Merritt et al v. City of Sunnyvale et al

Filing 73

ORDER GRANTING 66 MOTION FOR ATTORNEYS' FEES AND COSTS. The hearing scheduled for 3/23/2017 is VACATED. Signed by Judge Edward J. Davila on 3/20/2017. (ejdlc2S, COURT STAFF) (Filed on 3/20/2017) Modified on 3/20/2017 (ejdlc1S, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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SALMA MERRITT, et al.,

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Case No. 5:15-cv-02775-EJD

Plaintiffs,
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ORDER GRANTING DEFENDANTS’
MOTION FOR ATTORNEYS’ FEES
AND COSTS

v.
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CITY OF SUNNYVALE, et al.,

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Re: Dkt. No. 66

Defendants.
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After prevailing on its motion to dismiss, Defendant Classics1 now seeks to recover

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$37,686.20 in attorneys’ fees and costs from pro se Plaintiffs Salma and David Merritt. Classics’

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motion will be GRANTED.

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I.

BACKGROUND
The Merritts first brought this action in Santa Clara County Superior Court, alleging

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conspiracy, invasion of privacy, and disability discrimination arising from a dispute with Classics

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about its parking policies. Dkt. No. 67-1 at 21–58.2 In that case, the court granted summary

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“Classics” refers to Defendants Classics at Fair Oaks Association, Chetak Gandhi, Wayne
Brown, and Ying-Chi Lee.
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Classics’ request for judicial notice (Dkt. No. 67) is GRANTED.
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Case No.: 5:15-cv-02775-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

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judgment in Classics’ favor (Dkt. No. 67-1 at 88–100), declared the Merritts to be vexatious

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litigants (Dkt. No. 67-1 at 85–87), and awarded attorneys’ fees and costs of $235,416 (Dkt. No.

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67-2 at 26–44). The California Court of Appeals affirmed the finding of vexatiousness (Dkt. No.

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67-2 at 2–8), and the California Supreme Court denied review (Dkt. No. 67-2 at 10).
The Merritts then filed a federal action arising from the same parking dispute, alleging

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civil rights violations under 42 U.S.C. § 1983 and disability discrimination under Cal. Civ. Code

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§ 51. This Court granted Classics’ motion to dismiss because the Merritts’ claims were barred as

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res judicata. Dkt. No. 64 at 8–12. Classics now moves for attorneys’ fees and costs. Defs.’ Mot.

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for Att’ys’ Fees and Costs (“Mot.”), Dkt. No. 66.

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II.

Classics argues that the Court should award attorneys’ fees and costs under Cal. Civ. Code

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United States District Court
Northern District of California

DISCUSSION

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§ 1717, which allows fee awards to the prevailing party in an action “on a contract” when the

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contract has a fees provision.3 The contract between Classics and the Merritts provided that the

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prevailing party in litigation “shall be entitled to recover costs, including reasonable attorney’s

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fees.” Declaration of Restrictions (“CC&Rs”) § 13.13, Dkt. No. 67-2 at 101; see also Huntington

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Landmark Adult Cmty. Ass’n v. Ross, 213 Cal. App. 3d 1012, 1023–24 (1989) (finding that

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CC&Rs are contracts for the purposes of § 1717). Classics argues that it meets the requirements

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for recovery under § 1717: the CC&Rs included an attorneys’ fees provision, this case was an

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action “on the contract,” and Classics prevailed on its motion to dismiss. Mot. at 6–8.
The Merritts respond that § 1717 does not apply because they have not asserted a contract

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claim. Pls.’ Opp’n to Defs.’ Mot. for Att’ys Fees and Costs (“Opp’n”) at 5–8, Dkt. No. 69.

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California courts have held that § 1717 applies only to claims that relate to enforcement of the

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terms of a contract. See, e.g., McKenzie v. Kaiser-Aetna 55 Cal. App. 3d 84, 89–90 (1976) (“The

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only reasonable interpretation of section 1717 is that it reciprocates the allowance of attorney’s

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State law governs Classics’ fees-and-costs motion because this Court exercised supplemental
jurisdiction over the Merritts’ state-law claim. Mangold v. California Pub. Utilities Comm’n, 67
F.3d 1470, 1478 (9th Cir. 1995)
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ORDER GRANTING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

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fees only when such fees are incurred to enforce the provisions of the contract.”); Exxess

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Electronixx v. Heger Realty Corp., 64 Cal. App. 4th 698, 708 (1998) (“a tort claim is not ‘on a

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contract’ and is therefore outside the ambit of section 1717”); Walters v. Marler, 83 Cal. App. 3d

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1, 27–28 (1978) (“Section 1717 does not authorize the award herein involved. The action was not,

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as the statute requires, ‘on the contract,’ but in tort for fraud in derogation of the contract.”).

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Nonetheless, non-contract claims can be “on the contract” if they arise from the parties’

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contractual rights and obligations. See Barrientos v. 1801–1825 Morton LLC, 583 F.3d 1197,

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1216–17 (9th Cir. 2009) (awarding attorneys’ fees where tenants claimed that eviction notices

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violated federal and local laws, because the “complaint was one to enforce their rights as tenants
under the lease,” even though the tenants did not assert contract claims); Lafarge Conseils Et

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United States District Court
Northern District of California

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Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1339–41 (9th Cir. 1986) (holding

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that a motion to vacate an arbitration award was an action on the underlying contract that

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contained the arbitration provision). And in general, courts construe § 1717 liberally. See Lafarge,

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791 F.3d at 1340 (“This court has given the requirement that an action be ‘on the contract’ a

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liberal scope.”); Brown Bark III, L.P. v. Haver, 219 Cal. App. 4th 809, 821 (2013) (“California

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courts construe the term ‘on a contract’ liberally. ‘As long as the action involve[s] a contract it is

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on [the] contract’ within the meaning of section 1717.”) (internal citations and quotation marks

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omitted).

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The Court finds that the Merritts’ claims are “on the contract.” The CC&Rs give Classics

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the authority to enact parking policies. See, e.g., CC&Rs § 3.4 (requiring occupants to “park their

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vehicles in their garages” and granting authority to the Board to “adopt Rules regulating parking”).

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The Merritts’ claims arise solely from Classics’ enforcement of those policies. See Order Granting

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Defs.’ Mot. to Dismiss at 2–7, Dkt. No. 64 (summarizing the events giving rise to the dispute

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between Classics and the Merritts). The state court agreed, finding that this case “unquestionably

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regarded the rights and obligations of the Association and plaintiffs under the CC&Rs.” Dkt. No.

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67-2 at 34.

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The Court also finds that Classics’ fees and costs requests are reasonable. Classics requests
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Case No.: 5:15-cv-02775-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

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$32,991 in fees for 165.9 hours billed (amounting to an average hourly rate of about $200 per

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hour), as well as $4,340 to bring this fees motion, and $355.20 in costs. Mot. at 10–12. These

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amounts are reasonable under the circumstances.

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Classics also seeks to recover fees and costs under 48 U.S.C. § 1988. Having found that

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Classics is entitled to fees and costs under § 1717, the Court need not consider whether Classics

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can also recover under § 1988.

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III.

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CONCLUSION
Classics’ motion for $37,686.20 in fees and costs is GRANTED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 20, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cv-02775-EJD
ORDER GRANTING DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS