Legal Question in Real Estate Law in California

Re: CC and R Litigation

The CC & Rs may not preclude an award of attorney's fees. However this would require the Board to sue you and that may not happen. The association could recover their costs other than the attorney fees. And depending on how long the lawsuit has gone on. That may be a small amount or a large amount of money. So you may want to dismiss 'without prejudice.' This way if the statute hasn't passed you can bring the suit again. Normally dismissals like this are part of a settlement. The attorneys talk (for you and the board), and agree to dismiss 'with prejudice.' These then are without either side recovering attorney fees or costs.

Re: CC and R Litigation

Under Code of Civil Procedure section 128.5 a court may order a party, the party's attorney or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. The various terms and concepts are defined in following paragraphs of the section. See also section 128.7(b) and (c). No counter-suit by the former defendant would be required under these sections, if they apply; a motion made within the to-be-dismissed case would suffice.

Re: CC and R Litigation

Normally, a voluntary dismissal precludes an award of attorney fees. You may be liable for costs of suit. If there was no merit in your claim, the Defendant could file a separate action for malicious prosecution, but these type of actions are almost imposible to win. The Court also decides attorney fees on whether or not a party complied with Alternative Dispute Resolution under Civil Code Section 1354.

Re: CC and R Litigation

Sometimes the most obvious answer is the most difficult to see. This is what you need to do. Before you dismiss the case, you need to get an agreement from opposing counsel that they will waive any claim for attorney fees or costs in return for your dismissing the case. They will probably want a dismissal with prejudice, so give it to them. If you do not proceed this way, then you will have to worry about things like attorney fees, malicious prosecution, etc. Why would you want to do that? If you need help, feel free to contact me.