Malibou Lake Mountain Club, Ltd. v. Smith

This case is another chapter in the long history of litigation between plaintiff and its members. In the instant case we are, by virtue of a record containing an engrossed statement of facts and a stipulation limiting the issues on appeal, faced only with the problem of construing and applying a by-law of the club.

Defendant Smith had refused to pay the dues and assessments levied against him as a member of plaintiff club. The club brought suit for the amounts claimed to be due; Smith counterclaimed for damages purportedly for the type of conduct discussed in Tooke v. Allen (1948) 85 Cal.App.2d 230 [ 192 P.2d 804 ]. Eventually he paid the disputed dues and assessments. By an amended complaint, the club sought to recover its attorney fees and expenses (a) in prosecuting the original action for delinquent dues and assessments and (b) for defending against the counterclaim. The action went to trial, resulting in a verdict adverse to Smith. The verdict allowed plaintiff $2,000 attorney fees in the collection action, $28,000 attorney fees for defending against the counterclaim, and $1,120 for litigation expenses other than attorney fees. Defendant has appealed from the two…