Preview
1 MICHAEL E. VINDING (SBN 178359)
BRADY & VINDING
2 455 Capitol Mall, Suite 220
3 Sacramento, CA 95814
Telephone: (916) 446-3400
4 Facsimile: (916) 446-7159
mvinding@bradyvinding.com
5
Attorneys for Plaintiff
6 Vicara Homeowners Association
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF PLACER – UNLIMITED JURISDICTION
10
VICARA HOMEOWNERS CASE NO. S-CV-0046752
11 ASSOCIATION, a California nonprofit
mutual benefit corporation. VICARA HOMEOWNERS
12
Plaintiff, ASSOCIATION MEMORANDUM OF
13 v. POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF’S MOTION
14 SUSAN M. DEDRICKSEN, as TRUSTEE FOR ATTORNEY’S FEES AGAINST
OF THE CAMERON L. MCCREARY SUSAN M. DEDRICKSEN, AS TRUSTEE
15 SPECIAL NEEDS TRUST; CAMERON OF THE CAMERON L. MCCREARY
MCCREARY, as an individual and SPECIAL NEEDS TRUST
16 beneficiary of the CAMERON L.
17 MCCREARY SPECIAL NEEDS TRUST; Date: August 29, 2024
and DOES 1 through 20, Inclusive. Time: 8:30 a.m.
18 Dept.: 3
Defendants.
19 Action filed: May 24, 2021
20
AND RELATED CROSS-ACTION.
21
22 I. Introduction.
23 The defendant Susan M. Dedricksen, Trustee of the Cameron L. McCreary Special Needs
24 Trust (“Trustee”) owns 1251 Whitney Ranch Parkway Unit 1216 in Rocklin California (the “Unit”)
25 which is a part of the Vicara at Whitney Ranch development (the “Development”). The tenant of
26 the Unit is defendant Cameron McCreary, the beneficiary of the trust (“McCreary”).
27 The plaintiff Vicara Homeowners Association (the “HOA”) administers the Development
28 and its complaint in this action alleges McCreary has damaged the parking lot by allowing his
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 vehicle to leak fluids onto the surface. During his deposition in this action, McCreary admitted to
2 ownership of the car and the leakage.
3 The damaging of the parking lot is a breach of the Governing Documents that regulate and
4 govern the Development and the residents, including tenants, as well as a nuisance. The Trustee is
5 the owner of the Unit and is therefore liable for the conduct of its tenant McCreary.
6 II. Statement of Facts.
7 1. On April 29, 2019 defendant Trustee took title to the Unit.
8 2. Defendant Cameron McCreary is unsure of the exact time, but he testified that he
9 moved into the Unit in the year 2019 and he has lived there through present day.
10 3. Before Trustee took title to the Unit, she was provided with a copy of the “Amended
11 and Restated Declaration of Covenants, Conditions and Restrictions and Reservation of Easements
12 for Vicara at Whitney Ranch” (“CC&Rs”) for the Development, as well as the “Bylaws of Vicara
13 Homeowners Association” and the “Vicara Homeowners Association Handbook” (collectively
14 referred to as the “Governing Documents).
15 4. The CC&Rs govern the operation of the Development and provide rules for owners
16 and their guests and tenants to follow.
17 5. The CC&Rs state “The Declarant hereby declares that Phase I (and the Condominium
18 Units and Common Areas in each subsequent Phase of the Project upon annexation in accordance
19 with the process of annexation described in Recital "D", above, and Article XV, below) shall be
20 held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold and improved, subject
21 to the following declarations, limitations, covenants, conditions, restrictions and easements, all of
22 which are imposed as equitable servitudes pursuant to a general plan for the Project for the purpose
23 of enhancing and protecting the value and attractiveness of the Project, and every part of it, in
24 accordance with the plan for the improvements of the Project and its division into Condominiums.”
25 6. Recital E further holds that “All of the limitations, covenants, conditions, restrictions,
26 and easements shall constitute covenants that run with the land, are binding upon the Declarant and
27 its successors and assigns, and all parties having or acquiring any right, title or interest in or to any
28 part of the Project or the Property comprising in the Project. It is the express intention of the
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 Declarant that this Declaration satisfies the requirements of California Civil Code sections 1350
2 through 1372, as those sections apply to Condominium projects.”
3 7. Section 4.04(a)(i) of the CC&Rs states that the owners of units are liable for damage
4 to the Development’s “Common Facilities” caused by “any of his or her tenants, guests, servants,
5 employees, licensees or invitees….”
6 8. The phrase “Common Facilities” in section 4.04(a)(i) is defined in the CC&Rs as
7 including “the…private streets and parking areas in the project….”
8 9. Section 8.12 of the CC&Rs states “Each owner and resident shall be accountable to
9 the remaining Owners and residents, their families, visitors, guests and invitees for the conduct and
10 behavior of their children, visitors, guests and invites and for any property damage caused by such
11 persons.
12 10. Section 13.02 prohibits nuisance activities as follows: “Without limiting the
13 generality of Section 13.01, above, the result of every act or omission whereby any covenant
14 contained in this Declaration is violated in whole or in part is hereby declared to be a nuisance, and
15 every remedy against nuisance, either public or private, shall be applicable against every such act or
16 omission.”
17 11. In or around June 23, 2020, the HOA was advised fluids were leaking from a vehicle
18 parked in the parking space that was reserved for McCreary’s Unit.
19 12. On or about June 25, 2020, Trustee was advised by a letter from the HOA’s attorneys
20 that her tenant McCreary had a vehicle leaking fluids onto the parking lot and it was damaging the
21 parking lot.
22 13. The leaking vehicle remained parked in the McCreary parking space and continued
23 to leak fluids for at least another month.
24 14. The leak caused damage to the parking surface and it will cost the HOA money to
25 repair it.
26 15. Section 4.04(a)(i) of the CC&Rs states that the Board is obligated to repair damaged
27 Common Facilities “and all costs and expenses incurred in connection therewith (to the extent not
28 compensated by insurance proceeds) shall be assessed and charged solely to and against such
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 Owner as a Special Individual Assessment.”
2 16. On August 19, 2020, the HOA’s board held a hearing to formally review the evidence
3 of McCreary’s conduct in the Development, including that his vehicle was leaking fluids and
4 damaging the parking lot.
5 17. At the August 19, 2020 hearing the Board found that the evidence offered regarding
6 the existence of a vehicle leaking fluids on to the parking lot, that it was McCreary’s vehicle, and
7 that the vehicle continued to leak was true, and thus it imposed $12,725 in fines against the Trustee
8 pursuant to the Governing Documents, in addition to a warning the vehicle would be towed at
9 Trustee’s expense if it was not removed.
10 18. The $12,725 in fines included the cost to repair the damaged parking area.
11 19. The cost of damage imposed against the Trustee by the HOA at the August 19, 2020
12 hearing was applied to the owner’s account as a Special Individual Assessment pursuant to section
13 4.04(a)(i).
14 20. The Trustee has not paid the fines and cost of damage imposed at the August 19,
15 2020 hearing.
16 21. The HOA alleges in its first cause of action that the defendants breached the
17 Governing Documents by allowing defendant McCreary’s vehicle to leak fluids and damage the
18 parking surface.
19 22. Defendant McCreary has breached section 8.11(a) of the CC&Rs by allowing his
20 vehicle to leak fluids onto the parking lot.
21 23. Defendant McCreary has breached section 8.03(a) of the CC&Rs by allowing his
22 vehicle to leak fluids onto the parking lot.
23 24. Defendant Trustee is liable for the damage caused by defendant McCreary pursuant
24 to the CC&Rs.
25 25. Plaintiff made demand to defendant Trustee for ADR under Civil Code section 5925
26 prior to filing this action.
27 26. Following service of the Request for Resolution on Trustee, Plaintiff and Trustee
28 mediated this matter on August 31, 2020.
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 II. Legal Authority
2 Civil Code section 5975(c) provides, in pertinent part, “In an action to enforce the governing
3 documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” “Reviewing
4 courts have found this provision of the Davis-Stirling Act ‘reflect[s] a legislative intent that [the
5 prevailing party] receive attorney fees as a matter of right (and that the trial court is therefore
6 obligated to award attorney fees) whenever the statutory conditions have been satisfied.
7 [Citations.]’ ”(Almanor Lakeside Villas Owners Association v. Carson (2016) 246 Cal.App.4th 761,
8 773.)
9 In order to obtain an attorney fee award under this section, the moving party must establish
10 both that the action was to enforce the CC&R’s and the moving party prevailed. (Grossman v. Park
11 Fort Washington Assn. (2012) 212 Cal.App.4th 1128, 1133.)
12 The “Davis-Stirling Act does not define ‘prevailing party’ or provide a rubric for that
13 determination. In the absence of statutory guidance, California courts have analyzed analogous fee
14 provisions and concluded that the test for prevailing party is a pragmatic one, namely whether a
15 party prevailed on a practical level by achieving its main litigation objectives. [Citations.]” (Ibid.)
16 A. The Plaintiff Sought to Enforce the CC&Rs.
17 In determining whether an action is one to enforce the governing documents under section
18 5975, courts look to the substance of the claims asserted. “We see nothing in the Davis-Stirling Act
19 that suggests we should give more weight to the form of a complaint. . . . than to the substance of
20 the claims asserted and relief sought, in determining whether an action is one 'to enforce the
21 governing documents' in the meaning of section 5975.” (Rancho Mirage Country Club
22 Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260.
23 The CC&Rs are attached to the Complaint as Exhibit 2 and incorporated by reference in
24 order to avoid further larding the court’s file.
25 Section 13.03 of the CC&Rs provides, “Reasonable attorneys' fees and costs shall be
26 awarded to the prevailing party in any procedure to enforce the Governing Documents or a party's
27 rights arising under the Governing Documents. Such enforcement procedures include an action
28 brought in any court of competent jurisdiction.”
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 B. The HOA is the Prevailing Party Under Section 5975.
2 Civil Code section 5975(c) provides, “(c) In an action to enforce the governing documents,
3 the prevailing party shall be awarded reasonable attorney’s fees and costs.”
4 As noted in the Motion for Summary Adjudication ruling, the Homeowners Association
5 prevailed on the First cause of Action for Breach of Governing Documents (Motion for Summary
6 Adjudication ruling, 2:20-22), the Second Cause of Action for Public/Private Nuisance (Id., 3:10-
7 14) and Fifth Cause of Action for Declaratory Relief (Id., 3:24-25.)
8 C. Fees Pursuant to Case Law.
9 Case law has held that under the Davis-Stirling Act, where a breach of the CC&Rs is
10 proven, attorneys’ fee awards are mandatory, not discretionary. In Salehi v. Surfside III
11 Condominium Owners Assn. (2011) 200 Cal.App.4th 1146 (“Salehi”) Plaintiff missed eight of ten
12 causes of action on the eve of trial and was unsuccessful on the remainder at trial and thus had no
13 monetary recovery whatsoever. The homeowners association incurred attorneys’ fees in excess of
14 $250,000 defending the action, but the trial court denied its request for fees. On appeal, the court
15 found that it was an abuse of discretion to not award fees under Civil Code section 1354
16 (renumbered section 5975) given the association realized its “litigation objectives” and therefore
17 was the prevailing party on a “practical level” and therefore attorneys’ fees were mandated by the
18 legislature.
19 III. The Attorney's Fees Incurred Are Reasonable.
20 As further set forth in the concurrently filed Declaration of Michael Vinding, the HOA
21 incurred $150,166.50 in attorney fees in this action. (Vinding Decl. ¶8.)
22 The determination of what constitutes reasonable attorney’s fees is committed to the sound
23 discretion of the court. 1 (Westside Community for Independent Living, Inc. v. Obledo (1983) 33
24 Cal.3d 348, 355.) The trial court has expertise of its own in the matter of the value of legal services
25 performed. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The court may consider pleadings
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In determining the size of an appropriate fee award, the U.S. Supreme Court has emphasized that courts need not
27 “achieve auditing perfection” or “become green-eyeshade accountants.” (Fox v. Vice (2011) 563 U.S. 826, 838.)
Rather, because the “essential goal of shifting fees . . . is to do rough justice,” the court may “use estimates” or “take
28 into account [its] overall sense of a suit” to determine a reasonable attorney’s fee. (Id.)
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 and depositions in the court files as evidence of the actual work performed. (Dover Mobile Estates
2 v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501.) Indeed, compensable fees may
3 include fees incurred for investigation and evaluation of a claim prior to the filing of a complaint.
4 (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655-656.) In setting the amount of fees, a lower
5 court has considerable discretion, and the award usually has to shock the conscience to be
6 overturned. (In re Tobacco Cases I (2013) 218 Cal.App.4th 570, 587.)
7 Hourly rates are reasonable if they are within the range of hourly rates charged by attorneys
8 of comparable experience, reputation, and the ability for similar litigation. (Ketchum v. Moses
9 (2001) 24 Cal.4th 1122, 1133; Children’s Hosp. & Med. Center v. Bonta (2002) 97 Cal.App.4th
10 740, 783 [affirming rates that were “within the range of reasonable rates charged by and judicially
11 awarded comparable attorneys for comparable work”].) When deciding on a “reasonable” rate of
12 legal fees for repayment, courts are often guided by the Laffey Matrix.2 The Matrix is based upon
13 counsel's number of years in practice and the location of the dispute. (Nemecek & Cole v. Horn
14 (2012) 208 Cal.App.4th 641; Syers Properties III Inc. v. Rankin (2014) 226 Cal.App.4th 691, 696,
15 702. The Laffey Matrixes have been published by the US Department of Justice for the past six
16 years: https://www.justice.gov/usao-dc/civil-division.
17 The reduced rate of Michael Vinding of $495 and is well below the rate listed in the Laffey
18 Matrix and market rate.
19 In Ketchum v. Moses (2001) 24 Cal.4th 1122, the Supreme Court explained attorney fee
20 awards with reference to Serrano v. Priest (1977) 20 Cal.3d 25, 49 (“Serrano III”). Under Serrano
21 III, a court assessing attorney fees begins with a touchstone or lodestar figure, based on the
22 ‘careful compilation of the time spent and reasonable hourly compensation of each
23 attorney . . . involved in the presentation of the case.’ (Serrano III, supra, 20 Cal.3d at p. 48.) We
24 expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that
25 anchoring the calculation of attorney fees to the lodestar adjustment method “‘is the only way of
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27 The Laffey Matrix — which derives its name from a seminal case, Laffey v. Northwest Airlines, Inc. (572 F. Supp.
354 (D.D.C. 1983, aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S.
28 1021 (1985)) — is a free resource published each year by the U.S. Attorney’s office for the District of Columbia. It
offers tiered rates for lawyers, differentiated according to the8ir years of experience.
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige
2 of the bar and the courts.’” (Id., at 1131-1132.)
3 Under Serrano III, the fundamental factors to be considered by the court in its determination
4 of reasonable attorney’s fees are:
a. compilation of the time spent and reasonable hourly compensation of each attorney;
5 b. The novelty and difficulty of the questions involved, and the skill displayed in
6 presenting them;
c. The extent to which the nature of the litigation precluded other employment by the
7 attorneys;
d. The amount involved; and
8 e. The success or failure to accept an early, reasonable settlement offer.
9 (Serrano III, at 49.)
10 A. Compilation of Time and Reasonableness of Rate
11 As noted above, “An experienced trial judge is in a position to assess the value of the
12 professional services rendered in his or her court.” (Wershba v. Apple Computers, Inc. (2001) 91
13 Cal.App.4th 224, 255 (“Wershba”).) Moreover, seeking fees by declaration is an appropriate
14 methodology to employ. Billing invoices, which contain substantial amounts of attorney-client
15 communication, are not produced but will be available for an in camera review should the court
16 require it.
17 The compilation of time is more detailed in the concurrently filed Vinding Declaration.
18 Therein, the fees sought and the hours claimed are detailed. There are no minimum billing
19 amounts and no duplicates. The time spent was reasonably necessary to litigate the case.
20 B. Novelty and Difficulty
21 This case is novel insofar as the “tenant” Cameron McCreary established the trust that owns
22 the unit in which he lives. Typically, the owner is also the occupant. In this case, expert knowledge
23 of Trust/Probate law and its intersection with the Davis Sterling Act was required and this area is
24 relatively uncharted territory. No known cases exist regarding the issues presented.
25 Further this matter was highly contentious as several civil restraining orders were
26 simultaneously sought, thru the Homeowners Association, against Cameron McCreary and his co-
27 habitant/brother Bruce McCreary.
28 ///
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 C. Litigation Precluded Other Employment
2 Brady & Vinding is a small firm. If clients do not pay bills, the rent and staff cannot be paid,
3 much less the attorneys for their efforts. Currently with only one full-time partner (Michael Vinding)
4 and no associates, the time spent on this matter prevented the attorney from attending to other
5 matters.
6 D. Brady & Vinding’s Time
7 Brady & Vinding’s attorneys and their paralegals spent 339.50 hours in the litigation of this
8 action. Those hours, produced on billings printed at the beginning of each month, reflect in detail
9 the billing statements and are produced in redacted form as Exhibit 2 to the Vinding Declaration,
10 which will be produced for an in-camera review if requested.
11 Hourly rates are reasonable if they are within the range of hourly rates charged by attorneys
12 of comparable experience, reputation, and ability for similar litigation. (Ketchum v. Moses (2001)
13 24 Cal.4th 1122, 1133; Children’s Hosp. & Med. Center v. Bonta (2002) 97 Cal.App.4th 740, 783
14 [affirming rates that were “within the range of reasonable rates charged by and judicially awarded
15 comparable attorneys for comparable work”].) Courts are guided by declarations of counsel to
16 determine lodestar. (See Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309.) As
17 shown below, the hourly rates charged by all of the HOA’s attorneys are reasonable irrespective of
18 which methodology the court utilizes to determine local rates. For the attorneys: Mr. Vinding’s rate
19 is $495/hour; Ms. Elizabeth Lobaugh (a former associate) had a rate of $325/hour and Mr. Scott’s
20 had a rate of $450/hour.
21 ///
22 ///
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24 ///
25 ///
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27 ///
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 CONCLUSION
2 “The words ‘shall be [awarded]’ reflect a legislative intent that [the prevailing party] receive
3 attorney fees as a matter of right (and that the trial court is therefore obligated to award fees)
4 whenever the statutory conditions have been satisfied.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 872.)
5 Consistent with the authorities above, the HOA requests an award in its favor for its attorneys' fees
6 and costs in the amount of $166,996.50.
7 Dated: April 8, 2024 BRADY & VINDING
8
9 By: __________________________________
Michael E. Vinding
10 Attorneys for Plaintiff
11 Vicara Homeowners Association
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Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees
1 Re: Vicara Homeowners Association v. Susan M. Didricksen, et al.;
Placer County Superior Court Case No. S-CV-0046752
2
PROOF OF SERVICE
3
4 I am a citizen of the United States. My business address is 455 Capitol Mall, Suite 220,
Sacramento, CA 95814. I am employed in the City and County of Sacramento where this service
5 occurs. I am over the age of 18 years and not a party to the within action.
6 On the below date, following ordinary business practice, I served a true copy of the foregoing
document(s) described as:
7
8 VICARA HOMEOWNERS ASSOCIATION MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
9 AGAINST SUSAN M. DEDRICKSEN, AS TRUSTEE OF THE CAMERON L. MCCREARY
SPECIAL NEEDS TRUST
10
X BY ELECTRONIC SERVICE [C.C.P § 1010.6] by emailing a true and correct copy of the
11 above document upon the persons or the office of the persons at the email address(es) listed
12 below. I did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
13
PARTY SERVED:
14 Nicholas D. Yonano Wayne W. Watten
Yonano Law Offices, P.C. John T. Griffin
15
4944 Windplay Drive, Suite 119 Hall Griffin, LLP
16 El Dorado Hills, CA 95762 1851 E. First St., 10th Floor
T: 916-817-4422 Santa Ana, CA 92705
17 F: 916-817-4433 T: 914-918-7000
E: nick@yonanolaw.com F: 714-918-6996
18 Attorney for Defendant E: WWatten@hallgriffin.com
Susan Didriksen, Trustee jgriffin@hallgriffin.com
19
cc: LWilson@hallgriffin.com
20 ARodriguez@hallgriffin.com
Attorney for Defendant
21 Cameron McCreary
22 I declare, under penalty of perjury under the laws of the State of California, that the
foregoing is true and correct. Executed at Sacramento, California, on April 8, 2024.
23
24
________________________________
25 Amanda Krack
26
27
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Proof of Service
Preview
1 MICHAEL E. VINDING (SBN 178359) BRADY & VINDING 2 455 Capitol Mall, Suite 220 3 Sacramento, CA 95814 Telephone: (916) 446-3400 4 Facsimile: (916) 446-7159 mvinding@bradyvinding.com 5 Attorneys for Plaintiff 6 Vicara Homeowners Association 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF PLACER – UNLIMITED JURISDICTION 10 VICARA HOMEOWNERS CASE NO. S-CV-0046752 11 ASSOCIATION, a California nonprofit mutual benefit corporation. VICARA HOMEOWNERS 12 Plaintiff, ASSOCIATION MEMORANDUM OF 13 v. POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION 14 SUSAN M. DEDRICKSEN, as TRUSTEE FOR ATTORNEY’S FEES AGAINST OF THE CAMERON L. MCCREARY SUSAN M. DEDRICKSEN, AS TRUSTEE 15 SPECIAL NEEDS TRUST; CAMERON OF THE CAMERON L. MCCREARY MCCREARY, as an individual and SPECIAL NEEDS TRUST 16 beneficiary of the CAMERON L. 17 MCCREARY SPECIAL NEEDS TRUST; Date: August 29, 2024 and DOES 1 through 20, Inclusive. Time: 8:30 a.m. 18 Dept.: 3 Defendants. 19 Action filed: May 24, 2021 20 AND RELATED CROSS-ACTION. 21 22 I. Introduction. 23 The defendant Susan M. Dedricksen, Trustee of the Cameron L. McCreary Special Needs 24 Trust (“Trustee”) owns 1251 Whitney Ranch Parkway Unit 1216 in Rocklin California (the “Unit”) 25 which is a part of the Vicara at Whitney Ranch development (the “Development”). The tenant of 26 the Unit is defendant Cameron McCreary, the beneficiary of the trust (“McCreary”). 27 The plaintiff Vicara Homeowners Association (the “HOA”) administers the Development 28 and its complaint in this action alleges McCreary has damaged the parking lot by allowing his -1- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 vehicle to leak fluids onto the surface. During his deposition in this action, McCreary admitted to 2 ownership of the car and the leakage. 3 The damaging of the parking lot is a breach of the Governing Documents that regulate and 4 govern the Development and the residents, including tenants, as well as a nuisance. The Trustee is 5 the owner of the Unit and is therefore liable for the conduct of its tenant McCreary. 6 II. Statement of Facts. 7 1. On April 29, 2019 defendant Trustee took title to the Unit. 8 2. Defendant Cameron McCreary is unsure of the exact time, but he testified that he 9 moved into the Unit in the year 2019 and he has lived there through present day. 10 3. Before Trustee took title to the Unit, she was provided with a copy of the “Amended 11 and Restated Declaration of Covenants, Conditions and Restrictions and Reservation of Easements 12 for Vicara at Whitney Ranch” (“CC&Rs”) for the Development, as well as the “Bylaws of Vicara 13 Homeowners Association” and the “Vicara Homeowners Association Handbook” (collectively 14 referred to as the “Governing Documents). 15 4. The CC&Rs govern the operation of the Development and provide rules for owners 16 and their guests and tenants to follow. 17 5. The CC&Rs state “The Declarant hereby declares that Phase I (and the Condominium 18 Units and Common Areas in each subsequent Phase of the Project upon annexation in accordance 19 with the process of annexation described in Recital "D", above, and Article XV, below) shall be 20 held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold and improved, subject 21 to the following declarations, limitations, covenants, conditions, restrictions and easements, all of 22 which are imposed as equitable servitudes pursuant to a general plan for the Project for the purpose 23 of enhancing and protecting the value and attractiveness of the Project, and every part of it, in 24 accordance with the plan for the improvements of the Project and its division into Condominiums.” 25 6. Recital E further holds that “All of the limitations, covenants, conditions, restrictions, 26 and easements shall constitute covenants that run with the land, are binding upon the Declarant and 27 its successors and assigns, and all parties having or acquiring any right, title or interest in or to any 28 part of the Project or the Property comprising in the Project. It is the express intention of the -2- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 Declarant that this Declaration satisfies the requirements of California Civil Code sections 1350 2 through 1372, as those sections apply to Condominium projects.” 3 7. Section 4.04(a)(i) of the CC&Rs states that the owners of units are liable for damage 4 to the Development’s “Common Facilities” caused by “any of his or her tenants, guests, servants, 5 employees, licensees or invitees….” 6 8. The phrase “Common Facilities” in section 4.04(a)(i) is defined in the CC&Rs as 7 including “the…private streets and parking areas in the project….” 8 9. Section 8.12 of the CC&Rs states “Each owner and resident shall be accountable to 9 the remaining Owners and residents, their families, visitors, guests and invitees for the conduct and 10 behavior of their children, visitors, guests and invites and for any property damage caused by such 11 persons. 12 10. Section 13.02 prohibits nuisance activities as follows: “Without limiting the 13 generality of Section 13.01, above, the result of every act or omission whereby any covenant 14 contained in this Declaration is violated in whole or in part is hereby declared to be a nuisance, and 15 every remedy against nuisance, either public or private, shall be applicable against every such act or 16 omission.” 17 11. In or around June 23, 2020, the HOA was advised fluids were leaking from a vehicle 18 parked in the parking space that was reserved for McCreary’s Unit. 19 12. On or about June 25, 2020, Trustee was advised by a letter from the HOA’s attorneys 20 that her tenant McCreary had a vehicle leaking fluids onto the parking lot and it was damaging the 21 parking lot. 22 13. The leaking vehicle remained parked in the McCreary parking space and continued 23 to leak fluids for at least another month. 24 14. The leak caused damage to the parking surface and it will cost the HOA money to 25 repair it. 26 15. Section 4.04(a)(i) of the CC&Rs states that the Board is obligated to repair damaged 27 Common Facilities “and all costs and expenses incurred in connection therewith (to the extent not 28 compensated by insurance proceeds) shall be assessed and charged solely to and against such -3- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 Owner as a Special Individual Assessment.” 2 16. On August 19, 2020, the HOA’s board held a hearing to formally review the evidence 3 of McCreary’s conduct in the Development, including that his vehicle was leaking fluids and 4 damaging the parking lot. 5 17. At the August 19, 2020 hearing the Board found that the evidence offered regarding 6 the existence of a vehicle leaking fluids on to the parking lot, that it was McCreary’s vehicle, and 7 that the vehicle continued to leak was true, and thus it imposed $12,725 in fines against the Trustee 8 pursuant to the Governing Documents, in addition to a warning the vehicle would be towed at 9 Trustee’s expense if it was not removed. 10 18. The $12,725 in fines included the cost to repair the damaged parking area. 11 19. The cost of damage imposed against the Trustee by the HOA at the August 19, 2020 12 hearing was applied to the owner’s account as a Special Individual Assessment pursuant to section 13 4.04(a)(i). 14 20. The Trustee has not paid the fines and cost of damage imposed at the August 19, 15 2020 hearing. 16 21. The HOA alleges in its first cause of action that the defendants breached the 17 Governing Documents by allowing defendant McCreary’s vehicle to leak fluids and damage the 18 parking surface. 19 22. Defendant McCreary has breached section 8.11(a) of the CC&Rs by allowing his 20 vehicle to leak fluids onto the parking lot. 21 23. Defendant McCreary has breached section 8.03(a) of the CC&Rs by allowing his 22 vehicle to leak fluids onto the parking lot. 23 24. Defendant Trustee is liable for the damage caused by defendant McCreary pursuant 24 to the CC&Rs. 25 25. Plaintiff made demand to defendant Trustee for ADR under Civil Code section 5925 26 prior to filing this action. 27 26. Following service of the Request for Resolution on Trustee, Plaintiff and Trustee 28 mediated this matter on August 31, 2020. -4- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 II. Legal Authority 2 Civil Code section 5975(c) provides, in pertinent part, “In an action to enforce the governing 3 documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” “Reviewing 4 courts have found this provision of the Davis-Stirling Act ‘reflect[s] a legislative intent that [the 5 prevailing party] receive attorney fees as a matter of right (and that the trial court is therefore 6 obligated to award attorney fees) whenever the statutory conditions have been satisfied. 7 [Citations.]’ ”(Almanor Lakeside Villas Owners Association v. Carson (2016) 246 Cal.App.4th 761, 8 773.) 9 In order to obtain an attorney fee award under this section, the moving party must establish 10 both that the action was to enforce the CC&R’s and the moving party prevailed. (Grossman v. Park 11 Fort Washington Assn. (2012) 212 Cal.App.4th 1128, 1133.) 12 The “Davis-Stirling Act does not define ‘prevailing party’ or provide a rubric for that 13 determination. In the absence of statutory guidance, California courts have analyzed analogous fee 14 provisions and concluded that the test for prevailing party is a pragmatic one, namely whether a 15 party prevailed on a practical level by achieving its main litigation objectives. [Citations.]” (Ibid.) 16 A. The Plaintiff Sought to Enforce the CC&Rs. 17 In determining whether an action is one to enforce the governing documents under section 18 5975, courts look to the substance of the claims asserted. “We see nothing in the Davis-Stirling Act 19 that suggests we should give more weight to the form of a complaint. . . . than to the substance of 20 the claims asserted and relief sought, in determining whether an action is one 'to enforce the 21 governing documents' in the meaning of section 5975.” (Rancho Mirage Country Club 22 Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260. 23 The CC&Rs are attached to the Complaint as Exhibit 2 and incorporated by reference in 24 order to avoid further larding the court’s file. 25 Section 13.03 of the CC&Rs provides, “Reasonable attorneys' fees and costs shall be 26 awarded to the prevailing party in any procedure to enforce the Governing Documents or a party's 27 rights arising under the Governing Documents. Such enforcement procedures include an action 28 brought in any court of competent jurisdiction.” -5- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 B. The HOA is the Prevailing Party Under Section 5975. 2 Civil Code section 5975(c) provides, “(c) In an action to enforce the governing documents, 3 the prevailing party shall be awarded reasonable attorney’s fees and costs.” 4 As noted in the Motion for Summary Adjudication ruling, the Homeowners Association 5 prevailed on the First cause of Action for Breach of Governing Documents (Motion for Summary 6 Adjudication ruling, 2:20-22), the Second Cause of Action for Public/Private Nuisance (Id., 3:10- 7 14) and Fifth Cause of Action for Declaratory Relief (Id., 3:24-25.) 