LaPay v. The Fairways Homeowner's Association CA4/2 (2026) · DecisionDepot
LaPay v. The Fairways Homeowner's Association CA4/2
California Court of Appeal Jan 23, 2026 No. E082827Unpublished
Filed 1/23/26 LaPay v. The Fairways Homeowner’s Association CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
SIMONE MARIE LAPAY,
Plaintiff and Appellant, E082827
v. (Super. Ct. No. CVPS2202954)
THE FAIRWAYS HOMEOWNER’S OPINION ASSOCIATION et al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Kira L. Klatchko, Judge.
Affirmed.
Lubin Pham + Caplin, Namson Pham, and JC Chimoures, for Plaintiff and
Appellant.
Delphi Law Group, Zachary R. Smith, and Nicholas Hepburn, for Defendants and
Respondents.
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I.
INTRODUCTION 1 In 2018, Lance LaPay (Lance) purchased a ground sub-leasehold interest in a
condo (the Property) in Palm Springs. Ownership title of the Property was held in The
Lance George LaPay Living Trust (the Trust). Lance is the settlor, original trustee, and
sole beneficiary of the trust. He lived in the condo until there was a fire next door in
2020, resulting in smoke damage and damage to the garage. Right after the fire, Lance
abandoned his condo and could not be located or reached by the condo homeowner’s
association, Fairways Homeowner’s Association (HOA), or by the condo manager, J.N.
Lewis Group dba as Desert Management (Desert Management).
Over a year after the 2020 fire, Lance’s sister, Simone LaPay (Simone), became
successor trustee of the Trust because of Lance’s mental incapacity. As successor trustee,
Simone sold the Property in April 2022 and sued HOA and Desert Management for
entering the Property to repair the fire-related damage.
Simone, as successor trustee, appeals from summary judgment granted in favor of
HOA and Desert Management, and from an order awarding them attorney fees and costs.
The trial court found that there were no triable issues of material fact and there was no
1 Since Lance and Simone LaPay share the same last name, we will refer to them by their first names; no disrespect is intended.
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2 evidence HOA or Desert Management committed any wrongdoing or caused any
damages. We affirm the judgment and the order awarding attorney’s fees and costs.
II. 3 UNDISPUTED FACTS
HOA is a homeowner’s association for the common-interest condo development,
known as “The Fairways.” The Property, located at 1654 Fairway Circle, in Palm
Springs, is a condo within the Fairways development managed by HOA and Desert
Management, retained by HOA. The owner of the Property is a member of HOA, and the
Property is subject to the Fairways’ covenants, conditions and restrictions. In 2020, HOA
recorded a second restated declaration of covenants, conditions and restrictions (CC&Rs),
which is the applicable version in this case. (CC&Rs Art. I, §§ 1.28, 1.31, 1.39; Art. II,
§2.1; Art. XV, § 15.1.)
A. October 2020 Fire
Lance purchased the Property in 2018, under a condo ground sublease of a portion
of The Fairways development land used for the condo built on the Property. Title to the
Property was held in the name of Lance George LaPay, as Trustee of the Lance George
LaPay Living Trust, dated January 22, 2007. Lance was named in the trust as settlor,
trustee, and sole trust beneficiary.
2 References to HOA and Desert Management, include, where relevant, HOA’s board members and officers, and HOA and Desert Management’s agents, and employees. 3 This summary of undisputed facts is based on admissible evidence in the record on appeal.
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On October 10, 2020, a fire broke out in the garage of an adjacent condo unit,
which shared a wall with the Property’s garage. Firefighters broke through the garage
door and, upon forcing entry through the front door, also destroyed the front door locks.
The Property primarily sustained interior smoke damage and fire damage to the garage.
At the time of the fire, Lance was living at the Property. When firefighters and the
police responded to the fire, they found Lance outside the Property and discovered he had
an outstanding bench warrant. He was therefore taken into custody that same day and
released shortly thereafter. Lance never returned to the Property, and could not be located
by HOA during its efforts to repair fire damage to the Property. Simone later found him
in mid-2021, after the fire-related damage was repaired, with the exception of replacing
the cabinets, countertops, and carpet.
B. Insurance Coverage of Property Damage
On October 12, 2020, HOA’s insurer, Century National Insurance was notified of
the fire and property damage. On October 19, 2020, Century National Insurance’s third-
party administrator, Precision Risk Management (Precision), provided an estimate of
repairs, which reflected “the extent of known covered damages to the property” caused
by the fire. The estimate for fire-related repairs to the Property “included, among other
things, the following: (1) significant repairs to the garage as the fire came through the
garage in the amount of $16,220.94 (which included repairs to Common Area framing
components); (2) significant repairs to the kitchen as the kitchen was the first access point
from the garage in the amount of $12,470.86 (including removal and replacement of batt
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insulation, drywall, vinyl floor, baseboard, exterior door, door lockset, cabinetry,
countertop, sink, plumbing, and aluminum window with seal/prime and wall and ceiling
paint); (3) clean and paint walls and ceiling in the Entry/Foyer, Living Room, Entry
Closet, Bedroom, Closet, Vanity, and Master Bath; (4) clean, strip and wax the floor in
the Entry/Foyer; (5) clean the walls and ceiling in the Bar; (6) clean and deodorize the
carpet in the Living Room and Entry Closet; and (7) plywood repairs and painting in the
carport.”
The Precision estimate cost of fire-related repairs to the Property and adjacent unit
totaled $90,998.43, with $36,571.34 allocated to repairs of the Property.
On October 21, 2020, HOA’s Board of Directors (Board) met. The Board meeting
minutes state that “Management will gather all information pertaining to the fire that
occurred in the garage of 1646 Fairways Circle and damaged the garage and interior unit
of 1654 Fairways Circle [(the Property)] and report back to the Board.” The Board met
again on October 27, 2020. Precision’s insurance adjuster was present and discussed
with the Board the process of restoration and reimbursement of costs for fire-related
damage covered under HOA’s insurance policy. Thereafter, the Board approved
Precision’s $90,998.43 estimate amount and authorized Premier Restoration (Premier) to
complete restoration repairs to the garages and interiors of both the Property and the
adjacent unit. That same day HOA provided Premier with written authorization to start
repairing the two properties.
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Fire damage repair plans for the Property and adjacent unit were prepared and
submitted to the City of Palm Springs and its fire department for a building permit for the
repairs. The fire department and city approved the plans in December 2020, and a permit
was issued in February 2021.
C. Notice and Right of Entry CC&Rs
After the City issued the repair permit, Ashley Herrera, who was an employee of
Desert Management until January 2022, attempted to contact Lance to request access to
the Property so that the repairs could be performed. Herrera was unable to locate or
contact Lance and therefore sought the direction of HOA. HOA’s phone number for
Lance was no longer in service, and the only address HOA had for him was the Property
address. After exhausting all attempts to contact him, the Board directed Herrera to
request HOA’s legal counsel to try to locate him. Legal counsel was also unable to locate
him.
Thereafter, on March 17, 2021, HOA Board met and authorized Desert
Management to issue a right-of-entry letter to perform the Property repairs, change the
locks, and make entry if Lance did not provide access within the notice time frame.
On April 2, 2021, HOA wrote a letter to Lance, providing him with notice that
HOA was seeking to gain access to the Property to make the fire-damage repairs. On
April 6, 2021, HOA sent Lance another notice letter requesting he provide access to the
Property by April 21, 2021. Both letters were addressed and sent to Lance using his last
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known address on the HOA’s records, which was the Property address. The second letter
was sent by certified mail. Lance did not respond to the letters.
In April 2021, after expiration of the notice-of-entry deadline, Premier entered the
Property to perform the interior repairs, including replacing the broken front door lock.
Because the front door lock had been broken by the fire department, the door simply
opened. Premier made the repairs according to the repair plan and insurance estimate for
the Property, except for replacing the lower and upper kitchen cabinetry, kitchen
countertops, kitchen sink, and some carpet. These items were not replaced because
Lance could not be located to select these “finish items.”
On May 3, 2021, Steven Hannegan, who was at that time a Board member and
HOA vice president, inspected the repairs Premier had completed and signed a notice of
completion, noting that Premier did not replace the lower and upper kitchen cabinetry,
kitchen countertops, kitchen sink, and carpet. While at the Property, Hannegan also
placed on the front door a combination lock box, containing keys to the new lock, so that
Lance, upon his return to the Property, could immediately access the Property by calling
the Property manager to obtain the lock box combination. In July 2021, HOA’s insurer
paid HOA for the cost of the completed repairs from the allocated insurance proceeds.
D. Simone as Successor Trustee and Sale of the Property
Simone began searching for Lance in November 2020, with “little luck.” In
March 2021, Simone contacted Desert Management about her missing brother. It was
then that she learned of the October 2020 fire, and that Lance was behind on paying HOA
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dues and was therefore facing foreclosure. As a consequence, in May 2021, Simone
personally paid the outstanding HOA dues to prevent foreclosure on Lance’s Property.
On August 18, 2021, Simone filed a verified petition for instructions and orders
(Petition) (1) to appoint herself as successor trustee of Lance’s living Trust, (2) to remove
Lance as trustee of the Trust, and (3) for reasonable reimbursement of funds expended to
preserve the Trust property and avoid foreclosure, and payment of Simone’s attorney’s
fees and costs. Simone stated in her Petition that she brought the Petition because Lance
could not care for himself or the Property, and had abandoned the Property. Lance
suffered from serious mental and physical illness and substance abuse.
According to Simone, Lance was recently arrested, taken into custody, and
charged with previously failing to register as a sex offender. During a competency
hearing in July 2021, Lance was declared incompetent to stand trial, and was incarcerated
in jail in Los Angeles. Simone requested the trial court to remove Lance as trustee of his
Trust, appoint Simone as successor trustee of the Trust, and order the Trust to reimburse
her from the Trust for expenses she personally incurred on behalf of Lance, including
paying unpaid HOA fees and Property taxes.
On January 26, 2022, the trial court granted Simone’s Petition and ordered (1)
Simone appointed as successor trustee of Lance’s Trust, (2) Lance removed as trustee of
his Trust, and (3) Simone entitled to reimbursement from the Trust for her expenses from
personally paying the Property’s unpaid HOA dues and taxes.
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On February 3, 2022, Simone contacted Desert Management associate manager,
Rhianna Beverly, and requested the gate access information to enter the gated condo
community, access to the Property, and various information about the Property for
purposes of selling it. Beverly responded by email, providing Simone with the gate entry
code numbers for Simone and for her real estate broker.
The next day, Simone’s real estate broker, Donna Fowler, requested the access
code to the lockbox on the Property’s front door for purposes of selling the Property.
That same day, Beverly provided her with the lockbox combination. Thereafter, Simone
entered the Property and discovered renovations had been made to the Property, including
(1) removal of carpet in the bedroom, (2) removal of kitchen cabinets, (3) removal of
countertops, (4) removal of the kitchen appliances, (5) removal of the front door lower
deadbolt, re-keying of the front door upper deadbolt, and removal of the garage entry
door deadbolts and locks, (6) movement of the furniture, kitchen appliances, and
remaining belongings to the garage, and (7) repair of the hole in the garage wall shared
with the adjacent unit that caught fire.
In March 2022, Simone received the fire department’s report, which stated that the
fire department broke the Property’s garage door and made a hole in the shared wall
between the Property and the adjacent unit.
On March 16, 2022, Simone listed the Property for sale, and sold it on April 29,
2022, as is, without replacing the cabinets, counters, or carpet.
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III.
PROCEDURAL BACKGROUND
On July 21, 2022, Simone, as successor trustee of the Trust, filed a complaint
against HOA and Desert Management, alleging the following causes of action: (1)
breach of governing documents against HOA, (2) negligence against HOA, (3)
negligence against Desert Management, (4) conversion against HOA, (5) conversion
against Desert Management, (6) nuisance against HOA, (7) nuisance against Desert
Management, (8) trespass against HOA, (9) trespass against Desert Management, (10)
breach of fiduciary duty against HOA, and (11) declaratory relief against HOA.
The complaint alleges that HOA breached and exceeded its authority under the
CC&Rs by not providing reasonable notice of entry into the Property, and by entering for
reasons unrelated to the Board’s duties, powers, and responsibilities under the CC&Rs.
The complaint further alleges that HOA owed a duty to abide by the CC&Rs and not
exceed its authority thereunder. HOA allegedly breached this duty by performing
unlawful and unauthorized work on the Property, which was owned by an HOA member.
In addition, HOA damaged and caused diminution in the value of the Property by
entering the Property without reasonable notice or permission, and removing carpeting,
cabinets, and granite countertops from the Property.
As to Desert Management, the complaint alleges that Desert Management,
including its agents and employees, breached its duty of care to the Property owner by
performing unlawful and unauthorized work on the Property; controlling access to the
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Property; removing the cabinets, countertops, and carpeting from the Property; moving
the appliances and furniture to the garage; removing deadbolts and locks from the
Property and leaving holes in the doors; and rummaging through Lance’s personal
belongings.
On July 24, 2023, HOA and Desert Management filed motions for summary
judgment or, alternatively, for summary adjudication. The four causes of action against
Desert Management generally allege the same theories of wrongdoing as alleged against
HOA for negligence, conversion, nuisance, and trespass. As a result, the undisputed facts
and law underlying both motions for summary judgment are essentially the same.
The trial court heard and took under submission HOA’s and Desert Management’s
summary judgment motions. On October 26, 2023, the trial court issued a minute order
granting both motions for summary judgment, incorporating into the minute order by
reference the trial court’s detailed written order. A judgment was entered on November 4 13, 2023, granting HOA’s and Desert Management’s summary judgment motions.
Simone filed a notice of appeal of the judgment.
On December 22, 2023, HOA filed a motion for attorney’s fees. Simone filed
opposition. HOA filed a reply and supporting amended declaration by Zachary R. Smith.
Simone filed opposition to the amended declaration. Because the parties did not request
oral argument, the tentative ruling, granting in part HOA’s motion for attorney’s fees,
4 Simone filed motions for summary adjudication against HOA and Desert Management, but the motions were taken off calendar after the trial court granted HOA and Desert Management’s motions for summary judgment.
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became the trial court’s ruling on February 21, 2024. On February 23, 2024, Simone
appealed the February 21, 2024, order.
IV.
MOTIONS FOR SUMMARY JUDGMENT
The trial court granted HOA and Desert Management’s motions for summary
judgment, concluding that Simone, as trustee of the Trust, failed to raise any material
issues of disputed fact or legal grounds refuting summary judgment. We agree.
A. Standard of Review
“Any party may move for summary judgment in an action if it is contended that
the action has no merit. (Code Civ. Proc., § 437c, subd. (a).) A defendant seeking
summary judgment bears the initial burden of proving the cause of action has no merit by
showing that one or more of its elements cannot be established or there is a complete
defense to it . . . . (Code Civ. Proc., § 437c, subds. (a), (o)(2); [citations].)” (Cucuzza v.
City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037-1038.)
“On an appeal from summary judgment we review the record de novo. [Citation.]
We are not bound by the trial court’s stated reasons or rationales. [Citation.] We accept
as true the facts alleged in the evidence of the party opposing summary judgment and the
reasonable inferences that can be drawn from them. [Citation.] ‘In undertaking our
independent review of the evidence submitted, we apply the same three-step analysis as
the trial court. First, we identify the issues framed by the pleadings. Next, we determine
whether the moving party has established facts justifying judgment in its favor. Finally, if
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the moving party has carried its initial burden, we decide whether the opposing party has
demonstrated the existence of a triable, material fact issue. [Citation.]’” (Cucuzza v. City
of Santa Clara, supra, 104 Cal.App.4th at p. 1039, quoting Chavez v. Carpenter (2001)
91 Cal.App.4th 1433, 1438.)
B. First Cause of Action for Breach of Governing Documents
Simone alleges in the first cause of action for breach of governing documents that
HOA breached and exceeded its authority under the CC&Rs. She alleges that under
CC&R section 9.4, condo owners, not the HOA, are responsible for the maintenance,
repair, painting, and replacement of the interior surfaces of their units. Simone further
alleges that under CC&R section 9.8, HOA is responsible for damage or loss to any
property caused by HOA’s gross negligence.
Simone further alleges HOA breached and exceeded its authority under the
CC&Rs by re-keying the Property locks, thereby controlling access over the Property,
stripping the Property’s interior, including removing cabinets, countertops, and carpeting,
moving appliances and furniture to the garage, and rifling through personal belongings.
Simone further alleges HOA lied that it committed these acts because of the October
2020 fire, whereas the fire department’s report only indicates there was light smoke that
entered the Property, and there was no fire within the Property. Simone alleges the only
damage was to the garage door and the shared wall between the adjacent unit and the
Property. Therefore, there was no justification for the substantial Property damage HOA
caused after the fire, which was in excess of its authority and in violation of the CC&Rs.
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Simone further alleges that HOA violated CC&R section 4.9 by not providing reasonable
notice of entry into the Property after the fire, and HOA’s entry was unrelated to the
Board’s duties, powers, and responsibilities under the governing documents.
The undisputed facts, however, reveal circumstances that justified HOA and
Desert Management’s entry and repair of the Property’s interior fire-related damage.
Simone has not provided evidence raising any triable issues of material fact to the
contrary.
1. Insurance Coverage
Simone, as successor trustee, argues that HOA did not have the right to insure or
make repairs to the Property’s interior fire-related damages. Simone therefore argues that
HOA and Desert Management did not have the right to enter the Property.
Simone has failed to provide any evidence of this. The sublease and CC&Rs
authorize HOA to obtain a “walls-in” insurance policy for the Property. A walls-in policy
normally provides coverage for damage to the interior of a condo unit.
HOA has provided unrefuted evidence that at the time of the October fire, HOA
had a walls-in policy covering the Property’s interior, which covered damage to
improvements within the Property condo unit.. It is also undisputed that the insurer
agreed to cover the Property’s interior fire-related damages, and the repairs were
completed, except for the cabinets, countertops, and carpet. Although the insurer agreed
to cover those items, Lance disappeared and could not be located to select new cabinets,
countertops, and carpet. After Simone became successor trustee, she quickly sold the
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property “as is,” instead of delaying the sale until after replacement of the cabinets,
countertops, and carpet.
CC&R section 10.1 sets forth the scope of insurance coverage HOA was either
required to provide, or had the discretion to provide, to Fairways condo owners. CC&R
section 10.1 also designates HOA as the condo owners’ representative in all matters
relating to insurance. (Art. X, § 101.) CC&R section 10.1 states, as to HOA’s insurance
obligations, that it must provide a policy of fire and casualty insurance containing the
standard extended coverage and replacement cost endorsements for the common area.
(Art. IX, § 9.2; Art. X, § 10.1.) CC&R section 10.1 further states that HOA board of
directors (Board) shall have the right (but is not required) to limit the scope of coverage
to “‘bare walls’” coverage, which excludes all personal property within a condo unit and
Because the Property was covered by a walls-in policy, HOA was required to
make the covered fire damage repairs to the interior of the Property. It is undisputed that
there was sufficient insurance to do so and that HOA’s insurer agreed to cover the cost of
the completed repairs. Furthermore, it is undisputed that, under CC&R section 9.6, HOA
had discretion to submit a claim to its insurer for covered damage to the Property, which
is what HOA did, in compliance with the CC&Rs. (Art. IX, § 9.6 (D) [“If the damage is
such as may be covered by any insurance carried by the [HOA], the Board may, in its
sole discretion, elect to submit the claim for the cost of repairs to the insurance carrier.”].)
5 CC&R section 10.9 states in relevant part: “The Association, acting through its Board, is hereby appointed and shall be deemed trustee of the interests of all named insureds under policies of insurance purchased and maintained by the Association. All insurance proceeds under any such policies as provided for in Section 10.1 of this Article shall be paid to the Board as trustees. The Board shall have full power to receive the proceeds and to deal therewith as provided in this Section. Insurance proceeds shall be used by the Association for the repair or replacement of the property for which the insurance was carried or otherwise disposed of as provided in Article 11 of this Declaration.”
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2. Authority to Make the Repairs
Simone argues that HOA and Desert Management did not have authority to make
or authorize the insurance covered repairs to the interior of the Property because there
was little, if any, damage. But the undisputed evidence shows that there was fire-related
damage to the Property, including damage to the garage and smoke damage to the interior
of the Property unit. The damage was covered by HOA’s “walls-in” coverage of the
Property. HOA’s insurer therefore agreed to provide coverage and pay for repairs to the
interior. The owner of the Property, Lance, did not have any other coverage and
abandoned the Property without taking measures to repair it. Therefore, it is undisputed
that under these circumstances, HOA and Desert Management did not violate the CC&Rs
by making the repairs covered by insurance, as authorized by the CC&Rs, sections 9.5,
10.1, 10.2, and 10.9. Because HOA provided walls-in insurance coverage for the
Property, HOA and Desert Management had authority under the CC&Rs to make the
covered fire-damage repairs.
3. CC&R Section 9.4
Simone argues that HOA and Desert Management violated CC&R section 9.4,
because under that provision the Property owner is responsible for the maintenance,
repair, and replacement of the interior surfaces of his unit, including ceilings, doors,
sinks, appliances, carpeting, and interior floor surfaces. However, CC&R section 9.5
provides that HOA has a right to enter a condo unit under CC&R section 4.9, and to
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perform appropriate maintenance and/or repair responsibilities, including when the owner
fails to do so, as required under CC&R section 9.4 (A). (Art. IX, § 9.5 (A).)
Under such circumstances, there was no violation of CC&R section 9.4, which
does not preclude maintenance and repair of the interior of a unit by HOA and Desert
Management when HOA has a walls-in insurance policy covering the interior of the
Property, and there is interior damage to the unit, which the HOA’s insurer agrees to
cover.
4. CC&R Section 9.8
Simone also argues HOA and Desert Management violated CC&R section 9.8, but
Simone has not provided any evidence of such a violation. CC&R section 9.8 provides:
“The Association [HOA] shall not be liable to any Owner or his or her tenants, guests or
others, for damage to or loss of any property, or the cost of repair or replacement of any
damaged property or portions of such Owner’s Condominium unless such damage is
caused by the gross negligence of the Association, its Board, Officers, agents or
employees.” (Italics added.)
Although Simone does not allege a cause of action for gross negligence, the
definition of gross negligence used for such a claim is instructive here. It requires
“‘extreme conduct on the part of the defendant.’ [Citation.] To constitute gross
negligence, misconduct must demonstrate ‘either a “‘“want of even scant care”’” or “‘“an
extreme departure from the ordinary standard of conduct.”’” [Citations.]’ [Citation.]”
(Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 52.) Although
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gross negligence often presents a question of fact, gross negligence can be resolved as a
question of law when the undisputed facts preclude finding gross negligence. (Ibid.)
Such is the case here, where the undisputed facts do not support a finding that HOA or
Desert Management acted with gross negligence.
Simone alleges in the first cause of action that HOA violated CC&R section 9.8 by
committing gross negligence when it caused damage and loss, consisting of “stripping the
interior of the Property, including removing cabinets, granite countertops, and carpeting.
It also moved appliances and furniture to the garage. Lastly, it rifled through personal
belongings.”
The evidence is undisputed that HOA and Desert Management were involved in
allowing third-party contractors, paid by HOA’s insurer, to perform fire-related damage
repairs covered by HOA’s insurance policy. The covered repairs included removing
cabinets, granite countertops, and carpeting. There is also unrefuted evidence that HOA
and its insurer did not replace the cabinets, countertops, or carpeting because HOA
reasonably concluded that those items should not be completed until the Property owner
was located, so that the owner could select those items. Because Lance abandoned the
Property and could not be located, those “finish items” requiring the owner’s selection
were not completed. When Simone became successor trustee, she did not request
completion of these items. She instead immediately listed the Property for sale “as is.”
Under such circumstances, Simone has not provided any evidence of gross negligence.
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As to the moving of appliances and furniture to the garage, a reasonable inference
can be made that this was done in furtherance of performing the fire-damage repairs, and
there is no evidence that such acts constituted gross negligence. As to the “rifling
through personal belongings,” even if there was evidence of any inappropriate conduct
committed by HOA or Desert Management, such acts do not constitute a violation of
CC&R section 9.8. There is no evidence of gross negligence or that the Trust owned
such items or was damaged in any way. The plaintiff is Simone, as successor of the
Trust, not Lance or Simone in their individual capacities. “As a general rule, the trustee
is the real party in interest with standing to sue and defend on the trust’s behalf.” (Estate
of Bowles (2008) 169 Cal.App.4th 684, 691; Estate of Giraldin (2012) 55 Cal.4th 1058,
1075.) “Standing is a question of law that courts typically review de novo.” (Loeber v.
Lakeside Joint School District (2024) 103 Cal.App.5th 552, 570.) Only the individuals
owning the personal belongings, such as Lance, have standing to make such a claim, and
Lance is not a named plaintiff. Because Lance’s personal belongings were not Trust
property, Simone, as successor trustee, does not have standing to bring a personal claim
on Lance’s behalf for rifling through Lance’s personal property.
There is no evidence that the personal belongings allegedly rifled through were
assets of the Trust or that the Trust sustained any damages by the alleged rifling. Because
the only plaintiff here is Simone, as successor trustee, it is undisputed that Simone’s
claim that HOA committed gross negligence by rifling through Lance’s personal
belongings in violation of CC&R section 9.8, lacks merit.5. CC&R Section 11.3
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Simone argues that CC&R section 11.3 (Art. XI, § 11.3; italics added) does not
apply because in order to apply, the Property interior must be “covered by insurance and
maintained by the [HOA],” and the unit was not maintained by the HOA within the
meaning of section 11.3. (Art. XI, § 11.3; italics added.) We agree section 11.3 does not
apply, but not because HOA did not “maintain” the Property interior when the repairs
were made.
Article 11 of the CC&Rs is entitled, “Destruction of Improvements.” Section
11.1, entitled “ Insurance Proceeds Sufficient,” states: “In the event of damage or
destruction to any portion of the Common Area, and the proceeds of insurance available
to the Association are sufficient to effect a total repair or reconstruction of the damaged
or destroyed Common Area, the Association shall cause said Common Area to be
repaired, reconstructed and restored to substantially the same condition as previously
existed.” (Italics added.) Here, the instant case does not concern repair or reconstruction
of damaged or destroyed Common Area.
Section 11.2, entitled “Insurance Proceeds Insufficient,” addresses procedures and
payment of costs when insurance proceeds are insufficient for such repairs or
reconstruction of “the damaged or destroyed Common area.” (Italics added.) Here, there
were sufficient insurance proceeds for the fire damage repairs to the Property interior, and
the repairs at issue were not “Common area” repairs or reconstruction.
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Section 11.3, entitled “Interior Repairs,” states: Any reconstruction undertaken
pursuant to the foregoing provisions [sections 11.1 and 11.2] shall cover only the exterior
and structural components of the damaged or destroyed Units . . . , and such other
damage to such Units as may be covered by insurance and maintained by the
Association. If a destroyed Unit is so rebuilt, the Owner of such Unit shall be obligated
to repair and rebuild the damaged portions of the interior of his or her Unit in a good and
workmanlike manner at such Owner’s expense substantially in accordance with the
original plans and specifications therefor . . . .” (Italics added.)
Here, there was insurance provided by HOA, covering interior fire-related damage
to the Property. Although HOA was not required to maintain the Property’s interior on an
ongoing basis, after Lance abandoned the Property without repairing it, HOA was
obligated to maintain it, including securing it from unlawful entry, when repairing the
Property’s interior fire-related damage.
Simone, however, argues section 11.3 does not apply because the Property’s
interior was not “maintained” by HOA within the meaning of section 11.3. Regardless of
whether the term “maintained” applies here, we conclude section 11.3 does not apply
because sections 11.1 and 11.2 concern reconstruction of the common areas, and section
11.3 concerns structural repairs, reconstruction, and related interior repairs “undertaken
pursuant to the foregoing provisions” (sections 11.1 and 11.2). Therefore, 11.3 does not
apply because the Property repairs did not involve structural repairs or reconstruction of
common areas.
22
The instant appeal thus concerns a situation, which is not subject to Article 11 of
the CC&Rs. The HOA and Desert Management entered the Property and made fire-
related damage repairs to the Property’s interior, not repairs to common areas or
structural repairs or reconstruction. We further conclude that, even assuming section 11.3
does not apply, HOA had authority under CC&R sections 4.9 (A), 9.5, 10.1, 10.2, and
10.9 to enter the Property and repair the fire-related Property damage.
6. Notice of Entry
Simone alleges in the first cause of action that HOA and Desert Management
violated CC&R section 4.9. CC&R section 4.9 provides HOA with the right to enter a
condo for “any purposes” reasonably related to HOA’s performance of its powers and
obligations upon reasonable notice to the owner. (Art. IV, § 4.9, (A).) CC&R section 4.9
further provides that “[w]ork may be performed by the [HOA] through its agents or
employees, managers, contractors, insurers, vendors, or another third party under such
circumstances whether or not the Owner is present.” (Art. IV, § 4.9, (A).) When such
entry is made, it “shall be made with as little inconvenience to the occupant as possible,”
and HOA shall not be deemed guilty of trespass by reason of any such entry into the
condo. (Art. IV, § 4.9, (C).) “The [HOA] is responsible for providing notices under this
Section only to the Owner,” and the owner is prohibited from impeding HOA’s right to
access to the condo and make necessary repairs, including repairs the owner is required,
but fails to perform. (Art. IV, § 4.9, (A), (D).)
23
The facts are undisputed that HOA and its agents, employees, managers,
contractors, insurers, vendors, and other third parties (referred to collectively as HOA)
did not violate CC&R section 4.9 when it entered the Property to perform the fire-
damage repairs. HOA fully complied with CC&R section 4.9 notice requirements.
First, the evidence is undisputed that HOA entered the Property in furtherance of
performing fire-damage repairs covered by HOA’s insurance policy. Such entry was
permissible under CC&R sections 4.9 and 9.5. Simone argues that HOA and Desert
Management violated CC&R section 9.4 subdivision (A), because under that CC&R, the
Property owner is responsible for the maintenance, repair, and replacement of the interior
surfaces of his unit, including ceilings, doors, sinks, appliances, carpeting, and interior
floor surfaces. However, CC&R section 9.5 provides that HOA has a right to enter a
condo unit under CC&R section 4.9, and perform appropriate maintenance and repair
responsibilities, including when the owner fails to do so as required. (Art. IX, §§ 9.4,
9.5.)
Second, the evidence is undisputed that HOA complied with CC&R section 4.9 by
providing reasonable notice to Lance before entering the Property. CC&R section 17.2
requires that notice be delivered to the condo owner at the address last shown on HOA’s
“books.” (Art. XVII, § 17.2.) At the time of HOA and Desert Management’s entry,
Lance, as trustee and sole beneficiary of the Trust, held title to the Property. HOA
searched for him but could not locate him because he abandoned the Property and
disappeared right after the fire. HOA, therefore, in compliance with the CC&Rs,
24
delivered notice of entry to Lance at the address last shown on HOA’s “books,” which
was the Property address, where Lance had been residing at the time of the October 2020
fire. (Art. XVII, § 17.2.)
In addition, HOA and Desert Management made further efforts to provide notice
of entry to Lance. Ashley Herrera, HOA’s manager up until January 2022, attempted to
contact Lance, to request access to the Property so that the repairs could be performed.
Herrera was unable to locate or contact him. Lance’s last known phone number was no
longer in service, and the only address HOA had for him was the Property address. After
exhausting all reasonable efforts to contact him, the Board directed Herrera to request
HOA’s legal counsel to try to locate Lance. Legal counsel was also unable to locate
Lance. Thereafter, on March 17, 2021, HOA Board met and authorized Desert
Management to issue a right of entry letter to complete the Property repairs, change the
locks, and make entry if Lance did not provide access within the specified time frame.
On April 2, 2021, HOA wrote a letter to Lance at the Property address, providing
him with notice that HOA was seeking to gain access to the Property, to make the fire
damage repairs. On April 6, 2021, HOA sent Lance another notice letter, sent by certified
mail to the Property address, requesting Lance to provide access to the Property by April
21, 2021. Both letters were addressed and sent to Lance using his last known address on
HOA’s records, which was the Property address. Lance did not respond to the letters. In
April 2021, after expiration of the notice of entry deadline, Premier entered the Property
to perform the interior repairs. Because the front door lock had been previously broken
25
by the fire department, the door simply opened. In April 2021, Premier made the repairs
according to the repair plan and insurance estimate for the Property, with the exception of
replacing the kitchen cabinetry, countertops, sink, and carpet. These items were not
replaced because Lance could not be located to select these “finish items.”
Meanwhile, in March 2021, Simone was also looking for Lance. She began
searching for him in November 2020, with “little luck.” Simone later learned that Lance
was homeless, after she filed two missing person reports and after the Palm Springs
Police Department did a welfare check on him. In August 2021, Simone discovered
Lance was recently arrested, taken into custody, declared incompetent to stand trial in
July 2021, and incarcerated in Los Angeles.
Based on these circumstances, it is undisputed that HOA and Desert Management
provided reasonable notice of entry into the Property to perform the fire-damage repairs,
in compliance with the CC&R notice requirements. Furthermore, under CC&R section
9.7, “While the [HOA] shall make reasonable attempts to communicate with the Owner
and to obtain the Owner’s voluntar[]y access, permission of the Owner shall not be
required in order for the [HOA] to gain access to perform its maintenance or repair
obligations.” (Art. IX, § 9.7 (A).) Lance’s permission for HOA and Desert Management
to enter the Property to perform the fire-damage repairs was not required before entering
the Property because HOA made reasonable attempts to provide Lance with notice and
obtain voluntary access.
26
In summary, the undisputed evidence establishes that HOA made reasonable
efforts to notify Lance of entry into the Property, such notice efforts complied with the
CC&Rs, and HOA’s efforts were impeded by Lance abandoning the Property right after
the fire and disappearing. This interfered with HOA’s efforts to locate him until months
after the repairs were performed in March 2021. Lance’s abandonment of the Property
and disappearance constituted a passive failure to cooperate and interference with HOA’s
efforts to enter the Property and perform the fire-damage repairs covered by HOA’s
insurance in violation of CC&R section 9.7(A). Under these undisputed facts, we
conclude that HOA complied with the CC&R notice requirements, and HOA and Desert
Management were not required to obtain Lance’s permission to enter when they made the
Property repairs.
7. Foreclosure
Simone argues HOA repaired the Property solely because HOA intended to
foreclose on the Property and sell it for a profit. Simone bases this assertion on the fact
that, at the time the repairs were made, Lance defaulted on payment of HOA dues. While
it undisputed that Lance was in default, there is no evidence that the Property repairs,
paid for by insurance, were improperly made because the Property might go into
foreclosure. This is pure speculation. In fact, the Property did not go into foreclosure
because, when Simone discovered foreclosure might occur, she personally paid the
unpaid HOA dues. By that time, the repairs had already been made and the Trust
benefited from those repairs, because they were covered by insurance.
27
The undisputed evidence shows the repairs were made because HOA’s insurer
found that the Property was damaged by the fire, concluded the damages were covered by
the HOA’s walls-in policy, and agreed to cover the fire-related repairs. There is no
evidence the insurer made the repairs and paid for them for the purpose of helping HOA
out with a potential foreclosure sale of the Property. As to the incomplete repairs, such as
replacing the cabinets, countertops and carpet, the insurer agreed to make those repairs
and pay for them, but HOA and the insurer reasonably concluded it would be best not to
make those repairs until the Property owner was located and could select those “finish
items” in accordance with the owner’s personal preferences. However, when Simone
became the successor trustee, she quickly sold the Property “as is,” without requesting
HOA’s insurer to complete the “finish items.”
We therefore conclude as to the first cause of action that Simone has failed to
demonstrate the existence of any triable, material issues of fact, and summary judgment
was properly granted as to the first cause of action.
C. Second and Third Causes of Actions for Negligence
Simone alleges in the second cause of action for negligence against HOA that
HOA owed its members a duty to abide by its governing documents (CC&Rs) and not
exceed authority provided thereunder. In the third cause of action for negligence against
Desert Management, Simone alleges that Desert Management owed a duty of care to
homeowners within the Fairways Community, where the Property is located, to manage
the community lawfully. As to both negligence causes of action, Simone alleges that
28
HOA and Desert Management owed a duty not to perform unlawful and unauthorized
work on the homeowners’ properties or make unauthorized entries.
Simone further alleges that HOA and Desert Management breached their duties by
rekeying and controlling access to the Property, including removing deadbolts and locks
in doors; removing cabinets, countertops, and carpeting; and moving appliances and
furniture to the garage; and rummaging through Lance’s personal belongings. This
allegedly was all done without permission or authority, and resulted in Simone suffering
damages, which included the diminution in value of the Property, loss of use and
enjoyment of the Property, and costs and expenses related to moving.
Simone has failed to provide any evidence of negligence. First, as discussed
above regarding the first cause of action, it is undisputed that HOA and Desert
Management did not violate the CC&Rs or exceed authority provided thereunder when
repairing the Property fire-damage, which included the removal of the cabinets,
countertops, carpeting, and transfer of the appliances and furniture to the garage. The
repairs were authorized under the CC&Rs because HOA’s walls-in insurance policy
provided insurance coverage for the damage and the insurance paid for the repairs. It is
also undisputed that HOA and Desert Management acted reasonably and in accordance
with the CC&Rs when repairing the fire-related damage. There is no evidence
supporting a finding of negligence against HOA and Desert Management, particularly
since under CC&R section 9.8, such a finding requires evidence of gross negligence, and
29
Simone has not provided evidence supporting such a finding, as discussed above
regarding the first cause of action.
