Mascaro v. Brown CA2/6

Filed 1/19/23 Mascaro v. Brown CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

TINO D. MASCARO et al., as 2d Civil No. B319419

Trustees, etc. (Super. Ct. No. 56-2019-

00529302-CU-OR-VTA)

Plaintiffs and Appellants, (Ventura County)

v.

WILLIAM T. BROWN et al., as

Trustees, etc.

Defendants and

Respondents.

Tino D. Mascaro and Susan R. Mascaro (the Mascaros)

appeal the trial court’s order granting attorney’s fees to William

T. Brown and Sherri L. Brown (the Browns), who prevailed in a

dispute regarding trees that allegedly blocked the Mascaros’

view. The Mascaros contend the trial court erred in awarding

attorney’s fees because: (1) they sued for nuisance and not on a

contract, (2) attorney’s fees are not authorized for mediation, and

(3) the evidence was insufficient to support the award. The

Browns contend they are entitled to attorney’s fees on appeal.

We affirm and order the Browns to recover costs and attorney’s

fees on appeal.

FACTUAL AND PROCEDURAL HISTORY

The Mascaros owned a residence in Camarillo. They

contended their view was obstructed by trees located on the

Browns’ property.

Both lots were subject to the declaration of covenants,

conditions, and restrictions (CC&Rs) of the Bridlewood Planned

Unit Development. Section 7 of article VI of the CC&Rs (the view

provision) stated: “All trees shall be trimmed by the Owner of the

Lot upon which the same are located at the direction of the

Architectural Committee, based upon a determination by the

Architectural Committee that such trimming is necessary to

prevent the obstruction of the view of other Lot Owners within

the Properties.”

The Architectural Committee directed the Browns to trim

the trees. The Browns trimmed the trees on several occasions,

but the Mascaros claimed the trimming work inadequately

complied with the CC&Rs and left “unsightly stumps.”

The Mascaros requested mediation, citing the requirement

that they seek alternative dispute resolution (ADR) before filing a

lawsuit to enforce the CC&Rs. (Civ. Code, §§ 5930, 5935.) The

Browns consequently incurred legal fees in response to the ADR

request.

The mediation was unsuccessful and the Mascaros filed

their complaint1 alleging the view obstruction constituted a

nuisance under Civil Code section 3479. The complaint further

1

Subsequent references to the “complaint” are to the

operative pleading, the first amended complaint.

2

alleged, “As Section 1 of Article XI of the . . . CC&Rs provides for

any Owner to enforce, by any proceedings at law or in equity, the

CC&Rs, the MASCAROS have filed this lawsuit.” The complaint

sought abatement of the nuisance and an injunction prohibiting

violation of the view provision of the CC&Rs. The Mascaros also

sought “[r]easonable attorney’s fees pursuant to Section 8 of

Article XI of the . . . CC&Rs.”

The trial court determined a claim based on violation of the

CC&Rs was time barred unless a continuing nuisance was

shown. (Code Civ. Proc., § 336.) The court also found the Browns

“consistently maintained the trees in compliance with” the

CC&Rs. The court concluded that neither view obstruction nor

displeasure with the appearance of the trees when trimmed

constituted a nuisance pursuant to California law. The court

issued judgment for the Browns. (Code Civ. Proc., § 631.8.)

The trial court granted the Browns’ postjudgment motion

for attorney’s fees. Based on “duplications of effort and some

entries that, to the Court, appear non-essential and unjustified,”

the court reduced the requested $143,381.70 to $132,070.40.

DISCUSSION

Authority for attorney’s fees

The Mascaros contend the trial court had no authority to

award attorney’s fees because their lawsuit was based on

nuisance rather than violation of a contract. We disagree.

“Under the American rule, each party to a lawsuit

ordinarily pays its own attorney fees” except where “ ‘attorney’s

fees are specifically provided for by statute’ ” or by “ ‘the

agreement, express or implied, of the parties.’ ” (Mountain Air

Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th

744, 751 (Mountain Air).) “ ‘[T]he legal basis for an attorney fee

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award is a question of law to be reviewed de novo.’ ” (Ibid.) We

conclude the attorney’s fees are authorized by Civil Code section

1717, Code of Civil Procedure section 1021, and Civil Code

section 5975.

Civil Code section 1717

Civil Code section 1717, subdivision (a), requires that

attorney’s fees be awarded to the prevailing party “[i]n any action

on a contract, where the contract specifically provides [for]

attorney’s fees and costs, which are incurred to enforce that

contract.” The complaint sought attorney’s fees pursuant to

section 8 of article XI of the CC&Rs, which provides: “In the

event of litigation arising out of or in connection with this

Declaration, the prevailing party shall be entitled to receive costs

of suit and such sum for attorney’s fees as the Court deems

reasonable.” A recorded declaration of CC&Rs is a “contract” for

purposes of Civil Code section 1717. (Harbor View Hills

Community Assn. v. Torley (1992) 5 Cal.App.4th 343, 346; see

Pinnacle Museum Tower Assn. v. Pinnacle Market Development

(US), LLC (2012) 55 Cal.4th 223, 240.) Section 1717 and the

CC&Rs entitle the Browns to recover attorney’s fees because they

prevailed in the Mascaros’ action to enforce the CC&Rs.

The Mascaros contend the attorney fee award was

unauthorized because the single cause of action was not “on a

contract” but alleged only the tort of nuisance. They are

incorrect.

“California courts construe the term ‘on a contract’

liberally. ‘ “As long as the action ‘involve[s]’ a contract it is ‘ “on

[the] contract” ’ within the meaning of section 1717.” ’ ” (Turner

v. Schultz (2009) 175 Cal.App.4th 974, 979-980.) “ ‘Whether an

action is based on contract or tort depends upon the nature of the

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right sued upon, not the form of the pleading or relief

demanded. . . . If unclear the action will be considered based on

contract rather than tort. [Citation.] [¶] In the final analysis we

look to the pleading to determine the nature of plaintiff’s claim.’ ”

(Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th

1174, 1178-1179.)

The action here was “on a contract.” The complaint sought

both abatement of a nuisance and “a permanent injunction

restraining and enjoining defendants from violating of [sic]

Section 7 of Article VI of the ASSOCIATION[]’S CC&Rs.” It

further alleged, “As Section 1 of Article XI of the . . . CC&Rs

provides for any Owner to enforce, by any proceedings at law or

in equity, the CC&Rs, the MASCAROS have filed this lawsuit.”

The Mascaros’ trial brief admitted that “[a]s a general rule,

a landowner has no natural right to . . . an unobstructed view.”

(See Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521,

535 [obstructed view or “displeasing appearance” of neighboring

structure not a nuisance]; Posey v. Leavitt (1991) 229 Cal.App.3d

1236, 1249.) “ ‘Such a right may be created by private parties

through the granting of an easement [citations] or through the

adoption of conditions, covenants and restrictions.’ ” (Posey, at p.

1250.) The Mascaros contended the view provision of the CC&Rs

created an enforceable “view easement.” Because the nuisance

theory depended upon purported violations of the view provision

(section 7 of article VI of the CC&Rs), the lawsuit was based on

the CC&Rs’ contractual provisions.

The Mascaros quote from Brown Bark III, L.P. v.

Haver (2013) 219 Cal.App.4th 809, 820, which states: “Tort and

other noncontract claims are not subject to section 1717.” But

Brown Bark “ ‘construe[d] the term “on a contract” liberally’ ” to

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include an action that “ ‘ “ ‘ “involve[s]” a contract.’ ” ’ ” (Id. at p.

821.)

In Exxess Electronixx v. Heger Realty Corp. (1998) 64

Cal.App.4th 698, upon which the Mascaros rely, the contractual

attorney fee provision was not broad enough to authorize fees

pursuant to Civil Code section 1717. The lease there authorized

fees in an action to “enforce the terms” of or “declare rights”

under the lease, and did not extend to tort claims of constructive

fraud or breach of fiduciary duty, or to a claim for equitable relief.

(Exxess Electronixx, at p. 702.) The court recognized cases with

broader attorney fee provisions that permitted fees on tort

claims. (Id. at pp. 712-713, citing, e.g., Santisas v. Goodin (1998)

17 Cal.4th 599, 607 [authorizing fees “ ‘arising out of the

execution of this agreement’ ”].)

We reject the Mascaros’ contention that judicial estoppel

bars the Browns from taking inconsistent positions regarding

whether the nuisance claim was based on the CC&Rs. We note

that the Mascaros’ complaint alleged the CC&Rs authorized

attorney’s fees, but they changed their position after they lost at

trial and claimed the cause of action in the complaint did not

authorize fees. Equitable estoppel did not bar either party from

changing their position on whether the attorney fee provision

applied. (M. Perez Co., Inc. v. Base Camp Condominiums Assn.

