Filed 3/27/13 Carmel v. Pacific Med. Towers Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CARMEL, LTD., Plaintiff and Respondent,

v.
PACIFICA MEDICAL TOWERS ASSOCIATION, INC., et al., Defendants and Appellants. G046305 (Super. Ct . No. 30-2008-00108447)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Affirmed. Law Offices of M. Candice Bryner and M. Candice Bryner for Defendants and Appellants. Rogers, MacLeith & Stolp and Th omas J. Stolp for Plaintiff and Respondent.
* * *2 Defendants Pacifica Medical Tower Owner’s Association (PMTOA), Mohsen Tavoussi, and Robert Bolender appe al from the trial court’s postjudgment order denying their motion for attorney fees as the prevailing parties under Civil Code section 1354, subdivision (c), which provides fo r attorney fees “[i]n an action to enforce the governing documents” of an associati on, like PMTOA, organized under the DavisStirling Common Interest Development Act. (C iv. Code, § 1350 et seq.; further statutory
references are to the Civil Co de unless noted.) Defendants contend the trial court erred in finding they were not prevailing parties when plaintiff Carmel, Ltd. (Carmel), voluntarily dismissed without prejudice its declaratory ju dgment, breach of fiduciary duty, and fraud causes of action. Bolender also argues the trial court erred in finding his fee motion was untimely. As we explain, however, a parallel ar bitration proceeding in which Carmel obtained an order to partition by sale its ownership share of the building governed by the PMTOA mooted Carmel’s declaratory judgment and breach of fiduciary duty causes of action. Simply put, partition ended Carmel’s interest in the PMTO A, leaving Carmel no
associational interest to assert and justifying dismissal of its lawsuit. Consequently, no party prevailed on Carmel’s declaratory relief and breach of fiduciary duty claims for alleged violations of the PM TOA governing documents. Similarly, Carmel’s fra ud claims did not result in a prevailing party. Indeed, as a matter of law, its fraud claims did not constitute an attempt to enforce the PMTOA governing documents. (See Gil v. Mansano (2004) 121 Cal.App.4th 739, 743 [“A tort claim does not enforce a contract,” and therefore does not im plicate attorney fee provisions triggered by enforcement actions]. ) Consequently, Carmel’s tort claims and voluntary dismissal provided no basis to obt ain attorney fees unde r section 1354 for3 enforcement of an owners asso ciation agreement. We theref ore affirm the trial court’s ruling denying defendants’ re quest for attorney fees.
I
FACTUAL AND PROCEDUR AL BACKGROUND Tavoussi, a principal in an entity k nown as Orange Count y Surgery Center, Inc. (OCSC), and Paul Wakim, a Carmel principal, joined together through these entities to form PT Partners, LLC (PT Partners), to purchase a majority ownership interest in a Huntington Beach office buildi ng known as Pacifica Medical Tower. The purpose of
their venture was to secure office space for their respecti ve medical practices and an income stream from third party tenants. Through PT Partners, Wakim and Tavoussi owned at least 70 percent of Pacifica Medical Tower and, through corresponding control of the building owners associ ation, PMTOA, effectively c ontrolled management of the building. The union, however, was not a happy one and relations between Wakim and Tavoussi eventually descended into litigatio n between their respective entities. Carmel sued the defendants, incl uding Bolender, for fraud, and added claims for declaratory relief against PMTO A and breach of fiduciary duty against Tavoussi. The parties on appeal provide no details about Bolender, nor otherwise explain his role in the dispute, but Carm el’s fraud allegation in its first amended complaint alleged PMTOA, Ta voussi, OCSC, Bolender, and unknown others, “[o]n or before May 9, 2008, . . . conducted a meeti ng of the board of directors of Defendant
PMTOA to nominate candidates fo r an election of a new board of directors. Defendants . . . failed to give proper notice as required by the declar ation of covenants, conditions
and restrictions for the Pacifica Tower Owne rs Association and the bylaws for Defendant PMTOA.” According to Carmel’s complain t, defendants “suppress[ed]” notice of the4 meeting date to “mislead th e member/owners, including Plai ntiff, to believe that there were no changes to be made to the present board of directors, or that any nominating committee was being formed to create a slate of director candidates.” According to Carmel, Ta voussi used the secret me eting in collusion with the other defendants to “nominat[e] himself as the new president of the association board,” with designs to “wrestle control of the building from Dr. Wakim.” Carmel alleged in its fraud claim that by keeping th e meeting a secret, defendants engaged in “intentional misrepresentation, deceit or concealm ent . . . with the intention . . . of thereby depriving Plaintiff of propert y or legal rights or otherwis e causing injury,” for which Carmel sought unspecified damages, in cluding punitive damages for defendants’ “despicable conduct.” Bolend er and Tavoussi demurred to th e complaint, which the trial court sustained with leave to amend, and Carmel filed a second amended complaint. Carmel dropped any mention of Bolend er in its second amended complaint, but retained its fraud allegations as noted above against Tavoussi, OCSC, and PMTOA,
