POINTE PACIFIC, ET AL. VS DAVID PARVIN

July 14, 2026 Law and Motion Calendar PAGE 39 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ requested a continuance. (Ibid.) The Court dismissed the entire action without prejudice for lack of prosecution. (Ibid.; see also Order Dismissing Entire Action Without Prejudice for Delay in Prosecution, Etc., filed on May 22, 2026.)

Through the instant Motion, Defendant asserts that he is the prevailing party in this action because Plaintiff failed to prosecute it for nearly twelve years. Defendant seeks attorney’s fees and costs in the amount of $46,339.83, plus an amount of $396.80 set forth in the concurrently filed Memorandum of Costs. (Civ. Code, § 5975.)

Legal Standards Governing the Motion

The Civil Code provides that, “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) (emphasis added).)

The Court of Appeal explains that:

A party contemplating litigation to enforce the covenants, conditions, and restrictions (CC&R’s) of a condominium project should get its “ducks in a row.” That is to say, such party should be ready to go forward procedurally and prove its case substantively. Failure to do so subjects the losing party to an award of attorney fees.

(Salehi v. Surfside III Condominium Owners’ Assn. (2016) 200 Cal.App.4th 1146, 1150 (Salehi).) Further:

[O]ur Supreme Court implicitly applied the Heather Farms rationale to the award of contractual attorney fees: “[A]ttorney fees should not be awarded automatically to parties in whose favor a voluntary dismissal has been entered. In particular, it seems inaccurate to characterize the defendant as the ‘prevailing party’ if the plaintiff dismissed the action only after obtaining, by means of settlement or otherwise, all or most of the requested relief, or if the plaintiff dismissed for reasons, such as the defendant’s insolvency, that have nothing to do with the probability of success on the merits....

If ... the contract allows the prevailing party to recover attorney fees but does not define ‘prevailing party’ or expressly either authorize or bar recovery of attorney fees in the event an action is dismissed, a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise. [Citation.]”

(Salehi, supra, 200 Cal.App.4th 1146, 1154 (citation omitted).) In Salehi, the plaintiff had voluntarily dismissed all but two of her causes of action without prejudice because her expert was unavailable, intending to refile them later; when more experienced counsel advised her that he might be needed nonetheless, she moved for a continuance. Assuming that the trial Court had accepted this explanation, the Court of Appeal determined that:

July 14, 2026 Law and Motion Calendar PAGE 40 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

We must conclude that the trial court abused its discretion as to who was the prevailing party. Its ruling exceeds the “bounds of reason.” 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 and cannot be faulted because Salehi dismissed these causes of action. 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.

(Salehi, supra, 200 Cal.App.4th 1146, 1155.) The trial court had concluded that “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, supra, 200 Cal.App.4th 1146, 1152.)

Defendant Is the Prevailing Party.

The instant action seeks the enforcement of governing documents. (Complaint, ¶¶ 3-5, 8, 14, and passim.)

Defendant has achieved his primary litigation objectives on a practical level. Here, as in Salehi, Defendant has realized these objectives even though the reason for dismissal may be unrelated to the probability of success on the merits:

Even though Salehi’s dismissals were based on reasons unrelated to “the probability of success on the merits” (Santisas v. Goodin, supra, 17 Cal.4th at p. 621, 71 Cal.Rptr.2d 830, 951 P.2d 399), it is unfair to deprive Association of its reasonable attorney fees. Because of Salehi’s dismissals, Association “realized its litigation objectives.” (Id., at p. 622, 71 Cal.Rptr.2d 830, 951 P.2d 399.) The dismissals were due to Salehi’s faulty reasoning. To shield her from attorney fees liability would reward what the trial court characterized as her “poor decisions.” She should not be able to take advantage of her own fault or wrong. (Civ. Code, § 3517.)

(Salehi, supra, 200 Cal.App.4th 1146, 1156.) In the instant action, Plaintiff failed to prosecute for more than twice the five-year limit, during which Defendant nonetheless incurred attorney’s fees and costs. Though the parties devote significant energy to arguing the merits, the merits are not relevant to this decision under Salehi, as noted supra.

July 14, 2026 Law and Motion Calendar PAGE 41 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ The Court Awards Parvin His Reasonable Attorneys’ Fees

“Where a contract provides for attorneys’ fees but does not specify a particular sum, it is within the trial court's discretion to determine what constitutes reasonable attorneys’ fees. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507–1508 [citing Walters v. Marler (1978) 83 Cal.App.3d 1, 36 and Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303, 312].) “The major factors the trial court must consider in determining an attorneys’ fee award include: the nature of the litigation and its difficulty; the amount of money involved in the litigation; the skill required and employed in handling the litigation; the attention given to the case; the attorney's success, learning, age and experience in the particular type of work demanded; the intricacy and importance of the litigation; the labor and necessity for skilled legal training and ability in trying the case; and the amount of time spent on the case.” (Id. at p. 1508 [citing In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296 and Nevin v.

Salk (1975) 45 Cal.App.3d 331, 343].) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal quotations and citation omitted].)

As to the hourly rate, the reasonable hourly rate is the reasonable hourly rate for San Mateo County where this case is venued. “ ‘The reasonable hourly rate is that prevailing in the community for similar work.’ ” (Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147, 1157 [quoting PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095].) This Court may use its own experience to determine the value of attorneys’ fees. (Spencer v. Collins (1909) 156 Cal. 298, 306 [“The value of attorney's services is a matter with which a judge must necessarily be familiar.

When the court is informed of the extent and nature of such services, its own experience furnishes it with every element necessary to fix their value.”]; Reynolds v. Ford Motor Company (2020) 47 Cal.App.5th 1105, 1113-14 [“The trial court acted well within its discretion in using ‘the prevailing market value in the community for similar legal services’ relying on its personal knowledge and familiarity with the area legal services, as the ‘touchstone’ for determination” of the reasonable hourly rates.’” (citations omitted)].).

This Court had extensive experience in class action and other common fund cases while an attorney and has made decisions about attorneys’ fees and costs frequently during her time as a judicial officer. The Court also relies on the Laffey Matrix, www.laffeymatrix.com/see/html, referred to in the Goodell reply. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702 [court can use Laffey Matrix for reasonable hourly rate].)

As to the reasonableness of the work, this court has a responsibility to review the billing records. In Ketchum v. Moses, our Supreme Court explained: “In referring to ‘reasonable’ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) In Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279 the court analyzed the considerations relevant to this initial lodestar determination by looking to Hensley v. Eckerhart (1983) 461 U.S. 424, in which the court “instruct[ed] that the initial lodestar calculation should exclude ‘hours that were not reasonably expended’ ’’ and drew an analogy to private billing practices: “ ‘Counsel for the

July 14, 2026 Law and Motion Calendar PAGE 42 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting.

It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.” ’ ’’ (Harman v. City and County of San Francisco, at p. 1310 [quoting Hensley v. Eckerhart, at p. 434].) “Counsel is not entitled to compensation for ... work merely because it was performed. Rather, it is counsel's burden “to persuade the trial court the work was reasonably necessary, both as to the particular tasks performed and the amount of time devoted to them.” (Howell v.

State Dept. of State Hospitals (2024) 107 Cal.App.5th 143, 158–159 [internal quotations and citation omitted].)

There are two attorneys’ seeking fees in this motion: the original attorney who defended the case from its inception, Capeloto; and Goodell, who substituted in on February 17, 2026, two-and-one half months after the Court served the OSC re Dismissal Notice.

Defendant’s former counsel for eleven years, Capeloto, declares his minimum billing rate to be $470 per hour, and that he performed eight sets of services for Defendant since November 2014. (Capeloto Decl., ¶¶ 7-8.) He does not show invoices, but his claim of only 31.1 hours for all of those services over all of that time is reasonable (id., ¶ 9), and suffices. (See, e.g., Syers Props. III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 699 [collecting citations].) His hourly rate times his hours declared totals $14,617. (See also Goodell Decl., ¶¶ 54-55.) The Court finds his billing rate reasonable and it is proper to award him his current rate for some of the work, as explained below.

Goodell, the current counsel, declares that he has identified all time entries for the instant action from its filing through the hearing on the OSC Re: Dismissal on February 20, 2026, and removed all costs that are included in the Memorandum of Costs. (Goodell Decl., ¶¶ 16-17, & Exh. 3.) Defendant’s billing rate of $700 per hour is reasonable. (Id., ¶ 18.) Defendant declares his own records showing 8.5 hours of this time after substituting in, from February 13-20, 2026, plus five hours for the Motion. (Id., ¶¶ 44-45, & Exh. 9.) He further requests four more hours for the Reply and the hearing, and $60 for filing the Motion, for a total of $8,810 in fees, which includes $60 in costs. (Id., ¶¶ 46-47.) Goodell declares that he conservatively estimates a rate of $250 per hour for his associate, who spent 13.4 hours on this matter, for a total of $3,350. (Id., ¶¶ 48, 50, & 52-53.)

Goodell and Capeloto provide no explanation on why Goodell substituted into this case after the Court had already set the OSC for Dismissal and the case had been pending for significantly more than five years with no obvious tolling of the statute. While Defendant is entitled to counsel of his choice, the Court does not find it reasonable for Plaintiff to have to pay for this change in attorney.

As to the hourly rate, the Court finds an hourly rate of $700.00 per hour for Goodell and $250 per hour for his associate reasonable.

July 14, 2026 Law and Motion Calendar PAGE 43 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ The Court, however, does not find the amount of time reasonable. The Court strikes the 1.0 hours for Goodell and the 1.5 hours for the associate to substitute in as counsel and review the case docket as not reasonable to charge to Plaintiff because Defendant chose to change counsel. The Court finds the 2.2 hours Goodell charged for time around and including attending the Order to Show cause reasonable as well as the.5 hours by the associate.

The Court does not find the 5.3 hours for Goodell and 11.4 hours by the associate for preparing the motion for attorneys’ fees reasonable to charge to Plaintiff. Had the original attorney prepared the motion, he could have done it more efficiently. In relationship to the total time that Capeloto, spent on this limited jurisdiction case, 31.1 hours for all of Capeloto’s services, initially spending 16.7 hours to prepare an attorneys’ fees motion, more than half the time spent on defending this unlimited case, is unreasonable.

In addition, Goodell estimates another four hours (two hours to review the opposition, preparing the reply and two hours to attend the hearing). Goodell Reply Decl., ¶ 46.) This additional time brings the time to preparing the fee motion to 21.7 hours, an unreasonable amount of time in light of the facts of this case. The court strikes all of the Goodell’s firms fees except for the 2.2 hours for Goodell and.5 for the work regarding the OSC re dismissal. These fees shall be calculated at the Goodell firm’s rate.

For the preparation of this attorneys’ fee’s motion, the court awards five hours to be billed at the $470.00 hourly rate of Capeloto. The Court finds that this hourly rate is reasonable for an attorneys’ fees motion, which was not complicated. Further, since the entries all simply state “Preparing Motion for Attorneys Fees,” there is no detail to see if there was duplicative billing or work that could have been performed by a paralegal or secretary (whose time is compensable, but at a lower rate than an attorney).

Goodell further declares, showing Plaintiff’s discovery responses in another matter in support, that Plaintiff collected $19,524.40 from Defendant for litigating this action, and Defendant wants these returned as he has here prevailed. (Goodell Decl., ¶ 56, & 12:23 (see also 12:12), in Exh. 1.) However, these were not Defendant’s fees, but Plaintiff’s. The Court declines to award Plaintiff’s fees as though they were Defendant’s.

The Court awards the costs as reasonable incurred. Defendant’s counsel’s total includes the cost of mileage to and from the hearing of February 20, 2026, on the OSC, set forth as $38.43. (Id., p.63, in Exh. 9.) This amount is not claimed on the concurrently filed Memorandum of Costs, but was reasonable incurred.

Defendant’s Request for Judicial Notice in Support of the Motion

Pursuant to Evidence Code section 452, subdivision (d), and section 453, Defendant’s Request for Judicial Notice (“RJN”) is GRANTED as to the documents submitted therewith. (Defendant’s RJN, Exhs. Nos. 1-6.) However, judicial notice of the documents shown in Exhibits 1-3 and 5-6 is limited to their existence, content, and authenticity, and does not extend to the truth of the factual matters contained therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

Plaintiff’s Request for Judicial Notice in Opposition

Pursuant to Evidence Code section 452, subdivision (d), and section 453, Plaintiff’s RJN is GRANTED as to the documents submitted therewith. (Plaintiff’s RJN, Exhs. A-D.)

July 14, 2026 Law and Motion Calendar PAGE 44 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ However, judicial notice of the documents shown in Exhibits A-D is limited to their existence, content, and authenticity, and does not extend to the truth of the factual matters contained therein. (Dominguez v. Bonta, supra, 87 Cal.App.5th at p. 400.)

Defendant’s Evidentiary Objections

Defendant’s Evidentiary Objections to the Declaration of Michael P. Terrizzi are ruled upon as follows:

Objs. Nos. 1-3, & 5: SUSTAINED.

Obj. No. 4: SUSTAINED as to, “because Parvin failed and continued to fail to cooperate with the HOA related to access to his unit to investigate the need for remedial measures occasioned by water intrusion”; OVERRULED as to the rest.

Defendant’s Evidentiary Objections to the Declaration of Joanna Lam are SUSTAINED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare for the Court’s signature a written order consistent with the Court’s ruling, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.

POSTED: 3:00 PM