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March 26, 2026 Get Citation Alerts Download PDF Add Note

Senseman v. Mimi Real Properties CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D084658

• Precedential Status: Non-Precedential

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (59.2K)

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Combined Opinion

Filed 3/26/26 Senseman v. Mimi Real Properties CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARK A. SENSEMAN et al., D084658

Plaintiffs and Respondents, (Super. Ct. No. 37-2021-
00003304-CU-OR-CTL)
v.

MIMI REAL PROPERTIES, LLC et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County,

Kenneth Medel, Judge.* Affirmed with modifications.
Goode Hemme, Jerry D. Hemme; Williams Iagmin and Jon R. Williams
for Defendants and Appellants.
Craig A. Sherman for Plaintiffs and Respondents.

• Retired judge of the San Diego Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. INTRODUCTION This appeal arises from a dispute between the owners of two condominium units, with one located directly above the other. The lower unit was owned by Phyliss and Mark Senseman, individually and as trustees of the Mark A. Senseman and Phyliss M. Senseman Trust Dated September 11, 2014 (Sensemans). The upper unit was owned by Mimi Real Properties, LLC (Mimi Properties), and its sole managing members, Michael Jones and Lacy Jones (collectively, Joneses). The Sensemans sued the Joneses after the Joneses began using their unit as a short-term rental. The court ruled in favor of the Joneses on the Sensemans’ cause of action for negligence per se and dismissed it. The jury then found in favor of the Sensemans on causes of action for nuisance and breach of the homeowner association’s covenants, conditions, and restrictions (CC&Rs). The trial court entered a permanent injunction directing the Joneses to take measures to abate excessive noise caused by frequent rental turnover. On appeal, the Joneses contend (1) certain terms of the injunction are fatally vague, (2) certain components of the jury’s damages award are unsupported by substantial evidence, and (3) the trial court abused its discretion when it found the Sensemans to be the prevailing party for purposes of awarding attorney fees. We disagree with the first two contentions but agree with the third. We direct the trial court to modify the judgment by striking the attorney fees award and affirm the judgment as modified.

2
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Dispute
The Ensenada Del Sur condominium complex is located “three
buildings down from the ocean” in the Mission Beach community of
San Diego. It contains four units and is governed by a homeowner’s
association (HOA) and its CC&Rs. Since 1999, the Sensemans have owned
one of the lower-level units, which they use as a summer vacation home. The
rest of the year they rent it out to local college students.
In July 2017, the Joneses bought the unit directly above the Sensemans
with plans to rent it out though Airbnb and Vacation Rentals by Owner
(VRBO). They made some repairs and renovations, and began leasing it
about a week after closing escrow. A few months later, they transferred title
to Mimi Properties with plans to operate the short-term rental business
through that entity.
The CC&Rs contain provisions that prohibit interfering with the use
and enjoyment of the common areas and creating “an annoyance or nuisance”
in a unit or common area. When the Joneses purchased their unit, the
CC&Rs also contained a 30-day minimum lease restriction. The Joneses did
not comply with this restriction and rented the unit to vacationers on a much
shorter term basis.
According to the Sensemans, starting in 2017, they regularly heard
“pounding” and “thuds” from the Joneses’ unit above as “if something [was]
hitting the ground.” They heard doors slamming and “kids playing with
balls.” They could hear a rollaway bed being set up and it was loud. They
also heard a lot of noise from the stairwell leading to the Joneses’ unit while
vacationers were moving in and out. The vacationers had “an awful lot of

3
gear,” and they made a lot of noise pulling “big roller bags . . . up those
stairs.” The Sensemans heard kids running across the stairs when they went
in and out of the Joneses’ unit. The sound from the stairs in particular “just
reverberate[d] up and down” the hallway.
The noise occurred frequently. Mark Senseman explained: “We can get
move-ins or move-outs all day or night, depending when people fly in or drive
in to the coast, but again, we can be woken up in the middle of the night. It
can happen while we’re on a Zoom call with our clients. It—there’s just no
way to say, you know, this is a time where we can avoid it, it’s just constant.”
Phyliss Senseman said the sound was emotionally stressful. She explained:
“It’s draining, it’s stressful, it’s exhausting. . . . [I]t doesn’t stop. . . . [A]s I
think about it now, my blood is quivering in my body because it is . . . so
maddening.”
The Sensemans, for the most part, did not call the Joneses to complain
about the noise for three years. But they began complaining regularly in the
summer of 2020 when they were living full-time in their unit during the
summers because of the COVID-19 pandemic. They hired counsel to send a
cease-and-desist letter. And they began calling Michael Jones two to three
times per week when noisy renters bothered them, although the calls did not
occur every week. The Sensemans acknowledged that some of the Joneses’
renters were quiet.
Lacy Jones said she responded to complaints by the Sensemans by
calling the renters and asking them to comply with the local noise ordinance
and the unit’s “house rules,” which provide for “quiet hours” after 10:00 p.m.
She informed renters with young children “to please be aware there are
people below and to please minimize the running, the jumping.” Renters
were also told to keep the television sound at a normal volume, and there

4
were to be “[n]o parties, no gatherings, only the people that are staying there
are supposed to be inside the unit.”
In August 2020, the HOA voted to amend the CC&Rs to lower the
minimum rental duration period from 30 days to three days. The vote was
three to one with the Sensemans voting against the change. But because of a
procedural mistake, the HOA had to hold a second vote in December 2020.
This time, the amendment succeeded, with three units in favor and the
Sensemans abstaining from voting.
II.
Lawsuit and Jury Trial

In January 2021, the Sensemans sued the Joneses.1 The verified
complaint asserted causes of action for private nuisance, nuisance per se, and
breach of the HOA’s CC&Rs.
On the cause of action for breach of the CC&Rs, the Sensemans alleged
the Joneses breached three of its provisions because their use of the unit as a
short-term rental property violated state and local zoning laws. In relevant
part, the three zoning-related provisions stated as follows:
4.1 USE OF CONDOMINIUMS. Each Condominium shall be
improved, used and occupied for private, single-family dwelling
purposes only, and no portion thereof, nor the Common Area,
shall be used for any commercial purpose, except as may be
allowed by the zoning regulations of the City of San Diego or any
variance obtained therefrom. (Italics added.)

4.2 LEASE OF CONDOMINIUMS. . . . No Owner shall lease his
Condominium for transient or hotel purposes.2

1 The complaint listed Five Star Vacation Rentals as an additional
defendant. Five Star Vacation Rentals was used as a DBA by the Joneses,
but did not exist as a separate entity.

5
11.3 VIOLATION OF LAW. Any violation of any state, municipal
or local law, ordinance or regulation pertaining to the ownership,
occupation or use of any Condominium within the Project is
hereby declared to be a violation of this Declaration and subject
to any or all of the enforcement procedures herein set forth.

In addition, the Sensemans alleged the Joneses breached two other
provisions of the CC&Rs because their tenants created “excessive noise” and
“vibration.” The provisions prohibited the creation of a nuisance through
excessive noise and other behavior:

4.5 INTERFERENCE WITH OTHER OCCUPANTS. No Living
Unit or Exclusive Use Common Area shall be used in such
manner as to obstruct or interfere with the enjoyment of
occupants of other such areas or annoy them by unreasonable
noise or otherwise, nor shall any nuisance be committed or
permitted to occur in any Unit nor on the Common Area.

4.9 OFFENSIVE ACTIVITIES AND CONDITIONS. No noxious
or offensive activity shall be carried on in any Living Unit, or on
the Common Area, nor shall anything be done therein which may
be or become an annoyance or nuisance to the other Owners other
than construction or repair of improvements made at the Board’s
instruction, or at Declarant’s instruction.
Finally, at the time of trial, the Sensemans contended the Joneses
violated the provision in the CC&Rs that prohibited rentals for a period of
less than 30 days from the time they purchased the unit until it was amended
in December 2020:
4.2 LEASE OF CONDOMINIUMS. . . . Any lease which is either
for a period of less than thirty (30) days or pursuant to which the

2 The December 2020 amendment to the CC&Rs struck this language
from Section 4.2. But the Sensemans contended the amendment was “void or
voidable” because it purportedly conflicted with a San Diego Municipal Code
(SDMC) ordinance. In their view, the ordinance required the HOA to
prohibit “hotel use.”
6
Lessor provides any services normally associated with a hotel,
shall be deemed to be for transient or hotel purposes.

The two nuisance causes of action were founded on the same operative
facts as the cause of action for breach of the CC&Rs. The Sensemans alleged
the Joneses’ use of their unit as a short-term rental was a nuisance per se
because the condominium complex was in a residential zone that precluded
commercial use and hotel vacation rentals. They alleged the Joneses’ use of
the unit was a nuisance per se for the additional reason that such use
resulted in their tenants regularly creating noise in excess of that allowed by
law. In the alternative, the Sensemans alleged the Joneses created a private
nuisance by “caus[ing] vibrations and noises that are offensive to the senses
and result in [the] loss of free use and loss of enjoyment by [the] Senseman[s]
. . . so as to interfere with their comfortable use and enjoyment of life . . . in
and at the . . . [p]roperty.”
In their claim for relief, the Sensemans sought damages for personal
injury, loss of use, and diminution in the value of their unit. They also
sought injunctive relief in the form of a judicial declaration that the Joneses’
activities “violated San Diego residential zoning restrictions and noise
ordinances.” They alleged there was “no other option but to suspend the
alleged unlawful and nuisance activities so as to allow for [the Sensemans] to
be able to use and enjoy their subject property.” (Italics added.) They
specifically sought a permanent injunction directing the Joneses “to stop and
cease all commercial and vacation rental enterprise” in their unit.
In a verified answer, the Joneses denied the allegations and asserted
several affirmative defenses. They specifically denied that they violated state
and local zoning laws and the zoning-related CC&Rs by using their unit as a
short-term vacation rental.

7
Before trial, both parties asked the trial court to rule on whether the
Joneses violated state or municipal zoning law by using their unit as a short-
term vacation rental. The parties extensively briefed this question in their
joint trial readiness report, trial briefs, and motions in limine. In November
2022, the court ruled in favor of the Joneses and dismissed the negligence per
se cause of action. Pursuant to the parties’ stipulation, the court treated its
ruling as having been made pursuant to a motion for dismissal by the
Joneses. In accordance with this ruling, the jury was not given a negligence
per se instruction and was not instructed to consider whether the Joneses
breached the provisions of the CC&Rs that related to zoning by violating

state or municipal law.3
The case proceeded to trial in December 2022 and lasted four days.
The jury found for the Sensemans on their causes of action for private
nuisance and breach of the non-zoning related CC&Rs. On December 9, the
jury awarded the Sensemans damages for loss of use in the amount of
$533.30, for out-of-pocket loss in the amount of $1,186.85, and for mental
distress in the amount of $500.
III.
Postverdict Proceedings
After the jury’s verdict, the trial court considered whether to order
injunctive relief, and if so, the nature of the relief that should be ordered. In
their trial brief, the Sensemans continued to seek an order prohibiting all
commercial use of the Joneses’ condominium unit as a short-term vacation
rental.

3 The jury was instructed to consider whether the Joneses violated the
plain language of Section 4.2 of the CC&Rs before it was amended by renting
the premises out for periods less than 30 days.
8
In response, the Joneses asserted there was no longer any legal basis to
grant an injunction shutting down their business. The trial court had ruled
that short-term rentals in the complex were not prohibited by the laws in
effect from 2017 to 2022, and it had dismissed the Sensemans nuisance per se
claim and refrained from instructing the jury to consider whether the Joneses
violated zoning-related provision of the CC&Rs. The CC&Rs, moreover, as
properly amended in December 2020, now specifically permitted short-term

rentals in the condominium complex.4 Citing Civil Code5 section 3482,
which provides that “[n]othing which is done or maintained under the express
authority of a statute can be deemed a nuisance,” the Joneses argued the
court could not as a matter of law prohibit them entirely from using the unit
as a short-term rental.
In addition to the trial court’s favorable rulings, the Joneses argued
their business could not be enjoined entirely because SDMC contained a
newly enacted provision that expressly permitted short-term rentals in
Mission Bay. In support of this last point, the Joneses offered into evidence a
Short-Term Residential Occupancy License obtained by Lacy Jones for the
unit.
In reply, the Sensemans adjusted their request for relief. Instead of a
complete ban, they asked the trial court to enjoin short-term rentals by the
Joneses until “physical improvements [were] made . . . to ensure that noise
an[d] sound transmission reductions have been instituted in a sufficient
manner to the satisfaction of the [c]ourt.” (Boldface omitted.) To help in this

4 As mentioned, the amendment took place before the Sensemans filed
suit.

5 Undesignated statutory references are to the Civil Code.

9
regard, they asked the court to appoint a special master, at the Joneses’
expense, “to recommend and approve, . . . proposals [by] sound and acoustical
engineers, consultants and/or contractors[,] . . . appropriate and sufficient
sound attenuation measures and improvements including, but not limited to,
consideration of improvements to structural, flooring, furnishings, and
appliances.” (Boldface omitted.) As the court observed, “the relief originally
sought for the injunction in the complaint was draconian, which is cease and
desist basically . . . doing short-term rentals. “But now . . . the relief
sought . . . has been pared down somewhat and actually been put into
practical terms.”
The Joneses objected to the appointment of a special master. They
argued the Sensemans had the burden to adduce expert testimony of
modifications to the Joneses’ unit that could effectively reduce sound
transmission. In the Joneses’ view, “[t]he Sensemans had the burden of proof
and to the extent they disputed [Michael] Jones’ testimony that there are no
physical improvements to be made short of a retrofit of the building to reduce
sound transmission, they should have presented the evidence to support their
claim, not demand the Jones[es] . . . pay for further analysis posttrial.”
The trial court ruled on the Sensemans’ request for a permanent

injunction on May 11, 2023.6 The written ruling stated:
“The order to [the Joneses] is to abate the disturbing and
inordinate noise arising from the use of the[ir] condominium as a
short-term rental. The [c]ourt orders both parties to a special
master who will determine what noise would be expected in a
normal living situation as against the extant inordinate noise
that formed the basis of the jury’s finding on the [n]uisance

6 The court modified its ruling on October 13, 2023. The parties have not
identified any relevant changes.

10
[c]ause of [a]ction, and likely was the basis of the jury’s verdict on
the [b]reach of CC&Rs [c]ause of [a]ction.”

“The [s]pecial [m]aster will offer a master plan for [the Joneses]
to abate that noise, carefully balancing the proposed measures
against reasonable expense. The [s]pecial [m]aster shall consider
the special, unique nature of this beach community and the
noises that are common there, ‘come with the territory’, which do
not exist in other residential areas. The [s]pecial [m]aster shall
also consider that the . . . Jones[es] are now permitted by law to
use their property as a short-term vacation rental, both by the
authority of the condominium CC&Rs and by the appropriate
public entity licensure. As to routine and baseline noises
characterized by this beach community, the [c]ourt orders no
remediation or abatement measures as [the Sensemans] assumed
the risk of those conditions upon purchase of their unit.

“The special master shall prepare a written report with
recommendations which will be presented to the [c]ourt for final
determination of the plan. The [c]ourt will hear the comments of
the attorneys before making a final ruling on the plan. Although
the [c]ourt understands that [the Joneses] have only sought to
utilize their beach property in good faith as an investment, in
this [c]ourt of [e]quity, the court is compelled to order that the
cost of the special master shall be borne by [the Joneses] as
bolstered by the jury’s verdict.”

Although the trial court expressly reserved “making a final ruling” on
the injunction, it signed and filed a proposed judgment drafted by the
Sensemans on July 19, 2023. The proposed judgment stated that the
Sensemans were the prevailing parties. Important here, the proposed
judgment made no mention of the court’s ruling that the Joneses’ use of the
unit did not violate state or local zoning law, nor of its dismissal of the
Senseman’s cause of action for negligence per se. It stated that the court
found the Sensemans had prevailed on “each of their claims and causes of
action in the [c]omplaint.” (Italics omitted.) The proposed judgment
provided, “a permanent injunction is hereby granted and [it is] ordered that

11
[the Joneses], jointly and severally, abate the disturbing and annoying noise
arising from the use of the Jones[es]’ property . . . as a short-term rental. A
[s]pecial [m]aster shall be appointed to investigate and create a master plan
for abatement for the [c]ourt to consider and make a final determination of
the plan for abatement. The cost for the [s]pecial [m]aster shall be born and
paid for by [the Joneses].” The Joneses objected to the proposed judgment on
the ground it was premature.
On May 28, 2024, after the special master issued his report, the trial
court awarded $138,875 in attorney fees and $10,888 in costs to the
Sensemans, for a total of $149,763. The Joneses asserted the court’s
determination that the Sensemans were the prevailing parties was
premature because “the [c]ourt ha[d] not made its final ruling on the scope of
abatement work required following issuance of the special master’s
recommendation.” The court rejected that contention, and confirmed its prior
ruling that the Sensemans were the prevailing parties. Important here, the
court based its determination on a finding that the Sensemans “achieved
their main litigation goal, . . . [and] [the Joneses] did not obtain anything.”
(Italics added.)
The trial court made its final ruling regarding injunctive relief on
June 17, 2024. We discuss the details of that ruling later in our analysis of
the issues on appeal.
DISCUSSION
I.
Appealability
On August 1, 2024, the Joneses filed a notice of appeal. The notice of
appeal attached two written rulings by the trial court: (1) the ruling entered
on July 19, 2023, after the jury’s verdict (2023 ruling), and (2) the ruling

12
entered on June 3, 2024, after the special master’s final report (2024 ruling).
Language in both rulings states they are the “judgment” of the court. But
there can be no more than one final, appealable judgment between parties to
a civil action. (See e.g., Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th
643, 652 (Meinhardt).)
Given the apparent discrepancy, we provided the parties with an
opportunity to submit letter briefs addressing the nature of the two rulings
and whether the Joneses timely appealed from the final judgment between
the parties. We allowed them to address the question further in their

substantive briefs on the merits as well as at oral argument.7 We observed
that, if the 2023 ruling was the final judgment between the parties, the notice
of appeal would be untimely with respect to that ruling because a notice of
appeal must be filed no later than 180 days after entry of the judgment or
order being appealed. (Cal. Rules of Court, rule 8.104(a)(1).) However, as we
also observed, the appeal would still be timely with respect to the 2024
ruling.
Having reviewed the arguments on both sides, we conclude the 2024
ruling is the one final judgment between the parties in the instant action.
The 2023 ruling was interlocutory and not appealable. An appeal must be
taken “ ‘from a final judgment that is not intermediate or nonfinal but is the
one final judgment.’ ” (Meinhardt, supra, 16 Cal.5th at p. 652.)
“A judgment is the final determination of the rights of the parties.”
(Code Civ. Proc., § 577, italics added.) To determine whether an adjudication

7 The Sensemans contend the law of the case doctrine binds us to our
preliminary determination that the Joneses’ notice of appeal from the 2023
order was untimely. They are incorrect. The doctrine applies to decisions
made in prior appeals. (People v. Barragan (2004) 32 Cal.4th 236, 246.)

13
is final and appealable, “ ‘[i]t is not the form of the decree but the substance
and effect of the adjudication which is determinative. As a general test,
which must be adapted to the particular circumstances of the individual case,
it may be said that where no issue is left for future consideration except the
fact of compliance or noncompliance with the terms of the first decree, that
decree is final, but where anything further in the nature of judicial action on
the part of the court is essential to a final determination of the rights of the
parties, the decree is interlocutory.’ ” (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 698.)
Here, the 2023 ruling provided the Sensemans were “entitled to a
permanent injunction to prevent future breaches and violations of . . . the
CC&Rs that obstruct[ ], interfere[ ], or annoy[ ] [the Sensemans] and the use
of their property.” The trial court further specifically ruled, “[A] permanent
injunction is hereby granted and ordered that [the Joneses], jointly and
severally, abate the disturbing and annoying noise arising from the use of
the[ir] property . . . as a short-term rental.” But the court expressly left open
for later decision the specific provisions of the injunction.
The trial court directed the appointment of a special master “to
investigate and create a master plan for abatement for the [c]ourt to consider
and make a final determination of the plan for abatement.” In the minute
order incorporated by reference into the ruling, the court directed further
proceedings and the “final ruling” to take place as follows: “The special
master shall prepare a written report with recommendations which will be
presented to the [c]ourt for final determination of the plan. The [c]ourt will
hear the comments of the attorneys before making a final ruling on the plan.”
(Italics added.)

14
Based on this express language by the trial court as well as the
subsequent proceedings that did in fact take place, the 2023 ruling was not a
final judgment because it expressly left open for consideration details about
the abatement injunction that were essential to a final determination of the
parties’ rights. We therefore hold the Joneses’ appeal from the 2024 ruling
was an appeal from a final judgment between the parties.
II.
Permanent Injunction
The Joneses contend the injunction ordered by the trial court “is
impermissibly vague, making it impossible to reasonably follow or enforce.”
(Capitalization omitted.) We disagree. But as we explain, the Joneses’
argument misapprehends the terms of the injunction. Our review is de novo.
(Evans v. Evans (2008) 162 Cal.App.4th 1157, 1166.)
An injunction “must be sufficiently precise to provide a person of
ordinary intelligence fair notice that her contemplated conduct is forbidden.”
(In re Marriage of Hartmann (2010) 185 Cal.App.4th 1247, 1250.) “A
directive ‘in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law.’ ” (In re Berry (1968) 68 Cal.2d 137, 156.)
The injunction imposed by the trial court here consists of three
directives. First, it requires the Joneses to include the following terms as
part of their lease agreements with all prospective tenants:
“ ‘The owners of the unit directly below this unit purchased their
condominium before the other units were leased as short-term
vacation rentals. The use of our unit as a short-term vacation
rental represented a major change for them in terms of noise
levels. We recognize, however, that they deserve the peaceful
and quiet enjoyment of their condominium.

15
“ ‘Please make every effort to keep the noise level down by
ascending and descending the staircase as calmly and as quietly
as possible, using soft shoes, sandals, flip flops or bare feet if
possible, and being careful not to drop or drag objects onto the
steps.

“ ‘Likewise, please be mindful that the owners of the unit below
may be disturbed by inordinate noise coming from within the unit
directly above them. Please make every effort to walk calmly
within this vacation rental, and to not stomp, jump or run in this
unit. Please make every effort not to drop objects, like luggage,
recreational materials, or other hard or heavy items onto the
floors. And please refrain from any other behavior that might
generate inordinate noise and disturb the owners/tenants below.

“ ‘By signing this document, you agree to abide by its terms and
conditions. Failure to abide by these terms may constitute a
breach of the rental agreement.’ ”

Second, the Joneses are to place a sign “at the top of the stairs on their
landing” that states: “ ‘Please try to be as calm and quiet as possible in
ascending and descending this stairway to avoid disturbing the
owners/tenants below. Please avoid dropping or dragging objects on the
stairway.’ ”
Third, the Joneses must replace their existing living room carpet pad
with an “acoustic carpet underlayment/‘pad’ . . . comprised of flexible mass-
loaded barrier (to absorb/reduce impact noise transfer), fused to high-density
premium foam.”
There is nothing vague about the injunction’s directives to (1) add
specified terms to the lease agreement for the condominium unit, (2) post a
sign with specified terms on the staircase landing, and (3) replace the unit’s
living room carpet pad. The Joneses misunderstand these obligations. The
plain language of the injunction does not require them to guarantee
compliance by their tenants with the requests made in the lease terms, nor in

16
the sign posted at the top of the stairs. They are required only to make the

requests of their tenants.8 We uphold the trial court’s injunction.
III.
Damages
As mentioned, the jury awarded the Sensemans total damages of
$2,220.15, consisting of loss of use in the amount of $533.30, out-of-pocket
loss in the amount of $1,186.85, and mental distress damages in the amount

of $500.9 The Joneses contend insubstantial evidence supports two
components of the jury’s damages award, out-of-pocket loss and loss of use.
We are not persuaded.
We review the amount of a jury’s verdict awarding damages for
substantial evidence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614.) “In
reviewing a claim of insufficiency of evidence, the appellate court must
consider the whole record, view the evidence in the light most favorable to the
judgment, presume every fact the trier of fact could reasonably deduce from
the evidence, and defer to the trier of fact’s determination of the weight and
credibility of the evidence.” (Ibid.)
Starting with the loss of use damages, the Joneses contend the
Sensemans’ testimony that they needed to lower the rent they charged for the
unit during the school year was speculative and cannot be squared with the
jury’s award of $533.30. They call the amount a “random figure.” But trial
counsel for the Joneses explained a reasonable basis for the award at the
court trial on the Sensemans’ request for injunctive relief. In counsel’s words,

8 Counsel for the Sensemans conceded this point at oral argument.
9 We observe the trial court’s judgment appears to contain two
typographical errors with respect to the amounts awarded by the jury. The
discrepancy erroneously increases the total award by $32.30 in the
Sensemans’ favor.
17
the Sensemans “spent five days, in August, having the paint applied. They
couldn’t live [in the unit]. They couldn’t rent it out. They weren’t there for
five days. The painters were in there putting on the sound-deadening paint.
At the time, they were renting the property for $3200 a month. [¶] . . . So, if
you divide 3200 by 30 days, you get a daily rate of a hundred-and-such-and-
so. Multiply it by the five days, and you get right to the penny of 533.33. So
that was the loss of use.” We find this explanation plausible and supported
by substantial evidence.
Turning to out-of-pocket loss, the parties agree the $1,186.85 awarded
by the jury was for “ ‘sound deadening paint’ ” and labor by painters who
painted the Sensemans’ ceiling. Mark Senseman testified that he “did a
Google search” about potential sound mitigation measures, and spoke with a
friend who was an architect. Based on what Mark learned, the Sensemans
had the ceiling painted with “sound-deadening paint,” which Mark described
to be a ceramic-based paint made by High Tech Solutions. Mark supported
his testimony with receipts. Unfortunately, the paint did nothing to deaden
the sound.
The Joneses contend the award for this expense was based improperly
on speculation because there was no showing made by an expert that sound
deadening paint had any potential to mitigate the noise. They argue, “The
Sensemans performed no due diligence to determine whether that paint
would reduce any sound transmission from the Joneses’ unit or the adjacent
common area stairwell; they did not consult with a sound mitigation expert
about that paint, nor did they talk to another customer who had used that
paint product to determine its efficacy.”
Applying the substantial evidence standard, we reject the Joneses’
contention. We defer to the jury with respect to the reasonableness of

18
Sensemans’ research and reliance on an architect’s suggestion to try painting
the ceiling with ceramic-infused paint as a potential measure to mitigate the
noise. There was no objection to Mark Senseman’s testimony on hearsay
grounds. The Joneses proffered no expert testimony of their own that sound
deadening paint does not work or would not work under the circumstances.
We have no basis to conclude it was inherently unreasonable for the
Sensemans to try painting the ceiling at the suggestion of an architect.
For all these reasons, we affirm the jury’s award with respect to both
loss of use and out-of-pocket damages.
IV.
Attorney Fees
As recounted, after the jury trial, the Sensemans sought an award of
attorney fees and costs. The trial court ruled on the motion in a minute order
in May 2024, and later incorporated that order into its final judgment. The
motion was made pursuant to section 5975 and pursuant to section 1717
based on an attorney fees provision in the CC&Rs. The court found the
Sensemans were the prevailing parties under section 5975 and awarded them
$138,875 in attorney fees.
The Joneses contend the trial court erred when it determined the
Sensemans were the prevailing parties. (Capitalization omitted.) Our review
of this issue is for abuse of discretion. (Artus v. Gramercy Towers
Condominium Assn. (2022) 76 Cal.App.5th 1043, 1050.) “The abuse of
discretion standard is not a unified standard; the deference it calls for varies
according to the aspect of a trial court’s ruling under review. The trial court’s
findings of fact are reviewed for substantial evidence, its conclusions of law
are reviewed de novo, and its application of the law to the facts is reversible
only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43

19
Cal.4th 706, 711―712, fns. omitted.) Because the trial court here based its
decision on an erroneous factual finding, and erroneously believed it was not
ruling prematurely, we agree with the Joneses there was an abuse of
discretion.
The Davis-Stirling Act Common Interest Development Act governs
actions to enforce the governing documents of condominiums and other
common interest developments. (Rancho Mirage Country Club Homeowners
Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 258 (Rancho Mirage).) In such
actions, the Davis-Stirling Act provides for the recovery of attorney fees as
follows: “In an action to enforce the governing documents, the prevailing
party shall be awarded reasonable attorney’s fees and costs.” (§ 5975,
subd. (c).)
“The analysis of who is a prevailing party under the fee-shifting
provisions of the [Davis-Stirling] Act focuses on who prevailed ‘on a practical
level’ by achieving its main litigation objectives.” (Rancho Mirage, supra, 2
Cal.App.5th at p. 260.) When determining a party’s litigation objectives in
cases involving an alleged breach of CC&Rs, courts have generally followed
the analysis that is used to determine the prevailing party when attorney
fees are awarded in breach of contract actions pursuant to section 1717.
(Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th
761, 774.) Courts accordingly “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.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876,
(Hsu) italics added.) Thus, “[t]he prevailing party determination is . . . made
. . . by ‘a comparison of the extent to which each party ha[s] succeeded and
failed to succeed in its contentions.’ ” (Ibid.) Important here, the

20
determination is to be made only upon final resolution of the relevant claims.
(Ibid.)
As a threshold matter, whenever the statutory conditions have been
satisfied, the prevailing party is entitled to fees as a matter of right.
(Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590.)
As explained by the California Supreme Court in the context of section 1717
awards, this means trial courts have no discretion to deny attorney fees to a
defendant who has obtained a “simple, unqualified victory.” (Hsu, supra, 9
Cal.4th at p. 877; id at pp. 875―877.) “Similarly, a plaintiff who obtains all
relief requested on the only contract claim in the action must be regarded as
the party prevailing on the contract for purposes of attorney fees under
section 1717.” (Id. at p. 876, italics added.) Here, the Sensemans did not
obtain all the relief they requested, and so, we do not agree with our

dissenting colleague that they were entitled to fees as a matter of right.10
Starting with the trial court’s legal error, the court erroneously treated
the 2023 ruling as its final judgment. But as we have explained, the 2023
ruling expressly left open for decision the precise details of the abatement
injunction that were essential to a final determination of the parties’ rights.
Without a final determination of those rights, it was premature for the trial
court to “compare the relief awarded . . . with the parties’ demands . . . and

10 Because we do not agree the trial court had an obligation to choose the
Sensemans as the prevailing party, we conclude the case law cited by our
dissenting colleague, which discusses equitable adjustments to the amount of
attorney fees awarded in such situations, is inapposite to our analysis. We
observe, in addition, that neither party asked us to address the
reasonableness of the fee award and whether it should be adjusted downward
based on the Senseman’s “degree[ ] of success.” (Dis. opn., post, at p. 5.) It is
not our role to act as advocates on behalf of the parties by conducting our own
legal research and analysis. (See United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 153.)
21
their litigation objectives.” (Hsu, supra, 9 Cal.4th at p. 876.) “[A] disposition
that rests on an error of law constitutes an abuse of discretion.” (In re
Charlisse C. (2008) 45 Cal.4th 145, 159.)
Turning to the trial court’s factual findings, the trial court premised its
determination that the Sensemans were the prevailing parties on a finding
that they prevailed on “each of their claims and causes of action.” But the
Sensemans manifestly did not prevail on each of their causes of action or,
critical here, on each of their claims for relief. The Sensemans asserted the
Joneses violated the CC&Rs because the use of their unit as a short-term
rental violated a host of state and local zoning laws. With respect to their
claim for breach of the CC&Rs that relate to zoning, they sought “preliminary
and permanent injunctive relief to enforce the CC&Rs and prohibit [the
Joneses] from utilizing [their condominium unit] as a commercial rental and
hotel property.” The court ruled the use of their property as a short-term
rental did not violate state or local law, and the Sensemans, as a result, were
not entitled to an expansive injunction prohibiting their vacation rental
business entirely. Accordingly, it is not correct for the court to say, as it did
in its ruling, that the Joneses “did not obtain anything.” The Joneses
achieved their litigation goal of keeping their rental business in operation as
a going concern. “A trial court abuses its discretion when the factual findings
critical to its decision find no support in the evidence.” (People v. Cluff (2001)
87 Cal.App.4th 991, 998.)
The defeat of the Sensemans’ zoning-law-based claims was critical,
moreover, to the defeat of their main litigation objective. As our dissenting
colleague points out (dis. opn., post, at p. 1), the trial court determined that
the Sensemans’ main litigation goal was “the abatement of the nuisance
caused by [the Joneses’] operation of a short-term rental” in their

22
condominium unit. Although the record supports this finding of fact as a
general proposition, it is important to consider the details of that goal. The
Sensemans specifically sought an abatement injunction prohibiting the
Joneses from operating their short-term rental business entirely—a complete
ban. The Sensemans alleged in the complaint that there was “no other option
but to suspend the alleged unlawful and nuisance activities so as to allow for
[them] to be able to use and enjoy their subject property.” And they sought a
permanent injunction directing the Joneses “to stop and cease all commercial
and vacation rental enterprise” in their unit. The Sensemans were unable to
achieve this specific goal precisely because the trial court ruling that their
zoning-law based claims were invalid meant the court could not enjoin the
Joneses entirely from operating a short-term rental business. (§ 3482
[“[n]othing which is done or maintained under the express authority of a
statute can be deemed a nuisance”].)
After the dismissal of the nuisance per se claim, the Sensemans
downgraded their main litigation goal and asked the trial court to enjoin
short-term rentals by the Joneses until “physical improvements [to the
property] are made . . . to ensure that noise an[d] sound transmission
reductions have been instituted in a sufficient manner to the satisfaction of
the [c]ourt.” (Boldface omitted.) They sought, as an alternative, “significant
physical modifications” to the unit and rental use restrictions consisting of (1)
installation of “sound deadening, shockproof, Sorbothane material between
metal angle iron brackets and pre-cast concrete stair treads” in the stairwell,
(2) payment for regular inspections of the Sorbothane material, “not less than
once per year,” (3) removal and replacement of the carpet and pad throughout
the condominium unit, (4) replacement of “all hard-surface flooring,”
(5) installation of “cabinet door bumpers or soft-closing restrictions on all

23
kitchen cabinet doors and drawers,” (6) removal of the Joneses’ trash
compactor, (7) occupancy restriction to “6 persons maximum for all
reservations and occupancy,” (8) prohibition of the use of “a pull-out sofa bed
in the living room,” (9) “a minimum 3-night stay by any reservation,” and (10)
notification to guests that “occupants may not arrive (move-in) or depart
(move-out) except between the reasonable hours of 7:00 a.m. and 10:00 p.m.”
Of the 10 demands, the trial court ordered only three: replacement of the
living room carpet pad, posting of a sign at the top of the stairwell requesting
“calm and quiet” when ascending and descending the stairway, and, as part
of the rental agreement for the condominium, a request to renters to “make
every effort” to refrain from generating “inordinate noise” in the rental unit
and to “keep the noise level down” when using the stairs. (Italics omitted.)
In the Joneses’ view, this was a “nominal outcome” even with respect to
the Sensemans’ revised litigation goals. We agree. The trial court erred
when it ruled prematurely before it could consider this extraordinarily
limited result as against years of litigation and $138,000 in attorney fees.
Although not necessary to our decision, we also agree with the Joneses
that the Sensemans did not achieve their litigation goals, as a practical
matter, in terms of damages either. They originally sought $524,186.85 in
damages, consisting of “[d]iminution in value” of their condominium unit of
$300,000; loss of use and enjoyment in the amount of $48,000.00; mental and
emotional distress in the amount of $175,000; and mitigation damages in the
amount of $1,186.85. In “stark contrast,” the jury awarded total damages of
$2,220.15, consisting of loss of use in the amount of $533.30, out-of-pocket
loss in the amount of $1,186.85, and mental distress in the amount of $500.
As the Joneses observe, this amount was less than “99% of what they
sought,” and it could have been “achieve[d] in Small Claims court.”

24
On this record, we conclude it was an abuse of discretion to rule the
Sensemans were prevailing parties. (C.f., Harris v. Rojas (2021) 66
Cal.App.5th 817, 824–826; id. at p. 824 [“recovering five or six thousand
dollars on a demand for $200,000 obviously is not a ‘simple, unqualified’
win”].)
DISPOSITION
The trial court is directed to strike the attorney fee award and modify
the judgment to provide that neither party prevailed. As modified, the
judgment is affirmed. Each party shall bear its own costs. (Cal. Rules of
Court, rule 8.278(a)(3).)

DO, J.

I CONCUR:

KELETY, J.

25
O’Rourke, Acting P. J.,
Dissenting:

I respectfully dissent. In this case, the Sensemans brought two causes
of action to enforce homeowner association CC&Rs against their fellow
homeowners, the Joneses, with one overarching goal: to obtain peace and
quiet in their unit and relief from the loud, annoying noises coming from the
Joneses’ short-term vacation tenants. The jury reached verdicts in the
Sensemans’ favor on both causes of action and the trial court issued them a
permanent injunction ordering the Joneses to “abate the disturbing and
annoying noise arising from the use of the[ir] property . . . as a short term
rental.” Under these circumstances, the court’s determination that the
Sensemans prevailed so as to entitle them to reasonable attorney fees and
costs was not only well within its discretion, but it was the only discretion it

had under Civil Code section 5975 of the Davis-Stirling Act.1 That is, the
Sensemans’ win satisfied the statutory conditions of that law, making an
award of attorney fees mandatory to them. (LNSU #1, LLC v. Alta Del Mar
Coastal Collection Community Assn. (2023) 94 Cal.App.5th 1050, 1082 [“An
award of attorney fees to the prevailing party is mandatory in [an action to
enforce common interest development CC&Rs]”]; Champir, LLC v. Fairbanks
Ranch Association (2021) 66 Cal.App.5th 583, 590 [“prevailing party is
entitled to attorney fees ‘ “as a matter of right” ’ and the trial court is
‘ “obligated to award attorney fees . . . whenever the statutory conditions have
been satisfied” ’ ”]; Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal.App.4th 140, 160 [“[W]here . . . a statutory fee provision mandates fees to
a prevailing party [the court] having found a party to be prevailing under

1 Undesignated statutory references are to the Civil Code.
such a provision . . . has no discretion to decline to render an award of
reasonable attorney fees”].)
The relevant review standard, which the majority does not completely
summarize, requires that we inquire whether the court’s prevailing party
decision “ ‘exceeds the bounds of reason’ [citation] or . . . is arbitrary
capricious, patently absurd, or even whimsical.” (Artus v. Gramercy Towers
Condominium Association (2022) 76 Cal.App.5th 1043, 1051; see also
Champir, LLC v. Fairbanks Ranch Association, supra, 66 Cal.App.5th at p.
592; Almanor Lakeside Villas Owners Association v. Carson (2016) 246
Cal.App.4th 761, 774.) The Sensemans’ verified complaint lists only two
causes of action—a cause of action to enforce the CC&Rs and a nuisance
cause of action asserting two theories of nuisance—in addition to the
equitable remedies of declaratory and injunctive relief (Faunce v. Cate (2013)
222 Cal.App.4th 166, 173 [“injunctive and declaratory relief are equitable
remedies, not causes of action”]; Granny Purps, Inc. v. County of Santa Cruz
(2020) 53 Cal.App.5th 1, 9 [“injunctive relief is a remedy rather than a
standalone cause of action”]. Both causes of action expressly, or in effect,
sought to enforce the CC&Rs. The trial court did not legally or factually err
by determining that the Sensemans prevailed on all of their causes of

action.2
It is of no moment that the Sensemans did not succeed on the legal
theory of nuisance per se, or obtain all of their requested damages. The
Sensemans also alleged in their nuisance cause of action that if no per se
nuisance was found, the Joneses’ conduct “in renting the[ir] . . . property as a

2 Regardless, we review the trial court’s attorney fee ruling, not its
reasoning. (Travis v. Brand (2023) 91 Cal.App.5th 996, 1006 [“we review
results and not reasoning. In other words, we do not reverse a correct result
because a court gave an incorrect reason for it”].)
2
vacation rental has, and continues to, cause vibrations and noises that are
offensive to the senses and result in [the Sensemans’] loss of free use and loss
of enjoyment . . . so as to interfere with their comfortable use and enjoyment
of life by [the Sensemans] in and at the Senseman Property.” This was in
substance and effect a claim that the Joneses comply with CC&Rs in place
(CC&Rs sections 4.5 and 4.9) prohibiting annoyances, unreasonable noise,
and nuisances to other owners. When, as here, the relevant attorney fee
statute does not define what is a prevailing party, “ ‘ “a court may base its
attorney fees decision on a pragmatic definition of the extent to which each
party has realized its litigation objectives, whether by judgment, settlement
or otherwise. [Citation.]” [Citation.] In assessing litigation success, Hsu v.
Abbara (1995) 9 Cal.4th 863, 877 . . . instructs: “[C]ourts should respect
substance rather than form, and to this extent should be guided by ‘equitable
considerations.’ For example, a party who is denied direct relief on a claim
may nonetheless be found to be a prevailing party if it is clear that the party
has otherwise achieved its main litigation objective.” ’ ” (Graciano v.
Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at pp. 150-151; see also
Champir, LLC v. Fairbanks Ranch Assn., supra, 66 Cal.App.5th at p. 596 [“In
determining litigation success, the court respects substance rather than
form”]; MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036,
1048.)
Here, the Sensemans achieved jury verdicts in their favor on both
causes of action; the fact some of their theories were unsuccessful or they
recovered a smaller damages amount than requested does not detract from
the achievement of their main litigation goal of enforcing the CC&Rs
prohibiting unreasonable noise and nuisances on the property. Indeed, in
Almanor Lakeside Villas Owners Association, the Court of Appeal affirmed an

3
attorney fee and costs award of $101,803.15 in an association’s favor even
though out of $54,000 in dues, fees, fines and interest it sought from
homeowners, the court awarded it $6,620, finding only eight out of 88 fines to
be reasonable. (Almanor Lakeside Villas Owners Association v. Carson,
supra, 246 Cal.App.4th at pp. 767-768, 775, fn. 6.) “Insofar as the court found
that some of the fines were enforceable, [the association] met its objective and
satisfied the first part of the statutory criteria under the Davis-Stirling Act
‘to enforce the governing documents.’ [Citation.] The fractional damages
award does not negate the broader, practical effect of the court’s ruling,
which on the one hand narrowed the universe of restrictions that [the
association] could impose on the properties, but on the other hand cemented
[the association’s] authority to promulgate and enforce rules pursuant to the
CC&Rs so long as they are not unreasonable . . . .” (Id. at p. 775.) So it is
here, where the Sensemans achieved their main litigation goal, as the trial
court correctly found. This is the case notwithstanding the court’s decision to
implement only some of the Senseman’s sought-after modifications.
The majority proceeds to discuss section 1717, under which a court
must award attorney fees in a contract action when a party has obtained a
“simple, unqualified victory.” (See Hsu v. Abbara, supra, 9 Cal.4th at p. 877;

Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)3 But
here, the trial court awarded attorney fees under section 5975, and thus
“[t]he analysis of who is a prevailing party . . . focuses on who prevailed ‘on a

3 To support its conclusion the majority also cites Harris v. Rojas (2021)
66 Cal.App.5th 817, a case in which the plaintiff on his contract claim
obtained a small monetary recovery relative to his demand, and the record
gave the appellate court no other basis than that for assessing the plaintiff’s
litigation objective. (Id. at p. 824.) On that “minimal record, [the plaintiff’s]
litigation objective . . . was purely quantitative” and determined by the
amount of money sought. (Id. at p. 825.)
4
practical level’ by achieving its main litigation objectives; the limitations
applicable to contractual fee-shifting clauses, codified at section 1717, do not
apply.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker
(2016) 2 Cal.App.5th 252, 260; see also Parrott v. Mooring Townhomes Assn.,
Inc. (2003) 112 Cal.App.4th 873, 879-889 [declining to apply section 1717
where party sought recovery of fees under predecessor to section 5975].) It is
true that Almanor referenced the California Supreme Court’s explanation of
how a trial court should view the parties’ demands, relief obtained, and
litigation objectives so as to make a prevailing party determination “in the
related context” of prevailing party determinations under section 1717.
(Almanor Lakeside Villas Owners Association v. Carson, supra, 246
Cal.App.4th at p. 774.) But, as Almanor itself demonstrates, a “simple,
unqualified victory” or the party “obtain[ing] all the relief they requested”
(maj. opn., ante, at p. 21) is not the predicate for an award of attorney fees
under section 5975. (Almanor, at pp. 767-768, 775, fn. 6.)
Nor was the trial court’s decision premature. Once the court
determined the Sensemans had prevailed on their causes of action and were
entitled to permanent injunctive relief in their favor to abate the noise
nuisance, it properly decided the question of their litigation success. The
“precise details” in implementing the injunction to abate the nuisance had no
import to the prevailing party determination. Such details were not essential
to a final determination of the Senseman’s claims to enforce the CC&Rs.
This conclusion accords with Hsu v. Abbara, supra, 9 Cal.4th 865, in which
the court held in the section 1717 context that the “prevailing party
determination is to be made only upon final resolution of the contract
claims . . . .” (Id. at p. 876, italics added.)

5
In Almanor, the trial court did not reduce the amount of fees sought for
the association’s partial success. (Almanor Lakeside Villas Owners
Association v. Carson, supra, 246 Cal.App.4th at p. 769.) The Court of Appeal
upheld that decision, even though it acknowledged the court could have
reduced the amount of the award to reflect the incomplete success of the
action. (Id. at p. 782.) Reviewing cases addressing justifications for reducing
attorney fee awards in instances of varying degrees of success (id. at pp. 779-
781), the Almanor court found “no indication that ‘degree of success’ may not
be considered, alongside other appropriate factors, in determining reasonable
attorney’s fees . . . including under . . . section 5975.” (Id. at pp. 781-782.)
Thus, “ ‘[t]o the extent a trial court is concerned that a particular award is
excessive, it has broad discretion to adjust the fee downward.’ ” (Ibid.) But
in Almanor, “ample factors” supported the lower court’s decision to award the
entire amount of fees and costs requested: “[The association] prevailed on
only a minor subset of the fines that formed the basis for the monetary award
requested, but that subset was sufficient to satisfy the statutory criteria of an
action to enforce the governing documents. ([ ] § 5975, subd..) In
practical effect, [the association’s] limited success established a baseline from
which it can continue to adopt and enforce reasonable use restrictions under
the CC&Rs. . . . [T]he objectives that [the association] failed to attain were
primarily monetary. With respect to the time spent on the successful and
unsuccessful aspects of [the association’s] suit [citation], we note that the
various fines do not represent different causes of action or legal theories
dependent on different facts, but different instances of attempted
enforcement based on the CC&Rs and a shared set of facts. [The
association’s] fees, as established in its moving papers and supporting
declarations, also accounted for its defense against the [homeowners’] cross-

6
complaint, which included the [homeowners’] use of testifying expert
witnesses. For these reasons, we do not find that the award of attorney’s
fees, compared to the ‘overall relief obtained’ by [the Association], was so
disproportionate as to constitute an abuse of discretion.” (Almanor, at pp.
782-783.)
While in my view an attorney fee award to the Sensemans is
mandatory, the trial court must nevertheless consider all of the
circumstances in light of the principles expressed above and exercise its
“broad authority in determining the reasonableness of [such an] award.”
(Almanor Lakeside Villas Owners Association v. Carson, supra, 246
Cal.App.4th at p. 779, citing PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th
1084, 1095.) I would reverse the attorney fees and costs award and remand
the matter, directing the trial court to determine the reasonable amount of
fees and costs that the Sensemans should recover.

O’ROURKE, Acting P. J.

7