Pasternack v. Bear Brand Ranch Community Assn.

Filed 5/21/08 Pasternack v. Bear Brand Ranch Community Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed. Motion for sanctions. Denied.

Latham & Watkins, Jon D. Anderson and Mark A. Finkelstein for Plaintiffs and Appellants.

Law Offices of Andrew A. Kurz, Andrew A. Kurz; Blackmar, Principe & Schmelter and Gerry C. Schmelter for Defendant and Respondent.

* * *

INTRODUCTION

Plaintiffs Lawrence Howard Pasternack and Lynette Gayle Pasternack (the Pasternacks) purchased an undeveloped lot adjacent to their residence in the Bear Brand Ranch residential housing development in Laguna Niguel (the development). The Pasternacks noticed that defendant Bear Brand Ranch Community Association (the Association) maintained irrigation pipes on their new property and, in June 2004, they demanded that the Association immediately remove the irrigation pipes. After the Association did not move as quickly as the Pasternacks desired, in early August the Pasternacks sued the Association for trespass. Although the Association removed all the pipes by the end of August 2004 and all related equipment by the end of May 2005, the Pasternacks continued to pursue their lawsuit because the Association refused to compensate the Pasternacks for fees and costs they incurred in prosecuting the complaint.

In July 2005, the Association changed counsel, and asserted a new defense: The developments declaration of covenants, conditions, and restrictions (CC&Rs) created a maintenance easement which permitted the Association to maintain the irrigation systems and equipment. The Pasternacks filed an amended complaint, adding a cause of action for declaratory relief in which they sought a declaration that the CC&Rs did not create such an easement on their property.

After the trial court granted the Pasternacks motion in limine seeking to exclude all evidence of a CC&R‑created maintenance easement on the ground no such easement existed on their property as a matter of law, the parties settled. The parties agreed that the trial court would decide the issue whether either party was entitled to prevailing party attorney fees and costs.

The Pasternacks and the Association each filed a motion seeking to be deemed the prevailing party for purposes of recovering attorney fees under Civil Code sections 1354, subdivision (c) and 1717. (All further statutory references are to the Civil Code unless otherwise specified.) Section 1354, subdivision (c) authorizes an attorney fees award to the prevailing party [i]n an action to enforce the governing documents. Because the governing documentsthe CC&Rsalso contained a prevailing‑party attorney fees provision, the parties sought contractual attorney fees under section 1717 as well. The Association also filed a motion to tax and/or strike costs in response to a memorandum of costs submitted by the Pasternacks.

The trial court denied each partys motion seeking attorney fees and granted the Associations motion to tax and/or strike costs after determining that no party prevailed for purposes of statutory or contractual attorney fees or costs. The Pasternacks appeal, arguing the trial court abused its discretion by failing to conclude they were the prevailing party in the case.

We affirm. The Pasternacks did not obtain a judicial declaration that no CC&R maintenance easement existed on their property. While the trial court granted the Pasternacks motion in limine, the courts ruling was an interim ruling and did not have res judicata effect. The trial court did not abuse its discretion by concluding the Pasternacks were not the prevailing party within the meaning of sections 1354, subdivision (c) and 1717.

The trial court also denied the Pasternacks costs on the ground they were not the prevailing party under Code of Civil Procedure section 1032 and on the alternative ground the Pasternacks had failed to carry their burden of showing their claimed costs were reasonable and necessary. The Pasternacks do not address on appeal the courts alternative ground, and thus fail to carry their burden of showing the denial of prevailing party costs was erroneous.

CHRONOLGY AND PROCEDURAL HISTORY

I.

June 2004 July 2005

In June 2004, the Pasternacks purchased undeveloped real property located in the development at 2 Searidge (the property); the property is adjacent to the Pasternacks residence. On June 10, Lawrence Pasternack sent a letter to the Association demanding that it remove reclaimed water pipes located on the property. After reviewing relevant deeds and governing documents, the Associations counsel at the time reached the conclusion the Association did not have an easement obligation to maintain the irrigation lines on the property and, on July 26, sent the Pasternacks attorney a letter confirming that the Association shall remove the irrigation lines from the Subject Property. After receiving confirmation from the Pasternacks counsel that the Pasternacks wished the irrigation lines removed as opposed to merely cut and capped so that they could connect existing lines to their water supply, the Associations counsel advised the Associations manager to proceed with arranging for removal of the irrigation lines as soon as possible and to work directly with Lawrence Pasternack in coordinating the work.

In August 2004, the Pasternacks filed a complaint against the Association, alleging a single claim for trespass. By the end of August 2004, the Association had removed all the irrigation lines. The Association had not yet removed an electrical panel and irrigation meter because it was the Associations counsels understanding Mr. Pasternack told the Associations landscape contractor that he was not concerned about removing those items. At that point, therefore, the Association assumed that it had satisfied Mr. Pasternacks demands, and that the matter had been resolved.

In November 2004, the Pasternacks demanded that the Association pay them $25,000 in attorney fees they had incurred (even though their only cause of action was for trespass for which attorney fees are not recoverable) and an assurance from the Association all encroaching pipes and related equipment have been or will be removed. In December 2004, the Pasternacks specifically demanded that the Association also remove the electrical panel and irrigation meter. At the Associations request in February 2005, the Pasternacks provided a survey which showed a portion of the equipment remained on the property. The Association immediately agreed to remove the remaining equipment, and all equipment was removed by late April or early May 2005.

After the equipment was removed, the Pasternacks demanded $60,000 in attorney fees in return for the dismissal of the lawsuit. The Association rejected the demand. The Pasternacks counsel thereafter noticed the depositions of nine past or present board members and property managers.

The Association filed a motion for a protective order to stay or quash the notices of deposition served by the Pasternacks, and a motion to dismiss the action on the ground the action was moot. At the July 22, 2005 hearing on the motions, the Pasternacks argued for the first time that they had sustained damages in connection with design or redesign costs incurred as a result of the presence of the electrical panel and other equipment on the property. The trial court took the matter under submission. The appellate record does not show whether the trial court issued a final ruling on the motions.

II.

Mandatory Settlement Conference in August 2005

Shortly after the hearing on those motions, the Association made the decision to change counsel. In a confidential, mandatory settlement conference statement dated August 11, 2005, for the first time in the litigation and contrary to the position initially taken by the Association, the Association argued, no trespass occurred because Article 9, Section 9.2 of the [CC&Rs] grants the Association an easement to enter upon private [l]ots for slope maintenance purposes (the CC&R maintenance easement). During the mandatory settlement conference on August 12, the Association reiterated its new position that the existence of the CC&R maintenance easement defeated the Pasternacks trespass claim.[1] Trial was originally scheduled for October 17, 2005, but was continued because the trial judge recused herself from the case.

III.

First Amended Complaint, Motion for Summary Adjudication, Answer, and Ruling on Motion

In February 2006, the Pasternacks filed a first amended complaint for trespass and declaratory relief. They alleged that [a]s a proximate result of [the Associations] placement of pipes, control wires, and related equipment on the Property, [the Pasternacks] have been deprived of the use and enjoyment of the Property and from developing or improving the Property. They alleged the Associations wrongful conduct in maintaining pipes, control wires, and related equipment on the Property, and causing reclaimed water to flow through the pipes onto the surface and into the subsurface of the Property, unless and until enjoined and restrained by order of this Court, will continue to cause irreparable injury to the Property and will continue to deprive [the Pasternacks] of the use and enjoyment of the Property. The Pasternacks further stated the Association has claimed that [its] maintenance of pipes, control wires, and related equipment on the Property was lawful and proper by virtue of a maintenance easement in [its] favor arising out of the [CC&Rs].

In their first amended complaint, the Pasternacks prayed for (1) damages; (2) a declaration that the claimed CC&R [maintenance] Easement is not valid or enforceable, or, in the alternative, for a declaration of the parties rights and obligations under the CC&R Easement; (3) an injunction requiring the Association to cease watering the property, remove any and all pipes, control wires, and related equipment on the property, and repair any damage caused by the presence of or removal from the property of any pipes or related equipment; (4) costs of suit; and (5) other and further relief as the Court may deem proper.

In March 2006, the Pasternacks filed a motion for summary adjudication, seeking an order that (1) [t]here is no defense to the Pasternacks Second Cause of Action for Declaratory Relief . . . which seeks a declaration that the maintenance easement claimed by [the Association] arising out of the Covenants, Conditions and Restrictions of the Bear Brand Ranch . . . is not valid or enforceable; and (2) [t]here is no merit to [the Association]s Twelfth Affirmative Defense contained in its Answer because the CC&R Easement [the Association] has claimed is not valid or enforceable.

On April 3, 2006, the Association filed an answer to the first amended complaint, which contained the affirmative defense that the Associations entry upon [the Pasternacks] real property was authorized by an express easement contained in the CC&Rs.

The trial courts tentative ruling on the Pasternacks motion for summary adjudication stated: This is not even a close call. First, it is not entirely clear that summary adjudication would completely dispose . . . of a cause of action as the first amended complaint contains no separate cause of action for declaratory relief. [Code of Civil Procedure section] 437c[, subdivision ](f)(1). In any event, the issue on which [the Pasternacks] seek[] summary adjudication pertains to a potential, hypothetical dispute in which [the Association] may take an unreasonable interpretation of the CCRs or seek to enforce them in an unreasonable manner. There is no evidence presented in connection with this motion from which the court could conclude the existence of an actual controversy in which [the Pasternacks are] entitled to summary adjudication. Accordingly, the motion is denied as to this cause of action. [] 12th Affirmative DefenseThis motion appears to be aimed at the 12th A[ffirmative ]D[efense] in the answer to the complaint. The operative answer is the answer to the first amended complaint, which contains a different 12th A[ffirmative ]D[efense]. Accordingly, this motion is denied. Following argument by counsel on the motion, the trial court denied the Pasternacks motion without further comment. (The trial courts minute order is not included in the appellate record.)

IV.

Motion in Limine

In July 2006, the Pasternacks filed a motion in limine seeking, inter alia, to exclude at trial all evidence of the CC&R maintenance easement. The court granted the Pasternacks motion seeking to exclude all evidence of the CC&R maintenance easement on the property on the ground no such easement existed. The court urged the parties to settle.

V.

The Settlement, Motions for Attorney Fees and Costs, Ruling on the Motions and Judgment

The parties thereafter entered into a confidential settlement agreement which is not contained in the appellate record.[2] On November 14, 2006, the parties filed a stipulation which stated, in part, that (1) the parties to this action have, through an executed Settlement Agreement and Covenant Not to Sue (Settlement Agreement), resolved [the Pasternacks] claim of damages based on the trespass action, thus avoiding the need for a trial on that issue; (2) the issue of which party, if any, is entitled to attorneys fees and costs as a prevailing party remains unresolved; and (3) the Settlement Agreement provides that the Court will determine the attorneys fees and costs issue through a law and motion proceeding whereby each party may submit a motion seeking prevailing party attorney fees and costs. The settlement agreement included the Associations agreement to pay the Pasternacks $7,500 to resolve the trespass claim.

The Pasternacks filed a motion under sections 1354, subdivision (c) and 1717 (based on the prevailing‑party attorney fees provision contained in the CC&Rs themselves), seeking $413,983.50 in prevailing party attorney fees incurred from August 11, 2005 to August 31, 2006. The Association similarly filed a motion under sections 1354, subdivision (c) and 1717, but only sought $28,122 in prevailing party attorney fees. The Association also filed a motion to tax and/or strike costs claimed in a memorandum of costs submitted by the Pasternacks.

In December 2006, the trial court denied the parties respective motions for prevailing party attorney fees on the ground both of the parties obtained a mixed result. The court stated: In Heather Farms Homeowners Assoc. v. Robinson . . . [(1994)] 21 Cal.App.4th 1568 . . . , the court makes it clear that a rigid interpretation of the term prevailing party is inappropriate. Instead, the court is required to determine which party, if any, has prevailed on a practical level. [] In this case, [the Pasternacks] did not prevail on [their] declaratory relief or injunction claims. [They] did recover a nominal amount on [their] trespass claim by settlement, but as a practical matter, the amount recovered was nuisance value (i.e. substantially less than the cost of defense). [] On the other hand, [the Association] did not prevail on its defense that it held an easement under the language of the CC&Rs. [The Association] may well have prevailed, however, on its prescriptive easement defense. [] The net result here is that both of the parties obtained a mixed result. Clearly, [the Pasternacks] cannot be considered the prevailing party. [They] obtained nothing for [their] efforts other than the nominal settlement amount on the trespass claim. Nor was [the Association] particularly successful. Its primary assertion of an express easement under the CC&Rs was rejected. In short, the Court finds that there was no prevailing party entitled to an award of attorneys fees.

The trial court granted the Associations motion to tax and/or strike costs having stated in its tentative decision:[3] First, the Court grants the motion and denies costs to [the Pasternacks] on the ground that there is no prevailing party for purposes of costs. [] Alternatively, [the Pasternacks] memorandum of costs includes costs which are clearly improper, including (1) the costs of exhibits not used in trial, (2) investigation and legal research, (3) transcripts not ordered by the court, (4) local travel and (5) meals. In light of the significant number of improper claims in the cost bill, the Court finds that [the Pasternacks] ha[ve] failed to carry [their] burden of showing that the costs claimed are reasonable and necessary.

In March 2007, judgment was entered which stated in part: 1.  [The Associations] Motion to Determine Prevailing Party and For Award of Attorneys Fees was denied; [] 2.  [The Pasternacks] Motion to Determine Prevailing Party and For Award of Attorneys Fees was denied; and [] 3.  [The Association]s Motion to Tax and/or Strike Costs was granted. [] It appearing by reason of the rulings that the parties are entitled to judgment, IT IS ORDERED, ADJUDGED AND DECREED THAT: [] 1.  Plaintiffs Lawrence Howard Pasternack and Lynette Gayle Pasternack shall take nothing from defendant Bear Brand Ranch Community Association; and [] 2.  Defendant Bear Brand Ranch Community Association shall take nothing from plaintiffs Lawrence Howard Pasternack or Lynette Gayle Pasternack.

The Pasternacks solely appealed.

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion by Determining There Was No Prevailing Party Under Sections 1354, Subdivision (C) and 1717 as to the Pasternacks Declaratory Relief Claim.

The Pasternacks argue the trial court abused its discretion by denying their motion for prevailing party attorney fees under sections 1354, subdivision (c) and 1717. They argue the court should have concluded that they prevailed on their claims because the court had ruled, in granting their motion in limine, that the CC&R maintenance easement claimed by the Association did not exist on the property as a matter of law. We apply the abuse of discretion standard in our review of the trial courts ruling that there was no prevailing party. (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109 [attorney fees under section 1717]; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 [attorney fees under section 1354].) As we explain ante, the trial court did not abuse its discretion by finding no prevailing party within the meaning of the attorney fees statutes.

A.

Prevailing‑party Attorney Fees Awards Under Sections 1354,
Subdivision (c) and 1717

We begin by briefly analyzing the prevailing‑party attorney fees statutes at issue in this case. Section 1354 is a part of the Davis-Stirling Act ( 1350 et seq.), which governs common interest developments in California. (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 669‑670.) Section 1354, subdivision (c) provides that [i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorneys fees and costs. The term governing documents is defined in section 1351, subdivision (j) as the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.

Section 1717, subdivision (a) provides in part, [i]n any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. (Italics added.) An attorney fees provision contained in a recorded declaration of covenants, conditions, and restrictions constituting an equitable servitude is considered a contract within the meaning of section 1717. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1024.) The Association does not contend the CC&Rs do not constitute a contract within the meaning of section 1717.

The CC&Rs include the following prevailing‑party attorney fees provision which contains enforcement language similar to section 1354, subdivision (c): In any legal or equitable proceeding for the enforcement or to restrain the violation of these covenants, conditions, restrictions, easements, reservations, liens, or charges or any provisions hereof, the losing party or parties shall pay the attorneys fees of the prevailing party or parties in such amount as may be fixed by the court in such proceedings. All remedies provided herein or at law or in equity shall be cumulative and not exclusive.

Section 1717, subdivision (b)(1) states, [t]he court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.

The Supreme Court has held, in the context of a claim for prevailing party attorney fees under section 1717, in deciding whether there is a party prevailing on the contract, the trial court is to compare the relief awarded on the contract claim or claims with the parties demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made . . . by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions. [Citation.] (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) The Supreme Court further held the trial court has no discretion to deny prevailing party attorney fees under section 1717 when the defendant obtains a simple, unqualified victory by defeating the only contract claim in the action. (Hsu v. Abbara, supra, 9 Cal.4th at p. 877.) On the other hand, [i]f neither party achieves a complete victory on all the contract claims, it is within the discretion of the trial court to determine which party prevailed on the contract or whether, on balance, neither party prevailed sufficiently to justify an award of attorney fees. (Scott Co. v. Blount, Inc., supra, 20 Cal.4th at p. 1109.)

Courts have applied the following definition of the term prevailing party as it is used in section 1354, subdivision (c): In Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th 1568, 1574, the appellate court declined to adopt a rigid interpretation of section 1354 as to who is a prevailing party and concluded the standard is whether a party had prevailed on a practical level. (See Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94 [adopting prevailing party definition developed in Heather Farms Homeowners Assn. v. Robinson].)

B.

Prevailing Party Attorney Fees under Sections 1354, Subdivision (c) and 1717 Were Available as to the Pasternacks Declaratory Relief Claim Only.

The Pasternacks original complaint for trespass, filed in August 2004, did not constitute an action enforcing the CC&Rs or restraining violation of the CC&Rs. Therefore, prevailing party attorney fees under either section 1354, subdivision (c) or 1717 were not available as a result of the Pasternacks bringing that claim against the Association.

For the first time in the litigation, at the August 2005 mandatory settlement conference, the Association took the position the Pasternacks trespass claim failed because the CC&Rs created a maintenance easement on the property authorizing the presence of the irrigation pipes and related equipment. In merely raising this argument to defend against the Pasternacks trespass claim, the Association did not bring an action to enforce the CC&Rs within the meaning of the attorney fees statutes. (See Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 712 [interpreting section 1717, court stated, [u]nder any reasonable interpretation of the attorneys fee provision, we cannot equate raising a defense with bringing an action or proceeding]; Salawy v. Ocean Towers Housing Corp., supra, 121 Cal.App.4th 664, 667 [interpreting section 1354, court stated, [w]e hold that a defendants successful invocation of the governing documents as a defense does not entitle it to attorney fees if the claim was not brought to enforce those documents].)

In February 2006, the Pasternacks filed their first amended complaint to include a claim for declaratory relief which alleged the Association had taken the position its maintenance of pipes, control wires, and related equipment on the Property was lawful and proper by virtue of a maintenance easement in [its] favor arising out of the [CC&Rs]. The Pasternacks included in their prayer for relief a declaration that the claimed CC&R Easement is not valid or enforceable, or, in the alternative, for a declaration of the parties rights and obligations under the CC&R Easement. In response, the Association filed an answer to the first amended complaint containing an affirmative defense that the CC&R maintenance easement authorized the presence of the irrigation pipes and equipment on the property.

The Pasternacks declaratory relief claim constituted an action to enforce the CC&Rs within the meaning of section 1354, subdivision (c) and the attorney fees provision contained in the CC&Rs. In the first amended complaint, the Pasternacks sought a judicial declaration that the CC&R maintenance easement did not exist and an injunction requiring the Association to, inter alia, remove any pipes, control wires, and related equipment on the property. (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1380 [declaratory relief claim seeking declaration that covenants, conditions, and restrictions created a right in the plaintiff to be compensated and imposed upon the defendant an obligation to pay for damages constituted an action to enforce within the meaning of section 1354].) In its respondents brief, the Association agrees the Pasternacks declaratory relief claim is the only claim in this action on which attorneys fees could be awarded.

The settlement of a lawsuit does not necessarily preclude a party from seeking the recovery of prevailing party attorney fees under section 1354, subdivision (c) and/or section 1717. (Jackson v. Homeowners Assn. Monte Vista Estates‑East (2001) 93 Cal.App.4th 773, 776 [We hold that a settlement agreement which provides that the trial court will determine the prevailing party in the action, and the amount of the attorney fee award, if any, is valid and enforceable].) Here, the parties expressly agreed in settling the matter that the trial court would decide whether there was a prevailing party within the meaning of these attorney fees statutes.

C.

The Record Does Not Show the Trial Court Abused Its Discretion by Denying the Pasternacks Prevailing‑Party Attorney Fees Motion.

The Pasternacks contend the trial court abused its discretion by failing to award them prevailing party attorney fees because they realized every one of their litigation objectives, with the exception of their litigation expenses, which arose after they had attained the relief they were seeking. The Pasternacks realized their three primary objectivesremoval by [the Association] of its equipment from the Subject Property, a judicial determination that [the Association]s CC&R Easement does not extend to the Pasternacks property, and payment by [the Association] of damages caused by its initial failure to remove its equipment from the Subject Property.

In their appellate briefs, the parties assert the Association agreed to pay the Pasternacks $7,500 to resolve their claim of damages based on the trespass cause of action in settling the case without admitting any liability. As discussed ante, prevailing party attorney fees were not available for the Pasternacks trespass claim. The parties further agree the irrigation pipes and related equipment had all been removed by May 2005about 10 months before the Pasternacks amended their complaint to include the declaratory relief claim. Thus, in determining whether the Pasternacks prevailed on the declaratory relief claim, we do not consider either the Associations $7,500 payment or the removal of the Associations pipes and equipment from the property.

We therefore turn to the Pasternacks argument that they prevailed on their declaratory relief claim because they had obtained a judicial determination that [the Association]s CC&R Easement does not extend to the Pasternacks property. The Pasternacks did not obtain a judicial declaration that the CC&R maintenance easement did not exist on the property. There has been no showing the parties settlement agreement contained any admission by the Association the easement does not exist.

The Pasternacks point to the trial courts decision to exclude all evidence of the CC&R maintenance easement from trial to show they were the prevailing party on the declaratory relief claim. In granting the Pasternacks motion in limine, the trial court stated: I am persuaded that the CC&Rs themselves do not create an easement over this portion of the [Pasternacks] lot. Ill try to walk you through my analysis here just very briefly. 1.14 again is only a definitional provision and defines what a maintenance area is. I dont see that 1.14 actually creates any particular rights in the association. [] 8.1(T), which does create in the association a right to maintain or cause to be maintained certain types of improvements, which would include irrigation facilities, is limited to maintenance areas, which is a defined term and common area, which is a defined term. And the only language that I can find in the CC&Rs that creates easement rights is in article 9, and it creates an easement right in favor of the association over the common area. Thats 9.1. [] And 9.2 creates easement rights in the maintenance areas but specifically indicates that those maintenance areas are over certain lots which are identified in the tract map. And this particular property is not so identified. [] The defense argument, and I think your argument is in essence that 1.14 creates access or easement rights which are in addition to those created in 9.2, I just find to be unpersuasive, because taken to its extreme it would allow the association to elect to maintain to install and to maintain irrigation facilities and other types of maintenance facilities over any portion of the property which would go beyond the common area and identified maintenance areas. And that would really be inconsistent with the ways that CC&Rs are normally created, so that these types of access rights are specifically identified and people know where they can build and where they have to leave open space so that those easement or access rights can be exercised by the association.

While the trial courts ruling on the motion in limine was certainly bad news for the Association and good news for the Pasternacks, the ruling was not final and did not have any res judicata effect. The doctrine of res judicata applies only to judgments and orders that are final in the sense that no further judicial act remains to be done to end the litigation. Intermediate determinations, such as rulings on motions and interlocutory orders, are not conclusive. (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment,  306, p. 856.) Had the parties not settled the lawsuit shortly after this ruling, the court might have reconsidered its ruling before or during trial after further review of the record. In Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108, the California Supreme Court observed, it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night [citation] or acts in response to a partys suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief. We cannot make the leap of construing the trial courts interim ruling on a motion in limine as a final decision for purposes of determining whether there was a prevailing party under the attorney fees statutes.

Had the trial court granted the Pasternacks motion for summary adjudication on the declaratory relief action, this would be a different case; but the court denied the motion for summary adjudication on the claim. (Code Civ. Proc.,  437c, subd. (n)(1) [If a motion for summary adjudication is granted, at the trial of the action, the cause . . . of action . . . as to the motion which has been granted shall be deemed to be established and the action shall proceed as to the cause . . . of action . . . remaining].) The trial court did not err by denying the Pasternacks motion for prevailing party attorney fees.

II.

The Pasternacks Have Failed to Show the Trial Court Erred by Denying Them Costs Under Code of Civil Procedure Section 1032.

Section 1032, subdivision (b) of the Code of Civil Procedure provides a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. The term prevailing party is defined in Code of Civil Procedure section 1032, subdivision (a) as the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, [and] a defendant where neither plaintiff nor defendant obtains any relief. The Pasternacks contend the trial court erred by failing to award them costs under Code of Civil Procedure section 1032 because they received a net monetary recovery of $7,500 through the parties settlement agreement.

The trial court denied the Pasternacks request for costs on the grounds the Pasternacks were not the prevailing party for purposes of costs and failed to show their claimed costs were reasonable and necessary.

In the opening brief, the Pasternacks entire argument challenging the trial courts order denying them prevailing party costs consists of the following: It is indisputable that the Pasternacks are the prevailing party under the [Code of Civil Procedure] Section 1032 definition, as they recovered a net monetary recovery of $7,500 from [the Association], in addition to many forms of non‑monetary relief. Accordingly, the trial court erred in not granting the Pasternacks their costs.

Not only is the Pasternacks analysis of their entitlement to prevailing party costs under Code of Civil Procedure section 1032 cursory at best, the opening brief does not address at all the trial courts alternative ground for denying coststhe Pasternacks failed to carry their burden of showing the claimed costs were reasonable and necessary. Consequently, the Pasternacks have failed to carry their burden on appeal of demonstrating the trial court erred by denying them prevailing party costs under Code of Civil Procedure section 1032.

III.

The Associations Motion for Sanctions

During the pendency of this appeal, the Association filed a motion for sanctions in this court against the Pasternacks on the grounds the appeal is frivolous and they violated the California Rules of Court by failing to provide an adequate record on appeal. Section 907 of the Code of Civil Procedure permits recovery of costs when an appeal is frivolous or taken solely for delay and rule 8.276(a)(1) of the California Rules of Court permits the imposition of sanctions including costs for [t]aking a frivolous appeal or appealing solely to cause delay. In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, the California Supreme Court stated: [A]n appeal should be held to be frivolous only when it is prosecuted for an improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit. (See DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 179.)

The Pasternacks come close to being sanctioned for bringing an appeal that indisputably has no merit. But for the trial courts motion in limine ruling, we would have granted the Associations motion.

Furthermore, the appellate record, which includes documents designated by the Association in the respondents appendix, has been adequate to resolve the issues presented on appeal. The Associations motion for sanctions is therefore denied.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.

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[1] There was no objection to disclosure of the information concerning the mandatory settlement conference.

[2] At oral argument, the Pasternacks counsel pointed out that a copy of the parties settlement agreement was attached to the Pasternacks opposition to the Associations motion for sanctions which was filed after briefing was completed in this appeal. The settlement agreement was not contained in the record on appeal and the Pasternacks did not seek to have the record augmented to include it. More importantly, the settlement agreement was not before the trial court in ruling on the motion for prevailing party attorney fees and thus should not be considered by this court in resolving the issues presented on appeal.

[3] The court did not state that its tentative decision with regard to the motion to tax and/or strike costs was the courts final decision. The courts comments on the record at the hearing on the motion show the courts decision to grant the motion was based on the same grounds set forth in its tentative decision.