and also reasserted its declar atory relief claim against PMTOA and its breach of fiduciary duty claim against Tavoussi. Specifically, Carmel premised its declaratory judgment action on the May 9, 2008 meeting, alleging it “was invalid for want of proper notice to the owner/members and that any actions appr oved or authorized at the meeting were
invalid . . . .” Carmel aske d the court to determine prom ptly whether PMTOA violated the association’s notice requirements beca use PMTOA scheduled a meeting at which “PMTOA . . . is threatening to remove all present members of the board of directors, elect an entire[ly] new board of directors, and to amend the declaration of covenant[s],
conditions and restrictions for condominium ownership of the Paci fica Medical Tower to allow for non-block voting. Such actions if taken will adversely affect Plaintiff,5 including [by] removing certain members of the board of directors [and] creating a new board of directors populate d by Defendant Mohsen Tavou ssi and his family members . . . .” Carmel therefore sought declarat ory relief and an injunction to invalidate Tavoussi’s presidency and prevent him from “control[ling] the operation of Defendant
PMTOA for defendant Tavoussi’s benef it and to the detriment of the other
owner/members.” Carmel similarly based its breach of fiduciary duty cause of action against Tavoussi on his alleged takeover of PMTOA at the May 2008 meeting, after which he
“exercised exclusive control of the Defenda nt PMTOA to the exclusion of the other owner/members and Plaintiff.” Specifically , Carmel asserted Tavoussi “used property and assets, including bank accounts, of Defe ndant PMTOA to the exclusion of the other owner/members, conducted meetings of Defe ndant PMTOA without notice to the other
owner/members . . . and . . . entered into contracts for Defe ndant PMTOA without authority or providing notice to the other owner/members, and sought to exercise
exclusive control of Defendant PMT OA for such Defendants’ benefit.” As the litigation wound its way to a tr ial date set for January 2011, Wakim apparently concluded that resolving one lega l skirmish with Tavoussi over proper notice would not repair their relati onship and inability to work t ogether. Carmel and OCSC
therefore entered arbitration to secure an accounting of PT Partners’ assets and to partition PT Partners’ ownership interest in Pacifica Medical Tower. It is not clear whether the parties arbitrated their dispute u nder contractual terms in their PT Partners agreement or simply on their own initiative but, in any event, the trial court did not order arbitration as part of the pendi ng lawsuit. In a June 2011 ar bitration award, the arbitrator
determined the amounts Carmel and OCSC each owed PT Partners for their respective6 rental occupancy of portions of the building, and the arb itrator ordered PT Partners’ ownership interest in the building partiti oned by sale. Meanwhile, at the January 31, 2011 tr ial date, Carmel requested a voluntary dismissal of its second amended complaint without prejudice, which the court clerk entered. In March 2011, defendants sought attorney fees as prev ailing parties in the litigation under section 1354. Bolender argued he was a prevailing party by virtue of his
successful demurrer in Novemb er 2008. Tavoussi and PMTOA argued they were prevailing parties because they achieved their litigation objectives when Carmel dismissed its lawsuit, taking nothing. In July 2011, th e trial court concluded Bole nder’s motion was untimely because by successfully demurring, he had be en “effectively dismissed from this action” no later than December 1, 2008. The c ourt acknowledged Ca rmel “conducted no discovery whatsoever” before dismissing its second amended complaint (SAC) on the trial date, but explained “[t]he timing of Plaintiff’s dismi ssal does not, in and of itself, demonstrate that Defendants are the prevaili ng parties on the SAC.” Rather, the trial court concluded, “practically speaking,” that “no facts” demonstrated defendants prevailed on the causes of action Carmel a sserted. The trial court therefore denied defendants’ attorney fee reque st, and they now appeal.
II
DISCUSSION
A. Standard of Review Relying on Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 ( Coltrain ), in which the plaintiffs dismissed their defamatio n complaint when the defendants filed an7 anti-SLAPP motion, 1 defendants suggest we must presume a plaintiff’s voluntary dismissal ordinarily requires atto rney fees for the defendant. ( Coltrain , at p. 107 [“Upon the [plaintiffs]’ voluntary di smissal, a presumption arose that defendants were the prevailing parties”].) Defe ndants argue that because Ca rmel neither developed any evidence through discovery, no r otherwise presented evidence its request for dismissal “was prompted by some reason other than to avoid a trial on the meri ts,” Carmel failed to rebut the conclusion defendants preva iled on their litigati on objectives.
Coltrain involved an attorney fee award under CCP § 425.16, subdivision (c), which authoriz es attorney fees for a defe ndant prevailing on a special motion to strike and for a plaintiff only wh en the strike motion is frivolous. The Coltrain court stated colorfully: “Since the defendant’s goal is to make the plaintiff go away with its tail between its legs, ordinarily the prevailing party will be the defendant.” ( Coltrain , supra , 66 Cal.App.4th at p. 107.) Coltrain acknowledged “[t]he plaintiff, however, may try to show it actually dismissed because it ha d substantially achieved its goals through a settlement or other means, b ecause the defendant was insolv ent, or for other reasons unrelated to the probability of success on the merits.” ( Ibid. )
But the Coltrain court noted the special interest s at stake when, absent a fee award, “SLAPP plaintiffs could achieve most of their objective with little risk — by filing a SLAPP suit, forcing the defendant to incur the effort and expense of preparing a special motion to strike, then dismissing the action without prejudice. The specter of the action being refiled (at least until the statute of limitations had run) would continue to

1 A “SLAPP” action is a “strategic la wsuit against public participation” ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57), and Code of Civil Procedure section 425.16 (hereafter CCP § 425.16) provides a remedy in the form of a strike motion to gain early dismissal of a SLAPP lawsuit or cause of action (see, e.g., Slaney v. Ranger Ins. Co. (2004) 115 Cal.App. 4th 306, 309, fn. 1).8 have a significant chilling effect on the de fendant’s exercise of its First Amendment rights. At that point, the plaintiff woul d have accomplished all the wrongdoing that triggers the defendant’s eligib ility for attorney’s fees, but th e defendant would be cheated of redress.” ( Coltrain , supra , 66 Cal.App.4th at pp. 106-107.) Defendants do not suggest similar constitutional interests are at stake here. Nor do they provide any authority showing a presumption in favor of the defendant following a voluntary dismissal has been adop ted outside the anti-SLAPP context, and
we have found none. Nor do defendants point to any provision similar to CCP § 425.16, subdivision (b)(1), which require s the plaintiff to demonstrat e a probability he or she will prevail on the underlying claims, thereby provid ing a basis for the trial court to determine the prevailing party ( id. , subd. (c)). CCP § 425.16, su bdivision (c), mandates attorney fees for a defendant prevaili ng on a special motion to strike , while a plaintiff only may obtain fees if the motion is frivolous, which supports an implicit presumption in favor of the defendant when a voluntary dismissal is en tered. But no similar language calls for the presumption here. To the contrary, section 1354 prov ides simply that the governing documents of an association organized as a common interest development equally “may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association” an d, “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (§ 1354, subds. (b) & (c).) We review the tr ial court’s prevailing party and consequent attorney fees determination for abuse of discretion. ( Heather Farms Homeowners Assn.
v. Robinson (1994) 21 Cal.App. 4th 1568, 1574 ( Heather Farms ).)9 Conceding that an order granting or denying an attorney fees motion “is generally reviewed under an abuse of di scretion standard,” defendants nevertheless invoke the principle that the “‘“determinati on of whether the criteria for an award of attorney’s fees and costs have been met is a question of law.”’” ( Salaway v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 6 69.) The principle does not aid them. True, as a matter of law, the trial cour t here could not award attorney fees to either party if the lawsuit did not co nstitute “an action to enforce the governing documents,” as required by section 1354, subdivision (c). Notably, successful tort actions do not enforce contractual rights, and therefore “[w]here a contract authorizes an aw ard of attorney fees in an action to enforce any provision of the contract, to rt claims are not covered.” ( Gil v. Mansano , supra , 121 Cal.App.4th at p. 743.) Similarly, th e trial court reasonably could have concluded
Carmel’s tort claims would not trigger attorney fees fo r the party prevailing on those claims because their predominant purpose was not to enforce the association’s governing documents, but to remedy Carmel’s alleged fra ud injuries. In particular, given that Wakim, Tavoussi, and their respective en tities had partitioned their interests and abandoned their joint enterp rise in building ownership and management under PMTOA association rules, Carmel’s tort claims had virtually nothing to do with ensuring proper application of the association’s governing documents going forward. Thus, because Carmel retained the option after its voluntary dismissal without prejudice to refile its fraud claims, which would not provide a basis for attorney fees, the trial court could conclude no attorney fees were warranted. In any event, ample au thority justified the trial court’s denial of fees, as we discuss below.10 B. The Trial Court Did Not Abuse Its Discretion by Denying Attorney Fees
