Filed 11/26/14 Versailles HOA v. Haraszti 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE VERSAILLES HOMEOWNERS ASSOCIATION, Plaintiff and Respondent,

v. TEGZE HARASZTI, Defendant and Appellant. G049262 (Super. Ct . No. 30-2012-00598458)

O P I N I O N

Appeal from a postjudgment order of th e Superior Court of Orange County, David T. McEachen, Judge. Affirmed. Tegze Haraszti, in pro. pe r., for Defendant and Appellant. Tinnelly Law Group and Bruce R. Ke rmott for Plaintiff and Respondent.
* * *2 Tegze Haraszti appeals the trial court’ s attorney fee award in favor of the
Versailles Homeowners Associat ion (the associati on or HOA) after it prevailed in its lawsuit against Haraszti by securing a pe rmanent injunction to prevent him from interfering with the HOA’s obligation to re pair his condominium balcony. Haraszti’s challenges are without merit, and we therefore affirm the fee award.
I
FACTUAL AND PROCEDUR AL BACKGROUND
Consistent with the standard of review , we set out the facts in the light most favorable to upholding the order or judgment on appeal. ( Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229; see 9 Witkin, Ca l. Procedure (5th ed. 2008) Appeal, § 370, pp. 427-428 [“‘All of the evidence most favorab le to the respondent must be accepted as true, and that unfavorable discarded as not ha ving sufficient verity to be accepted by the trier of fact’”].) As the expiration date loomed on city building permits the HOA had secured to repair or replace the support beams of several balconies plagued with dry rot and termite damage, and protra cted discussions with Harasz ti to ensure access to his balcony failed, the HOA filed this lawsu it to enforce compliance with the HOA’s governing documents. Those documents include d covenants, conditions, and restrictions (CC&Rs) that required the HOA to “[m]aintain, repair, repl ace, [and] restore” portions of the property, including the balcony suppo rt beams that cons tituted “bearing walls, columns, girders, subfloors . . . and fo undations.” The CC&Rs authorized the association’s “Entry for Repairs” into areas “necessary in connection with any
maintenance . . . or construction for which th e Association is responsible,” and provided, “No Owner shall do any act or create any obst ruction which would unreasonably interfere with the right or ability of the Association to perform any of its obligations . . . .” (Underlining omitted.) The CC&Rs vested the HOA with authority to conduct and control authorized repairs, including “the authority to employ a manager or others3 persons and to contract with independent co ntractors or managing agents to perform all or any part of the duties and responsi bilities of the Association . . . .”
The CC&Rs authorized the HOA to enforce the associ ation’s governing documents “by appropriate means, including . . . the employment of legal counsel and the
commencement of actions.” The CC&R’s en forcement terms expressly stated the
association and each homeowner “shall have th e right to enforce, by any proceeding at law or in equity, all restrictions, conditions, [and] reservations . . . and in such action
shall be entitled to recover co sts and reasonable attorneys’ fees as are ordered by the
Court . . . .” (Italics added.) Alleging Haraszti’s intr ansigence in withholding access to his balcony for repair work violated the CC&Rs, the HO A filed its complaint against him in September 2012 for nuisance relief, a declar atory judgment, and an injunction barring further interference. The complaint alleged “Haraszti has failed to cooperate with the Association’s efforts to repair the structural elements of [his] balcony,” by “deny[ing] the Association access to his balcony, and preven t[ing] the Association from installing a plywood safety barrier between Haraszti’s sliding glass door and the deck of the Haraszti balcony.” According to the HOA’s contract or, as detailed in the complaint, “this plywood barrier is necessary to prevent Haraszti, [and] his guests and/or invitees, from accidentally steppi ng onto the balcony deck duri ng structural repairs.” The complaint noted the HOA had “made numerous oral and written demands on Haraszti to permit the Associ ation access to his balcony,” and had “explained to Haraszti that, except for inst allation of the plywood safety barrier, the Association d[id] not foresee a ny need to enter into the Hara szti Unit during the structural balcony repairs.” Nevertheless, according to the complaint, Haraszti “refus[ed] to cooperate with the Association’s structural re pair efforts unless the Association met a list of demands, which included appointing Haraszti to ‘lead, manage and contract the test, design, construction and administrative works that affect his condominium’ and to pay4 Haraszti ‘reasonable relocation costs,’” which th e association asserted were barred under former Civil Code section 1364 [“costs of temporary relocation during [requisite association] repair and maintenance . . . sh all be borne by the owner of the separate interest affected”]. The HOA explained in its prayer for relief that money damages were inadequate relief and therefore sought to en join Haraszti “from hi s further refusal to perform under the terms of the Governing Do cuments” and “an order directing Haraszti not to interfere with the installation of a pl ywood safety barrier between his sliding glass door and balcony deck for a period of approximately four (4) weeks while the Association’s licensed contractors perform the necessary structural repairs to Haraszti’s balcony.” The complaint expressly sought attorney fees and costs.
The HOA attached to the complaint recent corre spondence illustrating the impasse with Haraszti, who on the eve of the complaint had rebu ffed the association’s latest proposed repair date in late August 2012. The corresponden ce reflected Haraszti’s demands that the HOA “appoint [him] to lead, manage and contract the test, design, construction and administrative works that [a ]ffect[] his condominium unit directly or indirectly” and pay his “relocati on costs . . . to protect his health and living standards, i.e., costs of hotel in Newport Beach . . . or of other accommodation equivalent with his own . . . for three weeks of repair time . . . .” In another letter, Haraszti demanded that the HOA “Limit the length of construction to two (2) weeks,” “Avoid pe netration into [his] private airspace,” “Comply with all laws , regulations and c odes pertaining to construction,” “Protect [him] against the dama ging effects of asbestos,” and “Pay [him] $2,000 for relocation costs.” Haraszti “outlin e[d]” in other correspondence “the huge legal, financial, health and ethical responsibilities of the association board,” and insisted
he “does not want to be a victim of cons truction-work-induced nuisance and asbestos effects.” He claimed the association’s repair work “adversely [a] ffected” the “[h]ealth, living standards and safety of an estimated 110 people” in the complex, and on appeal5 pegs the number of potential victims variously at 1,000, or 20,000 or between 25,000 and 50,000 — presumably from alle ged asbestos exposure. The HOA’s lawyers in a fruitless re ply warned Haraszti he would be responsible under the CC&Rs for attorney fees and costs to compel his compliance with the repairs, and explained his demands la cked merit. Specifically, the HOA was not required to pay relocation expe nses; it would oversee the repair work, not Haraszti; its licensed, bonded, insured, a nd professional contractors wo uld ensure “compliance with all local, State and Federal regulations rela ted to construction, building, hazardous materials, electricity, etc.” regardless of a ny cajoling by Haraszti; nor would there be any “penetration into your privat e air space” because the “structural repairs to your balcony
should be able to be made from the Unit below without the n eed to enter yo ur Unit.” The HOA also explained that while the repairs would be prompt, the experts estimated the repairs would take longer than Haraszti’s tw o-week ultimatum. Haraszti refused to
return the “Permission to Ente r” form the HOA requested in the event entry was needed to install the plywood barricade, and ot herwise declined the HOA’s request to “synchronize the construction process.” When Haraszti remained noncomplia nt despite the complaint, the HOA sought an ex parte temporary restraini ng order (TRO). The HOA’s motion explained Haraszti “will be minimally affected by the c onstruction as all repairs . . . will be performed from the lowe r Unit with no access to Defend ant’s Unit required.” The HOA also explained that “[t]he possibility of co llapse posed by Defendant’s balcony set forth in [its expert’s declaration] clearly establis hes that great and/or irreparable injury may result during this litigation . . . unless the st ructural beams beneath Defendant’s unit are repaired.” The constructi on manager submitted a declaration explaining “asbestos precautions” and “abatement,” including air monitoring, would be necessary in the
condominium below Haraszti’s unit because th e balcony support beams originated there and thus required “repairs to the underside of the Harasti ba lcony from inside” that lower6 unit. But “no such precautions are necessary [for Haraszti’s unit] because there will be no penetration into [that unit].” The cons truction manager also observed: “Although there will be some sawing and hammering, we do not anticipate much noise from the construction will migrate to the upper Unit. The lower Unit Owners will be withstanding the brunt of the reconstruction activities, and they have been very cooperative and understanding. By comparison, Defendant would seem to ha ve little justification for any complaints.” The trial court granted the HOA’ s ex parte TRO motion. The order required Haraszti to “Cease from interfering with Plaintiff’s Common Area structural repairs to the underside of the balcony atta ched to Defendant’s Condominium Unit, and [¶] Cease from interfering with Plaintiff’s installation of a plywood safety barricade outside the sliding glass door to Defendant’s balcony in or der to prevent access to the balcony deck during structural repairs to the balcony’s wood beams which Plaintiff estimates will take four (4) weeks to complete.” At the subsequent hearing on the HOA’ s requested order to show cause for a preliminary injunction, Haraszti appeared a nd initially opposed the terms of the TRO. Upon consultation with his attorney, however, Haraszti agreed to sti pulate to a permanent injunction. The terms of th e permanent injunction essentia lly restated the TRO terms, precluding Haraszti from interfering with the installation of a plywood barrier or the balcony repairs. The permanent injunction also adopt ed the HOA’s four-week estimate for repairs, ignoring Haraszti’s earlier two-week limitation, and expressly authorized more than four weeks if necessary to complete the repairs. The permanent injunction also
reflected the HOA’s estimate no en try would be required in Hara szti’s unit to conduct the balcony repairs, but allowed for entry if n ecessary on 48 hours’ notice. The permanent injunction also reiterated and adopted the HOA’s assessment “that asbestos precautions and asbestos abatement, including, but not lim ited to air monitoring, asbestos removal,7 handling and disposal, will be required in performing the Ba lcony Construction Work in the interior of the [lower] Condominium Unit . . . only,” not Haraszti’s unit, and that the HOA and its contractors would, as its attorney s earlier explained, “comply with all State, Federal and Local laws, ordinances and regu lations,” including those specifically for “asbestos precautions and asbestos abatemen t.” The stipulated permanent injunction noted Haraszti “disputes the Plaintiff’s right to recover costs and attorney’s fees,” but recognized “Plaintiff may file a motion for the recovery of co sts and attorney’s fees, and the Defendant may oppose the motion, in accordance with applicable law.” Haraszti may have had second though ts about agreeing to the permanent injunction because a week later he filed a cl aim with the Department of Fair Employment and Housing (DFEH) alleging that on September 13, 2012, the HOA engaged in unfair housing discrimination against him. Se ptember 13 was the date the HOA notified Haraszti it was seeking the TR O. According to the HOA, Haraszti’s unfounded DFEH complaint exemplified his pattern of “crea tive ways to add expe nses and unnecessary delays to the balcony repairs.” The DFEH closed Haraszti’s complaint in December
2012 with a “No Basis to Proceed” determination. Thereafter, the parties agreed the HOA’ s right to attorney fees and costs remained the only contested i ssue. The hearing was delayed into July 2013 as Haraszti’s attorney sought to withdraw, which Haraszti opposed. The same trial judge who granted the TRO, heard argument on the preliminar y injunction, and entered the permanent injunction also heard the fee motion. Following the hearing, the trial court entered a detailed statement of decision awarding the H OA $43,996.50 in attorney fees and costs. Specifically, the trial court found th e HOA “is the prevailing party and has attained its main objectives in this litigation in light of th e 10/16/12 stipulat ed order for permanent injunction. [¶] . . . [¶] The Association argu es correctly that it is the prevailing party . . . because it obtained a stipulated permanent injunction requiring
Defendant to cease from interfe ring with: (a) Plaintiff’s common area repairs and8 (b) Plaintiff’s installation of a plywood safety barricade outsi de the sliding glass door to Defendant’s balcony.” The court reviewed “the timesheets submitted by the Tinnelly Law Group,” and found “the requested fees ar e reasonable in light of the nature, extent, and duration of the litigation.” The court rej ected Haraszti’s argument that “the fees are not reasonable in light of the nature of th e litigation, the difficulty , the amount involved, the skill required, and the attention given,” ob serving that “Defendant fails to point to specific billing items that are unreasonable. On the contrary, the total bill is reasonable in light of the work involved.” Haraszti now appeals.
