MALLANO, P. J.
A homeowners association brought this action against a resident, seeking injunctive relief requiring him to comply with certain provisions of the declaration of covenants, conditions, and restrictions (CC&R's). The association obtained a temporary restraining order and a preliminary injunction, and then dismissed the case voluntarily.
The resident, in propria persona, considered himself the prevailing party in the action and filed a motion for attorney fees and costs. The trial court denied attorney fees, concluding that the action was based on a contract — the CC&R's — and there was no prevailing party because the action had been voluntarily dismissed. (See Civ. Code, § 1717, subds. (a), (b)(2).) The court denied costs based on its determination that the association had achieved its litigation objective by obtaining the temporary restraining order and the preliminary injunction. (See Code Civ. Proc., § 1032, subd. (a)(4).) The resident appealed.
We agree with the trial court that Civil Code section 1717 precluded an award of attorney fees because the association voluntarily dismissed the case. Further, the trial court did not abuse its discretion in determining that the association was the prevailing party under the cost statute (Code Civ. Proc., § 1032) because the association obtained injunctive relief against the resident, which was the purpose of the suit.
The facts and allegations in this appeal are taken from the pleadings and the evidence filed in connection with the motion for attorney fees and costs.
On June 24, 2008, the Leadwell Homeowners Association (Association), which operates a condominium complex in Winnetka, California, filed this action. The complaint alleged as follows.
Defendant Dan Deppen lived in the complex and owned six units. He was a member of the board of directors. In violation of the CC&R's, Deppen was more than 30 days late in paying his dues and assessments to the Association. On June 5, 2008, pursuant to a vote of the board, Deppen was removed as a board member.
Notwithstanding his removal, Deppen continued to hold himself out as a member of the board by: (1) representing himself as a board member in communications with homeowners, the management company, vendors, financial institutions, insurance carriers, legal counsel, and security providers; (2) entering into, altering, or canceling contracts, agreements, or business relationships on behalf of the Association, including the firing and hiring of the management company; and (3) interfering with the management and administration of the Association, including removing posted notices regarding Association matters.
The complaint contained three "causes of action." The first, for breach of contract, alleged that Deppen had violated specific sections of the CC&R's and the bylaws. The second claim, entitled "Nuisance," alleged that Deppen's violation of the CC&R's and the bylaws constituted a nuisance. The third claim sought preliminary and permanent injunctive relief. The first two causes of action asserted that the Association had been damaged in an amount exceeding $10,000.
On June 26, 2008, the Association filed an ex parte application for a temporary restraining order (TRO) and an order to show cause re preliminary injunction (OSC). In support, the Association filed declarations tracking the allegations of the complaint and providing additional details. For example, Deppen's delinquent assessments totaled $51,715. In its memorandum of points and authorities, the Association argued that it was authorized to bring suit to enforce the CC&R's and bylaws, Deppen had violated the CC&R's and bylaws, and injunctive relief was necessary to prevent further violations.
The trial court, Judge David P. Yaffe presiding, issued a TRO enjoining Deppen from entering into, altering, or canceling any contracts, agreements, or business relationships on behalf of the Association. The court also scheduled a hearing for July 18, 2008, to determine whether a preliminary injunction should issue.
On July 11, 2008, Deppen, in propria persona, filed an answer to the complaint, generally denying all allegations.
The Association filed supplemental declarations in support of the preliminary injunction.
At the July 18, 2008 hearing on the OSC, Judge Yaffe granted the application for a preliminary injunction in part, prohibiting Deppen from entering into, altering, or canceling any contracts, agreements, or business relationships on behalf of the Association and from interfering with the management and administration of the Association by exercising control over the Association's bank accounts. The court instructed the Association's counsel to submit a proposed preliminary injunction.
On July 28, 2008, the trial court entered the preliminary injunction submitted by the Association, indicating that the injunction would issue upon the Association's filing an undertaking in the amount of $120,000.
For several months thereafter, the parties engaged in discovery. Trial was initially set for July 27, 2009, but was later continued to December 7, 2009.
Before trial, the Association filed a request for dismissal of the entire action without prejudice. The record contains two processed requests for dismissal, one entered on November 17, 2009, the other entered on November 25, 2009. A proof of service is attached to each request attesting to service by mail on November 17, 2009. The "Case Summary" shows docket entries on November 17 and November 25, 2009, with the description: "Request and Entry of Dismissal. . . ."
On December 21, 2009, Deppen filed a motion to recover costs and attorney fees, contending he was the prevailing party. With respect to costs, "prevailing party" is defined by statute as "the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the `prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not . . . ." (Code Civ. Proc., § 1032, subd. (a)(4).) Deppen argued he was the prevailing party because he was "a defendant in whose favor a dismissal [was] entered."
Deppen's memorandum of costs was not filed as a separate document but was attached to the motion for costs and attorney fees as exhibit C. Deppen did not use the Judicial Council's memorandum of cost form (MC-010) but created his own form, consisting of a list of items, a description and the cost of each item, and a total figure of $64,572.84. Of that amount, $23,900 was identified as attorney fees. On a separate page of the motion, Deppen stated: "To the best of my knowledge and belief this motion and attachments/exhibits of costs and attorney's fees is correct and these costs were necessarily incurred in this case to defend myself. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct." Deppen's signature appears immediately below that statement.
Deppen sought attorney fees under an attorney fee provision in the CC&R's, which stated that the "prevailing party" shall be entitled to attorney fees "[i]n any proceeding arising because of any alleged breach or default under this Declaration." The CC&R's did not define "prevailing party." In seeking attorney fees, Deppen asserted that the suit was brought in bad faith and was without merit.
In its opposition papers, the Association claimed that Civil Code section 1717 precluded an award of attorney fees because the action was "on a contract" and had been voluntarily dismissed. Section 1717 provides: "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 . . . to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney's fees in addition to other costs. [¶] . . . [¶] Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section." (Civ. Code, § 1717, subds. (a), (b)(2), italics added.) The Association also argued that Deppen, who had been represented by counsel for only a short time, could not recover attorney fees for the period when he was in propria persona, citing Trope v. Katz (1995) 11 Cal.4th 274. Consequently, at most, he was entitled to $600 in fees, assuming he was the prevailing party under section 1717 and the CC&R's.
As to costs, the Association asserted Deppen's motion should be denied in its entirety because his memorandum of costs was an exhibit to the motion instead of a separately filed document, it was untimely filed, and it did not comply with the California Rule of Court governing the contents of a cost memorandum. The Association also argued that because it had achieved its litigation objectives before dismissing the action — by obtaining the TRO and the preliminary injunction — Deppen was not the prevailing party under the cost statute.
The motion was heard on March 24, 2010, and taken under submission. By order dated March 25, 2010, the trial court, Judge Mel Red Recana presiding, denied the motion as to attorney fees and costs on the ground that, under Civil Code section 1717, there was no prevailing party as to attorney fees because the Association had voluntarily dismissed the case. As to costs, the order recited, "[A]fter the Court issued a temporary restraining order and preliminary injunction against defendant, which resulted in defendant's compliance, plaintiff's litigation objective was achieved . . . ." Deppen filed an appeal from the order.
"`We review a determination of the legal basis for an award of attorney fees de novo as a question of law.'" (PNEC Corp. v. Meyer (2010) 190 Cal.App.4th 66, 69; accord, Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096.) Under the cost statute, we review the trial court's prevailing party determination for an abuse of discretion. (Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852.)
If this action was "on a contract," the trial court correctly decided that there was no prevailing party because the Association voluntarily dismissed the matter. (See Civ. Code, § 1717, subds. (a), (b)(2); Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 706-708.)
Deppen contends the action was not "on a contract" given that the complaint contained a cause of action for nuisance, which is a tort. (See KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1181-1182; Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 346; Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 163-164.) But that factor alone is not determinative.
"[W]e will not `exalt form over substance.' . . . It is the `gravamen of plaintiff's cause of action' that matters, `regardless of the title attached to the cause of action or the remedy sought . . . .'" (County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1326, fn. 11, citation omitted.) We examine the (1) pleadings, (2) evidence, and (3) trial court's stated ground for relief to determine whether an action was "on a contract" for purposes of Civil Code section 1717. (Hyduke's Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 436.)
The Association attempts to make short shrift of Deppen's nuisance argument, pointing out that the CC&R's prohibit nuisances, as follows: "No noxious, offensive or illegal activity shall be carried on, nor shall anything be done or placed in or on any Unit or in or on any portion of the Common Area which is or may become a nuisance, or cause unreasonable embarrassment, disturbance or annoyance to other Owners in the use and enjoyment of their Units or of the Common Area or in the use and enjoyment of their property. Without limiting the foregoing, no horns, whistles, bells or other sound devices, except security devices approved for use by the Board which are used exclusively to protect persons or property located in or on the Project, shall be placed in or used in or upon any portion of the Project." As the Association sees it, the cause of action for nuisance sounded in contract because it was based on the nuisance provision in the CC&R's.
Although that provision may lend some support to the Association's position on attorney fees, we do not accept the contention that a tort can be transformed into a contract claim simply by prohibiting the tort in a written agreement. Such a broad rule would permit the Association to convert every tort into a contract claim, undermining the critical contract-tort distinction on which Civil Code section 1717 is premised.
Indeed, a cause of action for nuisance, sounding in tort, exists independently of, and without regard to, the substance of the CC&R's. As provided by statute: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (Civ. Code, § 3479.)
Nevertheless, upon examination of the complaint, we conclude that the nuisance claim was based solely on the factual allegations of the first cause of action, which involved Deppen's interference with the management of the complex — conduct not constituting a nuisance. Second, a nuisance claim permits the recovery of damages for emotional distress and punitive damages. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919-920; Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042, fn. 3.) Yet the Association sought neither type of relief on behalf of any resident. Nor did it seek punitive damages on its own behalf.
Last, Deppen mischaracterizes the claim for injunctive relief as "tort related." But "[a]n injunction is a remedy, not a cause of action." (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162.) Here, injunctive relief was sought to enforce the CC&R's and the bylaws with respect to the administration of the condominium complex, not to remedy a nuisance.
Deppen was not accused of conduct associated with a nuisance, such as actions injurious to health, including the illegal sale of controlled substances or acts considered indecent or offensive to the senses. Nor did he allegedly obstruct the free use of property or the free passage or use of any body of water, street, or highway.
In seeking the TRO and the preliminary injunction, the Association relied on several declarations describing Deppen's conduct. For example, Deppen had been removed from the board through a vote of its members; he was still holding himself out as the president of the Association; he had sent a letter to the Association's counsel, purporting to terminate them; he had instructed the Association's collection service to cease efforts to recover delinquent assessments from him; he had contacted the Association's bank and requested some temporary checks for the Association's account; he was continuing to transact business with the Association's vendors; he prevented a locksmith from replacing the locks on the recreation room; he notified the Association's management company it had been terminated; he posted notices in the complex stating he was still a member of the board; and he had removed posted notices announcing an upcoming election of board members. As a result of the conflict between the board and Deppen, the Association's bank blocked the Association's account until the parties' dispute was resolved to the bank's satisfaction.
Thus, the Association's evidence related to the interference with the Association's authority — misconduct properly categorized as violative of contractual rights and obligations, not duties arising under tort law.
Deppen did not offer any timely evidence in opposition to the application for a TRO or the OSC.
The language of the TRO and the preliminary injunction establishes that the trial court relied on contractual duties, not tort law, in granting relief. The court preliminarily enjoined Deppen from entering into, altering, or canceling any contracts, agreements, or business relationships on behalf of the Association and from exercising control over the Association's bank accounts. That relief was based on liability arising from contract, not tort, duties.
In sum, based on the pleadings, evidence, and the basis of the relief granted, we conclude that the gravamen of the Association's suit was "on a contract." Because the Association dismissed the action voluntarily, there was no prevailing party for purposes of attorney fees. (See Civ. Code, § 1717, subd. (b)(2).) Consequently, the trial court properly denied Deppen's motion as to attorney fees.
The Association initially attacks Deppen's memorandum of costs on procedural grounds, arguing that the denial of his requested costs was therefore proper. We reject the Association's procedural contentions.
First, the memorandum of costs was not untimely filed. According to the record, the action was voluntarily dismissed on November 17, 2009, and again on November 25, 2009. But those dates are irrelevant in determining when the cost memorandum had to be filed. Under California Rules of Court, rule 3.1700(a)(1), "[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after . . . the date of service of written notice of entry of . . . dismissal, or within 180 days after entry of judgment, whichever is first." The Association does not contend it served a written notice of entry of dismissal, and the record does not contain one. Consequently, the memorandum of costs, filed on December 21, 2009, was timely: It fell within the 180-day period allowed. (Cf. Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 259-261 [discussing service of notice of entry of order for purposes of appeal]; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 670-672 [same]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 3:33, 3:39.1 to 3:41, pp. 3-14 to 3-15, 3-19 to 3-20 [same].)
Further, Deppen's failure to use the Judicial Council's memorandum of cost form is of no consequence. The use of that form is not mandatory, permitting a party to submit a form of his or her own creation. (See Cal. Rules of Court, rule 1.31(a)-(c); Gov. Code, § 68511; 23 pt. 4 West's Ann. Code, Court Rules (2006 ed.) appen. A, p. 502.) Although a self-created form "must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case" (Cal. Rules of Court, rule 3.1700(a)(1)), Deppen complied with that requirement. (See pt. I.D, ante.) Nor is there a requirement that the cost memorandum be filed separately from a motion for costs as opposed to an exhibit to the motion.
That brings us to the merits of Deppen's motion for costs. The "prevailing party" is "the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the `prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not . . . ." (Code Civ. Proc., § 1032, subd. (a)(4).)
Deppen claims he prevailed because he obtained a dismissal in his favor. But that sentence is not applicable here. Rather, the second sentence of Code of Civil Procedure section 1032, subdivision (a)(4) governs in this case because a "party recover[ed] other than monetary relief." Thus, the trial court had the discretion to determine whether there was a prevailing party. In its order denying Deppen's motion, the trial court stated: "[A]fter the Court issued a temporary restraining order and preliminary injunction against defendant, which resulted in defendant's compliance, plaintiff's litigation objective was achieved . . . ." That statement was unnecessary to the resolution of the attorney fee issue because, as the order indicated, fees were improper given that the action was voluntarily dismissed. Instead, the statement addressed the cost issue, declaring the Association to be the prevailing party as to costs because it had achieved its litigation objectives. We conclude the trial court did not abuse its discretion in that regard.
Accordingly, the trial court properly denied Deppen's motion for attorney fees and costs.
The order is affirmed.
We concur:
CHANEY, J.
JOHNSON, J.