Heather Farms is instructive. The court explained that a defendant dismissed without prejudice in a section 1354 enforcement action “is not, ipso facto, [the] prevailing party” and, indeed, ther e may be no prevailing party. ( Heather Farms , supra , 21 Cal.App.4th at pp. 1570-1571, 1573.) Th ere, a homeowners’ association sued a unit owner, Robinson, to enforce the covenants, codes, and restrictions of a residential development. The complaint “spawned a complex series of cross-complaints and subsidiary actions” involving numerous parties, which the trial court assigned to a second judge for a settlement conference. ( Heather Farms , supra , 21 Cal.App.4th at p. 1570.) All the parties except Robinson agreed to settle their differences, but “the settlement nonetheless required the association to di smiss its suit against Robinson ‘without prejudice.’” ( Ibid .) The judge who negotiated the settlement in Heather Farms found there were no prevailing parties: “‘This dismissal is part of an overall complex piece of litigation . . . that’s been resolved by a ne gotiated settlement. There are no winners. There are no favorable par ties in this case.’” ( Heather Farms , supra , 21 Cal.App.4th at p. 1571.) Nevertheless, Robinson sought to recover his attorney fees pursuant to section 1354, “maintain[ing] that since he had r eceived a dismissal, he was the ‘prevailing party’. . . .” ( Heather Farms , at p. 1571.) The trial “cour t agreed with the settlement judge and concluded there was no ‘prevailing party’ . . . within the meaning of section 1354.” ( Ibid .) The appellate court upheld the trial court’s ruling, explaining that to determine the “prevailing party” within the meaning of section 1354, the trial court analyzes “which party . . . prevailed on a practical level.” ( Heather Farms , supra ,11 21 Cal.App.4th at p. 1574.) Nothing in the record suggested the trial court abused its discretion. Rather, the trial court reasona bly could conclude there was no prevailing party because the homeowners’ association di smissed its action against Robinson “as part of a global settlement agreemen t, not because he succeeded on some procedural issue or otherwise received what he wanted.” ( Ibid .)
The court in Heather Farms looked to Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168 ( Donald ), which we also find instructiv e. There, “the plaintiff, a physically disabled man, filed suit against a restaurant alleging it had violated the Civil Code by failing to provide him adequate acce ss. Among other things, the plaintiff sought an injunction under section 55 barring the rest aurant from continuing its violation in the future. While the suit was pend ing, the restaurant became in solvent and closed. The trial court ruled the restaurant was the preva iling party on the inj unction and awarded it attorney fees. The plaintiff appealed the award and the appellate court reversed: ‘In the instant case [the plaintiff] filed his section 55 cause of action in or der to enjoin [the restaurant’s] operation in violation of the pertinent statutes and administrative code provisions. The cessation of . . . operation of the restaurant achieved that result. Under these circumstances, it was an abuse of discretion for the cour t to determine that by going out of business and rendering the issue moot, [t he restaurant] “prevailed” for purposes of attorney fees. Neither party prevailed for pu rposes of an award of attorney fees on the cause of action for injunctive relief.’” ( Heather Farms , supra , 21 Cal.App.4th at p. 1573.) Similarly here, the trial court reas onably could conclude neither party prevailed, and defendants therefore were not entitled to attorney f ees. As a practical matter, the arbitrator’s par tition order directing Carmel a nd OCSC to sell PT Partners’12 majority stake in the bu ilding, which appears to have been its only asset, put PT Partners
— like the restaurant in Donald — “out of business” as a going concern and rendered moot its internecine conflicts over building management. Neither Carmel, nor Tavoussi appear to have had any quarrel with the arbitrator’s ruling, but instead fully assented to ending their association, which made th eir squabbles over notice and governance academic. Having sold their in terest, neither Wakim nor Tav oussi would be owners or
board members or otherwise exercise c ontrol over PMTOA. Moreover, there is no
indication the notice issue involv ed an important or disputed matter of association policy or practice that would be of interest to th e minority-stake PMTOA me mbers. Rather, the meeting on May, 8, 2008, and events leading up to it appe ar to have been a singular episode of marginal importan ce once the quarreling heavyweights separated outside the litigation. In court, no one prevailed on the i ssue of injunctive relief, which the trial court did not begin to resolve, and noth ing suggests any remaining PMTOA member could point to the dismissal as vindicating hi s or her position on a matter of association governance, which Tavoussi a nd Wakim formerly controlled through PT Partners. As noted, the parties give no hint who Bolender is or any remain ing interests he might have and therefore, as in Heather Farms , “the record before us is inadequate to seriously challenge the trial court’s rulings.” ( Heather Farms , supra , 21 Cal.App.4th at p. 1574.) Defendants rely on Salehi v. Surfside III Co ndominium Owners Assn. (2011) 200 Cal.App.4th 1146 ( Salehi ) because it distinguished Heather Farms , but the
distinction does not aid defendants. In Salehi , a plaintiff condominium owner who sued her homeowners’ association (Association) in propria persona dismissed eight of her ten
causes of action on the eve of trial “[b]ased on faulty reasoning.” ( Salehi , at p. 1150.)13 Instead of seeking a continuance, she dismis sed the causes of action because her expert
witness suffered a heart conditi on requiring surgery. The A ssociation filed a motion for a quarter million dollars in atto rney fees related to the dism issed causes of action, which the trial court denied, citing Heather Farms and concluding the Association had not “‘prevailed on a practical level’” because “‘th e dismissal[s] seem[] to be due more to [Salehi’s] inexperience and poor decisions th an any implied concession to the merits of [Association’s] case.’” ( Salehi , at p. 1152, original brackets.) The appellate court reversed, concluding: “ Heather Farms is readily distinguishable. There, the dismissal was mandated by the terms of a global settlement. Here, the dismissals were based on Salehi’s fa ulty reasoning. The expert’s unavailability because of illness constituted good cause for a continuance. Salehi recognized that she had good cause for a continuance when, three days after the dismissals, she requested a continuance on the remaining fourth and sixt h causes of action because of the expert’s
illness. The trial court confirmed the showin g of good cause by con tinuing the trial for four months . . . . [¶] . . . [¶] Instead of moving for a continuance on all of the causes of action, as a competent attorn ey would have done, Salehi dismissed eight of them.” ( Salehi , supra , 200 Cal.App.4th at p. 1155.)
The Salehi court concluded the trial court abused its discretion by denying attorney fees. “We are hard pressed to ex plain how it reached its conclusion or how the holding of Heather Farms aids Salehi. The record does not suggest that Salehi would have prevailed on the merits. It does not appear that she was ready to go forward procedurally and prove the case substantivel y. To say that she was, somehow, the prevailing party on a ‘practical level’ or that she realized her ‘litigation objectives’ is to do violence to these legal phrases of art. As sociation was ready to defend on the merits14 and cannot be faulted because Salehi di smissed these causes of action.” ( Salehi , supra , 200 Cal.App.4th at p. 1155.)
Salehi appears to presume that because the trial court there denied the defendant’s attorney fee reque st, the lower court must have concluded the plaintiff was the prevailing party. To the contrary, ho wever, there may be no prevailing party. ( Heather Farms , supra , 21 Cal.App.4th at p. 1573.) In any event, Salehi does not aid defendants because nothing in the record here suggests Ca rmel dismissed its complaint because of a tactical or procedural error th at prevented resolution of the issues on the
merits. Heather Farms acknowledged case law holding a pragmatic inquiry may show that a fatal procedural error furnishes a ba sis for attorney fees, as under the private attorney general statute (Code Civ. Proc., § 1021.5), where “a defendant, who obtains a dismissal with prejudice because the plaintiff fa ils to timely serve th e complaint, has . . . prevail[ed] and is entitled to attorney fees.” ( Heather Farms , at p. 1573, citing Winick Corp. v. Safeco Insurance Co. (1986) 187 Cal.App.3d 1502 ( Winick ).)
Unlike Salehi or Winick , this case does not involve such an error, but more closely resembles Heather Farms and Donald where a circumstance outside the litigation essentially mooted the underl ying controversy, and therefor e mooted the prevailing party question. As discussed, nothing in the reco rd suggests which party, if any, would have been vindicated had the litig ation gone forward. In Salehi , to the contrary, not only did the plaintiff make a unilateral and fatal miss tep that prevented resolution on the merits, but the Association also pointed to a case decided in its favor on the eve of trial that the Association suggested actually prompted the plaintiff’s i ll-conceived dismissal. ( Salehi , supra , 200 Cal.App.4th at pp. 1 151-1152.) Here in contra st, and unlike in the antiSLAPP context where the parties must brief for the trial court th e probability of the15 plaintiff prevailing on the merits, “we have no way of measuring the truth of the allegations which were made,” as Heather Farms observed. ( Heather Farms , supra , 21 Cal.App.4th at p. 1574.) For all the fore going reasons, we cannot say the trial court abused its discretion in denying attorney fees , and we therefore affi rm the trial court’s
order.
III
DISPOSITION The trial court’s order denying attorn ey fees is affirmed. Respondent is entitled to its costs on appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.