Cal.4th at p. 380.) “[S]uch re strictions should be enforced unless they are wholly arbitrary, vi olate a fundamental public policy, or impose a burden on the use of affected land that fa r outweighs any benefit.” ( Id. at p. 382; accord, Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 239 ( Pinnacle ).) The trial court determined that the rent al restriction was re asonable and did not violate public policy. Reynolds does not demonstrate that the trial court erred. She does not refer to any legal authority establishing that rental restrictions violate public policy as a matter of law; she does not show that she pleaded facts (as opposed to legal conclusions) demonstrating that the rental re striction was an unreasonable violation of public policy; she does not clearly stat e the manner in which she could amend her complaint to allege the requisite facts; a nd she does not establish that her claim for violation of public policy prec ludes application of the four-year statute of limitations. (Cf. Moss v. Moss (1942) 20 Cal.2d 640, 644-645 [equ itable factors may not be used as an express means of avoiding the statute of limitations].) Under the circumstances, her contention is forfeited. ( Rakestraw, supra, 81 Cal.App.4th at pp. 43-44; Badie, supra, 67 Cal.App.4th at pp. 784-785.)11 C Reynolds states there is a “reasonabl e possibility” of proving that defendants illegally manipulated the amendment and harm ed her. But again, she does not provide any analysis demonstrating what facts she co uld allege that would take her outside the statute of limitations bar. Reynolds further asserts that the Asso ciation’s counsel wrongfully obstructed access to evidence. Fo r example, when Reynolds’s atto rney noticed a deposition, the Association’s counsel responded that “ ‘there is no operable Complaint in this matter. I will not subject my clients to a fishing expediti on before the case is at issue.’ ” Reynolds does not provide any analysis or authority demonstrating th at she was entitled to depose anyone under the circumstances . She fails to demonstr ate that the Association wrongfully obstructe d her access to evidence or that th is has any bearing on her ability to plead viable causes of action that are not barred by the statute of limitations. Reynolds has not met her burden of es tablishing that the trial court erred in sustaining the Association’s demurrer without leave to amend.
II Reynolds also claims the trial court erred in denying her motion for reconsideration. She says she presented a “flood of new evid ence” bearing on the reasonable possibility of ame nding the complaint, eviden ce she did not discover until February 22, 2011. The Association counters that the appe al from the denial of the motion for reconsideration must be dismissed because an order denying reco nsideration is not appealable. “[T]his court has long adhered to the prevailing view that an order denying a motion for reconsideration is not appealable.” ( Fleur du Lac Estates Assn. v.
Mansouri (2012) 205 Cal.App.4th 249, 255; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229-1230 (hereafter Reese ).) Other courts have similarly ruled12 that an order denying reconsideration, lik e an order denying a new trial or denying a motion to vacate a prior judgment, is not appealable. (See, e.g., Annette F. v. Sharon S. (2005) 130 Cal.App.4t h 1448, 1458-1459; Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2.) “[T]o hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal.” ( Reese, supra, 73 Cal.App.4th at p. 1242.) Nonetheless, effective Janua ry 1, 2012, after Reynolds filed her notice of appeal, section 1008 was amended to add the followi ng: “(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.” But even if the amendmen t to section 1008 applied to Reynolds here, she would not meet her burden on appeal. Although sh e claims that new evidence was contained in her reply in support of the mo tion for reconsideration, she does not clearly identify what the evidence was or how it altered the legal la ndscape. Reynolds simply says that the trial court neglected to review the evidence in her reply prio r to ruling on her motion. The trial court’s ruling indicates otherwise. As best we can discern, Reynolds c ontends she presented evidence that the Association manipulated the rental waiting lis t and imposed “the entire no-rental burden” on those who acquired their units after 2003. But she does not explain how this supports any of her causes of action or precludes the statute of limitations bar. Moreover, it was not enough for Reynolds to presen t new or different facts; she also had to show that those facts could not have been pr esented earlier with the exercise of due diligence. ( McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265.) Reynolds does not demonstrate that the trial court erred in finding that most of the evidence was in her possession at the time she filed the second amended complaint; she fails in her burden13 to show that the evidence coul d not have been discovered with reasonable diligence. It is not an excuse that she may not have understo od the import of the information or the need to submit it earlier. ( In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.) Reynolds has not met her burden of es tablishing that the trial court erred in denying reconsideration.
III Reynolds further asserts that the trial c ourt erred in awarding the Association its attorney fees. Recovery of attorney fees is permitted wh en authorized by contract or statute. ( City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 488.) We review an order granting or denying an award of attorney fe es under an abuse of discretion standard. However, the determination of whether the cr iteria for an award of attorney fees and costs have been met is a question of law. ( Salawy v. Ocean To wers Housing Corp. (2004) 121 Cal.App.4th 664, 669 ( Salawy ).) Civil Code section 1354, subdivision (c ) states: “In an action to enforce the governing documents, the preva iling party shall be awarded reasonable attorney’s fees and costs.” Governing documents incl ude the declaration of CC&Rs. ( Terifaj, supra, 33 Cal.4th at p. 81; Civil Code, § 1351, subd. (j).) In addition, Civil Code section 1717, s ubdivision (a) allows a party to recover attorney’s fees as an element of his or her costs “[i]n any action on a contract, where the contract specifically provides that attorney’s fees . . . incurred to enforce [the provisions of] that contract, shall be awarded either to one of the parties or to the prevailing party . . . .” To ensure mutuality of remedy, Civil Code section 1717 permits a party to recover attorney fees whenever the opposing party would ha ve been entitled to attorney fees under the contract had he or she prevailed. ( Santisas v. Goodin (1998) 17 Cal.4th 599, 611.) Because CC&Rs are treated like c ontracts subject to the general rules of contract interpretation ( Pinnacle, supra , 55 Cal.4th at p. 240), th is reciprocal remedy is14 triggered by the presence of an attorney fee provision in CC&Rs when a cause of action is based on the enforcement or violation of another provision in the CC&Rs. (Cf. Harbor View Hills Community Assn. v. Torley (1992) 5 Cal.App.4th 34 3, 346-349 [amendment to Civ. Code, § 1717 was applicable to CC&Rs of homeowners association].) Here, section 9.01 of the CC &Rs states in relevant par t: “The Association or any Owner shall have the right to enforce comp liance with the Project Documents in any manner provided by law . . . . In the event the Association or any Owner shall employ an attorney to enforce the provisions of the Project Do cuments against any Owner, the prevailing party shall be entitled to reasonable a ttorneys’ fees and costs . . . .” The term “Project Documents” includes the CC&Rs and amendments thereto. (CC&Rs, § 2.23.) This lawsuit sought enforcement of th e hardship provision of the CC&Rs and damages for breach of contract (the contract being the CC&Rs). Reyn olds also sought to enforce the original rental provision in the CC&Rs before the amendment. Indeed, Reynolds expressly states that she brought an action to enfo rce the hardship and rental rights, and she seeks at torney fees if we re verse the judgment. We conclude the Association is the pr evailing party entitled to attorney fees because it successfully demurred to Reynolds’s complaint and obtained a judgment of dismissal. ( Farber v. Bay View Te rrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1011, 1014.) Nonetheless, Reynolds contends the Asso ciation is not entitled to attorney fees because the Association did not bring an ac tion to enforce the CC&Rs, and a demurrer is not an action. She relies on Salawy, supra, 121 Cal.App.4th 664, but her reliance is misplaced. Salawy involved an action by owners in a cooperative apartment building against the cooperative corporation fo r breach of a promise to reim burse the owners for costs incurred in temporarily relocating while repa irs were made. The cooperative corporation successfully demurred based on provisions in its bylaws, and the trial court awarded it15 attorney fees under Civil Code section 1354. ( Salawy, supra , 121 Cal.App.4th at pp. 667, 670.) The appellate court reversed the fee awar d. It held that the gist of the owners’ action was not to enforce the governing docu ments, and that a defendant’s demurrer or defense invoking the governing documents cann ot be construed as an action to enforce the governing documents. ( Id . at pp. 670-671; but see Windsor Pacific LLC v. Samwood Co., Inc . (2013) 213 Cal.App.4th 263, 276 [an action encompasses the entire judicial proceeding, including a ny defenses asserted for purposes of an attorney fee award].) Here, however, Reynolds concedes she brough t an action to enfor ce the CC&Rs. Thus, the Association was entitled to its attorney fees because it wa s the prevailing party in the action. Reynolds also challenges the fee awar d on the ground the trial court lost jurisdiction over the matter when she filed a notice of appeal. This is incorrect. A trial court retains jurisdiction to entertain a motion for the award of legal fees while an appeal from the merits of the case is pending. ( Pazderka v. Caballero s Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360.) Reynolds further contends the trial cour t abused its discretion in awarding the Association $33,620 in attorney fees based on a redacted fee summary. In ordering the Association to submit billing statements, the tr ial court allowed the A ssociation to redact privileged information, but directed that the statements must contain sufficient description of the tasks perform ed to allow the trial court and Reynolds to assess the reasonableness of the fee request. The trial court determined that the redacted billing statements were sufficient to a llow the trial court and Reynolds to address the fee motion. Reynolds does not set forth any legal argumen t in her appellate briefs establishing that the trial court erred in permitting redacted billing statements, or that the redacted16 summary was inadequate as a matter of law to support the attorney fe e award. Under the circumstances, the contention is forfeited. ( Badie, supra, 67 Cal.App.4th at pp. 784-785.) DISPOSITION The judgment is affirmed. The Associ ation is awarded its costs on appeal.

MAURO , J.

We concur:

ROBIE , Acting P. J.

BUTZ , J.