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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 Thomas J. Stolp for Plaintiff and 

Respondent. 

* * * 
2

 Defendants Pacifica Medical Tower Owner’s Association (PMTOA), 

Mohsen Tavoussi, and Robert Bolender appeal 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 for attorney fees “[i]n an action to enforce 

the governing documents” of an association, like PMTOA, organized under the DavisStirling Common Interest Development Act. (Civ. Code, § 1350 et seq.; further statutory 

references are to the Civil Code 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 judgment, 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 arbitration 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 PMTOA, 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 PMTOA governing documents. 

 Similarly, Carmel’s fraud 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 implicate attorney fee 

provisions triggered by enforcement actions].) Consequently, Carmel’s tort claims and 

voluntary dismissal provided no basis to obtain attorney fees under section 1354 for 
3

enforcement of an owners association agreement. We therefore affirm the trial court’s 

ruling denying defendants’ request for attorney fees. 

I 

FACTUAL AND PROCEDURAL BACKGROUND 

 Tavoussi, a principal in an entity known as Orange County 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 building known as Pacifica Medical Tower. The purpose of 

their venture was to secure office space for their respective 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 association, PMTOA, effectively controlled management of the 

building. The union, however, was not a happy one and relations between Wakim and 

Tavoussi eventually descended into litigation between their respective entities. 

 Carmel sued the defendants, including Bolender, for fraud, and added 

claims for declaratory relief against PMTOA 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 Carmel’s fraud allegation in its first amended 

complaint alleged PMTOA, Tavoussi, OCSC, Bolender, and unknown others, “[o]n or 

before May 9, 2008, . . . conducted a meeting of the board of directors of Defendant 

PMTOA to nominate candidates for an election of a new board of directors. Defendants 

. . . failed to give proper notice as required by the declaration of covenants, conditions 

and restrictions for the Pacifica Tower Owners Association and the bylaws for Defendant 

PMTOA.” According to Carmel’s complaint, defendants “suppress[ed]” notice of the 
4

meeting date to “mislead the member/owners, including Plaintiff, 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, Tavoussi used the secret meeting 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 the meeting a secret, defendants engaged in 

“intentional misrepresentation, deceit or concealment . . . with the intention . . . of thereby 

depriving Plaintiff of property or legal rights or otherwise causing injury,” for which 

Carmel sought unspecified damages, including punitive damages for defendants’ 

“despicable conduct.” Bolender and Tavoussi demurred to the complaint, which the trial 

court sustained with leave to amend, and Carmel filed a second amended complaint. 

 Carmel dropped any mention of Bolender in its second amended complaint, 

but retained its fraud allegations as noted above against Tavoussi, OCSC, and PMTOA, 

and also reasserted its declaratory 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 approved or authorized at the meeting were 

invalid . . . .” Carmel asked the court to determine promptly whether PMTOA violated 

the association’s notice requirements because 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 Pacifica 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 populated by Defendant Mohsen Tavoussi and his family members 

. . . .” Carmel therefore sought declaratory relief and an injunction to invalidate 

Tavoussi’s presidency and prevent him from “control[ling] the operation of Defendant 

PMTOA for defendant Tavoussi’s benefit 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 Defendant PMTOA to the exclusion of the other 

owner/members and Plaintiff.” Specifically, Carmel asserted Tavoussi “used property 

and assets, including bank accounts, of Defendant PMTOA to the exclusion of the other 

owner/members, conducted meetings of Defendant PMTOA without notice to the other 

owner/members . . . and . . . entered into contracts for Defendant PMTOA without 

authority or providing notice to the other owner/members, and sought to exercise 

exclusive control of Defendant PMTOA for such Defendants’ benefit.” 

 As the litigation wound its way to a trial date set for January 2011, Wakim 

apparently concluded that resolving one legal skirmish with Tavoussi over proper notice 

would not repair their relationship and inability to work together. 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 under 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 pending lawsuit. In a June 2011 arbitration award, the arbitrator 

determined the amounts Carmel and OCSC each owed PT Partners for their respective 
6

rental occupancy of portions of the building, and the arbitrator ordered PT Partners’ 

ownership interest in the building partitioned by sale. 

 Meanwhile, at the January 31, 2011 trial 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 prevailing parties in the 

litigation under section 1354. Bolender argued he was a prevailing party by virtue of his 

successful demurrer in November 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, the trial court concluded Bolender’s motion was untimely 

because by successfully demurring, he had been “effectively dismissed from this action” 

no later than December 1, 2008. The court acknowledged Carmel “conducted no 

discovery whatsoever” before dismissing its second amended complaint (SAC) on the 

trial date, but explained “[t]he timing of Plaintiff’s dismissal does not, in and of itself, 

demonstrate that Defendants are the prevailing parties on the SAC.” Rather, the trial 

court concluded, “practically speaking,” that “no facts” demonstrated defendants 

prevailed on the causes of action Carmel asserted. The trial court therefore denied 

defendants’ attorney fee request, 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 defamation complaint when the defendants filed an 
7

anti-SLAPP motion,1 defendants suggest we must presume a plaintiff’s voluntary 

dismissal ordinarily requires attorney fees for the defendant. (Coltrain, at p. 107 [“Upon 

the [plaintiffs]’ voluntary dismissal, a presumption arose that defendants were the 

prevailing parties”].) Defendants argue that because Carmel neither developed any 

evidence through discovery, nor otherwise presented evidence its request for dismissal 

“was prompted by some reason other than to avoid a trial on the merits,” Carmel failed to 

rebut the conclusion defendants prevailed on their litigation objectives. 

Coltrain involved an attorney fee award under CCP § 425.16, 

subdivision (c), which authorizes attorney fees for a defendant prevailing on a special 

motion to strike and for a plaintiff only when 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 had substantially achieved its goals through a 

settlement or other means, because the defendant was insolvent, or for other reasons 

unrelated to the probability of success on the merits.” (Ibid.) 

 But the Coltrain court noted the special interests 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 lawsuit 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 defendant’s exercise of its First Amendment 

rights. At that point, the plaintiff would have accomplished all the wrongdoing that 

triggers the defendant’s eligibility for attorney’s fees, but the 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 adopted 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 requires the plaintiff to demonstrate a probability he or she will 

prevail on the underlying claims, thereby providing a basis for the trial court to determine 

the prevailing party (id., subd. (c)). CCP § 425.16, subdivision (c), mandates attorney 

fees for a defendant prevailing 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 entered. But no similar language calls for the 

presumption here. 

 To the contrary, section 1354 provides 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” and, “[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 trial 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 discretion standard,” defendants nevertheless 

invoke the principle that the “‘“determination 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, 669.) The principle does not aid 

them. True, as a matter of law, the trial court here could not award attorney fees to either 

party if the lawsuit did not constitute “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 award of attorney fees in an action to enforce 

any provision of the contract, tort claims are not covered.” (Gil v. Mansano, supra, 

121 Cal.App.4th at p. 743.) Similarly, the trial court reasonably could have concluded 

Carmel’s tort claims would not trigger attorney fees for 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 fraud injuries. In particular, given that 

Wakim, Tavoussi, and their respective entities had partitioned their interests and 

abandoned their joint enterprise 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 authority 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, there may be no prevailing party. (Heather Farms, supra, 

21 Cal.App.4th at pp. 1570-1571, 1573.) There, 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 dismiss 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 negotiated settlement. There are no winners. 

There are no favorable parties 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 received a dismissal, he was the ‘prevailing 

party’. . . .” (Heather Farms, at p. 1571.) The trial “court 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 reasonably could conclude there was no prevailing 

party because the homeowners’ association dismissed its action against Robinson “as part 

of a global settlement agreement, 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 instructive. 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 access. Among other things, the plaintiff sought 

an injunction under section 55 barring the restaurant from continuing its violation in the 

future. While the suit was pending, the restaurant became insolvent and closed. The trial 

court ruled the restaurant was the prevailing party on the injunction 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 order 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 court to determine that by going 

out of business and rendering the issue moot, [the restaurant] “prevailed” for purposes of 

attorney fees. Neither party prevailed for purposes 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 reasonably could conclude neither party 

prevailed, and defendants therefore were not entitled to attorney fees. As a practical 

matter, the arbitrator’s partition order directing Carmel and OCSC to sell PT Partners’ 
12

majority stake in the building, 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 their squabbles over notice and governance 

academic. Having sold their interest, neither Wakim nor Tavoussi would be owners or 

board members or otherwise exercise control over PMTOA. Moreover, there is no 

indication the notice issue involved an important or disputed matter of association policy 

or practice that would be of interest to the minority-stake PMTOA members. Rather, the 

meeting on May, 8, 2008, and events leading up to it appear to have been a singular 

episode of marginal importance once the quarreling heavyweights separated outside the 

litigation. 

 In court, no one prevailed on the issue of injunctive relief, which the trial 

court did not begin to resolve, and nothing suggests any remaining PMTOA member 

could point to the dismissal as vindicating his or her position on a matter of association 

governance, which Tavoussi and Wakim formerly controlled through PT Partners. As 

noted, the parties give no hint who Bolender is or any remaining 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 Condominium 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 dismissed the causes of action because her expert 

witness suffered a heart condition requiring surgery. The Association filed a motion for a 

quarter million dollars in attorney fees related to the dismissed causes of action, which 

the trial court denied, citing Heather Farms and concluding the Association had not 

“‘prevailed on a practical level’” because “‘the dismissal[s] seem[] to be due more to 

[Salehi’s] inexperience and poor decisions than 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 faulty 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 sixth causes of action because of the expert’s 

illness. The trial court confirmed the showing of good cause by continuing the trial for 

four months . . . . [¶] . . . [¶] Instead of moving for a continuance on all of the causes of 

action, as a competent attorney 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 explain 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 substantively. 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. Association was ready to defend on the merits 
14

and cannot be faulted because Salehi dismissed 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 request, the lower court must have concluded the plaintiff was 

the prevailing party. To the contrary, however, 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 Carmel dismissed its complaint 

because of a tactical or procedural error that 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 basis 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 fails to timely serve the 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 underlying controversy, and therefore mooted the prevailing party 

question. As discussed, nothing in the record suggests which party, if any, would have 

been vindicated had the litigation gone forward. In Salehi, to the contrary, not only did 

the plaintiff make a unilateral and fatal misstep 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 ill-conceived dismissal. (Salehi, 

supra, 200 Cal.App.4th at pp. 1151-1152.) Here in contrast, and unlike in the antiSLAPP context where the parties must brief for the trial court the probability of the 
15

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 foregoing reasons, we cannot say the trial court 

abused its discretion in denying attorney fees, and we therefore affirm the trial court’s 

order. 

III 

DISPOSITION 

 The trial court’s order denying attorney fees is affirmed. Respondent is 

entitled to its costs on appeal. 

 

 ARONSON, J. 

WE CONCUR: 

MOORE, ACTING P. J. 

FYBEL, J.