II
DISCUSSION Haraszti argues he was entitled to recover his attorney fees under the Private Attorney General Act (PAGA; Code Civ. Proc., § 1021.5), but nothing suggests he filed a fee motion of any kind, let alone un der PAGA. Issues not raised in the trial court are forfeited on appeal. ( Perez v. Grajales (2008) 169 Cal.A pp.4th 580, 591-592.) We may not reverse a lower court ruling absent demonstrated error (Cal. Const., art. VI, § 13; Denham v. Superior Court (1970) 2 Cal.3d 557, 566), and the trial court does not err “in failing to conduct an analysis it was not asked to conduct.” ( People v. Partida (2005) 37 Cal.4th 428, 435.) These rules apply with equal force to appellants appearing in propria persona. ( Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) We also
observe that block record citations at the out set of a brief or argument are of no value in piecing together the basis for a party’s claim ( City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16), and any new matters raised in an appellant’s reply brief are forfeited. ( Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4t h 1054, 1061-1062, fn. 7.) In light of these pr inciples, the trial court did not err in declining to award Haraszti attorney fees under PAGA when Haraszti failed to preserve the claim. Haraszti recognizes that former Civ il Code section 1354 provides that in “an action to enforce the gove rning documents” of a home owners’ association, “the9 prevailing party shall be awarded reasonable atto rney’s fees and costs.” (Now codified at Civ. Code, § 5975, subd. (c).) But he contends that because temporar y restraining orders and injunctions are not themselves “actions,” the HOA was not entitled to its fees. The claim is nonsensical. The statutory provisi ons Haraszti purports to rely on actually recognize that an injunction “may be granted by the court in which the action is brought” (Code Civ. Proc., § 525, italics added) and that an action is an “ordinary proceeding” in which “one party prosecutes another for the de claration, enforcement, or protection of a right.” (Code Civ. Proc., § 22). That is precisely what occurred here when the HOA
filed its lawsuit as an action to enforce th e association’s governing documents. An “action” is a legal term of art that Hara szti misunderstands; it refers to typical proceedings and causes of action in contrast to “special proceeding[s ]” (Code Civ. Proc., § 23) that are not relevant to the standard nuisance and declaratory judgment complaint
the HOA filed here. There is no mer it to Haraszti’s ill-conceived challenge.
Haraszti contends the trial court erred in concluding the HOA was the prevailing party. He insists he was the pr evailing party because he succeeded in his “main objective” of “protect[ing] the public and environment[] from the toxic effects of asbestos which were generated by Responden t’s demolition and reco nstruction work.”
The trial court has “broad” discretion to “‘ determine who is the prevailing party.’” ( Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1152, 1157; see also Heather Farms Homeowners Assn., Inc. v. Robinson (1994) 21 Cal.App. 4th 1568, 1574 ( Heather Farms ) [trial court determines preva iling party “on a practical level” in lawsuits to enforce homeowner association gove rning documents].) We review the trial court’s
determination under the deferential abuse of discretion standard. ( Heather Farms , at p. 1574.)
The trial court did not abuse its disc retion in determining the HOA was the prevailing party, not Haraszti. While Harasz ti claimed his objectiv e in the litigation was to secure the HOA’s compliance w ith “‘all State, Federal, and local laws, ordinances and10 regulations for asbestos precautions and as bestos abatement,’” the HOA did not contest its obligation to do so. Indeed, even before the litigation commenced, the HOA recognized in correspondenc e with Haraszti that its contractors were required to “compl[y] with all local, State and Federal re gulations related to c onstruction, building, hazardous materials , electricity, etc.” (Italics adde d.) Accordingly, the trial court reasonably could co nclude that an objective both parties agreed upon before the suit did not represent a success Haraszti obtained in court. He pointed to no change in the HOA’s position between the date it filed its comp laint and the stipulated injunction. The trial court also reasonably coul d conclude the HOA was the prevailing party because it succeeded in its litigation objectives while Hara szti failed in securing his pretrial demands. As the trial court observed , the HOA “achieved its primary goal in this litigation, which was to obtain access to the [balcony ] unit to conduct repairs and install a temporary protective covering fo r the sliding glass door on the balcony.” The trial court reasonably could conclude that if the HOA had not invoked the judicial process, the impasse with Haraszti would ha ve continued. He recently had sued the HOA in small claims court and lost on his allegations another HOA project dama ged his property; he interposed endless objections to the balcony renovations; he withheld consent to the HOA’s proposed late August 2012 start date on his balcony; and he refused to return the HOA’s requested “Permission to Enter” form in the unlikel y event access through his
condominium was needed. Haraszti now claims he was the prevailing party because he kept the HOA out of his living space, but the HOA acknow ledged from the outset th at access probably would not be necessary. More over, the HOA obtained throug h the court proceedings and ensuing permanent injunction a ri ght of entry into Haraszti’s condominium if needed. In contrast, Haraszti did not succeed on his dema nds that drove the HO A to court: he did not prevent the HOA from proceeding with th e balcony project as planned; he did not succeed in his bid to “‘lead, manage and contract the te st, design, construction and11 administrative works that affect his condomin ium’”; nor did he succeed in requiring the HOA to pay his relocation costs. Based on all of the foregoing, the trial court did not
abuse its discretion when it c oncluded the HOA was the preva iling party in the litigation. Haraszti next argues the trial court e rred in failing to give due weight to
affidavits he submitted. The claim lacks merit. “The trier of fact . . . is the sole arbiter of all conflicts in the evidence, conflicting inte rpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; it is the sole judge of the credibility of the witnesses [and] may disbelieve them even though they are uncontradicted . . . .” ( Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-9 71.) These principles apply equally to declarations: the trial court must determine “which declarations have the ‘ring of truth’ and which do not.” ( In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 36, 38.) Put another way, although affidavits are sworn under oath, “‘It has always been the rule that courts and juries are not bou nd by mere swearing no matter how positive, unless it be credible swearing. It may bear within itself the seeds of its own destruction, as where it is inheren tly improbable, or its destruction may be wrought from without, as wher e the person swearing is in some manner impeached. In either case court and jury are entitled to disbe lieve the testimony if they choose . . . .’” ( Market Street Ry. Co. v. George (1931) 116 Cal.App. 572, 576 [t rier of fact is sole judge of witness partiality and weight to accord witness testimony].) Here, the trial court acted reasonabl y when it put little stock in the two affidavits Haraszti introduced. Specifica lly, the court noted Haraszti submitted the declaration of Abe Lopez, a former “HOA Boar d Member[,] to show th at the head of the board had a personal vendetta against him a nd that the contractor hired by the HOA Board was not following asbestos abatement procedures. [¶] He also submits the declaration of Ella Grigorian to prove that he was in Palm Springs and could not have been interfering with the wo rkmen trying to repair the condos.” But the trial court12 concluded: “Quite frankly[,] the declaratio ns are simply not credible. And they are
irrelevant in that Plaintiff HOA obtain ed the primary relief it sought.”
The trial court did not err. The fact that Haraszti physically relocated to Palm Springs did not undercut the reality the HOA had succeeded in obtaining the permanent injunction to prevent Haraszti from blocking the project with ongoing objections and by withholding co nsent to work on his balcony. Similarly, nothing in Lopez’s affidavit concerning asbestos or alleged HOA bias changed the fact the HOA obtained its litigation objective to commence the balcony project . In stipulating to the permanent injunction granting the relief the HOA sought, Ha raszti essentially severed from the action any claims of HOA bias or pa st mishandling of asbestos because the stipulation did not addr ess those points. Rather it granted the relief the HOA so ught in filing suit, and nothing in Haraszti’s affidavits changed that fact. As noted, the HOA in correspondence with
Haraszti before the litigation showed no bias when it recognized its contractors were bound to comply with asbestos protections , and Haraszti presented no evidence the HOA then reneged on that promise, requiring litigation to en force the HOA’s duty. To the contrary, given Haraszti’s refusa l to assent to a late August 2012 construction start date or entry if needed despite the HOA’s prelitigation recogniti on of its asbestos-compliance obligation, the trial court r easonably could conclude Harasz ti would not cooperate with the HOA’s construction plans absent court action. In other words, Haraszti’s intransigence remained the so le reason for the litigation a nd the HOA in obtaining the permanent injunction succeeded in removing that obstacle. In reaching this conclusion, the trial court was the sole judge of the evidence Haraszti submitted, and we may not second-guess its determinations. Haraszti argues the trial court erred in failing to calculate offsets to the attorney fee award based on $13,212 in a lleged damages the balcony renovation caused
his unit. This claim has no merit because it had nothing to do with the litigation or the13 HOA’s right to attorney fees. Haraszti did not file a counterclaim based on the alleged damages, nor was the issue raised or litigated before the attorney fees hearing. The damages claim simply had no pertinence to the question of who wa s the prevailing party on the issues posed and resolved in the complaint the HOA file d. Consequently, the trial court did not err in failing to entertain the offset claim.
Haraszti’s belated authenticati on and other challenges to the HOA’s attorney timesheets also fail. Haraszti wades into the Evidence Code for the first time on appeal and challenges the a ttorney fee award on grounds the HOA did not submit its attorney timesheets as so-called “certificates ,” failed to proper ly authenticate the
timesheets or the attorn ey signatures on those timesheets, and failed to prove they were original documents rather than copies. Cons equently, Haraszti now insists the timesheets
were no better than “fake evidence” and th erefore the attorney fee award must be reversed. Haraszti also raises other challenges to the attorney billin g records for the first time on appeal; he claims they are replete with disfavored “blo ck billing,” prohibited padding of hours billed, and billing or charges “unreasonabl e in amount” or “unnecessary to conduct the present litigation.” Harasz ti does not pinpoint any particular charges except to claim for the first ti me on appeal that some pred ated the HOA’s complaint. Haraszti provides no record references to suggest he afforded the trial court and opposing counsel the opport unity to consider or meet below any of the evidentiary challenges he now raises. His claims therefor e are forfeited. “‘It is, of course, “the general rule” . . . “‘that ques tions relating to the admissib ility of evidence will not be reviewed on appeal in the absence of a specific and timel y objection in the trial court on the ground sought to be urged on appeal.”’” ( People v. Waidla (2000) 22 Cal.4th 690, 717; see Flood v. Simpson (1975) 45 Cal.App.3d 644, 649 [evidence is competent to support judgment absent specific objection be low]; see also Evid. Code, § 353 [no basis for reversal absent objection in trial court] .) Additionally, we observe that declarations, testimony or other direct evidence of the re asonable value of counsel’s services is not14 essential to support an atto rney fee award because firsth and evidence of counsel’s performance is necessarily be fore the trial court which hears the case. (See, .e.g., In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 316.) Here, because the HOA submitted its attorney billing records and the tr ial court had an ample firsthand view of the litigation, Haraszti’s belated challenges fu rnish no basis to second-guess the trial
court’s fee award. Haraszti’s other challenges are simila rly without merit. He claims the attorney fee award cannot stand because th e HOA filed a tardy memorandum of costs claiming the fees. He relies on California Rule s of Court, rule 3.1700(a), which provides that a prevailing party “who claims costs mu st serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal . . . .” (Italics added.) He argues the stipul ated permanent injunction that the court clerk mailed on October 16, 2012, was tantamount to entry of judgment or dismissal, and therefore the HOA’s attorney fees motion in March 2013 fell far outside the 15-day
window for a memorandum of costs.
Haraszti’s block record citations do no t show he preserved this argument,
and it is therefore forfeited. We also note th e parties expressly agreed in their stipulated permanent injunction that the question of attorn ey fees remained to be resolved, and both recognized the issue as still pending in case management updates submitted long after the
deadline Haraszti now asserts. In any event, attorney fees pursuant to a party’s agreement do not require a costs motion where, as here, the prevailing party files a fee motion. ( Kaufman v. Diskeeper Corporation (2014) 229 Cal.App.4th 1, 11. Haraszti next argues in a confusing fa shion that a showing of “reciprocity” is necessary under Civil Code section 1717 be fore attorney fees ma y be awarded pursuant to the parties’ agreement. Again, Haraszti fa ils to demonstrate he made this argument in the trial court and, in any even t, there is no merit to his clai m. The claim is conceptually
flawed because Civil Code s ection 1717 does not require a showing of reciprocity, but15 instead provides a reciprocal right to attorney fees where the parties’ ag reement omits it. In other words, “section 1717 makes an attorn ey fee provision reciprocal even if it would otherwise be unilateral either by its terms or its effect.” ( Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818 ( Brown Bark ).) A litigant invoking Civil Code section 1717 must demonstrate he or she pr evailed in a dispute involving an agreement authorizing attorney fees for the opposing party. ( Brown Bark , at p. 820.) If the opposing party prevails, he or she need not somehow demonstrate reciprocity to obtain attorney fees; to the contrary , the agreement’s terms provide for an award of attorney fees. Haraszti’s misplaced discussion of Civi l Code section 1717 does not preclude the
fee award. Finally, Haraszti argues for the first ti me on appeal that the attorney fee
award was erroneous because the HOA fa iled to pursue homeowner association alternative dispute resolution (ADR) measur es mandated by statute before filing its lawsuit. (Former Civ. Code, § 1369.520, subd. (a).) The stat ute also specifies, however, that ADR is not a requirement where pre liminary or temporary injunctive relief is necessary. ( Id. , subd. (a)(3).) Based on evidence th e structural beams posed a danger of collapse due to termite damage and dry rot, together with eviden ce the city building permits were due to expire after the HOA al ready obtained one exte nsion and could not obtain another, the trial court did not err in granting the TRO, and therefore there was no obligation to engage in ADR. 1

1 The HOA’s motion to augment the appeal to show Haraszti paid the attorney fee award is denied.16 III
DISPOSITION The fee order is affirmed. Respond ent is entitled to its costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.