Judge: Armen Tamzarian, Case: 22STCV29609, Date: 2024-01-04 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV29609    Hearing Date: January 4, 2024    Dept: 52

Defendant Vijay Fadia’s Motion for Attorney’s Fees Per Deed of Trust

Defendant Vijay Fadia moves for an award of $14,082.50 in attorney fees against plaintiff Kevin McDowell. 

Fadia fails to show a basis for recovering attorney fees in this action.  A prevailing party may only recover attorney fees when authorized by contract, statute, or other law.  (CCP § 1033.5(a)(10).)  The only statute Fadia cites is Civil Code section 1717.  (Motion, pp. 1-2.)  Civil Code section 1717(a) provides, “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract … shall be entitled to reasonable attorney’s fees in addition to other costs.” 

Civil Code section 1717 does not support Facia’s claim because he is not the prevailing party under that statute.  “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”  (Civ. Code, § 1717(b)(2).)  Plaintiff voluntarily dismissed the action on January 20, 2023.  Fadia therefore is not the prevailing party and cannot recover attorney fees under Civil Code section 1717.

Moreover, the contractual provision Fadia relies upon does not support his position.  Facia cites a provision in a deed of trust and assignment of rents made between Mattie B. Evans (plaintiff’s late mother), trustee, or successor trustee, under the Mattie B. Evans Family Trust dated June 7, 2016, and Fadia as beneficiary.  (Fadia Decl., Ex. 2.)  The deed of trust provides that Evans, as trustor, agrees “To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or Trustee and to pay all costs and expenses, including cost of evidence of title and attorney’s fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to record this Deed.”  (Id., p. 1, ¶ (4).)  The deed of trust is secured by property at 4737 Don Porfirio Place, Los Angeles, CA, 90008.  (Id., p. 1.)  Evans executed the deed of trust on August 31, 2018.  (Id., p. 3.) 

The deed of trust’s fee provision does not necessarily apply to every lawsuit against Fadia regarding the property.  This action did not purport to affect the security or the rights or powers of Fadia as beneficiary or trustee under the deed of trust.  Plaintiff’s complaint alleges Mattie B. Evans fell behind—or was falsely told she fell behind—on mortgage payments on a different loan originated by Countrywide Bank in 2008.  (Comp., ¶¶ 12, 15, 50-52, 54-57.)  The complaint further alleges, “On September 16, 2020 the Subject Property was sold at a non-judicial foreclosure sale to Defendant, Redwood Holdings, LLC.”  (¶ 24.)  Nonjudicial foreclosure under the 2008 deed of trust would terminate Fadia’s interest in the property.  (Miscione v. Barton Development Co. (1997) 52 Cal.App.4th 1320, 1326 [“the general rule is that foreclosure of a senior encumbrance terminates subordinate liens”].)  Plaintiff’s complaint does not seek to quiet title, set aside the foreclosure sale, or otherwise affect any party’s rights or title to the subject real property.  Plaintiff sought only damages.  (Comp., pp. 11-12.) 

Rather than alleging any wrongdoing related to the 2018 deed of trust, the complaint alleges Fadia is liable for breaching an agreement “to act as the agent of [plaintiff’s late mother] to obtain a loan in the amount of $100,000” to redeem the property.  (Comp., ¶ 18.)  Plaintiff alleges, “Fadia surreptitiously decided it was in his best interests to let the house go to foreclosure, so that one of his investor clients could buy it at the pending foreclosure sale in order to make a large profit.”  (¶ 21.)  Plaintiff further alleges Redwood Holdings, LLC bought the property at the foreclosure sale for $931,000 (¶¶ 24, 45), then sold it for $1,400,000 and shared the profit with Fadia and others (¶ 46).  This purported scheme is not related to the 2018 deed of trust between Fadia and Evans.      

Fadia argues plaintiff only sued him because he “did not loan Plaintiff even more money” and his “only connection whatsoever to Plaintiff was [his] 2018 mortgage loan to Plaintiff’s mother, then the owner of the Subject Property.”  (Fadia Decl., ¶ 2.)  Whether plaintiff had a good reason to sue Fadia is irrelevant.  Fadia’s 2018 mortgage loan to plaintiff’s mother is not connected to this lawsuit.  Its attorney fee provision therefore does not apply. 

Fadia’s motion also refers to an attorney fee provision in the promissory note: “Should suit be commenced to collect this note or any portion thereof, such sum as the Court may deem reasonable shall be added hereto as attorney's fees.”  (Fadia Decl., Ex. 1.)  This suit was not commenced to collect this note or any portion of it.  Under the note, plaintiff’s late mother, Mattie B. Evans, as trustee of the Mattie B. Evans Family Trust dated June 7, 2016, agreed to pay Fadia $30,000 plus interest.  Fadia did not bring this action to collect money from Evans or plaintiff.  Plaintiff brought this action to seek damages from Fadia for reasons unrelated to the 2018 promissory note.

            Defendant Vijay Fadia’s motion for attorney fees is denied.