On July 30, 2019 a
Motion-Secondary
was filed
involving a dispute between
1520 #35 Coulston Street Trust Udt 11 07 2003, Jose Aquino Trustee,
Loma Linda Hoa,
and
1520 #35 Coulson Street Trust Udt 11 07 2003, Jose Aquino...,
Jose Aquino, Trustee Of The 152035 Coulston Street Trust,
for Breach of Contract/Warranty Unlimited
in the District Court of San Bernardino County.
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A Marty E. Zemming, Esq. (SBN: 213645)
WAGNER ZEMMING CHRISTENSEN, LLP
895 Marlborough Avenue, Sulte 200
ELECTRONICALLY FILED (Auto)
RiVerSidC» CA 92507 SUPERIOR COURT 0F CALIFORNIA
Te1.: (951) 686-4800 COUNTY 0F SAN BERNARDINO
Fax; (951) 344-0429 2/27/2024 12:02 PM
Attorneys for Defendant/Cross—Complainant
OOOONGU‘l-POON
1520 #35 COULSTON STREET TRUST UDT 11/07/2003,
JOSE AQUINO TRUSTEE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY SAN BERNARDINO — CENTRAL JUSTICE CENTER
LUMA LINDA HUMEUWNEKS CASE NUJ UlVUSl9ZZ/Db
ASSOCIATION AKA CRESTA LINDA
HOMEOWNERS ASSOCIATION, REPLY TO OPPOSITION TO MOTION
FOR ATTORNEY FEES OF JOSE
Plaintiffs, AQUINO; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
vs. THEREOF
JOSE AQUINO, TRUSTEE OF THE 1520 35
COULSTON TRUST, DOES 1 TO 10, DATE: March 5, 2024
TIME: 8:30 am.
Defendants. DEPT: S35
Hon. Jay H. Robinson
Judge of the Superior Court
COMES NOW Defendant, Jose Aquino and hereby submits his Reply to the Opposition
of Plaintiff, Loma Linda Homeowners Association aka Cresta Linda Homeowners Association
t0 his Motion for prevailing party attorney fees, as follows.
/ / /
///
1
REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES OF JOSE AQUINO; MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT THEREOF
A REPLY
I.
THE MOTION FOR PREVAILING PARTY ATTORNEY FEES IS TIMELY BECAUSE
IT WAS BROUGHT WITHIN 60 DAYS OF NOTICE OF ENTRY OF DISMISSAL
Plaintiff erroneously claims that the motion for prevailing party attorney fees is untimely
OOOONGU‘l-POON
because a Memorandum 0f Costs must be filed within 15 days of dismissal. Plaintiff s
argument is misguided because this is a motion for attorney fees that needs to be brought Within
60 days after entry 0f dismissal. A voluntary dismissal is the factual equivalent 0f a “judgment”
for purposes of an attorney fees motion. When an action is voluntarily dismissed prior t0 trial,
the time limit for an attorney fees motion is 60 days after notice 0f entry 0f dismissal. (Sanabria
v. Embrey (2001) 92 Cal.App.4th 422, 429.) Thus, the motion is timely brought.
II.
JOSE AQUINO IS THE PREVAILING PARTY UNDER THE FEE SHIFTING
PROVISIONS OF THE DAVIS STERLING ACT
To recap, this action was brought by Plaintiff, Loma Linda Homeowner’s Association
aka Cresta Linda Homeowner’s Association in 2019 for one reason and one reason only, to
enforce the provisions of the governing documents of the HOA and for the collection of past
due assessments and for judicial foreclosure 0f Defendant Jose Aquino’s unit at Loma Linda
Homeowner’s Association. The case concluded abruptly four years later, on October 30, 2023,
when Plaintiff dismissed its lawsuit on the eve of motions to compel brought by Mr. Aquino
Without a waiver 0f costs.
Plaintiff” s opposition does not address the fee shifting provisions under Civil Code
section 5705, subdivision (c) of the Davis Sterling Act but instead Plaintiff insists the motion is
untimely based 0n an erroneous belief that the motion for prevailing party attorney fees must be
brought within the time frame for a memorandum 0f costs. As discussed in Mr. Aquino’s
motion, this matter is governed exclusively by the fee shifting provisions of Civil Code section
5975, subdivision (c) since it is an action brought by Plaintiff t0 enforce the Association’s
governing documents, and not Civil Code section 1032.