8 C. Fees Pursuant to Case Law. 9 Case law has held that under the Davis-Stirling Act, where a breach of the CC&Rs is 10 proven, attorneys’ fee awards are mandatory, not discretionary. In Salehi v. Surfside III 11 Condominium Owners Assn. (2011) 200 Cal.App.4th 1146 (“Salehi”) Plaintiff missed eight of ten 12 causes of action on the eve of trial and was unsuccessful on the remainder at trial and thus had no 13 monetary recovery whatsoever. The homeowners association incurred attorneys’ fees in excess of 14 $250,000 defending the action, but the trial court denied its request for fees. On appeal, the court 15 found that it was an abuse of discretion to not award fees under Civil Code section 1354 16 (renumbered section 5975) given the association realized its “litigation objectives” and therefore 17 was the prevailing party on a “practical level” and therefore attorneys’ fees were mandated by the 18 legislature. 19 III. The Attorney's Fees Incurred Are Reasonable. 20 As further set forth in the concurrently filed Declaration of Michael Vinding, the HOA 21 incurred $150,166.50 in attorney fees in this action. (Vinding Decl. ¶8.) 22 The determination of what constitutes reasonable attorney’s fees is committed to the sound 23 discretion of the court. 1 (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 24 Cal.3d 348, 355.) The trial court has expertise of its own in the matter of the value of legal services 25 performed. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The court may consider pleadings 26 1 In determining the size of an appropriate fee award, the U.S. Supreme Court has emphasized that courts need not 27 “achieve auditing perfection” or “become green-eyeshade accountants.” (Fox v. Vice (2011) 563 U.S. 826, 838.) Rather, because the “essential goal of shifting fees . . . is to do rough justice,” the court may “use estimates” or “take 28 into account [its] overall sense of a suit” to determine a reasonable attorney’s fee. (Id.) -6- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 and depositions in the court files as evidence of the actual work performed. (Dover Mobile Estates 2 v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501.) Indeed, compensable fees may 3 include fees incurred for investigation and evaluation of a claim prior to the filing of a complaint. 4 (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655-656.) In setting the amount of fees, a lower 5 court has considerable discretion, and the award usually has to shock the conscience to be 6 overturned. (In re Tobacco Cases I (2013) 218 Cal.App.4th 570, 587.) 7 Hourly rates are reasonable if they are within the range of hourly rates charged by attorneys 8 of comparable experience, reputation, and the ability for similar litigation. (Ketchum v. Moses 9 (2001) 24 Cal.4th 1122, 1133; Children’s Hosp. & Med. Center v. Bonta (2002) 97 Cal.App.4th 10 740, 783 [affirming rates that were “within the range of reasonable rates charged by and judicially 11 awarded comparable attorneys for comparable work”].) When deciding on a “reasonable” rate of 12 legal fees for repayment, courts are often guided by the Laffey Matrix.2 The Matrix is based upon 13 counsel's number of years in practice and the location of the dispute. (Nemecek & Cole v. Horn 14 (2012) 208 Cal.App.4th 641; Syers Properties III Inc. v. Rankin (2014) 226 Cal.App.4th 691, 696, 15 702. The Laffey Matrixes have been published by the US Department of Justice for the past six 16 years: https://www.justice.gov/usao-dc/civil-division. 17 The reduced rate of Michael Vinding of $495 and is well below the rate listed in the Laffey 18 Matrix and market rate. 19 In Ketchum v. Moses (2001) 24 Cal.4th 1122, the Supreme Court explained attorney fee 20 awards with reference to Serrano v. Priest (1977) 20 Cal.3d 25, 49 (“Serrano III”). Under Serrano 21 III, a court assessing attorney fees begins with a touchstone or lodestar figure, based on the 22 ‘careful compilation of the time spent and reasonable hourly compensation of each 23 attorney . . . involved in the presentation of the case.’ (Serrano III, supra, 20 Cal.3d at p. 48.) We 24 expressly approved the use of prevailing hourly rates as a basis for the lodestar, noting that 25 anchoring the calculation of attorney fees to the lodestar adjustment method “‘is the only way of 26 2 27 The Laffey Matrix — which derives its name from a seminal case, Laffey v. Northwest Airlines, Inc. (572 F. Supp. 354 (D.D.C. 1983, aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 28 1021 (1985)) — is a free resource published each year by the U.S. Attorney’s office for the District of Columbia. It offers tiered rates for lawyers, differentiated according to the8ir years of experience. -7- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige 2 of the bar and the courts.’” (Id., at 1131-1132.) 3 Under Serrano III, the fundamental factors to be considered by the court in its determination 4 of reasonable attorney’s fees are: a. compilation of the time spent and reasonable hourly compensation of each attorney; 5 b. The novelty and difficulty of the questions involved, and the skill displayed in 6 presenting them; c. The extent to which the nature of the litigation precluded other employment by the 7 attorneys; d. The amount involved; and 8 e. The success or failure to accept an early, reasonable settlement offer. 9 (Serrano III, at 49.) 10 A. Compilation of Time and Reasonableness of Rate 11 As noted above, “An experienced trial judge is in a position to assess the value of the 12 professional services rendered in his or her court.” (Wershba v. Apple Computers, Inc. (2001) 91 13 Cal.App.4th 224, 255 (“Wershba”).) Moreover, seeking fees by declaration is an appropriate 14 methodology to employ. Billing invoices, which contain substantial amounts of attorney-client 15 communication, are not produced but will be available for an in camera review should the court 16 require it. 17 The compilation of time is more detailed in the concurrently filed Vinding Declaration. 18 Therein, the fees sought and the hours claimed are detailed. There are no minimum billing 19 amounts and no duplicates. The time spent was reasonably necessary to litigate the case. 20 B. Novelty and Difficulty 21 This case is novel insofar as the “tenant” Cameron McCreary established the trust that owns 22 the unit in which he lives. Typically, the owner is also the occupant. In this case, expert knowledge 23 of Trust/Probate law and its intersection with the Davis Sterling Act was required and this area is 24 relatively uncharted territory. No known cases exist regarding the issues presented. 25 Further this matter was highly contentious as several civil restraining orders were 26 simultaneously sought, thru the Homeowners Association, against Cameron McCreary and his co- 27 habitant/brother Bruce McCreary. 28 /// -8- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 C. Litigation Precluded Other Employment 2 Brady & Vinding is a small firm. If clients do not pay bills, the rent and staff cannot be paid, 3 much less the attorneys for their efforts. Currently with only one full-time partner (Michael Vinding) 4 and no associates, the time spent on this matter prevented the attorney from attending to other 5 matters. 6 D. Brady & Vinding’s Time 7 Brady & Vinding’s attorneys and their paralegals spent 339.50 hours in the litigation of this 8 action. Those hours, produced on billings printed at the beginning of each month, reflect in detail 9 the billing statements and are produced in redacted form as Exhibit 2 to the Vinding Declaration, 10 which will be produced for an in-camera review if requested. 11 Hourly rates are reasonable if they are within the range of hourly rates charged by attorneys 12 of comparable experience, reputation, and ability for similar litigation. (Ketchum v. Moses (2001) 13 24 Cal.4th 1122, 1133; Children’s Hosp. & Med. Center v. Bonta (2002) 97 Cal.App.4th 740, 783 14 [affirming rates that were “within the range of reasonable rates charged by and judicially awarded 15 comparable attorneys for comparable work”].) Courts are guided by declarations of counsel to 16 determine lodestar. (See Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309.) As 17 shown below, the hourly rates charged by all of the HOA’s attorneys are reasonable irrespective of 18 which methodology the court utilizes to determine local rates. For the attorneys: Mr. Vinding’s rate 19 is $495/hour; Ms. Elizabeth Lobaugh (a former associate) had a rate of $325/hour and Mr. Scott’s 20 had a rate of $450/hour. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -9- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 CONCLUSION 2 “The words ‘shall be [awarded]’ reflect a legislative intent that [the prevailing party] receive 3 attorney fees as a matter of right (and that the trial court is therefore obligated to award fees) 4 whenever the statutory conditions have been satisfied.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 872.) 5 Consistent with the authorities above, the HOA requests an award in its favor for its attorneys' fees 6 and costs in the amount of $166,996.50. 7 Dated: April 8, 2024 BRADY & VINDING 8 9 By: __________________________________ Michael E. Vinding 10 Attorneys for Plaintiff 11 Vicara Homeowners Association 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- Plaintiff’s Memorandum of Points And Authorities in Support of Motion For Attorneys’ Fees 1 Re: Vicara Homeowners Association v. Susan M. Didricksen, et al.; Placer County Superior Court Case No. S-CV-0046752 2 PROOF OF SERVICE 3 4 I am a citizen of the United States. My business address is 455 Capitol Mall, Suite 220, Sacramento, CA 95814. I am employed in the City and County of Sacramento where this service 5 occurs. I am over the age of 18 years and not a party to the within action. 6 On the below date, following ordinary business practice, I served a true copy of the foregoing document(s) described as: 7 8 VICARA HOMEOWNERS ASSOCIATION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEY’S FEES 9 AGAINST SUSAN M. DEDRICKSEN, AS TRUSTEE OF THE CAMERON L. MCCREARY SPECIAL NEEDS TRUST 10 X BY ELECTRONIC SERVICE [C.C.P § 1010.6] by emailing a true and correct copy of the 11 above document upon the persons or the office of the persons at the email address(es) listed 12 below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 13 PARTY SERVED: 14 Nicholas D. Yonano Wayne W. Watten Yonano Law Offices, P.C. John T. Griffin 15 4944 Windplay Drive, Suite 119 Hall Griffin, LLP 16 El Dorado Hills, CA 95762 1851 E. First St., 10th Floor T: 916-817-4422 Santa Ana, CA 92705 17 F: 916-817-4433 T: 914-918-7000 E: nick@yonanolaw.com F: 714-918-6996 18 Attorney for Defendant E: WWatten@hallgriffin.com Susan Didriksen, Trustee jgriffin@hallgriffin.com 19 cc: LWilson@hallgriffin.com 20 ARodriguez@hallgriffin.com Attorney for Defendant 21 Cameron McCreary 22 I declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed at Sacramento, California, on April 8, 2024. 23 24 ________________________________ 25 Amanda Krack 26 27 28 Proof of Service