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Don H. Lee et al v. Robert C. Carroll et al


July 28, 2011


(Super. Ct. No. 163785)

The opinion of the court was delivered by: Duarte , J.

Lee v. Carroll



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal from an award of attorney fees in a case where the underlying dispute involved the electrical service in a mobilehome park. The park had 30 amp electrical service but many of the mobilehome or RV units in the park were rated for 50 amps. The Department of Housing and Community Development (HCD) threatened to suspend the park's license unless it upgraded its electrical service or "abate[d] the units."

The park, by assignee, brought suit against several residents, seeking an injunction to prohibit them from using and maintaining electrical loads that exceeded 30 amps and for a declaration that the electrical service at the park was adequate. Two of the residents cross-complained, asserting various defenses to the abatement action, seeking an injunction to force the park to bring the electrical service up to code, and seeking damages for nuisance and elder and dependent person abuse.

The park and other cross-defendants were granted summary judgment on the cross-complaint. The original complaint was amended and subsequently voluntarily dismissed. Both sides sought attorney fees and costs under the Mobilehome Residency Law (MRL) (Civ. Code, § 798 et seq.). The trial court awarded fees to the two residents as prevailing parties. The park and its assignee appeal. We affirm.


Redding Riverside Village, LLC (RRV)*fn1 owns and operates a mobilehome park in Redding. Don Lee is apparently an officer of RRV; he executes documents on behalf of the corporation. For 40 years the park has had 30 amp electrical service. Several units, however, are rated for 50 amp electrical service. The owner of one such unit, Robert Carroll, complained that his electrical service often went out and he contacted Housing and Community Development (HCD) about the problem.

On January 15, 2008, HCD issued RRV a final compliance order. The order stated that inspections and reinspections had revealed health and safety violations that remained uncorrected. The park had 30 amp electrical services, but 13 specified units were 50 amp rated. HCD's order specified that: "Park service must be upgraded to meet rated requirements of all existing mobilehome/RV units within the park, to include above noted spaces, or abate the units." The order indicated that a failure to comply would subject RRV to fines and suspension or revocation of the operating license.

RRV, by Lee, sent notices of HCD's citation to 10 residents. The notice stated in part, "It appears that your home is exceeding the 30AMP park service limit with higher loads that may be unsafe if continued. The answer is to 'DE-AMP' your home."

Meanwhile, Carroll brought a small claims court action against RRV and Mark Weiner, an officer of RRV's parent company, asserting 16 violations of the MRL. The trial court summarily ruled against Carroll on 14 of his claims. The court also rejected Carroll's claim that RRV's electrical service was inadequate, finding RRV was subject to a grandfather provision because it had provided 30 amp service for 40 years. The court found RRV was correct in mandating that tenants reduce their connected ampacity to 30 amps.*fn2

RRV sought an informal hearing with HCD on the electrical issue. An informal conference was held at RRV in May 2008; neither Mark Weiner nor Lee was present. HCD found the 13 cited violations were valid. As to each violation, HCD stated, "The violation of the park's electrical system on this lot stands as cited but with the reference authority added to be T25CCR1188(b) and (c), and the violation must be corrected within 30 days of this notice. Please note that this is not an order mandating the lot resident or homeowner to make a repair or modification; the violation relates to the park electrical equipment and the fact that the home's original unit design exceeds the park's ability to provide electrical service."

HCD stated there were no provisions in the regulations for a "grandfather" clause. RRV could not allow units which exceed the rated capacity of its equipment. If the original units, with 30 amp capacity, had remained at RRV, there would be no need to upgrade. Allowing newer units with a higher capacity into RRV required an upgrade.

HCD explained the unit owners had not been cited because their homes were not substandard or in violation of the MRL. It noted that the violations were the result of RRV's previous owners and their permitting installation of mobilehomes without first ensuring RRV's electrical system could supply the electrical demands of these homes, but that Weiner and RRV were now responsible for correcting the violations.

RRV assigned all its claims and interest relating to the abatement to Lee.*fn3

Lee filed suit against 10 RRV residents, including Carroll and Cleatis Herrin. The complaint sought an injunction restraining the named residents from using and maintaining their homes in a manner so as to exceed the design capacity of RRV's electrical system. The complaint also sought a judicial declaration that RRV's existing electrical system was adequate.

Carroll and Herrin cross-complained against Lee, individually and as assignee of RRV, and Weiner, individually and as doing business as RRV and Village Concepts, Inc., RRV's parent company. The first cause of action for abatement raised various special defenses to Lee's abatement action. The cross-complaint sought an injunction requiring RRV's electrical service be brought up to code. It also sought damages, including exemplary damages, for nuisance and elder/dependent person abuse based on the inadequate electrical service and RRV's response to the problem, and attorney fees.

In response to Carroll and Herrin's claim that Lee lacked standing, Lee assigned the lawsuit to RRV, which filed a first amended complaint. The first amended complaint named only Carroll and Herrin as defendants. It sought the same relief as the original complaint.

The trial court granted cross-defendants' motion for summary judgment on Carroll and Herrin's cross-complaint. The court found that Carroll and Herrin's claims were barred by res judicata due to their small claims court actions*fn4 and that there was no evidence RRV's electrical system was unsafe or substandard. The court also rejected the claims of elder or dependent person abuse. The court noted the ruling on the summary judgment motion "disposes of the cross-complaint as to these cross-defendants, but does not preclude cross-complainants from litigating any viable defenses to the complaint at time of trial."

About two months later, RRV voluntarily dismissed its complaint without prejudice.

Carroll and Herrin moved for attorney fees and costs pursuant to Civil Code section 798.85 and Code of Civil Procedure sections 1032 and 1033.5, subdivision (c)(5)(A) after dismissal of the first amended complaint. They sought fees of $80,185 and costs of $4,288. A variety of other motions were filed around the same time, including motions by cross-defendants for attorney fees and expert witness fees. Both of these motions were denied.

The trial court found Carroll and Herrin were prevailing parties under Civil Code section 798.85 because the litigation was dismissed in their favor. The court found the voluntary dismissal of the complaint effectively dismissed the litigation because the complaint was the only operative pleading remaining. The court found $16,583 was a reasonable amount of attorney fees and awarded Carroll and Herrin that amount against RRV and Lee. The court's order awarding attorney fees stated that absent written objections within 15 days, the order would become effective on April 13, 2010.

On June 11, 2010, the court issued a judgment awarding Carroll and Herrin attorney fees.




RRV and Lee filed their notice of appeal on June 15, 2010. The notice states they appeal from the judgment granting Carroll and Herrin's application for attorney fees "by reason of an order entered by this Court on April 6, 2010 in which the Court declared the Defendants the prevailing parties in this litigation . . . ." The order awarding attorney fees was filed April 9, 2010 and states it is final and effective April 13, 2010. The judgment was filed June 11, 2010.

Carroll and Herrin contend the appeal is untimely. They contend the order awarding attorney fees was an appealable order that commenced the period for filing the appeal and the later judgment was surplusage. They contend the notice of appeal was filed late because it was filed more than 60 days after the order was final.

An order awarding attorney fees that is made after a dismissal disposing of the entire case is an appealable order. (Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 556.) A subsequent judgment after an appealable order does not begin the clock anew for purposes of filing the notice of appeal. (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 997; Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.) Thus, we consider whether Lee and RRV timely appealed from the April 9 order awarding attorney fees.

"Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must dismiss the appeal. [Citation.]" (Laraway v. Pasadena Unified School Dist., supra, 98 Cal.App.4th at p. 582.) Unless extended by statute or rule, the time for filing a notice of appeal is the earlier of 60 days after service of a notice of entry of judgment by or on the appealing party or 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a).) The judgment and the superior court docket indicate Carroll and Herrin filed a notice of entry of the order awarding attorney fees on April 26. Since the notice of appeal was filed within 60 days of this date, it was timely. (Cal. Rules of Court, rule 8.104(a)(2).)


Prevailing Parties

RRV and Lee challenge the trial court's determination that Carroll and Herrin were prevailing parties and therefore entitled to attorney fees and costs. They contend that since the MRL contained an attorney fee provision, the determination of prevailing party should be made solely pursuant to this statute.

Generally, we review an award of attorney's fees for abuse of discretion. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148 (Graciano).) While we review entitlement and amount of an attorney fee award for abuse of discretion, the legal question of the interpretation of "prevailing party" under the statutory fee provision is a question of statutory construction that we review independently. (Graciano, supra, 144 Cal.App.4th at p. 149.)

The attorney fees and costs provision of the MRL is found in Civil Code section 798.85. It reads in part: "In any action arising out of the provisions of this chapter the prevailing party shall be entitled to reasonable attorney's fees and costs. A party shall be deemed a prevailing party for the purposes of this section if the judgment is rendered in his or her favor or where the litigation is dismissed in his or her favor prior to or during trial. . . ."

The express language of Civil Code section 798.85 makes defendants prevailing parties if a case against them is dismissed prior to or during trial. (Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 949.) That is what happened here and the trial court correctly interpreted the statutory language. The trial court found dismissal of the complaint against Carroll and Herrin ended the litigation in their favor, so they were prevailing parties. In ruling on the earlier motion for summary judgment, which completely disposed of the cross-complaint, the court acknowledged the litigation continued by stating its ruling did not preclude Carroll and Herrin "from litigating any viable defenses to the complaint at the time of trial." No judgment was entered until after the complaint was dismissed.

The trial court found resolution of the cross-complaint did not end the litigation; the litigation did not end until the complaint was resolved. At the same time the court ruled on the motion for attorney fees, the court also ruled on the cross-defendants' motion for expert witness fees. Cross-defendants sought $557 in expert witness fees on the basis of an offer to Carroll and Herrin pursuant to Code of Civil Procedure section 998 (section 998).*fn5 The section 998 offer was a payment of $2,501 in exchange for a signed release and dismissal of the cross-complaint, with all parties to bear their own costs and fees. The trial court found Carroll and Herrin obtained a better result than the section 998 offer because the complaint was dismissed. The court reasoned that dismissal of the complaint, and the end of all litigation, was a better result than waiving all claims against cross-defendants for a nominal sum and still having to defend the complaint.

RRV and Lee contend the litigation was not ended by dismissal of the complaint. Instead, they argue, the litigation ended with the ruling in their favor on the motion for summary judgment. They argue that their original complaint was then dismissed because "there was nothing left to litigate." RRV and Lee assert the gravamen of both the complaint and the cross-complaint was the adequacy of RRV's electrical system. The ruling on the summary judgment motion established its adequacy, the argument goes; therefore, this ruling effectively ended the litigation.

The complaint, however, sought more than a judicial determination as to the adequacy of RRV's electrical system. It also sought injunctive relief in the form of a restraining order to stop Carroll and Herrin from using or maintaining electrical loads that exceeded the capacity of the existing electrical system at RRV. By dismissing the complaint, RRV and Lee ended their attempt to force Carroll and Herrin to "de-amp" their homes.*fn6

At oral argument, Lee clarified that the complaint sought alternative remedies, either a judicial declaration that the electrical service was adequate or an injunction requiring Carroll and Herrin to reduce their electrical usage. The prayer for relief asks for these remedies in the alternative. It is unclear, however, how a declaration that the electrical service was adequate was sufficient to force Carroll and Herrin to reduce their electrical usage as the complaint sought to do by an injunction.*fn7 The issue of abatement remained and there was no reason for the trial court to conclude that the litigation was effectively over after the summary judgment ruling. The court did not err in following the language of the statute and determining that Carroll and Herrin were prevailing parties.

RRV and Lee contend that under the express provisions of Civil Code section 798.85 they are prevailing parties because a judgment was entered in their favor on the cross-complaint after the summary judgment motion was granted. No judgment on the cross-complaint, however, appears in the record and, as the trial court found, a judgment on the cross-complaint would not be a final judgment because the complaint was still outstanding. (See Dang v. Smith (2010) 190 Cal.App.4th 646, 656 [no final judgment until both complaint and cross-complaint are adjudicated].) Thus, RRV and Lee have failed to show they fall within the definition of prevailing parties under Civil Code section 798.85.

RRV and Lee contend that since both sides failed to "win" their respective complaints, common sense dictates that there be no prevailing party. We disagree, but also note that "common sense" should not be the only resource consulted where statutory and case authority is also instructive. For example, under Code of Civil Procedure section 1032, where the prevailing party recovers costs, the prevailing party is the defendant where neither plaintiff nor defendant obtains any relief. This is also true where defendant has filed a cross-complaint and if neither defendant nor plaintiff recovers, defendant is deemed to have prevailed. (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454.)

The rationale for this result is explained in Schrader v. Neville (1949) 34 Cal.2d 112. In that case, plaintiffs sued defendants for damages due to an automobile accident and defendants cross-complained for damages from the same accident, but neither party recovered against the other. The court reasoned that if plaintiffs had not started the litigation with their suit, defendants might never have filed suit, but once plaintiffs filed suit, defendants were compelled to assert their claims. Although defendants did not recover on their cross-complaint, they were prevailing parties because they defeated the original complaint. (Schrader v. Neville, supra, 34 Cal.2d at p. 115.)

We need not decide whether this rule applies in the context of an award of attorney fees under Civil Code section 798.85 because, as explained ante, RRV and Lee have failed to establish that both sides "lost."*fn8


Attorney Fees on Appeal

Carroll and Herrin contend that since they are prevailing parties for attorney fees and costs under Civil Code section 798.85, they are also entitled to attorney fees and costs on appeal. We agree.

"Statutory authorization for the recovery of attorney fees incurred at trial necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise. [Citation.]" (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) This rule applies with respect to the MRL provision in Civil Code section 798.85. (Del Cerro Mobile Estates v. Proffer, supra, 87 Cal.App.4th at p. 951.) Therefore, we conclude that Carroll and Herrin are entitled to attorney fees and costs incurred on appeal.


The judgment is affirmed. The matter is remanded to the trial court to determine the amount of attorney fees and costs on appeal recoverable by Carroll and Herrin.

We concur: HULL , Acting P. J. ROBIE, J.

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