No. One (2003) 111 Cal.App.4th 456, 469.)

It is irrelevant that the trial court ruled against the

Mascaros for two reasons: relief for violation of the CC&Rs was

time barred, and obstruction of views does not constitute a

nuisance. As the Mascaros contended in the trial court, the

statute of limitations for violation of the CC&Rs did not bar an

action for continuing nuisance based on violation of the CC&Rs.

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(Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th

1379, 1389.) On both theories, the Browns were the prevailing

parties entitled to fees. (Code Civ. Proc., § 1032, subd. (a)(4).)

Code of Civil Procedure section 1021

Code of Civil Procedure section 1021 provides in relevant

part: “Except as attorney’s fees are specifically provided for by

statute, the measure and mode of compensation of attorneys and

counselors at law is left to the agreement, express or implied, of

the parties.” Section 8 of article XI of the CC&Rs requires that

attorney’s fees be awarded to the prevailing party in “litigation

arising out of or in connection with” the CC&Rs. Both the

nuisance claim and the request to enjoin violation of the CC&Rs

arose from, and were in connection with, the CC&Rs.

Attorney’s fees pursuant to Code of Civil Procedure section

1021 are not limited to contractual claims and may encompass

tort claims. (Xuereb v. Marcus & Millichap, Inc. (1992) 3

Cal.App.4th 1338, 1341.) Civil Code section 1717, which applies

only to actions “on a contract,” “cannot be said to supersede or

limit the broad right of parties pursuant to Code of Civil

Procedure section 1021 to make attorney fees agreements.”

(Xuereb, at p. 1342.) Attorney’s fees were ordered in Xuereb

pursuant to Code of Civil Procedure section 1021, even though

the plaintiff had abandoned the breach of contract claim and

prevailed solely on tort claims. (Xuereb, at pp. 1342-1343.) As in

Xuereb, the attorney fee provision in section 8 of article XI of the

CC&Rs is “broad enough to encompass both contract actions and

actions in tort.” (Id. at p. 1343; Santisas v. Goodin, supra, 17

Cal.4th at p. 608.)

Civil Code section 5975

Attorney’s fees were also properly ordered pursuant to the

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Davis-Stirling Common Interest Development Act (Civ. Code,

§§ 4000-6150). It provides: “In an action to enforce the governing

documents, the prevailing party shall be awarded reasonable

attorney’s fees and costs.” (Civ. Code, § 5975, subd. (c).) The

“governing documents” include the CC&Rs. (Civ. Code, §§ 4135,

4150, 4250.) Section 5975 thus requires the court to award

attorney’s fees to the prevailing party in an action to enforce

CC&Rs. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66

Cal.App.5th 583, 590.)

Although the complaint alleged both nuisance and violation

of the CC&Rs, the case was an action to “enforce” the contract

pursuant to Civil Code section 5975 because “the alleged source

of the contractual obligation and its terms was the CC&R’s.”

(Chee v. Amanda Goldt Property Management (2006) 143

Cal.App.4th 1360, 1381.)

Attorney’s fees for mediation

The Mascaros contend the trial court erred in awarding

attorney’s fees of $5,180 associated with the mediation. We reject

this contention.

The Mascaros requested the Browns mediate the view

provision of the CC&Rs. The request cited Civil Code sections

5930 and 5935, which require a demand for mediation or other

ADR as a prerequisite to filing a civil suit to enforce CC&Rs.

(See Civ. Code, § 5925, subd. (a).) In response to the request, the

Browns retained counsel who communicated with the parties and

potential mediators, negotiated, wrote a mediation brief, and

attended the mediation.

The Mascaros rely upon section 8 of article XI of the

CC&Rs, which states: “In the event of litigation arising out of or

in connection with this Declaration, the prevailing party shall be

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entitled to receive costs of suit and such sum for attorney’s fees as

the Court deems reasonable.” Where, as here, litigation was

filed, this provision does not limit attorney’s fees to those

incurred after filing.

Moreover, Civil Code section 5975, subdivision (c),

mandates attorney’s fees to the prevailing party, regardless of the

specific language of the CC&Rs. “[W]hen attorney fees and costs

expended in prelitigation ADR satisfy the other criteria of

reasonableness, those fees and costs may be recovered in an

action to enforce the governing documents of a common interest

development.” (Grossman v. Park Fort Washington Assn. (2012)

2

212 Cal.App.4th 1128, 1134.) The Mascaros have not shown

that the attorney’s fees associated with ADR were unreasonable.

