Salawy

I respectfully dissent.

This case raises one issue, whether this was a lawsuit brought to enforce the governing documents. Relevant precedent, Kaplan v. Fairway Oaks Homeowners Association (2002) 98 Cal.App.4th 715 [ 120 Cal.Rptr.2d 158 ], and a commonsense examination of the record reveal that the trial court was right, it was such a lawsuit. I thus disagree with the majority’s holding on that issue.

I also disagree with the majority’s view on, to quote the opening paragraph, whether a “defendant’s successful invocation of the governing documents” *675 would entitle it to fees under Civil Code section 1354, subdivision (f). Here, I say “view,” not holding, because the theory is not raised in this appeal and the discussion is dicta. The discussion is unnecessary, and, being dicta, has dicta’s common problems. It is difficult to understand and has the potential to be applied to situations the majority may not have contemplated.

I begin with Kaplan , which the majority cites, then ignores. In that case, the complaint alleged a violation of the Corporations Code relating to proxy and voting rights, but after an examination of what the case was actually about, the Court found that…

Plaintiffs and appellants Adel Salawy and Paul Gerstley (appellants) appeal from the trial court’s orders awarding defendant and *667 respondent Ocean Towers Housing Corporation (respondent) a total of $30,000 in attorney fees ($15,000 against each of the appellants) pursuant to Civil Code 1 section 1354, subdivision (f), which provides for reasonable attorney fees for the prevailing party in an action to enforce the governing documents of a common interest development. Because the claims here were not such actions, we reverse the attorney fees awards. We hold that a defendant’s 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.

BACKGROUND

Appellants were residents and shareholders in respondent, a 317-unit apartment cooperative in Santa Monica. Because the apartment building was significantly damaged by the 1994 Northridge earthquake, respondent’s shareholders undertook to renovate and repair the building.

In December 2001, appellants each filed separate but identical complaints against respondent. In their complaints, appellants alleged that they were shareholders…

Plaintiffs and appellants Adel Salawy and Paul Gerstley (appellants) appeal from the trial court's orders awarding defendant and respondent Ocean Towers Housing Corporation (respondent) a total of $30,000 in attorney fees ($15,000 against each of the appellants) pursuant to Civil Code [1] section 1354, subdivision (f), which provides for reasonable attorney fees for the prevailing party in an action to enforce the governing documents of a common interest development. Because the claims here were not such actions, we reverse the attorney fees awards. We hold that a defendant's 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.

Appellants were residents and shareholders in respondent, a 317-unit apartment cooperative in Santa Monica. Because the apartment building was significantly damaged by the 1994 Northridge earthquake, respondent's share-holders undertook to renovate and repair the building.

In December 2001, appellants each filed separate but identical complaints against respondent. In their complaints, appellants alleged that they were shareholders of…