Igor Olenicoff as Trustee of the Olenicoff Personal Residence Trust vs. Emerald Bay Community Association

authorizes an award of attorney fees for enforcing its terms, the motion does not request any specific amount of attorney fees or costs nor does it provide any evidence to support an award in any particular amount, such as a declaration describing the work performed and hourly rates or billing statements. Plaintiff’s counsel is ordered to give notice of this ruling.

12. Signature Collection Properties, LLC vs. Academy West Investments, LLC 2021-01206266 CONTINUED to October 1, 2026, as stated in the court’s August 17, 2026 Minute Order.

13. Hucek vs. FCA US, LLC 2020-01147584 CONTINUED to October 1, 2026, as stated in the court’s August 17, 2026 Minute Order.

14. Halabi vs. BMW of North America, LLC 2025-01454261 CONTINUED to October 1, 2026, as stated in the court’s August 17, 2026 Minute Order.

15. Igor Olenicoff as Trustee of the Olenicoff Personal Residence Trust vs. Emerald Bay Community Association 2024-01448014 Before the court is the motion of defendants Charles Kinstler, Jr. and Lynda Kinstler as Trustees of the Kinstler Living Trust dated 9/6/1991 (collectively, Defendants) for an award of attorney fees.

Initially, the court notes plaintiff Igor Olenicoff as Trustee of the Olenicoff Personal Residence Trust (Plaintiff) filed two versions of both his opposition to the motion and the declaration in support thereof. He filed a public version with redactions, and he purported to lodge an unredacted version of each document conditionally under seal pursuant to California Rules of Court 2.551(b)(3). No documents may be filed under seal without a court order. (Cal. Rules Ct., rule 2.551(a).)

In general, any party seeking to file a document under seal must make a motion or application to seal the document. However, when the document sought to be sealed is subject to a protective order or confidentiality agreement, a party may conditionally lodge a document and put the onus on any other party who may want the document sealed to seek a court order to seal the document. (Cal. Rules Ct., rule 2.551(b)(3).) That is what Plaintiff has done here.

Rule 2.551(b)(3)(B) requires any party who may want the document sealed to bring a motion to seal within 10 days of notice of the document being submitted. Here the public and sealed versions of the opposition and supporting declaration were filed and served on August 6, 2026. More than 10 days have elapsed since that date, and the court has not received any motion to seal from any interested party.

Accordingly, the court will hear from all interested parties at the hearing, but unless some legal and good cause is established at the time of the hearing, the court will order the redacted copies struck and the unredacted copies filed in the public register of actions.

By this motion, Defendants seek their attorney fees pursuant to Civil Code section 5975, subdivision (c), because the prior judicial officer sustained Defendants demurrer to the complaint without leave to amend and dismissed Plaintiff’s claims against Defendants. Specifically, Defendants seek $36,495 in attorney fees and $2,546.06 in costs for a total award of $39,041.06.

Civil Code section 5975, subdivision (c), provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Civil Code section 4150 defines the term “governing documents” as “the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.”

The prevailing party is entitled to an award of attorney fees as a matter of right when the statutory conditions of section 5975, subdivision (c), are satisfied. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1152.) The trial court has no discretion to deny fees when those conditions are satisfied. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263 (Rancho Mirage).)

Neither the type of relief sought nor the form of the action determines whether a case is “an action to enforce the governing documents.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1380.) Rather, the court must look to the gist or gravamen of the action to make that determination. (Kaplan v. Fairway Oaks Homeowners Ass’n. (2002) 98 Cal.App.4th 715, 720 (Kaplan); Rancho Mirage, supra, 2 Cal.App.5th at p. 259.)

For example, in Kaplan, our Court of Appeal found an action brought under Corporations Code section 7616 to enforce proxy and cumulative voting rights regarding an election of homeowner association board members was an action to enforce the governing documents even though there was no specific claim for breach of or relief under the governing documents. The Kaplan court explained Corporations Code section 7616 was merely a procedural vehicle for challenging the election, but it did not create any substantive rights. Indeed, all the rights relating to the use of proxies and other election issues were created and established by the homeowner association’s bylaws. (Kaplan, supra, 98 Cal.App.4th at p. 719.) As such, the gist of the action was to enforce the members’ proxy and cumulative voting rights under the bylaws and the prevailing party was entitled to attorney fees. (Id.at p. 720.)

Rancho Mirage also is an important case for deciding this motion. There a dispute had arisen between a homeowner and the association regarding potential violations of the governing CC&Rs. As required by the Davis-Stirling Act Common Interest Development Act, the parties went to mediation before filing any lawsuit. At that mediation, they were able to resolve their dispute and entered into a settlement agreement setting forth the terms of the resolution they reached. When the homeowner failed to perform the obligations agreed to in the settlement agreement, the association filed a lawsuit for breach of the settlement agreement seeking to enforce the parties’ agreement.

No claim was made directly under the CC&Rs. When the lawsuit was resolved to the association’s satisfaction, it sought its attorney fees under section 5975, subdivision (c). (Rancho Mirage, supra, 2 Cal.App.5th at pp. 255-256.)

The question presented was whether the action was one to enforce the governing documents even though it was nominally an action to enforce the settlement agreement the parties reached in mediation. (Rancho Mirage, supra, 2 Cal.App.5th at p. 258.) The Rancho Mirage court concluded section 5975, subdivision (c), applied and the association was entitled to its attorney fees. The court explained, “the gravamen of the Association’s complaint is that defendants have not taken certain steps to bring their property into compliance with the applicable CC & Rs.

The relief sought by the complaint is an order requiring defendants to take those steps, and a declaration of the parties’ respective rights and responsibilities. The circumstance that the steps to bring the property into compliance with CC & Rs were specified in a mediation agreement does not change the underlying nature of the dispute between the parties, or the nature of the relief sought by the Association. Indeed, the parties’ agreement was the product of a mediation conducted explicitly pursuant to the ADR requirements of the Davis–Stirling Act.

We see nothing in the Davis–Stirling Act that suggests we should give more weight to the form of a complaint—its framing as an action to enforce a mediation agreement— than to the substance of the claims asserted and relief sought, in determining whether an action is one ‘to enforce the governing documents’ in the meaning of section 5975.” (Rancho Mirage, supra, 2 Cal.App.5th at pp. 259-260.)

Plaintiff’s complaint named both Defendants and the homeowners association—i.e., the Emerald Bay Community Association (Association)—as defendants in the case. The majority of the claims were alleged against the Association, including the second cause of action for breach of contractual duties under CC&Rs. The claims alleged against Defendants were the fourth cause of action for breach of the Tri-Party Settlement Agreement, sixth cause of action for declaratory relief, and seventh cause of action for nuisance.

As Plaintiff alleges, a dispute arose between Defendants and the Association that lead to a 2017 lawsuit between Defendants and the Association seeking declaratory relief regarding the rights and duties under the governing CC&Rs and the Association’s Architectural Regulations. Plaintiff intervened in that lawsuit which involved, inter alia, permissible height of trees and construction on Defendants’ property under the CC&Rs and other governing documents. (Comp. at ¶¶ 13-14.)

Plaintiff, Defendants, and the Association settled that earlier lawsuit and that settlement was set forth in the Tri-Party Settlement Agreement. Among other things, that agreement addressed the permissible heights of trees on Defendants’ property and views. Plaintiffs allege Defendants breached both the CC&Rs and the Tri-Party Settlement Agreement by allowing the trees to obstruct Plaintiff’s view. (Comp. at ¶¶16-17.)

Accordingly, although Plaintiff alleges a claim against Defendants for breach of the Tri-Party Settlement Agreement instead of the CC&Rs, this is nonetheless an action to enforce the governing documents, at least in part, much like in Rancho Mirage. The parties’ agreement here was reached during litigation rather than mediation, but that does not change the analysis. At the end of the day, Plaintiff’s claim seeks to enforce the governing documents as well as the additional matters agreed to in the Tri-Party Settlement Agreement.

Indeed, Plaintiff’s complaint is replete with references to the CC&Rs and its standards as well as Defendants’ failure to satisfy those standards (and additional matters the parties agreed to in their agreement). For similar reasons, the declaratory relief claim is an action to enforce the governing documents because it seeks a declaration regarding the Tri-Party Settlement Agreement. Finally, the nuisance claim is an action to enforce the governing documents because it alleges Defendants purported violations of the CC&Rs constitute a nuisance which the CC&Rs allow Plaintiff to seek damages for and enjoin.

Accordingly, although it would be sufficient if even one claim was an action to enforce the governing documents, the court finds all three claims constitute actions to enforce the governing documents under section 5975, subdivision (c).

The other condition for an award of attorney fees under the statute is that the requesting party must be the prevailing party. The Davis-Sterling Act does not define “prevailing party,” but the analysis of who is a prevailing party under the Act’s fee-shifting provisions focuses on who prevailed “on a practical level” by achieving its main litigation objectives. (Champir, LLC v. Fairbanks Ranch Ass’n. (2021) 66 Cal.App.5th 583, 590; see also Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94.)

The prevailing party determination is made by “a comparison to the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 774.) Defeating a party’s claims by having a demurrer sustained is sufficient to make the demurring party a prevailing party. (Haidet v. Del Mar Woods Homeowners Ass’n. (2024) 106 Cal.App.5th 530, 540.)

Plaintiff argues it is “premature” to decide who is the prevailing party because the dispute is apparently still awaiting determination on the merits in the original action filed in 2017, another action filed 2020, and a third action Defendants filed. Plaintiff also argues the demurrer in this action was sustained based on procedural grounds. This argument is unpersuasive. Defendants have achieved their litigation objective to be dismissed from this action and are entitled to the fees they incurred in this action. None of these cases have been consolidated and the prior judicial officer found it was improper to bring this separate lawsuit and so the outcome of those case does not alter Defendants’ prevailing party status in this case. None of the cases Plaintiffs cite apply to the facts and circumstances of this case.

Based on the foregoing, the court finds Defendants are entitled to recovery their attorney fees under section 5975, subdivision (c). The question then becomes the amount.

Generally, courts employ the lodestar method to determine if attorney fees are reasonable, which involves multiplying the reasonable rate of services by the number of hours reasonably spent on the case. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.) A “reasonable” hourly rate used to calculate the lodestar is the prevailing rate for similar work in the community where the court is located. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695-696.) Defendants seek the hourly rate of $450 for senior attorneys, which appears reasonable. Plaintiff does not dispute the reasonableness of the hourly rate.

Defendants seek 84.9 hours in litigating this case. A review of the billing records show time spent on the demurrer, motion to strike, Plaintiff’s motion to consolidate, CMC, as well as depositions/discovery. (ROA 153 - Declaration of Kevin J. Price, Ex. 3.) Plaintiff argues the time billed is derived in part from other litigation matters involving the same parties. That appears true for time spent on depositions, written discovery, and an informal discovery conference. Defendants concede the depositions occurred in the 2020 Action, but counsel apparently attended the deposition of Association board member William Stoffregen while the demurrer and motion to strike were pending in this action, in case the testimony might be relevant.

Counsel, however, does not state they were an active participant in the deposition – it is unclear why attendance was required and/or why deposition transcripts would not suffice and why these fees are not more appropriately sought in the other cases. Indeed, it appears the deposition might be more relevant to the other cases. The bills include time to prepare notices of deposition and review documents and discovery responses. But there is no evidence the parties were exchanging discovery in this action.

Accordingly, the court finds it is appropriate to reduce all time spent on discovery and depositions from August 8, 2025, to October 17, 2025 (20.2 hours) and the 0.20 entry on October 29, 2025, for a total of 20.4 hours.

With regard to consolidation, Plaintiff filed the motion in the 2020 Action, not this action. Although it appears parties to all actions met and conferred regarding a proposed stipulation, and counsel prepared the opposition to the motion to consolidate, it appears counsel did so for purposes of both this action and the other actions. Indeed, time entries include time spent on “stipulations to continue trial, consolidate cases” even though no trial date was ever scheduled in this case. The court finds it appropriate to reduce the 14.1 hours of time spent on “consolidation” by half to 7 hours.

Plaintiff contends the 1.7 hours of time spent preparing the CMC statement in May 2025 is excessive. The court agrees and reduces this amount by 1.2 hours.

Finally, Plaintiff contends Defendants failed to apportion the recoverable attorney fees from nonrecoverable attorney fees. When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, attorney fees are only recoverable on the statutory cause of action. (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133-1134.) This generally requires the trial court to apportion the fees so that the losing party is only required to pay for such fees as were incurred in prosecuting or defending the statutory action. (Bell v.

Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.) “[S]uch fees need not be apportioned[, however,] when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award.” (Akins, supra, 79 Cal.App.4th at p. 1133.)

Here, Defendants made multiple arguments in the demurrer, including that each cause of action fails to state sufficient facts and is barred by the sham pleading doctrine. (ROA 41.) The court sustained the demurrer, finding the complaint was a sham pleading used to circumvent the court’s ruling on the motion for leave to amend in the 2020 Action. (ROA 187 – Declaration of Julie A. Ault, Ex. 3.)

Accordingly, the court finds apportionment is not necessary or appropriate because the sham pleading doctrine applied to all the claims, i.e., the issue is common to all causes of action.

In sum, the Court reduces the hours to 56.3 (i.e., 84.9 minus 20.4, 7 and 1.2). The lodestar is therefore $25,335. That leaves just the $2,546.06 in costs Defendants seek. The costs are related to filing fees, court fees, service, and deposition costs. Although Plaintiff argues Defendants failed to timey file a memorandum of costs such that all costs should be denied, Civil Code section 5975 independent allows the prevailing party to be awarded “reasonable attorney’s fees and costs,” independent of costs allowed under Code of Civil Procedure section 1033.5. (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015 [a memorandum of costs under Cal. Rules of Court, rule 3.1700 only applies to items “allowable as costs” that are listed in Code of Civ. Proc. § 1033.5, subd. (a)].)

Nonetheless, the court denies costs of $1,369.15 related to depositions for the reasons set forth above, and therefore awards costs in the amount of $1,176.91.

Based on the foregoing, the motion is GRANTED and Defendants are awarded $25,335 in attorney fees and $1,176.91 in costs for a total award of $26,511.91. Defendants’ counsel is ordered to give notice of this ruling.

16. 17. 18. 19. 20.