Gallian v. Gragnano CA4/3

Filed 9/15/20 Gallian v. Gragnano CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMIE L. GALLIAN,

Cross-complainant and Appellant, G057198

v. (Super. Ct. No. 30-2017-00913985)

LEE GRAGNANO et al., OPINION

Cross-defendants and Respondents.

Appeal from a judgment of the Superior Court of Orange County, James L. Crandall, Judge. Affirmed. Law Offices of Steven A. Fink and Steven A. Fink for Cross-complainant and Appellant. Gordon Rees Scully Mansukhani, Craig J. Mariam, Brenda N. Radmacher, and Jonathan A. Schaub for Cross-defendants and Respondents. * * *

This is an appeal from an award of attorney fees under Civil Code section 5975, which permits recovery of fees in an action to enforce the governing documents of a common interest development. The Huntington Beach Gables Homeowners Association (the HOA) filed suit against Jamie L. Gallian for enforcement of the governing documents. Gallian, in turn, cross-complained against the individual members of the HOA board of directors (the board members), seeking indemnity on the HOA’s 1 complaint. The board members’ subsequent demurrer was sustained, and they were dismissed from the action with prejudice. Afterward, at a mandatory settlement conference, the HOA and Gallian entered into what they believed was a global settlement agreement that included mutual releases that bound not only the HOA, but also the board members. However, when the HOA later attempted to enforce the settlement agreement, the court deemed it unenforceable. Subsequently—now well beyond the usual 60-day time limit for an attorney fee motion—the board members filed a motion to recover attorney fees. The court found the mistaken belief that the settlement agreement was enforceable furnished good cause for the late filing and granted the motion, awarding the board members approximately $46,000 in fees. Gallian appealed the award of fees. Gallian contends the court abused its discretion in finding good cause to permit a late filing of the fee motion because the board members were not parties to the settlement agreement, having previously been dismissed with prejudice, and thus could not have been mistaken about their having released Gallian. However, the board members’ attorney was at the hearing where the settlement agreement was put on record, and the settlement agreement purported to bind the board members. Gallian also argues her cross-complaint was not to enforce the governing documents, and thus attorney fees were not available under Civil Code section 5975. However, the HOA’s action clearly 1 The board members, respondents in this appeal, are Lee Gragnano, Ted Phillips, Lindy Beck, Jennifer Paulin, Janine Jasso, and Lori Burrett.