Whispering Ridge v. Chaudry 10/24/02 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D036167

Case Date: 01/16/2003

Preview:Filed 10/24/02 Whispering Ridge Homeowners Assn. v. Chaudry CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

WHISPERING RIDGE HOMEOWNERS ASSOCIATION, Plaintiff and Respondent,

D036167

(Super. Ct. No. 721719) v. ABDUL WAHEED CHAUDRY, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Thomas R. Murphy, Judge. Judgment affirmed.

Defendant Abdul Waheed Chaudry appeals the portion of a judgment after court trial awarding attorney fees to plaintiff Whispering Ridge Homeowners Association (Association) as the prevailing party in Association's lawsuit to enforce its recorded declaration of covenants, conditions and restrictions (CC&R's). Chaudry contends that in adjudicating Association's motion for attorney fees, the court erred in not considering

whether Association's counsel had engaged in materially misleading conduct during this litigation so as to warrant application of the equitable doctrine of unclean hands to deny the motion. Further, attacking the amount of attorney fees awarded, Chaudry contends Association's assertedly inflated demands for attorney fees were unreasonable. However, since Chaudry has not shown any reversible judicial error on this record, we do not disturb the portion of the judgment awarding Association attorney fees. I INTRODUCTION As coowner with his brother of a lot in the common interest development managed by Association, Chaudry refused to landscape his yard as required by Association's controlling CC&R's and related rules.1 In July 1999, after a court trial in this action for nuisance, injunction and declaratory relief, Association obtained a judgment against Chaudry and his brother requiring them to comply with Association's governing documents and landscape his lot (the underlying judgment). The underlying judgment also stated Association was entitled to attorney fees as the prevailing party in this lawsuit. In June 2000, during the pendency of Chaudry's appeal of the underlying judgment favoring Association on the merits, the superior court entered a

1 Chaudry's brother was also a defendant in the superior court but is not a party to this appeal.

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subsequent judgment (the June 2000 judgment) that included an award of attorney fees and costs to Association as the prevailing party under Civil Code2 section 1354, subdivision (f)3 and Association's governing documents.4 The June 2000 judgment is the subject of this appeal by Chaudry. In September 2001 we reversed the portion of the underlying judgment on Association's nuisance claim but affirmed the remainder of the judgment. (Whispering Ridge Homeowners Association v. Chaudry (Sep. 25, 2001, D034624) [nonpub. opn.].) In doing so, we rejected Chaudry's claims of error involving discovery disputes;

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All further statutory references are to the Civil Code unless otherwise specified.

3 Section 1354, subdivision (a) provides: "The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both." Section 1354, subdivision (f) provides: "In any action specified in subdivision (a) to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs. Upon motion by any party for attorney's fees and costs to be awarded to the prevailing party in these actions, the court, in determining the amount of the award, may consider a party's refusal to participate in alternative dispute resolution prior to the filing of the action." 4 At article XVI, section 10, Association's CC&R's contained an attorney fees clause providing: "In the event of any controversy or claim respecting this Declaration, or in connection with the enforcement of this Declaration, the prevailing party shall be entitled, in addition to all expenses, costs and damages, to reasonable attorneys' fees, whether or not such controversy or claim is litigated and prosecuted to judgment." Although Association's right to attorney fees is not dependent on section 1717, a "provision for attorney fees in a declaration of restrictions constituting a binding equitable servitude is a 'contract' within the meaning" of that statute. (Mackinder v. OSCA Development Co. (1984) 151 Cal.App.3d 728, 738.)

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irregularities by Association with respect to its internal "'pre-suit'" procedures; Chaudry's equitable defenses of waiver, laches and estoppel; and Chaudry's limitations defense. (Ibid.) We also awarded attorney fees on appeal of the underlying judgment to Association as the prevailing party under section 1717, section 1354, subdivision (f), and the attorney fees clause of the CC&R's. (Whispering Ridge, supra.) On this appeal challenging the portion of the June 2000 judgment awarding Association attorney fees as the prevailing party at trial, Chaudry faults the superior court for various errors he raised or could have raised in his appeal of the underlying judgment. Accordingly, those claims of error are barred under the doctrine of res judicata. (Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 719; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

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