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`Daniel Ip (SBN 240033)
`LITCHFIELD CAVO LLP
`2 N. Lake Avenue, Suite 400
`Superior Court of California,
`Pasadena, CA 91101-3003
`County of San Francisco
`Tel.: 626-683-1100
`02/04/2025
`Fax: 626-683-1113
`Clerk of the Court
`Email: ip@litchfieldcavo.com
`BY: ERNALYN BURA
`
`Deputy Clerk
`Attorneys for Defendants, 1545 BROADWAY HOMEOWNERS’ ASSOCIATION, INC. & THE
`BOHAN COMPANY, INC.
`
`
`
`ELECTRONICALLY
`F I L E D
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`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`FOR THE COUNTY OF SAN FRANCISCO
`
`REBECCA BURNSIDE,
`
` Plaintiff,
`
`v.
`
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC., a California Common
`Interest Development Association [or Non-Profit
`Mutual Benefit Corporation]; THE BOHAN
`COMPANY, INC., a California Corporation, and
`DOES 1 through 50, inclusive,
`
`
`
`Defendants.
`
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC., a California Non-Profit
`Mutual Benefit Corporation; THE BOHAN
`COMPANY, INC., a California Corporation,
`
` Cross-Complainants,
`
`v.
`
` Case No. CGC-22-598325
`[Assigned to the Honorable Samuel K. Feng]
`
`DEFENDANT 1545 BROADWAY
`HOMEOWNERS’ ASSOCIATION, INC.’S
`SUPPLEMENTAL NOTICE OF MOTION AND
`MOTION FOR ATTORNEYS’ FEES
`
`
`Date: February 28, 2025
`Time: 10:00 A.M.
`Location: Department 503
`
`
`
`Action Filed: February 24, 2022
`Trial Set: February 20, 2024
`
`REBECCA BURNSIDE, and ROES 1 through 30,
`inclusive,
`
` Cross-Defendants.
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`-i-
`DEFENDANT 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC.’S SUPPLEMENTAL MOTION FOR ATTORNEYS’
`FEES (EXCLUDING REFERENCES TO COSTS)
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`TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
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`PLEASE TAKE NOTICE that on February 28, 2025, at 10:00 am (as set by this Court during the
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`hearing that took place on December 19, 2024), or as soon thereafter as the matter may be heard in
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`Department 503 of the above-captioned Courthouse, located at 400 McAllister Street, San Francisco,
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`California 94102-4515, Defendant 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC., through
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`its attorneys of record Litchfield Cavo LLP, will move the Court for an award of attorneys’ fees.
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`In its initial motion for fees filed on July 16, 2024 the HOA sought a total award of 422,726.00 in
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`attorneys’ fees including a Lodestar enhancement. The Court stated in its tentative calculation on
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`December 19, 2024, that it was inclined to grant $341,508.50. Defendant maintains that the fees sought in
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`its initial motion are reasonable, but in the alternative will submit on the Court’s tentative calculation and
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`accept $341,508.50 in attorney fees as the final award.
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` Defendant’s Memorandum of Costs, filed with this Court on May 31, 2024, remains the basis for
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`recovery of costs which Defendant will refer to on the hearing set for February 28, 2025. This motion
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`exclusively addresses the attorney’s fees sought. Defendant further notes that it is not seeking recovery of
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`any of its fees incurred in preparing this supplemental motion.
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`This motion is made pursuant to California Civil Code section 5975 (i.e. attorney fee provision of
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`Davis-Stirling Act). This motion is based upon this Notice of Motion, the accompanying Memorandum of
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`Points and Authorities; the Declaration of Daniel Ip and the exhibits attached thereto; all pleadings and
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`papers on file in this case including any reply briefing and supporting papers; and such further evidence
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`and arguments as may be presented at the hearing on this motion.
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`21
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`DATED: February 4, 2025
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`LITCHFIELD CAVO, LLP
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`By:
`Daniel Ip
`Attorneys for Defendants
`1545 BROADWAY HOMEOWNERS’
`ASSOCIATION, INC. & THE BOHAN COMPANY
`
`
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`-ii-
`DEFENDANT 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC.’S SUPPLEMENTAL MOTION FOR ATTORNEYS’
`FEES (EXCLUDING REFERENCES TO COSTS)
`
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`TABLE OF CONTENTS
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`
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`I.
`
`INTRODUCTION ............................................................................................................................................................. 1
`
`II.
`
`THE PARTIES HAVE MET AND CONFERRED .................................................................................................................... 1
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`III.
`
`STATEMENT OF RELEVANT FACTS ................................................................................................................................. 2
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`A.
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`B.
`
`C.
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`D.
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`FILING OF PLAINTIFF’S LAWSUIT AND INITIAL CASE-RELATED ACTIVITIES .......................................................................................... 2
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`DISCOVERY-RELATED ACTIVITIES.............................................................................................................................................. 2
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`TRIAL-RELATED ACTIVITIES ..................................................................................................................................................... 4
`
`POST JUDGMENT-RELATED ACTIVITIES ...................................................................................................................................... 5
`
`IV.
`
`LEGAL ARGUMENT ........................................................................................................................................................ 5
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`A. AS THE PREVAILING PARTY TO THIS ACTION, HOA IS ENTITLED TO RECOVER ITS ATTORNEYS’ FEES PURSUANT TO
`
`THE ATTORNEY FEE PROVISION OF THE DAVIS-STIRLING ACT. ............................................................................................. 5
`
`B.
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`THE COURT MAY, IN ITS DISCRETION, AWARD HOA ALL FEES INCURRED WITH RESPECT TO PLAINTIFF’S CLAIM THAT SHE SUSTAINED
`
`INJURIES AS A RESULT OF ALLEGED FAILURE TO PROPERLY MAINTAIN THE COMMON AREA ROOF OVER HER CONDOMINIUM, AND ALLEGED FAILURE
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`REMEDIATE THE PURPORTEDLY RESULTANT MOLD IN HER CONDOMINIUM................................................................................................ 6
`
`C.
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`D.
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`THE COURT SHOULD NOT APPORTION FEES TO ACCOUNT FOR BOHAN’S DEFENSE. ........................................................................... 7
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`THE FEES INCURRED BY DEFENDANTS ARE REASONABLE. .............................................................................................................. 8
`
`Defense Counsel’s Hourly Rates are Reasonable. ....................................................................................................... 8
`1.
`The Number of Hours Claimed are Reasonable. ......................................................................................................... 9
`2.
`3.
`Defendants have Presented Substantial Evidence of Fees Incurred in Defending this Action, and Litigating the
`HOA’s Cross-Action. ............................................................................................................................................................ 11
`
`V.
`
`CONCLUSION .............................................................................................................................................................. 13
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`DEFENDANT 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC.’S SUPPLEMENTAL MOTION FOR ATTORNEYS’
`FEES (EXCLUDING REFERENCES TO COSTS)
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`

`

`
`
`Cases
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Akins v. Enter. Rent-A-Car Co.
`(2000) 79 Cal.App.4th 1127 ................................................................................................................. 6
`
`Amtower v. Photon Dynam., Inc.
`(2008) 158 Cal. App. 4th 1582 .............................................................................................................. 6
`
`Bernardi v. County of Monterey
`(2008) Cal.App.4th 1379 ................................................................................................................ 9, 11
`
`Champir, LLC v. Fairbanks Ranch Assn.
`(2021) 66 Cal.App.5th 583 ................................................................................................................... 4
`
`Children’s Hosp. & Med. Ctr. v. Bontá
`(2002) 97 Cal.App.4th 740 .................................................................................................................... 8
`
`Concepcion v Amscan Holdings, Inc.
`(2014) 223 Cal.App.4th 1309 ............................................................................................................. 12
`
`Cruz v. Ayromloo
`(2007) 155 Cal.App.4th 1270 ............................................................................................................ 7, 8
`
`Erickson v. REM Concepts, Inc.
`(2005) 126 Cal. App. 4th 1073 ............................................................................................................... 6
`
`Flannery v. Prentice
`(2001) 26 Cal.4th 572 ......................................................................................................................... 10
`
`Grossman v. Park Fort Wash. Assn
`(2012) 212 Cal. App. 4th 1128 ........................................................................................................... 11
`
`Hadley v. Krepel
`(1985) 167 Cal. App. 3d 677 .............................................................................................................. 10
`
`Hensley v. Eckerhart
`(1983) 461 U.S. 424 ............................................................................................................................. 9
`
`Hill v. Affirmed Hous. Grp.
`(2014) 226 Cal.App.4th 1192 ................................................................................................................ 7
`
`Horsford v. Bd. of Trs. of Cal. State Univ.
`(2005) 132 Cal.App.4th 359 ............................................................................................................... 11
`
`In re Linkedin User Privacy Litigation
`(N.D. Cal. 2015) 309 F.R.D. 573 ......................................................................................................... 9
`
`In re Magsafe Apple Power Adapter Litigation
`(N.D. Cal., Jan. 30, 2015, No. 5:09-CV-01911-EJD) 2015 WL 428105 ............................................. 8
`
`Ketchum v. Moses
`(2001) 24 Cal.4th 1122 ......................................................................................................................... 9
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`-iv-
`DEFENDANT 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC.’S SUPPLEMENTAL MOTION FOR ATTORNEYS’
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`Liton Gen. Eng’g Cont., Inc. v. United Pac. Ins.
`(1993) 16 Cal.App.4th 577 .................................................................................................................... 7
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`Moore v. Jas. H. Matthews & Co.
`(9th Cir. 1982) 682 F. 2d 830 ................................................................................................................ 9
`
`Penn. v. Del. Valley Citizens’ Council
`(1986) 478 U.S. 546 ........................................................................................................................... 10
`
`PLCM Group v. Drexler
`(2000) 22 Cal.4th 1084 ......................................................................................................................... 8
`
`Raining Data Corp. v. Barrenechea
`(2009) 175 Cal.App.4th 1363 ............................................................................................................... 9
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`Rancho Mirage Country Club HOA v. Hazelbaker
`(2016) 2 Cal.App.5th 252 ................................................................................................................... 11
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`Reynolds Metals Co. v. Alperson
`(1979) 25 Cal.3d 124 ............................................................................................................................ 6
`
`Rose v. Bank of Am. Corp.
`(N.D. Cal., Aug. 29, 2014, No. 5:11-CV-02390-EJD) 2014 WL 4273358 ......................................... 9
`
`Salehi v. Surfside III Condo. Owners' Assn.
`(2011) 200 Cal.App.4th 1146 ............................................................................................................... 5
`
`Serrano v. Unruh
`(1982) 32 Cal.3d 621 ............................................................................................................................ 9
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`Stokus v. Marsh
`(1990) 217 Cal.App.3d 647 .................................................................................................................. 8
`Sundance v. Mun. Court
`(1987) 192 Cal.App.3d 268 ................................................................................................................ 10
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`Syers Props. III, Inc. v. Rankin
`(2014) 226 Cal.App.4th 691 ................................................................................................................. 1
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`Tract 19051 HOA v. Kemp
`(2015) 60 Cal.4th 1135 ......................................................................................................................... 5
`
`Weber v. Langholza
`(1995) 39 Cal.App.4th 1578 ............................................................................................................... 11
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`Statutes
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`Civ. Code § 5975(c) ................................................................................................................................. 5
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`DEFENDANT 1545 BROADWAY HOMEOWNERS ASSOCIATION, INC.’S SUPPLEMENTAL MOTION FOR ATTORNEYS’
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`Defendant filed a Motion for Attorney Fees & Costs and a hearing on the same took place on
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`December 19, 2024. During the hearing the Court stated that the motion for attorney fees should be filed
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`separately, and therefore this Motion only argues the right to attorney fees.1 For ease of this Court’s review,
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`the substance of this Motion is the same as what this Court previously reviewed and no new or additional
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`fees are sought. The only supplemental portion is Section II below.
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`For ease of this Court’s review, Defendant attaches the transcript from the hearing that was held on
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`December 19, 2024. (Ip. Decl. Exhibit 5). In the original motion filed by HOA on July 16, 2024, Defendant
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`sought a total award of 422,726.00 in attorneys’ fees with a Lodestar enhancement. The Court stated in its
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`tentative calculation/ruling on December 19, 2024, that it was inclined to grant $341,508.50 in attorney
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`fees. Defendant maintains that the fees requested in the initial moving papers are reasonable, but as an
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`alternative will submit on the Court’s tentative calculation of $341,508.50 in attorney fees as the amount
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`14
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`to be awarded.
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`15
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`II.
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`THE PARTIES HAVE MET AND CONFERRED
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`Counsel for Defendant attempted to resolve the motion for fees and costs directly with Ms. Burnside
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`(in pro per on her appeal) between September and October 2024 (Ip Decl. ¶ 40, Exhibit 6) The Court had
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`a hearing on Defendant’s motion for attorney fees and Plaintiff’s motion to tax costs on December 19,
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`2024. Following that hearing the Court ordered the parties to meet and confer (Id, Exhibit 5) The parties
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`met and conferred three times over zoom and via email. (Ip Decl. ¶¶ 41-45).
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`Defendant agreed to deduct or waive the 3 billing entries relating to leaving voicemails and one
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`double-billed entry from October 4, 2022. The total for these entries are $603.00 which can be deducted
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`from Defendant’s claim of attorney fees.
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`Plaintiff claims that the HOA as prevailing party should not recover its fees for work incurred in
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`defending Bohan. Moving party disagrees and briefs the issue in Section IV. B. infra. At the time of this
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`writing, the parties have not reached any other concessions.
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`1 Defendants filed a memorandum of costs. Plaintiff filed a motion to tax costs which Defendants opposed. Defendant relies
`on this prior briefing for the upcoming hearing on February 28, 2025, on the issue of defense costs being claimed.
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`III.
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`STATEMENT OF RELEVANT FACTS
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`A. Filing of Plaintiff’s Lawsuit and Initial Case-Related Activities
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`Plaintiff filed her Complaint on February 24, 2022, with the intent to proceed first with mediation
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`prior to litigation as required by the pre-litigation procedures of the Davis-Stirling Act. (Ip Decl. ¶5.)
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`Mediation went forward on October 4, 2022, with the parties submitting mediation briefs in advance of
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`mediation. (Id.) The parties were unable to resolve the matter at mediation, and on November 4, 2022,
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`Defendants answered the complaint and cross-complained. (Ip Decl. ¶5) The HOA filed a cross-complaint
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`which alleged that it was Plaintiff who had failed to take care of her condominium in violation of her CC&R
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`obligations. (Cross-Complaint, passim.) Plaintiff answered the cross-complaint on December 6, 2022. (Id
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`at ¶6.)
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`B. Discovery-Related Activities
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`On January 30, 2023, Plaintiff served her first set of written discovery, including a first set of form
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`interrogatories, special interrogatories, requests for production of documents, and requests for admission
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`to both the HOA and Bohan. (Ip Decl. ¶7.) Defendants prepared and provided verified responses to these
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`discovery requests on March 23, 2023. (Id.) Following meet and confer efforts based upon Plaintiff’s
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`dissatisfaction with Defendants’ responses, Defendants prepared and provided verified amended responses
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`to these requests on June 21, 2023. (Id.) In addition, Defendants produced over 1,500 pages of documents
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`in connection with these responses in accordance with the organization required by CCP § 2031.280, along
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`with a privilege log. (Id.)
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`On February 21, 2023, the HOA served written discovery on Plaintiff including form
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`interrogatories, special interrogatories, and production requests. (Ip Decl. ¶8.) Plaintiff provided responses
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`on April 26, 2023 with no document production. Following meet and confer efforts initiated by the HOA,
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`Plaintiff supplemented her responses on June 26, 2023 and produced a morass of documents. (Id.)
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`On June 16, 2023, Plaintiff served a second set of discovery, including special interrogatories and
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`requests for production on each of the HOA and Bohan. (Ip Decl. ¶9.) Defendants provided verified
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`responses on July 26, 2023, and produced documents in connection with these responses. (Id.)
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`On December 18, 2023, the HOA served supplemental interrogatories and requests for production
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`of documents on Plaintiff. (Ip Decl. ¶10.) Plaintiff provided verified responses to these supplemental
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`discovery requests on January 19, 2024. (Id.) On December 19, 2023, Plaintiff served her supplemental
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`interrogatories and requests for production of documents on each of the HOA and Bohan. (Ip Decl. ¶11.)
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`Defendants provided verified responses to these supplemental discovery requests on January 22, 2024.
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`Defendants also produced documents in connection with these discovery responses. (Id.)
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`Concurrent with this written discovery, the parties proceeded with the depositions of fact witnesses.
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`(Ip Decl. ¶12.) These included the 10/2/23 deposition of Michael F. Finnie; 10/5/23 and 10/6/23 depositions
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`of HOA President Itay Bash (2 sessions); 10/11/23, 10/24/23, and 10/27/23 depositions of HOA Board
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`member Jenny Shu (3 sessions); 11/29/23 and 12/4/23 depositions of Bohan President Bart Howard (2
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`sessions); and the deposition of Paige O’Donaghue. Defense counsel had to prepare for and defend each of
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`these depositions. (Id.) Defense counsel prepared for, and then took the deposition of Plaintiff over three
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`sessions to accommodate her work schedule on 10/23/23, 11/3/23, and 11/10/23. (Id.)
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`Multiple expert depositions were taken prior to trial. (Ip Decl. ¶13.) These included the following
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`depositions of Plaintiff’s experts: 1/29/24 deposition of Michael Haller, 12/5/24 deposition of Amina
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`Mohammad, MD, 2/6/24 deposition of James Cantrell, 2/9/24 deposition of Scott McMahon, MD, 2/13/24
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`and 2/21/24 depositions of William Weber (2 sessions), 2/15/24 deposition of Osmin Zelaya, and 2/23/24
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`deposition of Kandace Licciardi, MD. (Id.) They also included the following depositions of Defendants’
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`experts: 1/25/24 deposition of Michael Fischman, MD, 1/31/24 deposition of Steven Roseman, 2/2/24
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`deposition of Timothy Kirk, 2/15/24 deposition of Jay Carey, GC, and 3/17/24 deposition of Robert Perez.
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`(Id.) Defendants spent substantial time preparing for, taking and defending these depositions. (Id.)
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`Also, Defendants drafted an ex parte application to obtain a stipulated trial continuance, assisted in
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`preparing a Protective Order demanded by Plaintiff, conducted multiple inspections of Plaintiff’s
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`condominium and personal property, subpoenaed medical records from Plaintiff’s multiple treating
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`providers, reviewed and summarized her medical records, consulted with experts regarding construction
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`and mold issues raised in this case, prepared multiple reports for mediation and generally for client and
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`carrier, and met and conferred over several discovery issues that Plaintiff raised over the course of
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`litigation, including her meritless objections to written discovery, her unjustified refusal to produce
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`documents (or organize her belated production as required by the Code), and her overbroad protective
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`28
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`order. (Ip Decl. ¶15.)
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`C. Trial-Related Activities
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`Throughout the course of this lawsuit, Defendants made repeated attempts to resolve this case,
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`including multiple good-faith settlement negotiations by email, by telephone, at a first mediation session
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`on October 4, 2022, at a second mediation session on December 22, 2023, and at a mandatory settlement
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`conference on January 18, 2024. (Ip Decl. ¶16.) Defendants also served a CCP section 998 settlement offer
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`in which Defendants offered to pay Plaintiff an incredibly generous sum of $425,000 to dismiss this case.
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`(Id.) None of these efforts were successful because Plaintiff and her counsel refused to take a reasonable
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`perspective on the value of her case or the lack of merit of her claims at any point in this lawsuit —
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`Plaintiff’s counsel continuously demanded a settlement payment of over five hundred thousand dollars in
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`addition to injunctive relief and a substantial sum of attorney fees. (Id at ¶¶16-18.) Plaintiff’s counsel’s
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`litigation strategy was never subtle and his agenda from the start was to weaponize the prevailing party’s
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`statutory right to attorney fees by (1) demanding massively burdensome remedies that he should have
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`known the HOA would never accept, (2) litigating unreasonably overbroad claims that he should have
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`known would drive up attorney fees and costs, and (3) prevailing on some of those claims (the so-called
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`“easy” ones) and, on that basis, request an attorney fees award for an excessive amount of work billed to
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`Plaintiff on this case. After the numerous efforts for a settlement failed, Defendants proceeded to trial and
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`Defendants prevailed against Plaintiff, saving the HOA from potential financial ruin (Id.)
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`In the weeks leading up to trial, Defendants finalized their trial strategy and marshalled their trial
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`witnesses and exhibits. (Ip Decl. ¶19.) Defendants’ trial documents included a witness list, several exhibit
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`lists (which identified over 160 trial exhibits), multiple trial subpoenas, a trial brief, proposed jury
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`instructions (80+ pages), a proposed verdict form, and nine motions in limine. (Id.) Many of these motions
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`were successful. In addition, Defendants had to incur fees in opposing Plaintiff’s motions in limine.
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`The trial went spanned nearly two months (February 28, 2024 through April 16, 2024). (Ip Decl.
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`¶20.)Throughout this period, the Defendants’ counsel devoted their resources to rebut the specious junk
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`science peddled by Plaintiff’s experts. During trial, Defendants’ counsel was constantly at work (1) drafting
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`direct (and redirect) examination outlines for their seven defense witnesses (including five expert
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`witnesses), (2) drafting cross and (re-cross) examination outlines for the nine plaintiff witnesses (including
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`five retained expert witnesses), (3) reviewing and rebutting plaintiff’s eleventh-hour trial exhibits, (4)
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`consulting with their clients and experts on trial strategies and trial presentations, and (5) formulating and
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`preparing an effective closing argument. (Id.)
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`Defendants’ diligent trial efforts were successful. Defendants secured a unanimous defense verdict
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`and a damages award of $27,688 to the HOA. (Ip Decl. ¶21.) Following the verdict, Defendants prepared
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`the judgment and participated in meet and confer efforts with Plaintiff on the One Judgment Rule. (Id at ¶22.)
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`D. Post Judgment-Related Activities
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`Following the Court’s entry of judgment, Plaintiff moved for a new trial. (Ip Decl. ¶23.) Defendants
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`prepared an in-depth opposition, and anticipate preparing to attend a hearing in the coming weeks. (Id.) In
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`addition, the Defendants spent a substantial amount of time reviewing invoices and other records collected
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`over the past two years in order to prepare their Memorandum of Costs, which was timely filed on May
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`31, 2024, and to prepare the instant motion for attorneys’ fees. (Id. at ¶24.) Also, Defendants prepared an
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`opposition to Plaintiff’s motion to tax certain costs set forth in Defendants’ Memorandum of Costs. (Id.)
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`LEGAL ARGUMENT
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`A. As the Prevailing Party to this Action, HOA is Entitled to Recover its Attorneys’ Fees
`Pursuant to the Attorney Fee Provision of the Davis-Stirling Act.
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`IV.
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`In an action to enforce an association’s governing documents, the prevailing party must be awarded
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`reasonable attorney’s fees and costs. (Civ. Code § 5975(c).)2 California Courts have concluded that the
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`test for prevailing party is a pragmatic one: the court analyzes which party prevailed on a practical level by
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`achieving its main litigation objectives. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th
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`583, 590; see also Tract 19051 HOA v. Kemp (2015) 60 Cal.4th 1135, 1144-1148, and Salehi v. Surfside
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`III Condo. Owners Assn, 200 Cal.App.4th 1146.) Our California Supreme Court has clarified that an
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`“action to enforce” the governing documents must provide equal treatment to both parties, and must be
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`considered whenever governing documents are at issue in litigation. (Tract 19051 HOA, 60 Cal.4th at 1145-
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`1146.) In other words, fee entitlement must be reciprocal: “because plaintiffs clearly would have been
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`entitled to an award under the statute had they prevailed in the action, denying defendants an award under
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`the statute when they were the prevailing party would unquestionably violate the reciprocal nature of the
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`statute and thus defeat the evident legislative intent underlying the statute.” (Id. at 1139.)
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`2 Civil Code §5975(c) was formerly Civil Code §1354(c).
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`The gravamen of both Plaintiff’s action and the HOA’s cross-action concerns the enforcement and
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`interpretation of the HOA’s governing documents, and in particular, the CC&Rs. (See, e.g., Complaint,
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`passim; Cross-Complaint, passim; 5/17/24 Judgment.) Accordingly, Plaintiff cannot escape the mandatory
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`award of attorneys' fees under the Davis-Sterling Act. It is clear HOA is the prevailing party as a defense
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`verdict was entered by the jury following a trial on the merits on Plaintiff’s claims, and the jury awarded
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`the HOA $27,688 in damages on the cross-complaint. Plaintiff must now face the consequences of having
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`filed what a jury determined to be a meritless claim against HOA and for having tenaciously defended
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`against a valid cross-complaint. Plaintiff is required to make HOA whole.
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`B. The Court May, in its Discretion, Award HOA All Fees Incurred with Respect to
`Plaintiff’s Claim that she Sustained Injuries as a Result of Alleged Failure to Properly
`Maintain the Common Area Roof over her Condominium, and Alleged Failure
`Remediate the Purportedly Resultant Mold in her Condominium.
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`California courts allow for recovery of all fees and expenses incurred with respect to “an issue
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`common to both a cause of action in which fees are proper and one in which they are not allowed.”
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`(Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) Allocation of fees among causes of action is
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`not required when the underlying issues are “so interrelated that it would have been impossible to separate
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`them into claims for which attorney fees are properly awarded and claims for which they are not.” (Amtower
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`v. Photon Dynam., Inc. (2008) 158 Cal. App. 4th 1582, 1603-05.) The decision whether to allocate fees is a
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`matter within a trial court's discretion. (Erickson v. REM Concepts, Inc. (2005) 126 Cal. App. 4th 1073, 1083.)
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`In Amtower, plaintiff appealed a trial court's refusal to apportion fees incurred on a contract claim
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`and fees incurred on seven remaining causes of action. The court of appeal upheld the full fee award, stating:
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`Here there is no clear distinctions. Although there were seven causes of action other than the breach of
`contract cause of action, the allegations of all eight overlapped. Plaintiff alleged that defendants
`misrepresented and concealed material information that led him to enter into agreements to which he
`would not have agreed otherwise, that as a result of those misrepresentations plaintiff acquired Photon
`stock that he was prevented from selling, and that defendants' conduct in preventing plaintiff from
`selling the stock was a breach of one or more of the agreements. All of the causes of action in the
`pleading relied upon the same factual allegations. Considering these circumstances, the trial court's
`ruling that the legal services rendered on behalf of the contract cause of action could not be separated
`from the services rendered for the lawsuit as a whole did not exceed the bounds of reason.
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`(Amtower, 158 Cal.App.4th at 1604-1605; see also Erickson, 126 Cal. App. 4th at 1083—“[T]he trial court
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`could reasonably find that [plaintiff’s] various claims against [defendant] were inextricably intertwined,
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`making it impracticable, if not impossible, to separate the multitude of conjoined activities into
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`compensable or noncompensable time units. Because [plaintiff’s] tort theories and [defendant’s] defense
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`to [plaintiff’s] contractual theories were interrelated as raising common issues requiring virtually identical
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`evidence, the challenged nonapportionment of the attorney fee award was within the court's discretion.”
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`(Internal quotations and citations omitted); see also Akins v. Enter. Rent-A-Car Co. (2000) 79 Cal.App.4th
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`1127, 1132-1133—applying same non-apportionment principle on statutorily-