Quillinan v. Papavassiliou CA1/1

Filed 9/30/13 Quillinan v. Papavassiliou CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

CYPORETTE QUILLINAN et al., Plaintiffs and Appellants, A136810, A136813 v. ANNA PAPAVASSILIOU, (Alameda County Super. Ct. No. RG-10550466) Defendant and Respondent.

Plaintiffs Cyporette, Kevin, John, and Moshe Quillinan sued their landlord, Anna Papavassiliou, for damages suffered in connection with her alleged maintenance of substandard rental housing. After two and one-half years of litigation, Cyporette, John, and Moshe filed voluntary dismissals of their claims.1 Two weeks later, Kevin moved for leave to file an amended complaint, but before the motion was heard he, too, dismissed his claims, terminating the action. Papavassiliou thereafter moved for statutory attorney fees, contending she was a prevailing party by virtue of plaintiffs‘ voluntary abandonment of the action. The trial court granted the motion. Finding no abuse of discretion, we affirm. I. BACKGROUND Plaintiffs initiated this lawsuit in November 2009. Their third amended complaint (complaint), filed on December 13, 2011, alleges they lived in a ―dilapidated‖ apartment building in Berkeley ―owned and/or managed‖ by Papavassiliou. The complaint 1 When referring to the individual plaintiffs, we will use their first names for clarity. We mean no disrespect in observing this convention.

describes in detail plaintiffs‘ dealings with Papavassiliou and her agents in an effort to obtain the repair of various deficiencies in the building and alleges 10 causes of action, including attempted retaliatory eviction (Civ. Code, § 1942.5, subd. (c)) and wrongful collection of rent for a substandard dwelling (Civ. Code, § 1942.4, subds. (a), (b)). Although plaintiffs were self-represented, the record suggests the case was vigorously litigated on both sides. On July 5, 2012, Papavassiliou moved for a continuance of the October 2012 trial date on the grounds additional time was necessary for discovery and she intended to file a motion for summary adjudication of certain claims. One week later, on July 13, John, Moshe, and Cyporette filed requests for voluntary dismissal of their claims. On July 18, Kevin filed a motion for leave to file an amended complaint. Papavassiliou responded on July 24 with a motion to compel discovery, for sanctions, and for appointment of a referee. Before any of the pending motions were heard, on July 30, Kevin filed a request for a voluntary dismissal of his claims. Judgment was entered for Papavassiliou the next day. In September, Papavassiliou filed a motion for statutory attorney fees, citing as authority Civil Code sections 1942.4 and 1942.5, and Code of Civil Procedure section 1033.5. Papavassiliou argued she was a prevailing party as a matter of law because plaintiffs had voluntarily dismissed their action. Kevin and Cyporette opposed the motion. In a declaration, Cyporette explained she dismissed her claims because she thought Papavassiliou intended to repair the substandard conditions in their home. A housing inspector had told her Papavassiliou had applied for building permits to repair the premises, and Papavassiliou had begun some repairs. After a discussion with Kevin, her husband, the couple ―mutually decided to give the Defendant one more chance to repair our premises. Following through on our belief, we dismissed this action without prejudice to see if Defendant would continue to perform repairs.‖ Kevin stated in his declaration that he dismissed the action on the same basis. Kevin‘s declaration further stated that Papavassiliou had not, in fact, proceeded with the needed repairs, and as a