1-888-800-1042
Kaman Cusimano Logo

Condo | HOA Lawyers

Attorney Fees and Associations

Facts

In early 2019, the Golden West Patio Home Owners Association (“Association”) implemented a plan to have units tented and fumigated to eliminate a terminate infestation. During fumigation, Artedi Cortez (“Owner”) refused to cooperate, as he believed there were other viable treatment methods which did not require tenting. The Association disagreed and sought a court order requesting the temporary removal of the Owner from his property to allow for fumigation to occur. The court granted the order for temporary removal in May 2019 and this decision was not immediately appealed by Cortez.

The removal order additionally allowed for the Association to seek out attorney fees and costs if they believed they were entitled to recover those expenses. The Association made this request in late 2019. The motion seeking these expenses was unopposed by the Owner and the Association was granted a judgment for the attorney fees and costs in early 2020, which was later vacated due to improperly serving their motion.

In November 2020, the Association refiled its motion seeking attorney fees and costs, stating they were allowed these expenses by both California law and the Association Documents (Declaration of Covenants, Conditions, and Restrictions Establishing a Plan of Condominium Ownership).  Cortez opposed the motion because he claimed he did not violate any Association rules, the fumigation was unnecessary, the order was obtained under false pretenses, and the attorney fabricated or inflated hours.

Trial Court Decision

The trial court heard arguments from both parties and granted judgment in favor of the Association, awarding them attorney fees and costs.

Appellate Court Decision

Cortez appealed the trial court judgment granting the attorney fees and costs and additionally claimed the trial court erred in granting the May 2019 removal order. While the Court briefly discussed the removal order, they found that the issue was not properly appealed, nor was it made timely.

The Court ultimately found that the attorney fees and costs were valid under both California law and the Association Documents.  Their reasoning was that the Association Documents serve as a contract between the Association and the owners and that contract contains a provision pertaining to the payment of attorney fees and costs in legal disputes.

LESSONS LEARNED:

  1. Always have an attorney fees provision in your documents. Even if the association is entitled to them under the law, having a specific provision in your documents is best practice and increases the likelihood of the attorney fees being awarded. 
  2. Hire an attorney that specializes in association law.  

Golden West Patio Homes Owners Association v. Cortez, No. G060606 (Cal. Ct. App. Oct. 28, 2022)

Categories

Three bars icon gold

Recent blog Posts

Three bars icon gold

Partner Nicholas Meinert Presents at Northern Ohio CAI Chapter on the Corporate Transparency Act

On June 14, 2024, Partner Nicholas Meinert presented to the Northern Ohio Chapter of the ...
Read More →

Partners Dan Miske and Lydia Chartre presented at Wisconsin’s Chapter of CAI on reserves and lending

On May 23, 2024, Partners Dan Miske and Lydia Chartre presented a webinar for the ...
Read More →

Strengthening Community Associations: The Vital Role of a Comprehensive Assessment Recovery Policy and Procedure

Community associations are founded on principles of shared responsibility and collective maintenance. From maintaining common ...
Read More →

Partner Nick Meinert presented at OLCA’s Spring Conference

Partner Nicholas Meinert gave a presentation at the 2024 Ohio Lake Communities Association’s Spring Conference. ...
Read More →