01/02/2020 — CV2019006893 BEHAR, MARY 01/02/2020 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
01/03/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
01/02/2020
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer/S. Stulz
Deputy
MARY BEHAR
DAVID E WOOD
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE KILEY
MINUTE ENTRY
In 2016, Plaintiff Mary Behar, individually and on behalf of The Behar Revocable Trust,
(the “Plaintiff”) purchased Unit No. 223 (the “Unit”) in the Montana Del Sol Condominium
community (“Montana Del Sol”), a condominium community in the city of Scottsdale which is
managed by Defendant Montana Del Sol Condominium Association (the “Association”). The
Association, all of the units within the community, and all of the owners of those units are bound
by the Condominium Declaration for Montana Del Sol Condominium (the “Declaration”).
Section 4.17 of the Declaration provides in part that
[a]ll valid laws, zoning ordinances, and regulations of all governmental
bodies having jurisdiction over the Condominium shall be observed. Any
violation of such laws, zoning ordinances or regulations shall be a
violation of this Declaration.
Declaration, attached as Exhibit B to Plaintiff’s Separate Statement of Facts in Support of Its [sic]
Motion for Summary Judgment (“PSOF”), at § 4.17 (“Section 4.17”). At the time the Plaintiff
purchased her Unit, a municipal ordinance prohibited short-term rentals (i.e., rentals for less than
thirty days) of real property located in residential areas in Scottsdale. Because Section 4.17
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incorporates “all valid laws [and] zoning ordinances,” Section 4.17 had the effect of prohibiting
the short-term rental of units within Montana Del Sol.
On January 1, 2017, A.R.S. § 9-500.39 went into effect. That statute prohibits cities and
towns from “prohibit[ing] vacation rentals or short-term rentals.” A.R.S. § 9-500.39(A). As the
Association acknowledges, “[t]he Legislature’s adoption of A.R.S. § 9-500.39 served to nullify
and preempt the applicable City of Scottsdale municipal ordinance” that had barred such short-
term rentals. Defendant's Response to Plaintiff's Motion for Summary Judgment (“Response”) at
p. 2.
On or about June 7, 2018, roughly a year and half after A.R.S. § 9-500.39 went into effect,
the Association’s Board of Directors proposed an amendment to the Declaration (the “Third
Amendment”) to prohibit property owners within Montana Del Sol from leasing their units for
terms of less than thirty days, or from using their units for vacation rental or timeshare purposes.
It is undisputed that the Third Amendment was not passed unanimously, but was passed with the
support of roughly two-thirds of the property owners. See PSOF at p. 8 ¶¶ 42, 44; Defendant’s
Controverting Statement of Facts and Separate Statement of Facts in Support of Its Response to
Plaintiff’s Motion for Summary Judgment at p. 11 ¶¶ 42, 44.
The Plaintiff seeks, inter alia, a declaration that the Third Amendment is invalid. See
Verified First Amended Complaint at ¶ 41. In the Plaintiff's Motion for Summary Judgment (the
“Motion”), she asserts numerous challenges to the validity of the Third Amendment. See generally
Motion. The Court only need address one such challenge, because it is dispositive.
A.R.S. § 33-1227 provides in part that, while a declaration may generally be amended by
a 67% majority of unit owners, the “unanimous consent of the unit owners” is required to adopt
an amendment that “change[s]…the uses to which any unit is restricted.” A.R.S. § 33-1227(A),
(D).1 The Plaintiff argues that the Third Amendment’s ban on short-term rentals is a restriction on
“the use” to which the units in Montana Del Sol may be put, and therefore that the Third
1 A.R.S. § 33-1227(D) reads, in its entirety, “Except to the extent expressly permitted or required by
other provisions of this chapter, an amendment shall not create or increase special declarant rights,
increase the number of units or change the boundaries of any unit, the allocated interests of a unit or
the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.” A.R.S.
§ 33-1227(D). The Declaration similarly provides, “Except to the extent expressly permitted or
required by the Condominium Act, an amendment to the Declaration shall not create or increase
Special Declarant Rights, increase the number of Units or change the boundaries of any Unit, the
allocated Interest of a Unit, or the use as to which any Unit is restricted, in the absence of unanimous
consent of Unit Owners.” Declaration, attached as Exhibit B to PSOF, at § 12.5.2.
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Amendment required the unanimous approval of the unit owners. Its failure to win unanimous
approval, she argues, renders the Third Amendment invalid. Motion at pp. 7-12.
In response, the Association contends that “the legislative intent behind A.R.S. § 33-
1227(D) was never to require unanimity for leasing restrictions or anything other than an
amendment that would change the use of the property from residential to commercial.” Response
at p. 8.
The Court sees no basis for the Association's contention that the term “use” as used
in A.R.S. § 33-1227 refers only to “residential” or “commercial” uses. Numerous courts that have
considered that argument have rejected it. See, e.g., Shorewood West Condo. Ass’n v. Sadri, 992
P.2d 1008, 1013 (Wash. 2000) (interpreting term “use” as used in statute governing declarations
“to mean all uses and not just general categories of use such as residential use or commercial
use.”); Filmore, LLLP v. Unit Owners Ass'n of Ctr. Pointe Condo., 333 P.3d 498, 501, 505 (Wash.
App. 2015) (affirming trial court’s determination that declaration’s amendment purporting to limit
the number of units within the complex that could be leased to tenants was invalid because it was
passed by only 67 percent of unit owners, rather than the supermajority of 90% of unit owners that
was required, by statute, for amendments that “change…the uses to which any unit is restricted,”
and rejecting the contention that “the legislature intended ‘use’ to refer only to the distinction
between residential versus nonresidential uses…”).
The Court finds, instead, that “use” is a broad term which, in reference to property, is
understood to mean “the legal enjoyment of property that consists in its employment, occupation,
exercise or practice.” Filmore, 333 P.3d at 504, quoting Webster’s Third New International
Dictionary (2002). Consistent with the commonly-understood meaning of the term “use,” case law
recognizes that limits or prohibitions on short-term rentals are restrictions on the “use” of the
property. See, e.g., Village of Tiki Island v. Ronquille, 463 S.W.3d 562, 587 (Tex.App. 2015)
(affirming temporary injunction against enforcement of ordinance prohibiting short-term rentals,
the Court repeatedly referred to ordinance’s prohibition on plaintiff’s “use” of her home for short-
term rentals); Kiekel v. Four Colonies Homes Ass’n, 162 P.3d 57, 62 (Kan.App. 2007) (holding
that amendment to bylaws, which was adopted by simple majority of lot owners and which
imposed restrictions on owners’ right to lease their property to tenants, was invalid because it
conflicted with governing declaration, which did not authorize the imposition of “property use
restrictions through the passage of bylaws”; “[A]ny property use restrictions, including restrictions
on renting, [had] to be achieved through an amendment to the [d]eclaration.”).
“Unless otherwise defined, words in a statute are construed according to their plain and
ordinary meaning.” Beatie v. Beatie, 235 Ariz. 427, 431, 333 P.3d 754, 758 (App. 2014). The
Court finds that, in accordance with the plain and ordinary meaning of the word “use,” that the
Third Amendment’s ban on short-term rentals at Montana Del Sol effected a “change” in “the uses
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to which any unit is restricted” within the meaning of A.R.S. § 33-1227(D). As such, the
unanimous vote of the unit owners was required to pass the Third Amendment. Its failure to secure
a unanimous vote renders it invalid.
In support of its position, the Association asserts that “the language” of A.R.S. § 33-
1227(D) “lends itself to different meanings,” and cites case law for the proposition that, “[w]hen
the meaning of [a] statute cannot be discerned from its language alone,” the legislative intent may
be discerned from such factors as the statute’s “historical background, effects and consequences,
and spirit and purpose.” Response at p. 6, quoting Calik v. Kongable, 195 Ariz. 496, 500, 990 P.2d
1055, 1059 (1999). The Association goes on to discuss “the historical background” of the Arizona
Condominium Act, asserting that Arizona's act is based on the Uniform Condominium Act
(“UCA”) and that “leasing restrictions are not expressly considered ‘use restrictions’ that require
unanimous consent under the original UCA.” Response at pp. 6, 7-8.
The Court finds this argument unpersuasive. Because A.R.S. § 33-1227(D) is not
ambiguous, the interpretation of that statute need go no further than a reading of its text. See
Montgomery v. Harris, 237 Ariz. 98, 100, 346 P.3d 984, 986 (2014) (“The best and most reliable
index of a statute’s meaning is its language and, when the language is clear and unequivocal, it is
determinative of the statute’s construction.”) (citation and internal quotations omitted). An inquiry
into the legislative history of A.R.S. § 33-1227(D) is, therefore, neither necessary nor appropriate.
Bridgestone Retail Tire Operations v. Indus. Comm’n of Ariz., 227 Ariz. 453, 455, 258 P.3d 271,
273 (App. 2011) (“If the [statutory] language is clear and unambiguous, we apply it without
resorting to other methods of statutory interpretation.”) (citation and internal quotations omitted).
Moreover, as the Plaintiff correctly points out, the Association's Response “offers no legislative
history from Arizona.” Plaintiff’s Reply in Support of Motion for Summary Judgment (“Reply”)
at p. 7. The legislative history of other statutes enacted in other states is of little relevance when
an Arizona court is called upon to interpret an unambiguous Arizona statute.
Noting that the Declaration prohibits the use of units for commercial purposes, the
Association contends that “[s]hort term rentals are inherently inconsistent with residential use,”
and are, instead, “considered a commercial use,” which is “prohibited by the terms of the
Declaration.” Response at p. 16.
The Association’s assertion that short-term rental use is commercial, rather than residential,
in nature is inconsistent with case law recognizing that the short-term rental of a home is not a
“commercial use.” See, e.g., Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 291-
92 (Tex. 2018) (“[S]o long as the occupants to whom [homeowner] rents his single-family
residence use the home for a ‘residential purpose,’ no matter how short-lived,” homeowner’s use
of residence for short-term rentals “does not qualify as a commercial use.”); Pinehaven Planning
Bd. v. Brooks, 70 P.3d 664, 668 (Ida. 2003) (“[T]he rental of residential property for residential
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purposes is more appropriately deemed residential as opposed to business use.”); Houston v.
Wilson Mesa Ranch Homeowners Ass’n, Inc., 360 P.3d 255, 260 (Colo.App. 2015) (“[S]hort-term
vacation rentals…are not barred by the commercial use prohibition in the covenants.”); Estates at
Desert Ridge Trails Homeowners Ass’n v. Vazquez, 300 P.3d 736, 740-41 (N.M.App. 2013)
(rejecting argument that, although “long-term rentals…are a permissible residential use,” short-
terms rentals “by the nature of their duration, are transformed into a business or commercial
purpose”).
More importantly, the Association’s contention that the short-term rental of a unit within
Montana Del Sol constitutes a prohibited commercial use is inconsistent with the plain language
of the Declaration itself. In providing that all units are to be used exclusively for residential
purposes, the Declaration expressly states that “[t]he leasing of a Unit by the Unit Owner shall not
be considered a trade or business within the meaning of this Section.” Response at p. 5. See also
Declaration, attached as Exhibit B to PSOF, at § 4.1. The Declaration thus makes clear that the
rental of an owner’s unit does not constitute a prohibited “trade or business.”
The Association argues that the language of the Declaration providing that the leasing of a
unit shall not be considered an impermissible “trade or business” refers only to leases of longer
than 30 days. Response at p. 5 (“[T]he limited references in the Declaration to leasing must be read
as referring to leases for thirty (30) days or more.”). In support of its argument, the Association
notes that, at the time the Declaration was adopted, short-term rentals within Montana Del Sol
were prohibited by municipal ordinance, and that Section 4.17 of the Declaration expressly
incorporates all valid laws and ordinances. Id.
To accept the Association's argument on this point would require the Court to rewrite the
unambiguous language of the Declaration to add limitations and conditions that are simply not
there. The Declaration is, of course, a contract, Cypress on Sunland Homeowners Ass’n v.
Orlandini, 227 Ariz. 288, 297, 257 P.3d 1168, 1177 (App. 2011), and, as with any contract, the
Court is not free to rewrite it to add terms or provisions. See, e.g., IB Property Holdings, LLC v.
Rancho Del Mar Apartments Ltd. P’ship, 228 Ariz. 61, 66-67, 263 P.3d 69, 74-75 (App. 2011)
(“[T]he court will not..add something to the contract which the parties have not put there.”)
(citation and internal quotations omitted). Because the Declaration provides that “[t]he leasing of
a Unit by the Unit Owner shall not be considered a trade or business within the meaning of this
Section,” the Court is not free to interpret the Declaration to mean something different, i.e., that
the leasing of a unit may or may not be an impermissible trade or business, depending on the length
of the lease term.
In support of its position that A.R.S. § 33-1227(D) does not require that the Third
Amendment be adopted by a unanimous vote, the Association argues that the Plaintiff’s
“interpretation of A.R.S. § 33-1227(D) would preclude an association from exercising its right to
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regulate the time period for rental [sic]” because “the unanimous consent threshold for a
community of any measurable size” is, in the Association’s view, “entirely unachievable.”
Response at p. 14. The fact that the “unanimity” requirement of A.R.S. § 33-1227(D) may be
difficult to achieve is not, however, relevant to the Court’s interpretation of that statute. Whether
the unanimous consent of unit owners should be required, or whether a lesser degree of consensus
should suffice, is a policy decision that is the Legislature’s, not this Court’s, to make. As the
Plaintiff correctly argues, “policy considerations cannot create an ambiguity when the words on
the page are clear.” Reply at p. 3, quoting SAS Inst., Inc. v. Iancu, __ U.S. __, __, 138 S.Ct. 1348,
1358 (2018).
The Court finds that, by prohibiting short-term rentals, the Third Amendment effects a
change in the uses to which units at Montana Del Sol are restricted, and therefore that the Third
Amendment could be validly adopted only by the unanimous consent of unit owners. A.R.S. § 33-
1227(D). Because it was not adopted by a unanimous vote, it is invalid. Accordingly,
IT IS ORDERED granting the Plaintiff's Motion for Summary Judgment to the extent it
seeks a declaration that the Third Amendment is void because it was not adopted by a unanimous
vote of the property owners.
IT IS FURTHER ORDERED denying the Plaintiff’s Motion to Strike Defendant’s
Response to Plaintiff’s Separate Statement of Facts.
03/25/2020 — CV2019006893 BEHAR, MARY 03/25/2020 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/26/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
03/25/2020
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer
Deputy
MARY BEHAR
DOUGLAS IMPERI JR.
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE KILEY
MINUTE ENTRY
Plaintiff Mary Behar, individually and on behalf of The Behar Revocable Trust, (the
“Plaintiff”), filed the complaint in this case challenging the validity of a purported amendment
(the “Proposed Third Amendment”) to the governing Condominium Declaration for Montana
Del Sol Condominium (the “Declaration”). The Proposed Third Amendment purported to
prohibit property owners within the condominium complex from leasing their units for terms of
less than thirty days, or from using their units for vacation rental or timeshare purposes. By
Minute Entry of January 2, 2020, the Court ruled that the Proposed Third Amendment is void
because it was not adopted by the requisite unanimous vote of the property owners in the
complex. Minute Entry of January 2, 2020, at p. 6.
Defendant Montana Del Sol Condominium Association (the “Association”) seeks
reconsideration of the Court’s ruling, asserting that the Court erred in “completely
invalidat[ing]” the Proposed Third Amendment. Motion for Reconsideration at p. 1. In support of
its position, the Association asserts that “the vast majority” of the Proposed Third Amendment
“sets forth the process and procedures requiring Owners to register their tenants,” and that a
unanimous vote of the unit owners was not necessary to adopt these registration requirements. Id.
at pp. 1-2. Noting that the Declaration contains a “severability” clause, the Association argues
that, even though the lack of unanimous support dooms the Proposed Third Amendment’s
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prohibition on short-term rentals, the registration provisions of the Proposed Third Amendment
were validly enacted because this portion of the Proposed Third Amendment did not require
unanimous support and so. Id. at p. 3.
As the Plaintiff correctly points out, the Proposed Third Amendment contained no
severability clause. See generally Verified Complaint, Exhibit 3. The Court therefore sees no
basis on which it could find that one part of the Proposed Third Amendment became effective
even though the rest of the Proposed Third Amendment did not. Although the Declaration itself
contains a severability clause, Verified Complaint, Exhibit 1 at ¶ 12.2, that fact is not enough to
save the Proposed Third Amendment. The Declaration’s severability clause provides, in its
entirety, that the “[i]nvalidation of any one of these covenants or restrictions by judgment or
court order shall in no way affect any other provisions which shall remain in full force and
effect.” See id. By its terms, the Declaration’s severability clause thus applies only to covenants
or restrictions that are already part of the Declaration. Because the Proposed Third Amendment
was not adopted by the requisite unanimous vote, it never became part of the Declaration, and so
none of its provisions ever came within the scope of the Declaration’s severability clause.
No good cause appearing,
IT IS ORDERED denying the Defendant’s Motion for Reconsideration.
06/29/2020 — CV2019006893 BEHAR, MARY 06/29/2020 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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*** Electronically Filed ***
06/30/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
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CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer
Deputy
MARY BEHAR
DOUGLAS IMPERI JR.
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
JUDGE KILEY
MINUTE ENTRY
The Court has reviewed and considered the Application for Award of Attorneys’ Fees
(“Fee Application”) filed by Plaintiff Mary Behar, individually and on behalf of The Behar
Revocable Trust (the “Plaintiff”); the accompanying Declaration of Jonathan A. Dessaules in
Support of Plaintiff’s Application for Award of Attorneys’ Fees (“Dessaules Declaration”); the
Response to Plaintiff’s Application for Award of Attorneys’ Fees (“Response”) filed by
Defendant Montana Del Sol Condominium Association (the “Association”); and the Plaintiff’s
Reply in Support of Application for Award of Attorneys’ Fee (“Reply”). No party has requested
Oral Argument.
The Plaintiff seeks an award of attorney fees in the amount of $44,066.00, asserting that
both A.R.S. § 12-341.01(A) and the contract between the parties entitle her, as “the prevailing
party,” to a fee award. Fee Application at pp. 1-2. Although the Association seems to suggest
that the Plaintiff’s request should be denied in its entirety, arguing that the Plaintiff’s fee request
“should be reduced significantly, if awarded at all,” Response at p. 8 (emphasis added), the
Court agrees with the Plaintiff that a fee award is warranted pursuant to the parties’ contract as
well as A.R.S. § 12-341.01(A).
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In opposing the Fee Application, the Association argues, next, that “[t]he Association
should not be required to bear an unreasonable burden,” citing the so-called “Warner factors” in
support of its position. Response at p. 4. As the Association correctly notes, the Warner factors,
which courts are to consider in determining attorney fee applications, are as follows:
(1) the merits of the unsuccessful party’s claim,
(2) whether “[t]he litigation could have been avoided or settled and the
successful party’s efforts were completely superfluous in achieving the result,”
(3) whether “[a]ssessing fees against the unsuccessful party would cause an
extreme hardship,”
(4) whether the successful party prevailed with respect to all of the relief sought,
(5) the novelty of the legal issues presented, and
(6) whether an award to the prevailing party “would discourage other parties
with tenable claims…from litigating…legitimate contract issues for fear of
incurring liability for substantial amounts of attorneys’ fees.”
Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).
Although the Plaintiff is the prevailing party, the Court agrees with the Association that
“[its] defense was not without merit.” Response at p. 4. The first Warner factor, therefore,
weighs against the Plaintiff’s position. See, e.g., Scottsdale Mem. Hosp. Sys., Inc. v. Clark, 164
Ariz. 211, 216-17, 791 P.2d 1094, 1099-1100 (App. 1990) (affirming trial court’s denial of
successful plaintiff’s fee request and finding that the record supported trial court’s determination
that, even though defendant “ultimately lost,” his position had “substantial merit”; “The merits of
the losing party’s claim or defense is one of the factors a trial judge can consider in deciding
whether or not to award attorney’s fees.”). See also Nationwide Mut. Fire Ins. Co. v. Jones, 695
F.Supp.2d 978, 986 (D.Ariz. 2010) (denying successful party’s fee request in part because
unsuccessful party “had a colorable claim”).
The Association acknowledges that “it is likely that litigation could not have been
avoided” since “both parties believed that their interpretation of the Declaration and statute was
correct.” Response at p. 5. Indeed, the Association left the Plaintiff with little choice but to
initiate this litigation because, as the Plaintiff asserts and the Association does not dispute, the
Association threatened to impose “fines of up to $500.00 per day” on her based on its own
interpretation of the Declaration. Fee Application at p. 3. In view of the fact that the Plaintiff was
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forced to initiate this litigation to protect herself from the potentially ruinous fines that the
Association threatened to impose, the second Warner factor supports granting the Plaintiff’s fee
request in full. See Kaufman v. Warner Bros. Entertainment Inc., 2019 WL 2084460 at *8
(D.Ariz., May 13, 2019) (the second Warner factor “looks primarily to whether a non-litigation
solution was not pursued that could have solved the problem and whether litigation was not
necessary”) (citation and internal quotations omitted).
Although the Association asserts that an award of fees would cause it to suffer “an
extreme hardship,” Response at p. 5, the Association has presented no evidence to support this
assertion. The Court therefore finds that the third Warner factor does not apply here. Woerth v.
City of Flagstaff, 167 Ariz. 412, 420, 808 P.2d 297, 305 (App. 1990) (“[T]he party asserting
financial hardship” in response to opposing party’s fee request “has the burden of coming
forward with prima facie evidence of financial hardship,” and cannot rely solely on “unsworn
and unsupported assertions of [its] attorney in memoranda filed with the court.”).
As the Plaintiff correctly asserts, she prevailed with respect to the central issue in this
case, i.e., the validity and enforceability of the Third Amendment to the Declaration of
Covenants, Conditions and Restrictions (the “Third Amendment”). Reply at pp. 2-3. The fourth
Warner factor therefore weighs in the Plaintiff’s favor.
The Court agrees with the Association that the issues in the case were sufficiently novel
that the fifth Warner factor counsels against granting the Plaintiff’s fee request, at least in full.
Kaufman, 2019 WL 2084460 at *10 (the fifth Warner factor “will weigh against awarding
attorneys fees if a claim is novel or has not previously been adjudicated”). Finally, although the
Association does not expressly address the sixth Warner factor in its Response, the Court finds
that the fifth and sixth Warner factors go together: a substantial fee award in a case that raises
novel legal issues would risk deterring others from litigating similar novel issues in the future.
Cf. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566, 573, 155 P.3d 1090, 1097 (App. 2007)
(affirming fee award and holding that the amount of fees awarded was “not so exorbitant” as to
“discourage other parties from litigating tenable claims due to fear of having to pay attorneys’
fees”). The important interest in not deterring the litigation of novel claims weighs against
granting fees in the full amount sought by the Plaintiff. See Nationwide Mut. Fire Ins. Co. v.
Jones, 695 F.Supp.2d 978, 987 (D.Ariz. 2010) (denying fee request of successful insurer in
declaratory judgment action in part because “the legal questions presented were relatively novel”
and “assessing fees against an insured who has already sufficient a substantial loss would tend to
discourage other insureds with tenable claims from litigating”).
After weighing the Warner factors, the Court finds that an award to the Plaintiff of two-
thirds of the attorney fees and costs she reasonably and necessarily incurred in this matter is
warranted.
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“[T]he number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate…is presumed to be the proper, reasonable fee.” Bogard v. Cannon & Wendt Elec.
Co., 221 Ariz. 325, 336, 212 P.3d 17, 28 (App. 2009) (citation and internal quotations omitted).
“Once a party establishes its entitlement to fees and meets the minimum requirements in its
application and affidavit for fees, the burden shifts to the party opposing the fee award to
demonstrate the impropriety or unreasonableness of the requested fees.” Nolan v. Starlight Pines
Homeowners Ass’n, 216 Ariz. 482, 491, 167 P.3d 1277, 1286 (App. 2007).
Here, the Court finds the hourly rates billed by the Plaintiff’s counsel to be reasonable,
and the Association does not contend otherwise. Moreover, although the Association asserts that
the amount of fees the Plaintiff incurred for particular tasks was “unreasonable,” Response at p.
6. the Court finds that, for the most part, the Association has failed to meet its burden of
establishing the unreasonableness of the claimed fees. The Court simply sees no basis to find that
the Plaintiff’s counsel spent an excessive amount of time performing many of the disputed tasks.
On the contrary, the time spent by counsel performing those tasks appears to have been time
well-spent, since the oral and written advocacy of the Plaintiff’s counsel was of exceptionally
high quality.1 Because the legal work performed on the Plaintiff’s behalf was of the highest
quality, the Court will not arbitrarily reduce the Plaintiff’s fee award based on speculation that
she could have obtained the same success if her counsel had devoted less time to legal research
and dispositive motion practice. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir.
2008) (“By and large, the court should defer to the winning lawyer's professional judgment as to
how much time he was required to spend on the case; after all, he won, and might not have, had
he been more of a slacker.”).
Likewise, the Court rejects the Association’s position that the Plaintiff’s fees should be
reduced because her counsel simultaneously represented another client in another lawsuit that
raised the same challenge to the validity of the Third Amendment as that presented here. See
Response at p. 7, citing Scottsdale Valley Real Estate L.L.C. v. Montana Del Sol Condominium
Ass’n, Maricopa County Superior Court Case No. CV2019-000176 (the “Scottsdale Valley”
case). Undoubtedly, it is true that the Plaintiff’s counsel’s simultaneous litigation of two cases
involving the same challenge to the validity of the Third Amendment resulted in a savings of
attorney time spent conducting legal research and in drafting pleadings. Nevertheless, the Court
sees no basis for the Association’s contention that the Plaintiff’s counsel had to do no more, in
this case, than “copy and paste” pleadings he previously prepared for use in the Scottsdale Valley
case. On the contrary, the record supports the Plaintiff’s assertion that, “[w]hile the cases may
[have been] similar in some respects, there [were] issues unique to each.” Reply at p. 4.
1 Of course, the work performed by counsel for the Association was also of exceptionally high quality,
but that fact has no bearing on the amount of fees to be awarded to the Plaintiff.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
06/29/2020
Docket Code 019
Form V000A
Page 5
The dispositive motion practice in this case, for example, included briefing on the
Plaintiff’s statutorily-based challenges to the process by which the Third Amendment was
adopted and to the reasonableness of the Association’s $500-per-day fine. See Plaintiff’s Motion
for Summary Judgment at p. 13 (“The Amendment is also void because the voting ballots either
expired by statutory mandate or were invalid from initiation,” citing A.R.S. § 33-1250(C)(4)); id.
at p. 16 (“The Association’s blanket $500 daily fine for only short-term rentals…violates
[statutory] requirements,” citing A.R.S. § 33-1242(A)(11); Defendant’s Response to Plaintiff’s
Motion for Summary Judgment at pp. 18-19 (“[T]he Third Amendment was approved by the
Members without a meeting of the members pursuant to A.R.S. § 10-3704. Accordingly, A.R.S.
§ 33-1250(C) is inapplicable to this analysis.”); id. at p. 20 (“The Association’s 2019 Fine Policy
is consistent with Arizona law and does not deprive Owners of their right to notice and an
opportunity to be heard pursuant to A.R.S § 33-1241(A)(11).”). These issues, which were briefed
and litigated in this case, do not appear to have been raised or litigated in the Scottsdale Valley
case.2 See generally Verified Complaint filed on January 14, 2019 in CV2019-000176; Plaintiff’s
Motion for Summary Judgment filed on June 27, 2019 in CV2019-000176. The Court therefore
rejects the Association’s contention that little original work was required in this case because this
case and the Scottsdale Valley case were, purportedly, “nearly identical.” Response at p. 7.
In some respects, however, the Court agrees with the Association that some of the tasks
performed on behalf of the Plaintiff were not necessary to her ultimate success, and so are not
compensable. For example, as the Association correctly points out, the Plaintiff seeks to recover
fees for “at least 14 hours relating to her Application for Preliminary Injunction.” Response at p.
8. The Plaintiff’s request for preliminary injunctive relief was not necessary to her ultimate
success in this matter. Indeed, no hearing was ever held on the Plaintiff’s Application for
Preliminary Injunction. Instead, this case was resolved by summary judgment, and the Plaintiff’s
successful Motion for Summary Judgment was filed more than a month before the Plaintiff filed
her Application for Preliminary Injunction. Because the Application for Preliminary Injunction
was superfluous to the ultimate result, the Court agrees with the Association that fees incurred in
connection with the Application for Preliminary Injunction and related filings should be
disallowed.
Likewise, as the Association correctly points out, the Plaintiff seeks “fees for 13.9 hours
relating to the drafting of [her] Objection to Defendant’s Motion to Exceed Page Limits” in
2 Although the plaintiff in the Scottsdale Valley case moved to amend its complaint to add a challenge
to the Association’s “fine” policy, see Motion for Leave to File Amended Complaint filed September
13, 2019 in CV2019-000176, the granting of the plaintiff’s motion for summary judgment in that case
rendered its request for leave to amend its complaint moot. See Minute Entry of January 21, 2020 in
CV2019-000176 at p. 3.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
06/29/2020
Docket Code 019
Form V000A
Page 6
connection with its Response to the Plaintiff’s Motion for Summary Judgment. Response at p. 7.
In the Court’s view, the Plaintiff’s opposition to the Association’s Motion to Exceed Page Limit
for Response to Plaintiff’s Motion for Summary Judgment was simply not reasonable. The
Plaintiff herself had sought, and was granted, page limit extensions for two of her own filings.
See Plaintiff’s Motion to Exceed Page Limits for Motion for Summary Judgment; Plaintiff’s
Motion to Exceed Page Limits for Reply in Support of Motion for Summary Judgment.
Objecting to the opposing party’s request for a page limit extension after seeking and obtaining a
page limit extension for oneself is hardly reasonable. Moreover, in the response she filed on
October 22, 2019 in opposition to the Association’s Motion to Exceed Page Limit for Response
to Plaintiff’s Motion for Summary Judgment, the Plaintiff repeated, often verbatim, the same
arguments that she asserted in another motion that she filed the same day, i.e., the Plaintiff’s
Motion to Strike Defendant’s Response to Plaintiff’s Separate Statement of Facts.3 The Court
finds that the Plaintiff’s Response to Defendant’s Motion to Exceed Page Limit was neither
necessary nor reasonable, and was, in fact, duplicative of another filing, and so will disallow all
fees incurred in connection with the drafting of that filing.
With those exceptions, the Court rejects the Association’s challenge to the reasonableness
of the amount of time spent by the Plaintiff’s counsel.
3 Compare Plaintiff’s Response to Defendant’s Motion to Exceed Page Limit at p. 2 (“Arizona has
long recognized the difference between facts and legal argument in the summary judgment context.”)
with Plaintiff’s Motion to Strike Defendant’s Response to Plaintiff’s Separate Statement of Facts
(“Plaintiff’s Motion to Strike”) at p. 2 (“Arizona distinguishes between the contents of a memoran-
dum in support of or responding to a request for summary judgment and the separate statements of
facts.”); compare Plaintiff’s Response to Defendant’s Motion to Exceed Page Limit at p. 2 (asserting
that “[c]ourts as a general practice refuse to consider and/or strike legal arguments stuffed into the
statement of facts or response to the statement of facts,” and citing McClure v. Country Life Ins. Co.,
2017 WL 3268841 (D. Ariz., Aug. 1, 2017) for the proposition that “a statement of fact is not to contain
legal arguments over the significance or effect of facts”) with Plaintiff’s Motion to Strike at p. 2
(asserting that “[c]ourts as a general practice refuse to consider and/or strike legal arguments stuffed
into the statement of facts or response to the statement of facts,” and citing McClure v. Country Life
Ins. Co., 2017 WL 3268841 (D. Ariz., Aug. 1, 2017) for the proposition that “a statement of fact is not
to contain legal arguments over the significance or effect of facts”); compare Plaintiff’s Response to
Defendant’s Motion to Exceed Page Limit at p. 8 (“Telling of the replete violations of Rule 56, this
Court can see no citations to the record for claimed disputes of fact at paragraphs 5, 6, 7, 8, 9, 10, 11,
16, 17, 19, 20, 21, 22, 24 through 33, 35, 36 through 41, 43, 47, 49, 51, 52, 59, 60, and 62.”) with
Plaintiff’s Motion to Strike at p. 2 (“There are no citations to the record for claimed disputes of fact at
paragraphs 5, 6, 7, 8, 9, 10, 11, 16, 17, 19, 20, 21, 22, 24 through 33, 35, 36 through 41, 43, 47, 49, 51,
52, 59, 60, and 62.”).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
06/29/2020
Docket Code 019
Form V000A
Page 7
The Plaintiff seeks an award of $44,066.00. After disallowing fees of $7,628.00 that were
incurred in connection with the Plaintiff’s Application for Preliminary Injunction and opposition
to the Association’s Motion to Extend Page Limits, see Response at p. 6, the remaining fees
claimed by the Plaintiff total $36,438.00. For the reasons set forth above, the Court will award
the Plaintiff two-thirds of this amount, or $24,292.00.
Citing A.R.S. § 12-341, the Plaintiff seeks an award of taxable costs in the amount of
$594.69. Statement of Costs at p. 1. The Association asserts no objection to these claimed costs,
which the Court will award in full.
In accordance with the foregoing,
IT IS ORDERED granting in part and denying in part the Plaintiff’s Application for
Award of Attorneys’ Fees and her Statement of Costs, and awarding the Plaintiff attorney fees of
$24,292.00 and taxable costs of $594.69.
The Plaintiff has lodged a proposed form of Judgment to which the Association has not
objected. The Court will therefore enter judgment in the form lodged by the Plaintiff.
10/25/2019 — CV2019006893 BEHAR, MARY 10/25/2019 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
10/29/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
10/25/2019
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer/C. Mai
Deputy
MARY BEHAR
DAVID E WOOD
v.
MONTANA DEL SOL CONDOMINIUM
ASSOCIATION
JONATHAN D EBERTSHAUSER
CARLOTTA L TURMAN
JUDGE KILEY
ORAL ARGUMENT SET
Courtroom 911 (ECB)
2:07 p.m. This is the time set for Order to Show Cause Return Hearing re: Plaintiff’s
Motion for Summary Judgment filed on September 5, 2019. Plaintiff Mary Behar is represented
by counsel, David E. Wood. Defendant Montana Del Sol Condominium Association is
represented by counsel, Jonathan D. Ebertshauser and Carlotta Turman.
A record of the proceedings is made digitally in lieu of a court reporter.
The Court is in receipt of the following:
Plaintiff’s Motion for Summary Judgment filed on September 5, 2019, and Defendant’s
response filed on October 11, 2019.
IT IS ORDERED setting Oral Argument on the above filings and the related Response
and Reply thereto on November 7, 2019 at 1:30 p.m. (60 minutes allotted) before this Division.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-006893
10/25/2019
Docket Code 094
Form V000A
Page 2
HON. DANIEL J. KILEY
Maricopa County Superior Court
East Court Building
101 West Jefferson Street
9th Floor, Courtroom 911
Phoenix, AZ 85003
For the reasons stated on the record,
IT IS FURTHER ORDERED denying the Plaintiff’s Application for Preliminary
Injunction filed on October 11, 2019.
Over the Plaintiff’s objection,
IT IS FURTHER ORDERED granting the Defendant’s Motion to Exceed Page Limit
for Response to Plaintiff’s Motion for Summary Judgment filed on October 11, 2019.
NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full day.
2:21 p.m. Matter concludes.
