Wasserman v. Ketelhut CA2/6

Filed 12/1/15 Wasserman v. Ketelhut CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

MORREY WASSERMAN, et al., 2d Civil No. B258642 (Super. Ct. No. 56-2011-00403140-CU- Plaintiffs and Appellants, OR-VTA) (Ventura County) v.

JEFFREY KETELHUT, et al.,

Defendants and Respondents.

Morrey Wasserman and Eileen Gabler appeal from an order requiring them to pay attorney fees incurred by respondents Jeffrey Ketelhut and Marcella Ketelhut. Appellants and other plaintiffs sued respondents to enforce the governing documents of a common interest development. The attorney fees order was entered after appellants' voluntary dismissal of their lawsuit. The order was pursuant to Civil Code section 5975, subdivision (c),1 which provides, "In an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney's fees and costs." The trial court determined that, as to appellants, respondents were the prevailing party. After appellants' voluntary dismissal, other plaintiffs in the same action continued to seek the same relief that appellants had been seeking. Appellants argue that the voluntary

1 All statutory references are to the Civil Code.

dismissal did not result in the achievement of respondents' litigation objectives because they still had to defend against the other plaintiffs' identical claims. Therefore, appellants contend, respondents are not the prevailing party within the meaning of section 5975, subdivision (c). We agree and reverse. Common Interest Development A "common interest development" includes "a real property development" that has a "[c]ommon area that is owned either by an association or in common by the owners of [the lots in the development] who possess appurtenant rights to the beneficial use and enjoyment of the common area." (§§ 4100, subd. (c), 4175, subd. (a), 4185, subd. (a)(3).) "Governing documents" means "documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development . . . ." (§ 4150.) Factual and Procedural Background In August 2011 Felipa Richland Eith and Stacy Wasserman, the wife of appellant Morrey Wasserman, filed a complaint against respondents. A first amended complaint was filed in April 2012. It named 13 plaintiffs, including appellants, and alleged nine causes of action. The first amended complaint alleged as follows: The parties are owners of lots in a 28-lot development that "is governed by the Davis Stirling Common Interest Development Act." (§ 4000 et seq.) The governing documents of the development provide that each lot shall be used only " 'for the residence of one family and its domestic servants.' " In violation of the governing documents, respondents are maintaining a commercial vineyard - Los Robles Hills Winery - on their lot and are selling wine to the public. Their operations have expanded into the development's common area. The first amended complaint sought an injunction prohibiting respondents from operating a commercial vineyard and from encroaching upon the common area. It also sought general and exemplary damages. In March 2014 appellants voluntarily dismissed their causes of action without prejudice. Respondents moved for an award of attorney fees on the ground that, as to