Aviles v. Shenon

Filed 11/2/26 CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE LEE AVILES, B342634, B344966 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCV08686) v. NATELA SHENON et al., Defendants and Appellants. APPEALS from a judgment and orders of the Superior Court of Los Angeles County, Barbara Ann Meiers, Judge. Affirmed as to the judgment. Reversed with directions as to the orders. Stone & Sallus, Jason M. Stone and Elliott Montgomery for Plaintiff and Appellant Lee Aviles. * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication with the exception of parts A through E of the Facts and Procedural Background and part A of the Discussion.  Grant │ Shenon │ Almaraz, David M. Almaraz and Thomas Dreblow for Defendants and Appellants Natela Shenon and Yury Shenon. ____________________________ Yury and Natela Shenon (the Shenons) leased a residential property to Lee Aviles for approximately two years. At the conclusion of the tenancy, the Shenons neither returned Aviles’s security deposit, nor provided him an accounting of how they had used the funds. A jury found the Shenons had thereby violated Civil Code section 1950.5, 1 which governs a landlord’s handling of security deposits under residential leases, and awarded compensatory damages. The jury further found the Shenons had acted in bad faith, entitling Aviles to statutory penalties as well. The Shenons appeal from the resulting judgment. They argue the court, not the jury, should have decided the issue of bad faith, and that the evidence supports neither the bad faith finding, nor the amount of compensatory damages awarded. We disagree and affirm the judgment. Aviles challenges two postjudgment orders: one limiting his recovery of costs to $1,000, the other denying his request for attorney fees. The court based both orders on a provision in the lease that permits a party prevailing in litigation to recover a maximum combined total of $1,000 in costs and attorney fees (the fees and costs provision). Aviles argues this provision is unconscionable and thus unenforceable. He also argues it is void under section 1953, because it limits procedural rights he would 1 Unless otherwise indicated, all further statutory references are to the Civil Code. 2 otherwise enjoy in litigation regarding a residential lease. (See § 1953, subd. (a) & (a)(4) [deeming “void as contrary to public policy” any residential lease provision “by which the lessee agrees to modify or waive” “[h]is procedural rights in litigation in any action involving his rights and obligations as a tenant”].) In the published portion of our opinion, we agree with Aviles that the Code of Civil Procedure section 1032, subdivision (b) right to prevailing party costs is procedural. Accordingly, the fees and costs provision is void as it applies to costs. But Aviles identifies no right—procedural or otherwise—to collect attorney fees, other than the very lease provision he contends is unenforceable and void. Accordingly, as to attorney fees, the provision creates a right—rather than abridging or waiving a right—and does not violate section 1953. For similar reasons, we need not consider Aviles’s argument that the fees and costs provision is unconscionable. Striking that provision would not afford Aviles any relief from the order denying him attorney fees, because it would leave him without any basis for recovering such fees. Accordingly, we reverse the court’s order limiting Aviles’s recovery of costs to $1,000. If the costs the trial court awards are less than $1,000, the court may consider attorney fees, provided that the combined total of costs and attorney fees may not exceed $1,000. FACTUAL AND PROCEDURAL BACKGROUND A. The Lease and Aviles’s Tenancy Aviles entered into a one-year agreement with Natela2 to lease a home the Shenons own in Los Angeles (the property) 2 To avoid confusion, we refer to Natela Shenon and Yury Shenon by their first names. No disrespect is thereby intended. 3 for $9,750 per month (the lease). The lease required Aviles to pay a security deposit of $19,500.00. It included an option to extend the lease term for a second year at an increased rent of $10,043 per month. Aviles exercised this option. In November 2022, he allowed the lease, as extended, to terminate, and moved out. The parties do not dispute that the Shenons never returned Aviles’s security deposit. B. Aviles’s Complaint and the Shenons’ Cross-Complaint In April 2023, Aviles filed a complaint against the Shenons alleging they intentionally and wrongfully retained his security deposit, thereby violating section 1950.5 and breaching the lease agreement. Section 1950.5 places numerous restrictions and requirements on a landlord’s handling of a security deposit made under a residential lease (see § 1950.5, subds. (c)-(i)), and provides the tenant a cause of action if the landlord fails to comply (id., subd. (o)). It permits a landlord to “claim . . . the security . . . only those amounts as are reasonably necessary” for certain enumerated purposes (§ 1950.5, subd. (e)(1)), including “[t]he repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.” (§ 1950.5, subd. (b)(2); see also id., subd. (e)(2)(A) [“[t]he landlord shall not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy . . . or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies”].) “No later than 21 calendar days after the tenant has vacated the premises, . . . the landlord [must] furnish the 4 tenant . . . a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security, and shall return any remaining portion of the security to the tenant.” (§ 1950.5, subd. (h)(1).) “[I]f the landlord, in bad faith, fails to comply with this subdivision [(h)(1) requiring return of and/or documentation for deductions from the security deposit],” “[t]he landlord shall not be entitled to claim any amount of the security.” (§ 1950.5, subd. (h)(7).) “The bad faith claim or retention by a landlord . . . of the security or any portion thereof in violation of [section 1950.5]. . . may subject the landlord . . . to statutory damages of up to twice the amount of the security, in addition to actual damages.” (§ 1950.5, subd. (m).) The Shenons filed a cross-complaint alleging Aviles had breached the lease and caused damage to the property exceeding what the security deposit could compensate them for. C. Key Evidence at Trial The matter proceeded to a week-long jury trial. The primary issues at trial were (1) the existence and extent of damage the Shenons claimed justified their withholding Aviles’s security deposit—primarily damage to the walls, kitchen cabinets, and pool coping—and (2) whether this damage predated Aviles’s tenancy and/or constituted normal wear and tear. 1. Aviles’s Testimony Aviles testified, inter alia, to the following: Aviles inspected the property with his real estate agent before moving in. After the inspection, Aviles exchanged emails with the Shenons’ real estate agent, in which Aviles identified items in need of repair. Neither during the inspection, nor in 5 these emails did Aviles mention the damage the Shenons would later cite as the basis for retaining his security deposit. Aviles did not complete a move-in inspection form documenting the condition of the property at the outset of his tenancy, as the lease requires. Aviles regularly communicated with Yury regarding the property. For example, Aviles reported to Yury that a fire alarm on the property would not stop beeping. At Yury’s suggestion, Aviles changed the battery, but the beeping continued, and Aviles removed the alarm from the wall. Aviles reported various other issues to Yury as well, but never complained about most of the issues the Shenons would later cite as the basis for retaining his security deposit. Aviles noticed damage throughout the property that he did not report to Shenon for various reasons. He noticed that a brick around the pool was “previously cracked, and it chipped or fell in” but did not complain about it, because he “never used the pool.” The front doorknob and lock “used to always give [them] problems,” only some of which he reported to the Shenons, and the front door had scuff marks on it. Aviles also noticed damage to the window shades when he moved in and problems with the kitchen pantry. Before moving out of the property, Aviles patched up holes in the wall where he had mounted his television. He hired movers and agreed they could have several pieces of furniture Aviles would otherwise have thrown away. Many months later— after the filing of the instant lawsuit—Aviles learned that the movers had left one of these items, a large entertainment center, at the property. 6  Yury invited Aviles to participate in a final inspection of the property, but Aviles was out of town. On November 29, 2022, Yury informed Aviles via text that, during the inspection, Yury had “identified many areas of the damage throughout the house. I’m working to get quotes for the repairs and will get back to you on the estimate and how it affects your deposit.” Yury and Aviles spoke on the phone at some point in early December, but Yury still did not identify any specific types of damage or provide estimates for repairs. On December 17, 2022 and January 19, 2023, Yury texted Aviles stating that Yury was still waiting for the repair estimates. He provided no further details. As of March 9, 2023, the Shenons had neither returned any portion of Aviles’s security deposit, nor identified the nature of the damage based on which they were withholding the deposit. Aviles’s attorney wrote to the Shenons formally demanding return of the deposit. Yury emailed Aviles’s counsel the next day with the following list of the damages to the property: “1. Various cabinets/sliders in the kitchen damaged [¶] 2. Cabinet damaged in living room entertainment cabinet area [¶] 3. Sliding closet door in downstairs guest bedroom damaged [¶] 4. Walls damaged throughout the house [¶] 5. Unreasonable number of holes added to walls throughout the house [¶] 6. Pool brick coping broken [¶] 7. Front door damage/front door handle damage [¶] 8. Front entry [fire] alarm panel removed [¶] 9. Multiple window shades are damaged and stained [¶] 10. Renter left various items in the house that need to be professionally removed[.] [¶] Moreover, [Aviles] attempted to ‘patch’ holes throughout the house, but due to the poor workmanship of this, remediation had to be completed.” The 7 email states that the security deposit funds had been insufficient to pay for repairing these damages, but does not attach any documentation of the repairs or cost. 2. Yury Testimony Yury testified to the damage outlined in his March 10, 2023 email, his efforts to commission repair work, and the cost of that work. According to Yury, none of this damage existed at the time Aviles moved in. Throughout Aviles’s tenancy, Aviles regularly contacted Yury when he had a problem with the property, but Aviles never complained about any of the damage for which the Shenons withheld the security deposit. On cross-examination, Yury testified that he had not withheld any portion of the prior tenants’ security deposit. Rather, to “help them out,” he had permitted those tenants—a “really nice family,” the father of which lost his job during the tenancy—to use their security deposit for the last two months’ rent. Yury had the property repainted after the previous tenants vacated and before Aviles moved in. Yury had personally taken “staging” photographs of the property as it looked just before Aviles moved in. He also took photographs of the property after Aviles moved out to document the damage he found. He did not send these to Aviles at any point before the lawsuit began. 3. Additional Testimony Gregory Shenon, Yury’s brother, represented the Shenons in leasing the property to Aviles. Gregory testified that he showed the property to Aviles in late 2020, and that Aviles was also represented by a real estate agent. According to Gregory, when he showed Aviles the property, it was empty and in “good condition” with “[n]o gouges or marks on the walls.” 8  Stefan Morales, a painter who repaired and repainted the property after Aviles moved out, testified to the presence of “gashes” and “black marks” on nearly every hallway and ceiling throughout the property after Aviles moved out. He testified that the front door and kitchen cabinets were also significantly damaged. 4. Documentary Evidence The exhibits at trial included the photographs Yury took of the property for marketing purposes around the time Aviles moved in, as well as photographs Yury took of the property to document the damage after Aviles moved out. Aviles presented side-by-side comparisons of these “staging photos” and “damage photos” to the jury. The Shenons provided several estimates for repair work, namely: a $12,800.00 estimate, dated March 12, 2023, to “refinish” the kitchen cabinets, island, and bar top; an $8,2000 invoice from Morales, dated December 20, 2022, for “repairs to the cracks in the ceiling and the holes in the walls and in addition to [preparing and] paint[ing]” the interior of the home; and a $2,850.00 estimate, dated May 3, 2023, to repair the damaged pool coping tiles. D. Jury Instructions and Verdict The court provided the jury several special instructions. It instructed that the Shenons could only reasonably withhold security deposit funds for damage beyond normal “wear and tear,” which it defined as “that deterioration [which] occur[s] by reason of time and use despite ordinary care for its preservation.” The instruction explained damage is attributable to “ordinary wear and tear” if the evidence “is susceptible of the inference 9 that some of the damage was not attributable at all to the [the tenant] . . . and other damage was attributable to the usual practice and custom of [the tenant] in carrying out [his] business.” For the purposes of assessing Aviles’s claim that the Shenons had acted in bad faith when they withheld his security deposit, the court instructed the jury that “bad faith” “generally impl[ies] or involv[es] a design to mislead another or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake[,] but by some interested or sinister motive[,] [n]ot simply bad judgment or negligence but, rather, the conscious doing of a wrong because of a dishonest purpose.” The jury entered a verdict in Aviles’s favor on his claims and the Shenons’ cross-claims. In a special verdict form, the jury found (1) the Shenons violated section 1950.5 and thereby also breached the lease; (2) the Shenons acted in bad faith; (3) this violation and breach damaged Aviles in the amount of $19,500; and (4) Aviles did not breach the lease agreement. E. Court’s Assessment of Statutory Penalties Because the jury found bad faith, the court invited the parties to offer argument on whether and in what amount the court should impose the statutory penalty section 1950.5 authorizes in addition to compensatory damages. (See § 1950.5, subd. (m).) The Shenons’ counsel argued not only that bad faith penalties were unwarranted in any amount, but that the court, not the jury, should have decided whether the Shenons acted in bad faith under section 1950.5. The court noted in response: “Had it been up to me to render a decision about bad faith it 10 would have been the same as what the jury came in with.” The court elaborated on the basis for this view, which included that Yury was not credible: “I believe, frankly, that [Yury] was not honest with the court in saying that he had repainted this whole place. [¶] . . . [¶] Yes, there were little nicks in the kitchen, but I’m not persuaded any more than the jury was, that [Aviles] put those nicks there. . . . I think . . . [an] informed, reasonable, common-sense conclusion, is that [Yury] would probably not [be] going over the house with a fine-tooth comb when the prior tenants left because he wasn’t looking to get payment from them out of their security deposit. So those nicks in the kitchen may well have previously existed. [¶] . . . [¶] All these things are possible, but my view is that there was bad faith here, . . . and that [the Shenons] should pay double the amount of the security deposit.” The court then imposed a statutory penalty of $39,000. F. Judgment and Postjudgment Orders on Costs and Fees The court entered judgment in Aviles’s favor for a total of $61,801.67—comprised of the $39,000 statutory penalty and the $22,801.67 in compensatory damages the jury awarded ($19,500 with interest)—plus costs and attorney fees in an amount to be determined. The California Association of Realtors form the Shenons used to draft the lease includes the fees and costs provision: “In any action or proceeding arising out of this agreement, the prevailing party between landlord and tenant shall be entitled to reasonable attorney fees and costs, collectively not to exceed $1,000 (or $ _________).” (Capitalization omitted.) Nothing is written in the blank space provided for an alternative amount. 11  On September 26, 2024, Aviles filed a memorandum seeking $24,773.27 in litigation costs that did not include attorney fees. The Shenons moved to tax costs. The court granted the motion, citing the contractual fees and costs provision. Three days later, Aviles filed a formal motion for attorney fees in the amount of $136,896.50. Aviles supported his motion with an attorney declaration and billing records. Aviles argued the contractual fees and costs provision was unconscionable, and that enforcing it would be inequitable. The Shenons opposed the motion, on the bases that the fees and costs provision was enforceable, and that the fees Aviles requested were “excessive,” justifying denial of any fees award. The court denied the motion “on the basis that [the fees and costs provision] was and is valid and the $1,000 has already been granted as a part of a cost award to [Aviles].” In case No. B342634, the Shenons appealed from the judgment, and Aviles cross-appealed from the order granting the Shenons’ motion to tax costs. In case No. B344966, Aviles appealed the postjudgment order denying his motion for attorney fees. We consolidated the appeals for all purposes. DISCUSSION A. The Shenons’ Appeal from the Judgment On appeal, the Shenons do not challenge the jury’s finding that they violated section 1950.5. Rather, they argue: (1) the court, not the jury, should have decided whether the Shenons acted in bad faith; (2) the evidence does not support a finding 12 of bad faith; and (3) the evidence does not support awarding the full security deposit amount as compensatory damages. 1. No Reversible Error in Permitting the Jury To Determine Bad Faith According to the Shenons, section 1950.5 requires the court, not the jury, to determine whether a landlord acted in bad faith. They point to the language of the statute stating that “[t]he court may award damages for bad faith whenever the facts warrant that award.” (§ 1950.5, subd. (m), italics added.) They also note the Legislature permitted bad faith-based penalties “regardless of whether the injured party has specifically requested [such] relief” (ibid.), implying a court may find bad faith even if the issue was not submitted to the jury as part of the tenant’s claim. Assuming—without deciding—the court erred in permitting the jury to decide whether the Shenons acted in bad faith, such error did not prejudice them. The court expressly stated it would have found bad faith, had it been tasked with deciding the issue. The court went on to explain its reasoning, which did not depend on any jury findings. In arguing this postverdict commentary by the court does not prevent the relief they seek, the Shenons cite cases for the proposition that court commentary is not evidence and “may never be used to impeach the [court’s] final order.” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633; see In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646–647; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) Our reliance on the court’s statements in assessing prejudice does neither. The court made an independent finding of bad faith after the jury verdict. The Shenons thus have not identified reversible error. 13  2. Substantial Evidence Supports a Finding of Bad Faith The Shenons argue the evidence does not support that they acted in bad faith. We review such challenges under the highly deferential substantial evidence standard. (See Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291, 308 (Leung).) The Shenons contend that “[o]n balance, the substantial evidence presented at trial weighs against a finding of bad faith,” pointing to evidence they argue is inconsistent with that finding. (Boldface omitted & italics added.) That is not the standard. In reviewing for substantial evidence, “[a]ll of the evidence most favorable to the respondent must be accepted as true, and that [evidence] unfavorable [to the respondent] discarded as not having sufficient verity to be accepted by the trier of fact.” (Estate of Teel (1944) 25 Cal.2d 520, 527; accord, People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 [reviewing court must affirm factual finding where “ ‘there is substantial evidence, contradicted or uncontradicted, which will support [the finding]’ ”].) Thus, we accept as true the evidence in the record supporting that the damage for which the Shenons withheld Aviles’s security deposit predated his tenancy—for example, Aviles’s testimony and the staging photographs—and disregard, for example, Yury’s testimony to the contrary. (See Leung, supra, 55 Cal.4th at p. 308 [substantial evidence review requires “resolv[ing] all conflicts in the evidence in favor of the prevailing party”].) Viewed in this way, the evidence further supports the “reasonable inference” that the Shenons, as the individuals who inspected the property before Aviles moved in and took the staging photographs, knew this damage predated Aviles’s 14 tenancy and nevertheless refused to refund Aviles his security deposit. (See Leung, supra, 55 Cal.4th at p. 308 [we must “draw [from the evidence] all reasonable inferences in support of the trial court’s judgment”].) This constitutes substantial evidence of a “refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . . but by some interested or sinister motive.” (Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 764 [defining bad faith].) 3. The Shenons’ Bad Faith Prevents Them from Claiming a Set-Off Finally, the Shenons argue Aviles admitted he caused some damage to the property, 3 and that they thus should be permitted to deduct the cost of repairing that damage from any compensatory award to Aviles. But section 1950.5, subdivision (h)(7) provides that “[a] landlord shall not be entitled to claim any amount of the security if the landlord, in bad faith, fails to comply with this subdivision.” Under this section, the finding that the Shenons acted in bad faith precludes them from claiming a setoff. The Shenons cite Granberry v. Islay Investments (1995) 9 Cal.4th 738 (Granberry) and argue that a landlord’s failure to comply with some aspects of section 1950.5 “does not lead to the 3 Specifically, they argue Aviles admitted to “ripping smoke detectors/fire alarms from the walls and ceilings of the property in violation of the lease[,] [¶] . . . using ‘screws, fastening devices, large nails, [or] adhesive materials’ without permission [¶] . . . leaving personal items behind at the property upon termination of the lease that needed to be professionally moved[, and] [¶] . . . fail[ing] to return the required move in inspection form.” (Capitalization omitted.) 15 conclusion that he has lost all right to claim damages for unpaid rent, repair, and cleaning, whether through setoff or otherwise.” (Granberry, supra, at p. 745.) But Granberry explicitly limits its holding to cases involving landlords acting in good faith: “[W]e conclude that a landlord who has failed in good faith to take advantage of the summary nonjudicial deduct-and-retain procedure allowed under section 1950.5, subdivision (f), may recover damages for unpaid rent, repairs and cleaning (§ 1950.5, subd. (e)) in a subsequent judicial proceeding provided that he proves by a preponderance of the evidence that he has suffered such damages and that the amount claimed is reasonable.” (Granberry, supra, at pp. 749–750, italics added; see id. at p. 750, fn. 6 [“[b]ecause the jury did not find that defendants here acted in bad faith, we do not consider and therefore express no opinion regarding the rights of landlords who have acted in bad faith”].) Consistent with this, the court’s reasoning in Granberry focuses on a desire not to penalize landlords who act in good faith. (See id. at p. 749.) Having acted in bad faith, the Shenons may claim no portion of the security deposit. B. Aviles’s Appeals from the Order Awarding Limited Costs and the Order Denying Attorney Fees Aviles argues the contractual fees and costs provision, based on which the court granted the Shenons’ motion to tax costs and denied Aviles’s motion for attorney fees, is void under section 1953, as well as unconscionable and thus unenforceable. On these bases, he argues the court erred in limiting his cost award and denying his fees motion. We conclude section 1953 16 voids the fees and costs provision as applied to costs, but that the provision as applied to attorney fees is enforceable. 1. Section 1953 Section 1953 deems “void as contrary to public policy” (id., subd. (a)) “[a]ny provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive” (id., subd. (a)) certain enumerated rights, including “procedural rights in litigation in any action involving [the lessee’s] rights and obligations as a tenant” (id., subd. (a)(4)). Aviles argues his recovery of costs and reasonable attorney fees is such a “procedural right[ ] in litigation” (§ 1953, subd. (a)(4)), rendering the contractual fees and costs provision’s restrictions thereon void. To support this characterization, Aviles cites Code of Civil Procedure section 1032, subdivision (b)’s requirement that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” a. Right to prevailing party attorney fees “The costs allowed under [Code of Civil Procedure] section 1032 do not include the attorney fees which the prevailing party has incurred in the litigation.” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 126.) Rather, costs awardable under Code of Civil Procedure section 1032, subdivision (b) include attorney fees only if and to the extent a fees award is separately “authorized by contract, statute, or law.” (Westamerica Bank, supra, at p. 126; see Code Civ. Proc., § 1033.5, subds. (a)(10)(A)–(C) & (c)(5).) This is consistent with the default rule in California that “each party to a lawsuit must ordinarily pay his own attorney fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278; see Code Civ. Proc., § 1021 [“[e]xcept 17 as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties”].) No statute or other law provides for the recovery of attorney fees here. Although other statutes protecting the rights of tenants provide for attorney fees, section 1950.5 does not. (Compare § 1950.5 [not referencing attorney fees] with, e.g., § 1942.5, subd. (i) [entitling prevailing party in retaliatory eviction proceeding to attorney fees upon request]; § 1947.11, subd. (a) [entitling prevailing party in litigation regarding rent control violations to attorney fees].) And the only contractual right to prevailing party attorney fees Aviles identifies is the contractual fees and costs provision. Thus, that provision does not improperly limit any right, procedural or otherwise, to recover prevailing party attorney fees—it creates a limited right to recover such fees up to a certain amount. b. Right to prevailing party costs To determine whether section 1953 voids a tenant’s waiver or agreement to limit costs otherwise available pursuant to Code of Civil Procedure section 1032, subdivision (b) 4 we 4 Whether “section 1953 void[s] an agreement by a lessee to waive or modify the right to recover” Code of Civil Procedure section 1032, subdivision (b) prevailing party costs is an issue currently before the California Supreme Court. (See Gogal v. Deng, S292779, Supreme Ct. Mins., Nov. 19, 2025, p. 1728; Gogal v. Deng (2025) 112 Cal.App.5th 1193 (Gogal), review granted Nov. 19, 2025, S292779 [order on appeal awarded litigation costs only, after the plaintiff had separately obtained an award of attorney fees].) Although the Court of Appeal decision under review in that case does not address 18 look to whether that right is “procedural.” The parties have not provided, nor has our own research revealed, authority addressing the nature of the prevailing party costs right under Code of Civil Procedure section 1032, subdivision (b). It is significant that the Legislature chose to include the right in a code governing procedure, but that alone does not resolve the issue. We therefore look to courts’ characterization of the right to recover costs in other contexts. In the context of determining whether a federal rule improperly modifies or abridges a substantive right, the United State Supreme Court considers “not whether the rule affects a litigant’s substantive rights; most procedural rules do. [Citation.] What matters is what the rule itself regulates: If it governs only ‘the manner and the means’ by which the litigants’ rights are ‘enforced,’ it is valid [i.e., procedural]; if it alters ‘the rules of decision by which [the] court will adjudicate [those] rights,’ it is not [i.e., it is substantive].” (Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. (2010) 559 U.S. 393, 407.) This reasoning weighs in favor of concluding Code of Civil Procedure section 1032, subdivision (b) creates a procedural, rather than a substantive right. Awarding prevailing party costs does not alter “ ‘the rules of decision by which [the] court will adjudicate’ ” any cause of action—rather, it allows a prevailing plaintiff to enforce his rights by, inter alia, collecting costs. (Shady Grove, supra, 559 U.S. at p. 407.) section 1953, the Supreme Court instructed the parties to brief the enforceability of a cost cap in light of both section 3513—the section on which the Court of Appeal relied—and section 1953. (Gogal v. Deng, S292779, Supreme Ct. Mins., Nov. 19, 2025, p. 1728.) 19  Federal courts’ approach to prevailing party costs in diversity jurisdiction cases likewise weighs in favor of concluding Code of Civil Procedure section 1032, subdivision (b) creates a procedural right. In such cases, federal courts generally view the right to recover prevailing party costs as procedural in nature, and thus governed by federal rather than state law. (See, e.g., Champion Produce, Inc. v. Ruby Robinson Co., Inc. (9th Cir. 2003) 342 F.3d 1016, 1022.) Federal courts have recognized a right to recover prevailing party costs as substantive only under exceptional circumstances when the state legislature has “express[ly] indicat[ed]” a “ ‘special interest’ ” in including costs as part of the recovery available via a particular cause of action. (See, e.g., Clausen v. M/V New Carissa (9th Cir. 2003) 339 F.3d 1049, 1065.) For example, Code of Civil Procedure section 1174, subdivision (d) permits a prevailing Song Beverly Act plaintiff to recover certain costs and attorney fees. (See § 1794, subd. (d).) Forouzan v. BMW of North America, LLC (C.D.Cal. 2019) 390 F.Supp.3d 1184 concluded this reflects the “special interest” needed for Code of Civil Procedure section 1174, subdivision (d) to grant a substantive right, and that the section therefore governs costs in a Song Beverly Act lawsuit in federal court. (Forouzan, supra, at pp. 1186–1188, citing Clausen, supra, at p. 1065.) Code of Civil Procedure section 1032, subdivision (b), by contrast, does not reflect any “special interest” in folding costs into the recovery available via any particular cause of action; it provides for prevailing party costs in all types of actions. Nor does section 1950.5 express any “special interest” in permitting tenant plaintiffs to recover costs if they prevail against their landlords. 20  Considering all of the above, we conclude Code of Civil Procedure section 1032, subdivision (b) reflects a procedural right. Accordingly, section 1953 prohibits a tenant like Aviles from limiting that right in a residential lease agreement. The fees and costs provision is void to the extent it does so. This conclusion is consistent with the Fourth District’s discussion of the fees and costs provision in Gogal. The Gogal decision noted that Code of Civil Procedure section 1032, subdivision (b) “is a statute of general application to all civil cases; it is not a tenant protection statute. . . . Absent express language in a different statute that overrides the general application of section 1032[, subdivision] (b)—and tenants point to nothing in any tenant protection statute that would create an express exception—we cannot adopt an interpretation of the costs statute that would vary depending on the nature of the underlying case.” (Gogal, supra, 112 Cal.App.5th at p. 1202.) Section 1953 is the type of tenant protection statute the parties had failed to identify in Gogal. We hold it interacts with Code of Civil Procedure section 1032, subdivision (b) in precisely the way Gogal intimated such a provision would. 2. Unconscionability Aviles argues the contractual fees and costs provision is also unconscionable, and that the court should have refused to enforce it on this basis. (See § 1670.5, subd. (a) [court may refuse to enforce a contract or clause it concludes was “unconscionable at the time it was made”]; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) That argument, however, necessarily and incorrectly assumes the provision deprived Aviles of a right to attorney fees independent of the lease. As discussed above, the only authority permitting 21 Aviles to recover attorney fees is the very contractual provision he contends the court should have refused to enforce. Were we to agree with Aviles that the court should have stricken the provision, this would result in Aviles having no right to any attorney fees at all. 5 We thus consider Aviles’s unconscionability arguments no further. 5 At the hearing before this court, Aviles argued that we should strike only the portion of the provision limiting attorney fees recovery to $1,000 and permit the general allowance for attorney fees to remain. This is inconsistent with well- established principles governing severance of unconscionable terms. (See Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 516; see, e.g., ibid. [“If the unconscionability cannot be cured by extirpating or limiting the offending provisions, but instead requires augmentation to cure the unconscionability, then the court should refuse to enforce the contract. [Citation.] Courts cannot ‘rewrite agreements and impose terms to which neither party has agreed’ ”].) 22  DISPOSITION In case No. B342634, the judgment is affirmed. The order granting the Shenons’ motion to tax costs and limiting Aviles’s recovery of costs to $1,000 is reversed, and the court shall reconsider that motion in light of this opinion. In case No. B344966, the order denying Aviles’s motion for attorney fees is provisionally reversed. The court shall consider the motion if the costs the court awards are less than $1,000, but may not award attorney fees in an amount that would cause the combined total of costs and attorney fees awarded to exceed $1,000. The parties shall bear their own costs on appeal. CERTIFIED FOR PARTIAL PUBLICATION. ROTHSCHILD, P. J. We concur: WEINGART, J. M. KIM, J. 23