Second, it is also undisputed that HOA and Desert Management did not breach any
duty to abide by the CC&Rs and not exceed authority provided thereunder. Rekeying
and controlling access to the Property by placing a lockbox on the Property, after
replacing the broken locks and repairing the interior damage, was reasonable and did not
prevent Lance or Simone from entering. Simone was provided access upon her request
for entry. It is undisputed that the fire department, not HOA and Desert Management,
damaged the Property’s locks when entering the Property. It is further undisputed that
HOA and Desert Management removed the damaged locks, replaced the broken locks,
rekeyed them, and expeditiously provided Simone and her real estate agent with the
codes needed to enter the Property, when requested. There is no evidence that HOA or
Desert Management unreasonably, negligently, or in violation of the CC&Rs controlled
Simone’s or Lance’s access to the Property.
Third, as discussed regarding the first cause of action, there is no basis for
Simone’s claim that HOA and Desert Management were negligent when they allegedly
rummaged through Lance’s personal belongings. In addition, as discussed above,
Simone, as successor trustee, does not have standing to bring a negligence claim as to
Lance’s personal belongings, which are not Trust property.
30
Fourth, Simone alleges that the alleged negligent acts were all done without
permission or authority, resulting in Simone, as an individual (not Lance or Simone as
successor trustee), suffering damages, which included the diminution in value to the
Property, loss of use and enjoyment of the Property, and costs and expenses related to
moving. Lance and Simone are not named as plaintiffs in their individual capacities, and
therefore cannot recover damages for their personal losses in this action, brought on
behalf of the Trust. Finally, there is no evidence that Simone had or currently has any
interest in the Property, other than as successor trustee as of January 2022, long after the
fire-damage repairs were made in April 2021.
Fifth, there was no evidence that Simone sustained loss of use and enjoyment of
the Property or costs and expenses related to moving. There is no evidence she ever
resided at the Property. And when Simone became successor trustee in January 2022, she
quickly sold it “as is,” without requesting or waiting for HOA’s insurer to complete the
covered fire-related repairs (installing the cabinets, countertops, and carpeting).
We thus conclude Simone has not raised any material triable issues of fact refuting
summary judgment in favor of HOA and Desert Management on the second and third
causes of actions for negligence.
D. Fourth and Fifth Causes of Action for Conversion
Simone alleges in the fourth and fifth causes of action for conversion against HOA
and Desert Management that they wrongfully rekeyed the Property’s locks and removed
from the Property carpeting, cabinets, countertops, and some of Lance’s personal
31
property. HOA and Desert Management allegedly lied about its reasons for “gutting the
Property,” because HOA intended to foreclose on the Property and “flip” it for a profit.
Simone alleges she was falsely told the work was related to the October 2020 fire, when
the only fire-related damage was to the garage door and shared wall between the Property
and adjacent property. Simone alleges she suffered damages which included the
diminution in value to the Property, loss of use and enjoyment of the Property, and costs
and expenses related to moving.
Conversion is “the wrongful exercise of dominion over the personal property of
another. [Citation.] The basic elements of the tort are (1) the plaintiff’s ownership or
right to possession of personal property; (2) the defendant’s disposition of the property in
a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting
damages.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th
“Conversion is a strict liability tort. The foundation of the action rests neither in the
knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an
absolute duty; the act of conversion itself is tortious. Therefore, questions of the
defendant’s good faith, lack of knowledge, and motive are ordinarily immaterial.”
(Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066; Regent Alliance Ltd. v.
Rabizadeh, supra, at p. 1181.)
32
Here, it is undisputed Simone, individually and as successor trustee, did not own
the personal property. Lance did. It is also undisputed, as discussed above regarding the
other causes of action, that HOA and Desert Management’s disposition of the personal
property at issue here did not violate any rights held by Simone, as successor trustee. The
unrefuted evidence establishes that the Property sustained fire-related damage, which
HOA’s insurer agreed to repair, and which the insurer repaired in accordance with HOA’s
insurance policy and CC&Rs. There is no evidence that HOA and Desert Management
performed the repairs for some illicit motive, such as in furtherance of foreclosing on the
Property, or that personal property was mistreated or damaged.
Also, as discussed above regarding the second and third causes of action, there is
no evidence that Lance, as trustee, or Simone, as successor trustee, suffered loss of use
and enjoyment of the Property or personal property, or sustained costs and expenses
related to moving. The trial court therefore properly granted summary judgment as to the
fourth and fifth causes of action for conversion.
E. Sixth and Seventh Causes of Actions for Nuisance
Simone also has not demonstrated the existence of any triable material issues of
fact as to the sixth and seventh causes of actions for nuisance against HOA and Desert
Management. Simone alleges in the sixth and seventh causes of action that HOA 6 committed a nuisance in violation of CC&R section 15.2, and HOA and Desert
6 CC&R section 15.2 states: “Nuisance. Failure to comply with the provisions of the Governing Documents [CC&Rs] decisions and resolutions of the Association is hereby declared to be and constitute a nuisance, and every remedy allowed by law or [footnote continued on next page]
33
Management violated California law by “unreasonably interfer[ing] with Simone’s use
and enjoyment of the Property. . . . It completely removed several fixtures, moved
appliances and furniture, and rifled through personal belongings.”
As discussed above with regard to the first, second, and third causes of actions, it
is undisputed that HOA did not violate any CC&Rs, and HOA and Desert Management
did not wrongfully commit any of the alleged acts Simone asserts constitute a nuisance
under California law and CC&R section 15.2.
F. Eighth and Ninth Causes of Actions for Trespass
The eighth and ninth causes of actions for trespass against HOA and Desert
Management are identical. “Trespass is an unlawful interference with possession of
property.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406; Ralphs Grocery Co. v.
Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) “The elements of trespass
are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s
intentional, reckless, or negligent entry onto the property; (3) lack of permission for the
entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a
substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc.,
supra, at p. 261.)
Simone alleges that HOA and Desert Management committed trespass by entering
the Property without, or in excess of, permission or reasonable notice, “gutted the
property, moved fixtures, and rifled through personal belongings.” Such actions were
equity against a nuisance shall be applicable against every such result and may be exercised by any Owner, or the Board.”
34
allegedly unrelated to the October 2020 fire or damages caused by the fire. The Property
allegedly was left in disrepair and its value substantially lowered. “Simone was forced to
sell the home at far below its market value as a result.”
As discussed above with regard to the first, second, and third causes of actions, it
is undisputed that HOA did not violate any CC&Rs, and HOA and Desert Management
did not commit any of the alleged wrongful acts which Simone asserts constitute trespass.
G. Tenth Cause of Action for Breach of Fiduciary Duty
The tenth cause of action for breach of fiduciary duty against HOA alleges that
HOA owes a fiduciary duty to its members, and thus to the trustee of Lance’s Trust. That
duty under the CC&Rs includes not interfering with or damaging the Trustee’s personal
or real property and not committing trespass on the Property. HOA allegedly breached its
duty owed to the Property owner, causing Simone to suffer damages, which included the
diminution in value of the Property, loss of use and enjoyment of the Property, and costs
and expenses related to moving.
This cause of action is premised on violations of the CC&Rs, which are unfounded
for the same reasons stated above regarding the other causes of action. Simone therefore
has likewise failed to provide any evidence raising a triable issue of fact or damages as to
the tenth cause of action.
35
H. Eleventh Cause of Action for Declaratory Relief
The eleventh cause of action against HOA for declaratory relief alleges that a
judicial declaration is necessary to determine whether HOA breached the CC&Rs by
rekeying the Property, stripping the Property of fixtures, and rifling through personal
belongings.
The essential elements of a declaratory relief claim are (1) there is a proper subject
of declaratory relief and (2) an actual controversy involving justiciable questions relating
to the parties’ rights and obligations. (Wilson & Wilson v. City Council of Redwood City
(2011) 191 Cal.App.4th 1559; Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) An actual
controversy must relate to the legal rights and duties of the parties, and not extend to
potential controversies that are conjectural, anticipated to occur in the future, or constitute
an attempt to obtain an advisory opinion from the court. (Wilson & Wilson v. City
Council of Redwood City, supra, at p. 1582; see also Environmental Defense Project of
Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885.)
Here, the eleventh cause of action has no merit because there is no existing
controversy. As discussed above in the first cause of action, it is undisputed that HOA
did not violate the CC&Rs when repairing fire-related damages to the Property. It is also
undisputed that, as discussed regarding the second and third causes of actions, Simone, as
successor trustee, did not suffer any of the alleged damages.
36
V.
ATTORNEY’S FEES
Simone contends the trial court erred in awarding attorney’s fees and costs
(collectively referred to as attorney’s fees). First, she argues that HOA moved to recover
Desert Management’s attorney’s fees, but Desert Management was required to bring its
own separate motion for attorney’s fees. Simone therefore asserts that the attorney’s fees
award must be reduced by the amount awarded for Desert Management’s attorney’s fees.
Second, Simone argues that the trial court abused its discretion by arbitrarily applying the
reasonableness standard to some, but not all, of HOA’s attorneys’ work product. We do
not find these arguments persuasive.
A. Procedural Background 7 After heavy litigation in the case, HOA and Desert Management became the
prevailing parties as a result of the trial court granting their motions for summary
judgment against the plaintiff, Simone, as successor trustee. Thereafter, HOA and Desert
Management, represented by the same law firm, filed an attorney’s fees motion, in which
HOA requested “an order setting amount of prevailing party attorney’s fees,” in the
amount of $109,451. HOA’s motion requested attorney’s fees as the prevailing party
under Civil Code sections 1717 and 5975, CC&R section 15.5, and Code of Civil
Procedure section 1033.5. HOA’s motion for attorney’s fees included documentation of
time spent litigating the case.
7 This court’s clerk’s transcript is seven volumes (3,596 pages).
37
Simone filed opposition, arguing that HOA filed unnecessary and unreasonable
pleadings and motions, HOA copy and pasted the summary judgment motions, the trial
court should deny the motion for attorney’s fees, and if granted, the fees should be
reduced. HOA filed a reply brief, and the trial court, on its own motion, continued the
motion to allow HOA to provide additional evidence and a more detailed supporting
declaration establishing the reasonableness of the attorney’s fees. HOA submitted
additional supporting evidence, and Simone filed a supplemental response.
Because the parties did not request oral argument, on February 21, 2024, the trial
court issued a ruling stating that the tentative ruling was the court’s final ruling. The trial
court granted HOA’s motion for attorney’s fees in part. In a detailed minute order, the
trial court stated that the parties agreed that, if awarded, attorney’s fees should be
calculated using the lodestar methodology, that is, the number of hours reasonably
expended multiplied by the reasonable hourly rate. (PCLM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1095-1096.) Once that amount is calculated, the court could adjust it to
account for factors, such as the novelty and complexity of the case, or the particular skill
required by counsel. (Ibid.)
HOA requested $109,451 in attorney’s fees, increased to $113,572, to account for
briefing on HOA’s motion for attorney’s fees. The trial court concluded the hourly rate
for the paralegals was too high and therefore reduced the requested amount for paralegal
fees. The court also disallowed fees for clerical time as not compensable. The trial court
38
rejected Simone’s argument that the work done for HOA overlapped with work done for
Desert Management, resulting in double-billing.
Citing Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1018, the court noted that “A
party is not limited to recovering only ‘those fees and costs that are related to the absolute
minimum effort that might result in prevailing at trial.’ Rather, the legal standard is for
the court ‘to determine what costs and fees were reasonably and necessarily related to the
successful claim.’” The trial court concluded that Simone had not met her burden to
demonstrate that any specific attorney’s fees were excessive or that the invoices were
padded. The court found that the invoices did not reflect that the billed hours were
unnecessary, unreasonable, or duplicative. The court rejected Simone’s arguments that
the attorney’s fees charged in connection with a sanctions motion, demurrer, and
mediation were unreasonable or unnecessary.
The court reduced the lodestar total to $102,547.50, by reducing the paralegal
hourly rate and deducting the fees for clerical work. The court also did not add the
additional fees requested for supplemental briefing on HOA’s motion for attorney’s fees,
because HOA was at fault for not providing in the first instance legible evidentiary
support for its motion.
B. Analysis
Civil Code section 1717, subdivision (a) provides in relevant part: “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
39
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.” “Reasonable attorney’s
fees shall be fixed by the court, and shall be an element of the costs of suit.” (Civil Code