Amount of attorney’s fees

The Mascaros contend the evidence did not show the

attorney’s fees were reasonable or necessary. We review a trial

court’s determination of the amount of attorney’s fees for abuse of

discretion. (Mountain Air, supra, 3 Cal.5th at p. 751.) The trial

court did not abuse its discretion.

“ ‘California courts do not require detailed time records,

and trial courts have discretion to award fees based on

declarations of counsel describing the work they have done and

the court’s own view of the number of hours reasonably spent.

[Citations.]’ ” (Syers Properties III, Inc. v. Rankin (2014) 226

Cal.App.4th 691, 698.) Because the fees here were set by the

judge who presided over the trial, the court was “familiar with

2

Grossman relied upon former section 1354 of the Civil

Code (repealed by Stats. 2012, ch. 180, § 1), which is identical to

current Civil Code section 5975.

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the quality of the services performed and the amount of time

devoted to the case.” (PLCM Group v. Drexler (2000) 22 Cal.4th

1084, 1096.)

The Browns’ counsel submitted invoices itemizing their

attorneys’ time, which included drafting pleadings; conducting

and responding to discovery; legal research; communications with

the clients, co-counsel, and opposing counsel; trial preparation;

and court appearances including trial. The invoices included

“such crucial information as the number of hours worked, billing

rates, types of issues dealt with and appearances made on the

client’s behalf.” (Martino v. Denevi (1986) 182 Cal.App.3d 553,

559.) Counsel’s hourly rates ranged from $300 to $395, which

counsel declared was consistent with rates for attorneys with

similar experience in Ventura County.

The Mascaros contend the invoices were inadmissible

hearsay. They are incorrect. Mr. Dunlevy authenticated the

invoices he prepared and declared that they were for “legal

services [he] provided.” (See Mai v. HKT Cal, Inc. (2021) 66

Cal.App.5th 504, 520-525 [invoices supporting client’s testimony

not inadmissible hearsay].) The invoices from Myers, Widders,

Gibson, Jones & Feingold, LLP, were authenticated by the

declarations of attorneys who had personal knowledge of the

services they provided. They were also authenticated as business

records by the firm’s attorneys and support personnel. (Evid.

Code, § 1271.) The invoices constituted “contemporaneous time

records [that] are the best evidence of lawyers’ hourly work” and

“eclipse other proofs.” (Taylor v. County of Los Angeles (2020) 50

Cal.App.5th 205, 207.)

The trial court reduced the request for fees that

represented “duplications of effort” or were “non-essential and

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unjustified.” The Mascaros do not identify other time entries

that are purportedly unreasonable or unnecessary and have not

shown that the trial court abused its discretion in setting the

3

amount of fees.

Attorney’s fees on appeal

“ ‘A statute authorizing an attorney fee award at the trial

court level includes appellate attorney fees unless the statute

specifically provides otherwise.’ ” (Rancho Mirage Country Club

Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 265;

Serrano v. Unruh (1982) 32 Cal.3d 621, 637-638 [attorney’s fees

awarded for appeal vindicating trial court fee award].) Because

attorney’s fees on appeal are not prohibited by the CC&Rs, or by

Civil Code sections 1717 or 5975, or Code of Civil Procedure

section 1021, the Browns shall be awarded attorney’s fees on

appeal pursuant to a noticed motion in the trial court. (Cal.

Rules of Court, rule 3.1702(c).)

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The Mascaros contend the trial court improperly

considered supplemental declarations because they were

untimely filed with the Browns’ reply to the Mascaros’ objections

to the motion for fees. This contention was briefly mentioned in

the Mascaros’ opening brief on appeal but was not identified

under a separate heading or subheading. (Cal. Rules of Court,

rule 8.204(a)(1)(B); In re S.C. (2006) 138 Cal.App.4th 396, 408.)

Because they did not develop an argument on this issue until

their reply brief, we decline to consider it. (Allen v. City of

Sacramento (2015) 234 Cal.App.4th 41, 52.)

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DISPOSITION

The order is affirmed. Respondents shall recover costs and

attorney’s fees on appeal, in an amount to be determined on

noticed motion in the trial court.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.

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Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Law Offices of Patrick L. Garofalo and Patrick L. Garofalo

for Plaintiffs and Appellants.

Myers, Widders, Gibson, Jones & Feingold, Kelton Lee

Gibson and James E. Perero for Defendants and Respondents.