McNiven v. Dreyfus CA1/3

Filed 7/14/25 McNiven v. Dreyfus CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

CAROLYN McNIVEN et al., as Trustees, etc., Plaintiffs, Cross-defendants and Respondents; A169807 ANDREW SOHN, (Alameda County Cross-defendant and Super. Ct. No. RG18918709) Respondent, v. KAREN DREYFUS et al., Defendants, Cross- complainants and Appellants.

After extensive litigation over the validity of a restrictive covenant, the trial court ordered Karen and Michael Dreyfus (the Dreyfuses) to pay Carolyn McNiven, Marion McNiven, and Andrew Sohn $927,249.19 in prevailing party attorney fees under Civil Code section 1717 (undesignated statutory references are to this code). The Dreyfuses appeal, arguing the court erred in its prevailing party determination and that the covenant did not authorize an attorney fee award under the facts of this case. We affirm.

1

BACKGROUND1 In 2016, the Dreyfuses purchased a home next door to the McNivens. The homes share a common rear patio, stairway, lawn, and yard (collectively, the shared yard). They also share a common garage that straddles the property line. Two in-law units — one belonging to each family — sit atop the garage, and the Dreyfuses’ in-law unit encroaches onto the McNivens’ property. In 2015, the McNivens and the prior owner of the Dreyfuses’ home entered into a restrictive covenant to “preserve the character and features” of the shared yard “that exist as of the date of this Agreement.” It also contemplated preserving the floor plan of what would become the Dreyfuses’ in-law unit. The covenant runs with the land so long as the signees or their heirs or blood relatives own and occupy one of the homes. Its enforcement clause provides, in “the event that there is a breach or violation” of the covenant, the “non-breaching party shall be entitled to enforce” it in “law or in equity” against anyone “violating or attempting to violate any covenant by either restraining such violation or by the recovery of damages or both.” Remedies “shall” include “injunctive relief,” “together with any other remedy, including monetary damages and the recovery of reasonable attorneys’ fees and costs.” After purchasing their home, the Dreyfuses obtained a building permit that included changes to the shared yard. The permit authorized the removal of an existing staircase joining the two properties, constructing an elevated patio with a staircase into the shared yard, and building a dividing wall in