2
REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES OF JOSE AQUINO; MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT THEREOF
Document Filed Date
February 27, 2024
Case Filing Date
July 30, 2019
Category
Breach of Contract/Warranty Unlimited
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A Marty E. Zemming, Esq. (SBN: 213645) WAGNER ZEMMING CHRISTENSEN, LLP 895 Marlborough Avenue, Sulte 200 ELECTRONICALLY FILED (Auto) RiVerSidC» CA 92507 SUPERIOR COURT 0F CALIFORNIA Te1.: (951) 686-4800 COUNTY 0F SAN BERNARDINO Fax; (951) 344-0429 2/27/2024 12:02 PM Attorneys for Defendant/Cross—Complainant OOOONGU‘l-POON 1520 #35 COULSTON STREET TRUST UDT 11/07/2003, JOSE AQUINO TRUSTEE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY SAN BERNARDINO — CENTRAL JUSTICE CENTER LUMA LINDA HUMEUWNEKS CASE NUJ UlVUSl9ZZ/Db ASSOCIATION AKA CRESTA LINDA HOMEOWNERS ASSOCIATION, REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES OF JOSE Plaintiffs, AQUINO; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT vs. THEREOF JOSE AQUINO, TRUSTEE OF THE 1520 35 COULSTON TRUST, DOES 1 TO 10, DATE: March 5, 2024 TIME: 8:30 am. Defendants. DEPT: S35 Hon. Jay H. Robinson Judge of the Superior Court COMES NOW Defendant, Jose Aquino and hereby submits his Reply to the Opposition of Plaintiff, Loma Linda Homeowners Association aka Cresta Linda Homeowners Association t0 his Motion for prevailing party attorney fees, as follows. / / / /// 1 REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES OF JOSE AQUINO; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A REPLY I. THE MOTION FOR PREVAILING PARTY ATTORNEY FEES IS TIMELY BECAUSE IT WAS BROUGHT WITHIN 60 DAYS OF NOTICE OF ENTRY OF DISMISSAL Plaintiff erroneously claims that the motion for prevailing party attorney fees is untimely OOOONGU‘l-POON because a Memorandum 0f Costs must be filed within 15 days of dismissal. Plaintiff s argument is misguided because this is a motion for attorney fees that needs to be brought Within 60 days after entry 0f dismissal. A voluntary dismissal is the factual equivalent 0f a “judgment” for purposes of an attorney fees motion. When an action is voluntarily dismissed prior t0 trial, the time limit for an attorney fees motion is 60 days after notice 0f entry 0f dismissal. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 429.) Thus, the motion is timely brought. II. JOSE AQUINO IS THE PREVAILING PARTY UNDER THE FEE SHIFTING PROVISIONS OF THE DAVIS STERLING ACT To recap, this action was brought by Plaintiff, Loma Linda Homeowner’s Association aka Cresta Linda Homeowner’s Association in 2019 for one reason and one reason only, to enforce the provisions of the governing documents of the HOA and for the collection of past due assessments and for judicial foreclosure 0f Defendant Jose Aquino’s unit at Loma Linda Homeowner’s Association. The case concluded abruptly four years later, on October 30, 2023, when Plaintiff dismissed its lawsuit on the eve of motions to compel brought by Mr. Aquino Without a waiver 0f costs. Plaintiff” s opposition does not address the fee shifting provisions under Civil Code section 5705, subdivision (c) of the Davis Sterling Act but instead Plaintiff insists the motion is untimely based 0n an erroneous belief that the motion for prevailing party attorney fees must be brought within the time frame for a memorandum 0f costs. As discussed in Mr. Aquino’s motion, this matter is governed exclusively by the fee shifting provisions of Civil Code section 5975, subdivision (c) since it is an action brought by Plaintiff t0 enforce the Association’s governing documents, and not Civil Code section 1032. 2 REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES OF JOSE AQUINO; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF