A HOA was successful in enforcing its architectural restrictions with respect to a homeowner’s unapproved installation of windows.
Defendants and appellants Thomas Stanton and Donna Stanton replaced two windows in their condominium with “sandtone” colored windows after the condominium association, Chapala Management Corporation (Association), had denied their application for those improvements on grounds they were not an approved color. Association thereafter filed suit and, following a bench trial, obtained a judgment against the Stantons for injunctive and declaratory relief declaring them in violation of Association’s amended and restated declaration of covenants, conditions and restrictions (CC & Rs) and requiring them to modify or replace their windows under the approval of Association’s architectural review committee (at times hereafter the ARC). The trial court ordered the Stantons to pay attorney fees and thereafter ordered them to post a bond or undertaking to stay the collection of the attorney fee award. The Stantons appealed from the judgment without filing an appeal bond or other undertaking.
On appeal from the judgment, the Stantons contend the trial court erred by (1) granting an injunction when Association had specific and adequate legal remedies under the CC & Rs; (2) ignoring Civil Code requirements granting defendants a hearing before Association’s board of directors (the Board); (3) holding that the term “aesthetic” permits the architectural review committee to disregard provisions of the CC & Rs as to window color; and (4) finding that the architectural review committee’s actions were not arbitrary, capricious or discriminatory. The Stantons further appeal from the order awarding attorney fees, asking us to vacate the order if they prevail on appeal.
In their subsequently filed writ petition, the Stantons contend an undertaking is not required to stay an award of costs made in connection with a judgment for injunctive relief. They asked for an immediate stay of the order requiring that they post an undertaking. We issued the stay, ordered that the arguments in the petition and response be considered with this appeal, and deferred ruling on the petition until disposition of the appeal.
We affirm the judgment and postjudgment order awarding attorney fees. As we explain below, we dissolve the stay and grant the Stantons’ petition for writ of supersedeas.
In December 2006, the Stantons, owners of a unit located in the Association, submitted to Association a series of applications seeking the architectural review committee’s approval of exterior improvements consisting of the replacement of two casement windows on the south side of their unit, facing the common area. They sought to use windows that were “sandtone” in color.
Association utilizes a document entitled “Architectural and CC & R Guidelines for Homeowners” (Guidelines) stating that “[a]ll changes or additions either to the exterior of your Living Unit or to your Exclusive Use Area require ARC approval.” In part, the Guidelines state: “No building or other structure or improvement, including landscaping, shall be erected, placed or altered upon any Exclusive Use Area or Common Area nor shall the exterior of any Living Unit be changed or altered unless the ARC has reviewed and approved the changes in accordance with the guidelines.” (Bold and italics omitted.) The Guidelines contain an “Architectural Concept” section that explains that Association’s architecture is a homogenous Spanish style reminiscent of California early days, and minor architectural changes may be considered that maintain the integrity of that architectural style. According to the Guidelines, “[a]reas allowing the largest possibility for individual expression are the Exclusive Use Areas appurtenant to the rear of such Living Unit and intended for the exclusive use of its inhabitants. [¶] These areas are actually Common Areas and shall be landscaped and maintained by the home owner.” (Bold and italics omitted.) The CC & Rs define the exclusive use areas.
Before January 2007, Association’s architectural review committee had a policy of maintaining a dark shade of brown color for windows that generally faced the street within the community, other than the garage windows. The committee had a different policy with respect to windows that did not face the street. The Stantons were aware of this policy since at least 1999, when the existing architectural review committee denied their application to install sandtone colored windows due to the color variation.
In January 2007, the members of the architectural review committee met with the Stantons at their property and explained that their window color was unacceptable. On January 31, 2007, Association advised the Stantons by letter that their application had been disapproved because, among other deficiencies, the window frame color specified on the application was incorrect. In February 2007, the Stantons submitted two additional applications again requesting approval of sandtone colored windows.
The following month, the Association’s manager on the Board’s behalf advised the Stantons that the architectural review committee had denied their application “because the casement windows must be brown in color.” In April 2007, Thomas Stanton wrote to Association’s legal counsel and, among other things, accused the architectural review committee of acting in an arbitrary and capricious manner in its color approvals. At the conclusion of the letter, he wrote, “New non-standard color windows will be installed in our home this week!” The Stantons thereafter installed the sandtone-colored windows.
In May 2007, Association offered to resolve the dispute with the Stantons through mediation in accordance with Civil Code section 1369.520. The Stantons declined mediation.
Association thereafter filed a verified complaint against the Stantons containing causes of action for declaratory and injunctive relief based on the Stantons’ violation of the CC & Rs. It sought a permanent injunction requiring the Stantons to modify their windows by painting them a color approved by the architectural review committee, or alternatively requiring them to remove and replace the existing windows with windows in an approved color after submitting plans and specifications under the Guidelines and obtaining the committee’s approval. It also sought a judicial declaration of the rights, duties and obligations of the parties under the CC & Rs pertaining to the Stantons’ unit and an order directing them to comply with all other provisions of the CC & Rs. Association prayed for costs and attorney fees.
“A presumption of reasonableness exists as to the enforcement of restrictions in common interest developments such as Chapala Management Corporation․ The provisions in the CC & Rs dealing with architectural approval are presumed reasonable. The Court finds that the architectural provisions included in Article XV, Section 2 of the CC & Rs do not violate any public policy, and are not internally arbitrary. The purpose of the CC & Rs [is] in part for enhancing and perfecting the value, desirability, and attractiveness of the property. The CC & Rs and the requirements contained therein are enforceable as to the residents of the Association, including the Defendants.
“The applicable provisions of the CC & Rs require that Defendants obtain the approval of the ARC before making any architectural modifications to the Subject Property. Defendants in this instance breached the CC & Rs by installing the sandtone windows at the Subject Property after they received express, written disapproval of their application from the ARC. Defendant Thomas Stanton testified that he knew at the time of the installation that he was violating the CC & Rs by what he did, but felt that he was violating them with what he considered to be good cause.
“The ARC acted within the scope and power granted by the CC & Rs in disapproving the Defendants’ architectural application for the installation of the sandtone windows. The standard for the ARC’s approval or disapproval of architectural application, as set forth in Article XV, Section 11 of the CC & Rs, requires the ARC to make those decisions on the basis of aesthetic considerations and the overall benefit or detriment which would result to the immediate vicinity of the Project, generally taking into consideration the aesthetic aspects of the color schemes. This does not mean, nor should it be interpreted to imply, that each decision of the ARC solely involves the neighbors in the immediate vicinity of the affected property, nor is a plebiscite intended on each and every disputed call that is made by the ARC.
“Decisions made by an architectural committee to approve or deny architectural applications may be based on the subjective judgment of those entities as reasonably applied and as reviewed from time to time by the board of directors of an association. The ARC in this case was empowered to make decisions on architectural applications on the basis of aesthetic considerations. The ARC acted within its scope of discretion provided under the CC & Rs in disapproving the Defendants’ application for sandtone windows based on a longstanding color scheme that has been substantially followed throughout the existence of the Association.
The court entered judgment in Association’s favor. It ordered the Stantons to modify their sandtone windows by painting them a color approved by the ARC or alternatively remove and replace them with windows of an approved color, after submitting plans and specifications to the ARC under its guidelines and obtaining its approval. It granted Association the right to enter the property to modify the windows if the Stantons failed to comply with specified time deadlines for the above acts. It ordered Association to recover its reasonable attorney fees with interest and costs.
Thereafter, Association moved for an award of $83,027.50 in attorney fees and $4,298.72 in costs as the prevailing party in the matter. In part, it argued its action was one to enforce the CC & Rs and obtain declaratory relief for the Stantons’ breach of the CC & Rs, and thus Civil Code section 1354 as well as article XIX, section 5 of the CC & Rs3 entitled it to recover its reasonable attorney fees. The Stantons opposed the motion on grounds Association was not entitled to fees under Civil Code section 1354 because its action was not one to enforce any specific provision of its governing documents. They further argued Association’s action was at most a limited civil case because damages were well below $25,000, and thus it was controlled by Code of Civil Procedure section 1033, limiting Association’s recovery to its actual cost of the filing fee and service of process. Finally, the Stantons argued Association did not demonstrate its claimed attorney fees were reasonable.
The trial court granted Association’s motion in part, awarding it $59,122.50 in attorney fees and $4,298.72 in costs. The court pointed out it had already ruled Association’s action was one to enforce express provisions in its CC & Rs, the action was not a limited civil case as it contained a cause of action for injunctive relief, and the hourly rates of Association’s counsel were reasonable. Association filed a motion for an undertaking to stay enforcement of the $63,421.22 judgment and the Stantons moved to stay all costs, including attorney fees, pending resolution of the appeal. The trial court tentatively granted the Association’s motion, finding attorney fees were not an ordinary or routine cost such that an undertaking is required. It granted the Stantons’ motion in part, staying collection of “ordinary” costs only. The Stantons filed a petition for writ of mandate, supersedeas or other appropriate relief, contending no undertaking was required and asking us to stay the trial court’s order. We issued an immediate stay of the order requiring an undertaking and ordered that the writ be considered with the Stantons’ appeal from the judgment and postjudgment order awarding attorney fees and costs.
In response, Association argues the Stantons did not raise these arguments in the trial court other than by demurrer (to argue the superior court lacked subject matter jurisdiction), and we should disregard them as “beyond the scope of this appeal.” Association also attacks these arguments on their merits. It maintains article XV, section 4 of the CC & Rs gives it the right and authority, but not the duty, to enter a unit owner’s property and correct a violation. It contends it retains the option under the CC & Rs to pursue any legal remedy to gain compliance with the CC & Rs, including by “appropriate proceedings in law or equity.” It further argues the Board exercised its business judgment to file suit to enforce its governing documents; that its decision as to what enforcement method to pursue under a given circumstance is entitled to deference because it is a decision made in good faith to further the purpose of the Association, is consistent with the Association’s governing documents, and complies with public policy. Finally, Association sets forth various reasons why the Stantons’ unauthorized installation of their windows was not deemed approved under the CC & Rs.
We set out the relevant provisions of the CC & Rs.
Article XV of the CC & Rs pertains to the architectural review committee. In part, it states, “[n]o alteration shall be made in the exterior color design or openings of any building or other construction unless written approval of said alteration shall have been obtained from the ARC.” (CC & Rs, art. XV, § 2.) That section also generally prohibits the erection, placement or alteration of any building, structure or improvement on any unit exterior until the ARC approves in writing the location and the complete plans and specifications of those matters, including the color scheme.
Because we are limited to determining whether the trial court’s decision to grant injunctive relief is an abuse of discretion, we shall not overturn its decision in view of the above-summarized factual circumstances and grant of authority under the CC & Rs. We note, however, that were we to consider the matter de novo, we would question the Board’s business judgment in resorting to expensive and time-consuming litigation generating many thousands of dollars in legal fees, rather than electing to notify the Stantons of their violation and issue a directive that they paint or replace their windows with windows of an approved color. (CC & Rs, art. XV, § 4.) If the Stantons did not comply, Association would have been reasonably within its authority to remedy the Stantons’ noncompliance by painting the two windows, charging the Stantons its expenses incurred in doing so, and recovering the minimal cost in an action at law. (CC & Rs, art. XV, § 4.) Under the abuse of discretion standard of review, however, our difference of opinion does not warrant reversal as long as we conclude the trial court could reasonably reach a different conclusion.
Nor are we convinced that the Stantons’ windows were deemed approved as a matter of law. (See Hale v. Morgan (1978) 22 Cal.3d 388, 394 [“a litigant may raise for the first time on appeal a pure question of law [that] is presented on undisputed facts”]; see also Stone Street Capital, LLC v. California State Lottery Commission (2008) 165 Cal.App.4th 109, 123, fn. 10.) First, we cannot say the relevant facts are undisputed. The evidence shows that the Stantons notified Association that they would be installing their windows “this week.” The trial court could reasonably conclude, and we must infer it found, the Stantons’ letter did not constitute “written notice of completion” to the Association within the contemplation of the CC & Rs. (CC & Rs, art. XV, § 6(a).) But were we to consider the matter assuming the facts were undisputed, we would reject the contention. The language of the inspection and correction provision requiring written notice of completion presumes the owner has “approved plans” (CC & Rs, art. XV, § 6(a)) for the improvement or work. Thus, in those cases, the owners will have commenced the work with architectural review committee approval. The purpose of requiring a notice of completion is to permit-but not require-the architectural review committee to inspect (“․ the ARC may inspect ․”) the work or improvement to decide whether it complies with the approved plans, and give a notice of noncompliance if it does not. These inspection and correction provisions are not applicable to the Stantons, who installed their windows without approved plans. Indeed, they did so in the face of the prior architectural review committee disapproval. Section 6(d) of article XV does not govern.
The Stantons contend the trial court ignored statutory requirements in Civil Code section 1378, subdivision (a)(4) and (5) that the Board grant them a reconsideration hearing after the architectural review committee denied their application. They argue “[n]othing in this record indicates that [Association] ever offered the Stantons a board hearing or even notified them of the availability of one.” They assert Association was not authorized to pursue litigation as a result of its failure to follow its own procedures, and on this basis they ask this court to reverse the judgment and remand it to enter judgment in their favor.
Association responds that the record shows the Stantons were well aware of such an appeal process because each year, it provided the homeowners with a document entitled “Architectural Review Committee and and/or [sic ] Board Standards and Procedures.” Association also points out the trial court made an express finding in its statement of decision that it had complied with all requirements and conditions of its CC & Rs, and if there were deviations, the parties, who were represented by counsel, waived them.6 Association argues the finding is supported by substantial evidence that it complied with procedural prerequisites of filing suit, including conducting a board meeting to discuss the architectural review committee’s decision on the Stantons’ application.
Second, even if the trial court somehow erred by “ignoring” Civil Code section 1378’s requirements, the Stantons have not met their burden to affirmatively establish they were prejudiced by the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice].) Specifically, they have not attempted to demonstrate that the outcome of this matter would be different if the trial court had acknowledged the notice requirement.
Nor can they make such a showing, in our view. The record reflects that after the Stantons’ December 2006 application was denied by the architectural review committee, Thomas Stanton wrote to the Board via its property manager stating he had consulted with an attorney, who had advised him the architectural review committee’s action was arbitrary, capricious and an abuse of discretion. He asked that the Board consider certain information and “reconsider our color request․” (Underlining omitted.) Mr. Stanton admitted at trial he sent the letter for the purpose of obtaining the Board’s reconsideration; that he believed the Board had the right to overrule the architectural review committee’s decision based on information related to him by the prior chairman of the architectural review committee. The property manager responded in part by advising Mr. Stanton that the Board had received his letter and would discuss it at its February 15, 2007 meeting, stating the time of that meeting. Mr. Stanton acknowledged the upcoming Board meeting in writing and advised the property manager that he could not attend due to a conflict. He asked instead for a written response to the questions and statements within his letter.
Thus, despite the absence of express written notification about appeal or reconsideration rights in the architectural review committee’s December 2006 denial, the record shows the Stantons in consultation with legal counsel nonetheless exercised those rights, specifically asking the Board for reconsideration of the architectural review committee’s decision, and they were given an opportunity to attend the Board meeting. Further, this evidence supports the trial court’s findings that to the extent the architectural review committee did not include written notice of the Stantons’ right to Board reconsideration in its decisions, the Stantons knew of, but waived, any deficiency and Association’s noncompliance by failing to raise it at the time.
The Stantons contend the trial court erred by holding the term “aesthetic” allows Association to depart from its governing documents, which assertedly require all exterior replacement windows be “chocolate brown” in color without regard to location. They argue the CC & Rs and Exhibit 21, reflecting what they characterize as Association’s written “regulation” for paint schemes, contradict Association’s policy of allowing differing colors for street-facing and non-street-facing windows, and that any such unwritten policy based on window location is not a valid operating rule under Civil Code section 1357.110, subdivision (a). According to the Stantons, the ARC chairman was not authorized to allow variations in exterior window color at the Association depending on their location; any such variations were unauthorized and capricious “by definition” because they were based on some unwritten, nebulous standard.
The Stantons do not challenge the sufficiency of the evidence of the trial court’s findings concerning the architectural review committee’s window color policy, i.e., that since 1999, the Stantons had knowledge that the architectural review committee had an architectural guideline permitting window colors to differ depending on whether or not they faced the street. They therefore concede, as the trial court found, the architectural review committee has been operating under such a policy since at least 1999. The Stantons appear to argue only that the policy is unenforceable or void because it is unwritten, contradicts the CC & Rs and Exhibit 21, and is arbitrary and capricious because it was implemented and controlled at the whim of the architectural review committee’s chairman.
Preliminarily, we observe the Stantons do not explain how these arguments compel reversal of the trial court’s judgment. Even if we assume their argument to be true-that the Association’s architectural review committee could not validly permit owners to install anything other than chocolate brown-colored exterior windows (no matter the location) and the trial court erred in finding otherwise-the Association’s lawsuit was directed at the Stantons’ violation of that standard when they installed sandtone-colored exterior windows without architectural review committee approval. The Stantons do not challenge or dispute the CC & Rs provisions requiring prior architectural review committee approval of improvements. As Association points out, the trial court determined the Stantons had breached the CC & Rs by installing their sandtone-colored windows without architectural review committee approval, and that the architectural review committee acted within the scope and power granted it by the CC & Rs in disapproving their chosen windows, which were not the brown color specified in Association’s window paint standards.
The Stantons’ arguments mischaracterize the trial court’s findings in any event. The court did not find that the architectural review committee was authorized to ignore the Association’s governing documents. It found the Association’s CC & Rs granted discretion to the architectural review committee in reviewing requests for improvements on the basis of aesthetic considerations, which is a delegation of power allowed under California law. As we have stated, courts review such broad grants of authority under a deferential standard: they are “presumptively reasonable [citation], and are enforceable ‘unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit’ [citation].” (Terifaj, supra, 33 Cal.4th at p. 88; Nahrstedt, supra, 8 Cal.4th at pp. 380, 382.) The court also found that Exhibit 21 reflected “approved and recommended colors for windows in the community,” (italics added) that Exhibit 21 served as a “guide” for the homeowners, and that the architectural review committee had discretion, in its exercise of aesthetic judgment, to allow for differences in color for front-facing windows and those windows that generally face the rear of the units, in areas described as exclusive use common area. The court’s finding is consistent with Association’s architectural guidelines, which allow for the “largest possibility for individual expression” within the exclusive use areas appurtenant to the units’ rears, i.e., non-street-facing.
The grant of discretion to the ARC in article XV, section 11 of the CC & Rs, is not “wholly arbitrary” because it bears a “rational relationship to the protection, preservation, operation[, and] purpose of the affected land.” (Nahrstedt, supra, 8 Cal.4th at pp. 381-382.) As we have previously held, “Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties.” (Dolan-King I, supra, 81 Cal.App.4th at p. 976.) Here, the architectural review committee could reasonably conclude within the broad authority granted to it in the CC & Rs that Chapala’s neighborhood character and aesthetics required that street or common area-facing windows be a consistent shade of brown, so as to avoid a hodgepodge of differing colors apparent from the unit fronts.
In related arguments, the Stantons contend the trial court erred in finding that the architectural review committee did not act in an arbitrary, capricious or discriminatory manner in disapproving their application. Summarizing trial testimony from various witnesses that other windows in Chapala were painted with lighter colors, as well as from Association’s chairman of the architectural review committee, they argue the architectural review committee’s rejection of their windows was arbitrary, illegal and capricious because it was the result of a decision made solely by the architectural review committee chairman based on the Association’s lawyers’ conception of Association’s “signature” look, it was “subject to his will without restriction,” and it was contrary to Association’s unrecorded color regulations, which the Stantons argue are binding upon owners having notice of those regulations. They argue the decision was discriminatory because the architectural review committee chairman treated other owners differently, specifically, the evidence showed one other owner-Brian Finneran-had been allowed to install sandtone-colored windows in the front of his unit.
We begin our analysis by pointing out that the Stantons have arguably waived their sufficiency of the evidence arguments by failing to summarize all of the material evidence, including the evidence that is damaging to their case. (Foreman & Clark Corp. v.. Fallon (1971) 3 Cal.3d 875, 881; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 8:71, p. 8-34.) Indeed, the Stantons largely reargue the merits of their case-they discuss why the architectural review committee’s decision was arbitrary, capricious and discriminatory without analyzing the entirety of the trial evidence and the trial court’s factual findings. By ignoring the trial court’s adverse factual findings and failing to analyze why the evidence does not support those findings, and by restricting their analysis and argument to facts that assertedly support their position-i.e., evidence that other owners were permitted to install lighter colored windows in their homes-the Stantons ignore the settled principles of substantial evidence review that we have set forth above.
The Stantons’ evidentiary challenge is in part based on an incorrect premise: that Association’s unrecorded exterior window color standards as reflected in Exhibit 21 are “rules” or equitable servitudes that bind the architectural review committee for purposes of all exterior windows at the Association, rather than a recommendation or “guide for homeowners” as the trial court found. As recommendations or guides, the color standards are subject to the architectural review committee’s subjective views and aesthetic judgment that may be exercised in accordance with Association’s architectural guidelines, which allow for more “individual expression” in the exclusive use areas. The Stantons do not contest the trial court’s factual finding-set out verbatim above-that the Association had maintained a longstanding policy at Chapala (at least since 1999) of requiring street-facing windows to be a darker brown color, but allowing owners to use lighter colors on other, non-street-facing windows. There is no evidence suggesting the presence of lighter colored windows at Chapala was the result of “invented exceptions” by the architectural review committee chairman, as the Stantons assert. We conclude as a matter of law that it was not arbitrary, capricious or discriminatory for the architectural review committee to reject the Stantons’ request for sandtone-colored front-facing windows and at the same time permit other owners to have lighter colored windows in the portions of their units facing exclusive use areas. Such decision is in keeping with Association’s longstanding policy, its architectural guidelines, and the architectural review committee’s broad grant of discretionary authority under the CC & Rs.
Second, there is no evidence suggesting, as the Stantons maintain, that the architectural review committee chairman alone made the decision to deny their window application. The evidence in fact is to the contrary. Peter Masters was the architectural review committee chairman during the time the Stantons submitted their window applications in 2006 and 2007. At trial, he testified he was appointed chairman in 2005 by the Board and served with two other members, Eleanor Levi and Robert Balmet. Masters testified that the architectural review committee was vested with the decisionmaking process in maintaining the Association’s originally-established architectural integrity, and that committee was called upon to make subjective judgments about color and design. According to Masters, the committee considered the Stantons’ December 2006 window application and after denying it on grounds it did not match the color of other similar windows in Chapala, all three committee members met with the Stantons to explain the architectural review committee’s conclusion. The trial court could reasonably infer from this evidence that the committee collectively decided to deny the Stantons’ application. To the extent the Stantons presented contrary evidence, it is of no consequence on our review for substantial evidence.
The Stantons make much of the fact that their expert, an Anderson window representative, identified the Finneran home’s front windows as sandtone in color. The trial court, however, found the Finneran home had a lighter shade of brown on its windows, and also found the fact the architectural review committee had approved that window color “was not so inconsistent with the prior policy to constitute any bar to the Stanton rejection by the ARC.” The Stantons would have us ignore these findings, as well as the trial testimony of Brian Finneran that his windows were “brown” colored and “much darker” than the Stantons’ windows. The testimony of the Stantons’ expert merely raised a conflict in the evidence that was properly resolved by the trial court. (See People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1573 [trial court is arbiter of conflicts in testimony including expert testimony; appellate court reviews trial court’s conclusion only for substantial evidence].) We will not reweigh the evidence before the trial court merely because the Stantons presented evidence that the Finneran home’s windows were sandtone colored. (See Kelly v. CB & I Constructors, Inc. (2009) Cal.App.4th 442, 454.) The substantial evidence standard applies to both lay and expert testimony, and the trial court was free to reject the opinion of the Stantons’ expert so long as it did not do so arbitrarily. (People ex rel. Brown v. Tri-Union Seafoods, LLC, at pp. 1567, 1568.) The Stantons do not claim, nor have they shown, that the trial court acted arbitrarily or that there is reason to reject Brian Finneran’s testimony under the sufficiency of the evidence standard.
The Stantons do not meaningfully challenge the propriety and amount of the trial court’s attorney fee award to Association. They contend that if they prevail on this appeal, Association will no longer be the prevailing party and thus the fee order should be reversed.
By a petition alternatively seeking a writ of mandate, supersedeas or other appropriate relief,8 the Stantons challenge the trial court’s order requiring them to post a bond or undertaking to stay execution of the costs awarded in the underlying action, including the award of attorney fees in Association’s favor. They contend that under Code of Civil Procedure section 916,9 costs in injunctive relief actions are stayed on appeal. They maintain that both authorities cited by the trial court-Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797 (Bank of San Pedro ), and Chamberlin v. Dale’s RV Rentals, Inc. (1986) 188 Cal.App.3d 356 (Chamberlin )-involved money judgments and thus the trial court misplaced reliance on them to hold that attorney fees are not ordinary or routine costs. They argue that in this case involving attorney fees awarded under the Davis-Sterling Common Interest Development Act enacted in 1985 (Civ.Code, § 1350), the trial court should have followed Nielsen v. Stumbos, supra, 226 Cal.App.3d 301.
In its opposition to the petition, Association contended the matter is governed by section 917.1, subdivision (a), which specifically requires an undertaking to stay a monetary award pending appeal. It maintained the trial court did not abuse its discretion by requiring an undertaking under its cited authorities. It further argued that this court in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 (Dowling ) and the Fourth Appellate District, Division Three in Beniwal v. Mix (2007) 147 Cal.App.4th 621 have considered the conflict in authorities and conclude that Bank of San Pedro, supra, 3 Cal.4th 797 and Chamberlin, supra, 188 Cal.App.3d 356 are controlling on the issue of whether attorney fees are nonroutine costs requiring an undertaking. Though Association elected to concede this issue at oral argument, we will address it on the merits for the guidance of trial courts.
We decline to read Bank of San Pedro, supra, 3 Cal.4th 797 as equating all attorney fee awards with expert witness fees, as did the court in Behniwal v. Mix, supra, 147 Cal.App.4th at pages 633-634, and footnote 8. The high court’s analysis in Bank of San Pedro was directed solely at the expert fees awarded under section 998, and its reasoning was based on the operation of that statute. Further, Behniwal conceded that its discussion of the issue was not for the purpose of squarely deciding whether or not an undertaking was required, but only relevant to demonstrate the flaws in one of the parties’ arguments. (Behniwal, supra, 147 Cal.App .4th at p. 634.) We do not follow Behniwal to the extent its holding can be read to encompass a judgment solely for costs and attorney fees awarded to the prevailing party under Civil Code section 1354.
In sum, under section 916, subdivision (a) the trial court should have granted the stay of execution of the judgment in its entirety.
The judgment and postjudgment orders are affirmed. The temporary stay issued on October 29, 2009, is vacated. The petition for writ of supersedeas staying enforcement of the judgment for attorney fees and other costs is granted. The parties shall bear their own costs on appeal.
9. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
WE CONCUR: HUFFMAN, Acting P.J., and McINTYRE, J.


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Doutor em Administração pela Universidade Nove de Julho - UNINOVE. Professor do Centro de Ciências Sociais Aplicadas da Universidade Estadual do Oeste do Paraná - UNIOESTE.
Doutor em Engenharia pela Pontifícia Universidade Católica do Rio de Janeiro. Professor do Programa de Mestrado e Doutorado em Administração da Universidade Nove de Julho – Uninove.
Mestre em Administração pela Fea/USP. Consultor educacional e editorial do Grupo GEN.
O objetivo deste artigo foi compreender as relações teóricas e conceituais entre os estudos sobre tomada de decisão estratégica. A pesquisa foi desenvolvida com dados de 2590 artigos publicados na Web of Science, sendo analisados por meio de técnicas quantitativas. Foram identificadas quatro diferentes dimensões teóricas que envolvem as pesquisas neste campo. A primeira relacionada com as características perceptíveis e não perceptíveis dos gestores; a segunda ligada com os processos, modelos e estrutura; a terceira baseada nas teorias empregadas; e a quarta formada pela Teoria do Alto Escalão, resultados que contribuem para a melhor compreensão deste campo de investigação.
Tomada de Decisão Estratégica; Teoria do Alto Escalão; Bibliometria; CEO.
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Intelligent Machines - Engines of Intellectual Property Creation?
Recently, artificial intelligence (AI) has become an increasing part of our daily lives. Many of us utilize virtual assistants such as Apple’s Siri and Amazon’s Alexa, we interact with customer support through chat bots, and we receive individualized content curated by Netflix, Facebook, and Spotify. These services are increasingly powered by artificial intelligence, which some define as any artificial system that can perform tasks under varying and unpredictable circumstances, without significant human oversight, or that can learn from their experience and improve their performance. Such intelligent machines can include computing systems that apply machine learning or deep learning architectures that mimic the neural networks of the human brain.
Although the term artificial intelligence and the first AI programs were developed in the 1950s, the development of AI-based systems is now accelerating at a pace surpassing even experts’ expectations. This strongly suggests that in the near future, AI-enabled systems will become even more deeply engrained in our society. Within a few years, self-driving cars, AI-powered health care (e.g., diagnosis, personalized drug development, and treatment), and personal assistants (that can do much more than merely set timers and control household appliances) will be commonplace. Additionally, improvements in artificial general intelligence (AGI) systems may eventually challenge human intelligence in terms of creativity and inventive talent. With this context, intellectual property practitioners should reexamine the fundamental aspects of IP creation when artificially-intelligent systems are involved.
This article explores how current trademark, copyright, and patent law may apply to scenarios in which an AI, without significant human oversight, might place goods and services in commerce, “create” works, or “invent” novel and non-obvious innovations.
Today, AI-based services predict purchases, recommend products to customers, and place specific products in commerce through online shopping. Assuming the services act substantially without human intervention and are placing goods and services into the stream of commerce (e.g., by offering them for sale in an advertisement), the relevant inquiry is whether a trademark right could inure from such AI behavior, and if so, to what entity would the right inure.
Here, if the AI is considered a juristic person, it could apply for, and eventually obtain the trademark. If the AI is not a juristic person for the purposes of the Lanham Act, it could not itself apply for a trademark. However, the Act does not require the specific entity that places the goods or services in commerce to apply for the trademark. Accordingly, under current law, an operator or an owner of the AI could apply for trademarks on behalf of the AI-based service.
The “IP Clause” of the United States Constitution grants Congress the power to secure for “authors” an exclusive right to their respective works. The Copyright Act later codified the Constitution to provide protections for “original” works of “authorship” fixed in any tangible medium of expression. However, neither the Constitution nor the Copyright Act defines “author” or authorship.
For the purposes of copyright, Supreme Court jurisprudence has defined an author as “the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Recently, this arguably ambiguous definition of author has been tested by advocates for non-human authors. For example in Naruto v. Slater, legal representatives for a photo-taking crested macaque asked a district court to recognize the animal as author (and rightful owner) of copyrighted photographs (dubbed the Monkey Selfies). In its analysis, the court stated that the Copyright Act does not have any “mention of animals anywhere . . . . [and that] the Supreme Court and Ninth Circuit have repeatedly referred to ‘persons’ or ‘human beings’ when analyzing authorship under the Act.” Without deciding the merits of authorship or ownership, the district court dismissed, stating that the Copyright Act does not confer standing to non-human animals to sue for copyright infringement.
Today, AI-based applications are regularly creating works without significant human oversight that would normally qualify for copyright protection. For example, the Associated Press has been using AI to write and publish articles. Furthermore, an AI bot created an entire screenplay, which was subsequently made into a short sci-fi film called Sunspring.
Such real-world examples raise the issue of whether an original and fixed work created solely by AI could obtain copyright protection. However, current Copyright Office rules and copyright jurisprudence indicate that solely-AI-created works cannot obtain copyright protections.
It is still an open question whether the programmed computer is unlike other tools of creation. Authorities in the field of artificial intelligence (AI), although disagreeing on AI nature and purpose, do agree that its aim is to produce a pattern of output that would be considered intelligent if it were displayed by a human being. One must ask, therefore, whether machines or interactions with machines might produce a pattern of output that would be considered creative or original if done by a human being. If machines are in any sense co-creators, the rights of programmers and users of programs may not be easily determined within the present copyright system.
In addition to copyright, the IP Clause of the Constitution provides Congress the power to secure to inventors a limited exclusive right to their respective discoveries – a patent. Like “authors,” the Constitution does not define “inventors.” However, “inventor” is defined in the Leahy–Smith America Invents Act (AIA) as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” The AIA also requires that “a person shall be entitled to a patent unless . . .,” suggesting that only a person can be an inventor. Additionally, pre-AIA law requires that a person contribute to the conception of an invention. Accordingly, patent law requires an inventor to be a person.
AI-based applications are currently developing products ranging from car components to drug molecules that would normally qualify for patent protection. One example is the cross-bristle design for the Oral-B Cross Action toothbrush created by the Creativity Machine, an AI-based construct.
Such real-world examples raise the issue of whether a novel invention created solely by AI can obtain patent protection. Under current patent law, AI-based systems cannot be “inventors” because they are not “persons.” Furthermore, if no human can be said to have been involved in, or conceived of, any element of any claim, such a patent would be seemingly invalid for lacking an inventor, as defined by the AIA.
Today, artificial intelligence-based computing systems are routinely outperforming humans in a variety of narrow tasks due to advances in fields such as machine learning and neural networks. These breakthroughs should cause practitioners, and society at large, to seriously consider whether solely-AI-created works and inventions should garner IP protection. While an AI “operator” or owner can currently seek federal rights under trademark law, existing US copyright and patent laws require a human creator of a copyright work and a human inventor for each patent claim. As more generalized forms of artificial intelligence begin to match and surpass human cognitive abilities, it will be interesting to see whether and how Congress might expand intellectual property law to accommodate AI-authorship and invention.
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 17 U.S.C. § 201(b) (1978).
 Andrews Guadamuz, Artificial Intelligence and Copyright, WIPO Magazine (Oct. 2017), http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html.
 UK Copyright Law, § 9(3) of the Copyright, Designs and Patents Act (CDPA) (1988).
 35 U.S.C. § 100(f) (2015).
 35 U.S.C. § 102(a) (2015) (emphasis added).
 “The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor.” Manual of Patent Examining Procedure (MPEP) § 2137.01 (Rev. Jul. 2015).
 Daniel Terdiman, Inside The Hack Rod, The World’s First AI-Designed Car, Fast Company (Dec. 1, 2015), https://www.fastcompany.com/3054028/inside-the-hack-rod-the-worlds-first-ai-designed-car; Rachel Brazil, Artificial Intelligence: Will it Change the Way Drugs are Discovered?, The Pharmaceutical Journal (Dec. 7, 2017), https://www.pharmaceutical-journal.com/news-and-analysis/features/artificial-intelligence-will-it-change-the-way-drugs-are-discovered/20204085.article.
 Peter Rejcek, When the Mother of Invention Is a Machine, Who Gets Credit?, Singularity Hub (Nov. 3, 2016), https://singularityhub.com/2016/11/03/when-the-mother-of-invention-is-a-machine-who-gets-credit/#sm.001umdagggs9dtl1001297df69zj8.