Mark Slattery, et al. v. Kenneth L. Webb, Jr., et al.

Defendant and Cross-Complainant Kenneth Webb, Jr.’s (“Defendant” or “Webb”) Motion to Recover Attorney’s Fees and Costs as to Plaintiffs and Cross-Defendants Mark and Maureen Slatterys’ (“Plaintiffs” or “Slatterys”) Complaint and Webb’s Cross-Complaint against the Slatterys is GRANTED in part.

The costs sought are the subject to a Motion to Strike and Tax Costs set for hearing June 30, 2026 at 1:30 p.m. in this Court. Accordingly, the Motion is DENIED without prejudice to the extent it seeks costs.

With respect to attorney’s fees, the Motion is GRANTED, in part, in the total amount of $125,000.

Background

This action is a dispute between neighbors in condominium units governed by recorded Covenants, Conditions, and Restrictions (“CC&Rs”). The Slatterys’ First Amended Complaint (“FAC”), filed February 20, 2024, alleges that Webb’ flooring alterations increased sound transmission into their unit, which impaired their quiet enjoyment and use of the same, and that the alterations were made without the prior Homeowner’s Association’s (“HOA”) approval required by the CC&Rs. (See FAC, ¶¶ 11-18, 20-62.) The FAC alleges that Article V of the CC&Rs prohibited alterations increasing sound transmission from one unit to another and prohibited replacing carpet with hard surfaces above a neighbor’s living area unless prior written HOA approval was obtained. (FAC, ¶ 16.) The FAC further alleges that Article IX also

prohibited alterations impairing acoustic components or increasing sound transmission into another unit. (FAC, ¶ 17.)

In addition to the claims against Webb, the FAC also asserted claims against the HOA itself. The second cause of action for violation of Civil Code section 4765 was asserted against the HOA; the fourth cause of action for breach of fiduciary duty was asserted against the HOA; and the sixth and seventh causes of action for negligent hiring/supervision/retention and hirer’s vicarious liability for negligent performance of a nondelegable duty were directed to the HOA. (FAC, caption and ¶¶ 63-94.)

Webb filed a Cross-Complaint (“CC”) on February 23, 2022, asserting three causes of action: (1) breach of governing documents/enforcement of equitable servitudes; (2) nuisance; and (3) declaratory relief. (CC, caption and ¶¶ 34-70.) Two of the causes of action concerned alleged smoke, odor, barbecue use, verbal fighting, construction noise, and other alleged nuisance conduct by the Slatterys. (CC, ¶¶ 34-64.) Webb’s third cause of action sought declaratory relief regarding whether the HOA’s approval of his flooring and his efforts to mitigate alleged noise rendered him compliant with the CC&Rs. (CC, ¶¶ 65-70; Prayer, ¶ 1.)

Webb sought at least $1,000,000 for loss of use and enjoyment of his unit, at least $50,000 in special damages, and at least $2,500,000 in general damages for emotional distress, mental anguish, annoyance, and discomfort. (CC, Prayer, ¶¶ 2-4.) Only the third cause of action proceeded to bench trial, and it resulted in declaratory relief in Webb’s favor. (Chimoures Decl., ¶ 7.) The two remaining claims (nuisance and breach of governing documents) were settled on the record on December 11, 2025. Both parties agreed to waive all fees and costs related to the two settled causes of action. (Chapman Decl., Exh.

A [Dec. 11, 2025 RT] at 4:1-5;4:27-5:9.)

Requests for Judicial Notice

Defendant’s Requests for Judicial Notice Nos. 1-2 are GRANTED. (Evid. Code, § 452, subds. (c), (d).)

The Slatterys’ Requests for Judicial Notice Nos. 1-10 are GRANTED. (Evid. Code, § 452, subd. (d).)

Legal Standard

California follows the “American rule,” under which each party to a lawsuit ordinarily must pay their own attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 278; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.) The two exceptions to this rule are when fees are provided for by agreement of the parties or by statute. (Code Civ. Proc., §1021.)

When a prevailing party is entitled to such fees, the trial court has broad discretion in determining what constitutes a reasonable amount of fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “[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. . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” (Id.)

The court must consider such factors as the nature and complexity of the case, the results obtained, the amount of work involved, the available resources, the nature of the issues and the burden of discovery, the skill required, and the time consumed, the court's own knowledge and experience, the time spent, and rates charged in the community for similar work. (See Contractors Labor Pool, Inc. v. Westway Contractors (1997) 53 Cal.App.4th 152, 168.)

Discussion

Fees are Available to Recover Under both Statute and Agreement of the Parties

In this case, an award of attorney’s fees is authorized by the agreement of the parties under Civil Code section 1717 and by statute under Civil Code section 5975(c).

Section 1717

Section 1717(a) provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” Subsection (b)(1) provides: “The court . . . shall determine who is the party prevailing on the contract for purposes of this section . . . the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

In this case, the CC&Rs contain an attorney’s fee provision. Article XII, section 6(e) of the CC&Rs provides: “In any legal action to enforce the Governing Documents, the prevailing party shall be awarded reasonable attorney’s fees, costs and other charges incurred.” (FAC, ¶ 47, Ex. A, p. 37.) “When a contract contains a provision granting either party the right to recover attorney fees in the event of litigation on the contract, Civil Code section 1717... gives the ‘party prevailing on the contract’ a right to recover attorney fees . . . .” (Hsu v. Abbara (1995) 9 Cal.4th 863, 865.) A provision for attorney’s fees in governing documents, such as the CC&Rs, is a

“contract” within the meaning of Civil Code section 1717. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1024.)

In Cussler, the court stated: “In determining whether an action is ‘on the contract’ under section 1717, the proper focus is not on the nature of the remedy, but on the basis of the cause of action. . . A declaratory relief cause of action seeking interpretation of a contract is ‘on the contract’ within the meaning of the statute.” (Cussler v. Crusader Ent. LLC, (2012) 212 Cal.App.4th 356, 365, 365-366, as modified (Jan. 9, 2013) [citations and internal quotations omitted.)

Section 5975(c)

Section 5975(c) of the Davis-Stirling Act provides: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” “The Davis-Stirling Act does not define ‘prevailing party’ or provide a rubric for that determination. In the absence of statutory guidance, California courts have analyzed analogous fee provisions and concluded that the test for prevailing party is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” (Almanor Lakeside Villas Owners Assn. v.

Carson (2016) 246 Cal.App.4th 761, 773.) “In determining the prevailing party under the Davis-Stirling Act, ‘the trial court should compare the relief awarded on the . . . claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made . . . by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” (Champir, LLC v.

Fairbanks Ranch Association (2021) 66 Cal.App.5th 583, 593.)

Webb is the prevailing party

As to the Slatterys’ claims against Webb, the claims constituted an effort to enforce the HOA governing documents. Webb successfully moved for Judgment on the Pleadings on some of Slattery’s causes of action. (See Order Granting Motion, February 8, 2024.) Webb then prevailed against the Slatterys’ remaining causes of action against him through a Motion for Summary Adjudication. (See Order Granting Motion, July 15, 2025.) That Order deemed Webb the prevailing party. (Id., at p. 2:6.) The Slatterys obtained no relief against Webb.

As to Webb’s own Cross-Complaint, the parties went to a bench trial on the Declaratory Relief cause of action and Webb successfully obtained a judicial declaration in his favor on that cause of action. The Declaratory Relief cause of action sought a declaration that he was compliant with the CC&Rs and constituted an action to enforce the HOA governing documents. (FAC, ¶ 47, Ex. A, p. 6, Art. XII, § 3, subd. (d)(3).) Thus, Webb is the prevailing party on the Declaratory Relief cause of action in his Cross-Complaint against the Slatterys as well.

Hourly Rates Sought Are Reasonable

The hourly rates billed by counsel and paralegals in this matter, ranging from $150-$600 per hour, are reasonable. (See Chimoures Decl., ¶ 40.)

Amount of Hours Sought are Excessive, Seek Non-Recoverable Time

The motion seeks $433,700.00 for 1098.4 hours of time at various rates, plus $3,660.00 for fees incurred in making this motion, for a total of $437,360 in fees in addition to costs. (For the reasons addressed above the Court does not address costs.)

That $437,360 includes $37,412.51 in fees 1 related to the two causes of action that the Parties settled and agreed to waive related fees and costs. The total fees sought without this inadvertently included amount is $399,947.49.

The motion also, “out of an abundance of caution,” seeks the same fees Webb already sought against the HOA defendants in the amount of $68,675.99. (Notice of Motion, p. 2:21-26.) That request was denied by Order filed March 26, 2026. However, Webb has appealed the denial. The HOA Defendants filed their own Cross-Complaint against the Slatterys and Webb and those fees are ostensibly a result of Webb defending against the HOA Cross-Complaint. As Webb provides no grounds for the Slatterys to be held liable for those fees, and to avoid the possibility of conflicting rulings, the $68,675.99 in fees will be excluded from the fees at issue here.

The total amount of fees for the Court’s consideration is therefore $331,271.50.

The prevailing party bears the burden of proof and the amount is left to the trial court's sound discretion. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) An award of attorney fees may be based on counsel's declarations. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) However, such statements are not entitled to blanket credence when there are clear indications of error. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396).

Webb admits that two causes of action in his cross complaint – his nuisance and breach of governing documents claims – settled, and that the parties agreed to bear their own fees and costs as to those claims. (Chimoures Decl., ¶ 8; Chapman Decl., Ex. A [Dec. 11, 2025 Reporter’s Transcript] at 4:1-5, 4:27, 5:9.) Webb further admits that this motion improperly included those

1 The Notice of Errata filed March 23, 2026, states that the Motion “inadvertently included $37,412.51 in attorneys’ fees and costs related to the two causes of action that the Parties settled” and waived rights to fees and costs on these claims. Webb does not separately break down the $37,412.51 into fees and costs and therefore this amount will be treated as 100% fees.

fees. (See Notice of Errata filed 3/23/26.) Moreover, the Notice of Errata failed to describe how Webb allocated time between the claims, and which time entries were eliminated by the reduction. This clear indication of erroneous records submitted in support of the motion defeats any obligation or presumption to credit the representations.

In any event, it is the movant’s obligation to identify material in the record that supports its request for fees. The Court has attempted to review the voluminous time entries submitted in support of this motion (Chimoures Decl., Ex. 1) but these records are not organized or presented in any manner that would allow the Court to readily ascertain what time entries are related to which claims. “Judges are not like pigs, hunting for truffles buried in briefs.” (United States v. Dunkel (7th Cir. 1991) 927 F.2d 955, 956.) The Court therefore rejects the claimed lodestar and will exercise its discretion to determine reasonable fees.

This Court has presided over this lawsuit from its inception. This was a simple noise dispute between neighbors with no novel issues of law. Webb prevailed based on a couple of meritorious motions and a short bench trial that lasted less than half a day. The breadth and scope of the litigation for which Webb now seeks fees is attributable to the acrimony between the parties, rather than any legitimate legal or factual complexities. Indeed, from the Court’s perspective, much of the legal work outlined in the time entries was inefficient, unnecessary and excessive. When a fee request is unreasonably inflated by unnecessary work the trial court may reduce an attorney’s fee award or deny one altogether. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court relies in large measure on its own considerable experience in presiding over these types of disputes in fashioning a reasonable attorney’s fee award. Taking into consideration such factors as the nature and complexity of the case, the results obtained, the amount of work involved, and the skill required and the time consumed, the Court finds that a total amount of $125,000 in fees is fair and reasonable under the circumstances. This consists of $100,000 in fees spent prevailing on the Slatterys’ Complaint against him, and $25,000 incurred in prevailing on the Declaratory Relief cause of action in the Cross-Complaint.

With respect to costs, the costs sought are the subject to a Motion to Strike and Tax Costs set for hearing June 30, 2026, at 1:30 p.m. in this Court. Accordingly, the Motion is DENIED without prejudice to the extent it seeks costs.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for June, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1 Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov