Judge: Bruce G. Iwasaki, Case: 19STCV46014, Date: 2022-07-25 Tentative Ruling

Case Number: 19STCV46014    Hearing Date: July 25, 2022    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             July 25, 2022

Case Name:                 Redwood Mortgage Investors VIII v. Erina Gilerman

Case No.:                    19STCV46014

Motion:                       Motion for Attorney Fees as Part of Costs on Appeal

Moving Party:             Defendant Redwood Mortgage Investors VIII

Responding Party:      Plaintiff Erina Gilerman

            This case arises from the foreclosure of real property on two parcels of real property on Floral Avenue in Los Angeles.  After defaulting borrower Gilerman appealed the denial of her request for temporary restraining order to stop the trustee’s sale, the Court of Appeal dismissed the appeal as moot and awarded costs to the lender.  The lender, as prevailing party enforcing the Note and Deeds of Trust, moves for attorney’s fees and costs.  The Motion is granted.  Gilerman is ordered to pay to Plaintiff’s counsel $18,530.88. 

Background

           On November 18, 2019, Plaintiff Redwood Mortgage Investors VIII (Redwood) filed Notices of Default to begin nonjudicial foreclosure.  Shortly after, on December 20, 2019, Redwood filed this case against Defendant Erina Gilerman to initiate judicial foreclosure.  

           On February 20, 2020, Defendant Gilerman cross-complained for breach of contract.

           Redwood proceeded with a nonjudicial foreclosure and set dates for a trustee sale.  Gilerman sought to prevent these sales by seeking a temporary restraining order under the Emergency Rules and orders due to the COVID-19 pandemic.  On June 2, 2020, Judge Cowan denied the request. Plaintiff appealed denial of the TRO.

           On January 24, 2022, the Court of Appeal issued a written decision dismissing the appeal as moot because the trustee sales had occurred and Redwood became the owner.  A remittitur was issued on April 1, 2022, awarding costs to Redwood.

           Plaintiff Redwood requests $17,550.00 in attorney’s fees. The request is made pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(1) and (c)(5), Civil Code section 1717, and California Rules of Court, rule 3.1702(c) and 8.278.

           Defendant Gilerman opposes, arguing that the temporary restraining order issue was not brought “on the contract” and was focused solely on whether the trustee’s sale should be held during the pandemic.  She also argues that fees may not be separately awarded under Chacker v. JPMorgan Chase Bank (2018) 27 Cal.App.5th 351 (Chacker), and must be appended to the borrower’s promissory note obligation.   Gilerman further contends that the fees are vaguely described.

           Plaintiff Redwood replied, arguing that the authority for a trustee’s sale is expressly authorized in the deeds of trust that were foreclosed upon.  In addition, it contends that unlike Chacker, the language in the note and deeds of trust here do not contain language that fees must be added to the outstanding obligation of the borrower.  Finally, it argues that it does not need to provide detailed time records in its billing entries.

           Defendant’s request for judicial notice of its Ex Parte Application for a Temporary Restraining Order to Enjoin Trustee Sales of Defendant’s Properties Scheduled for June 4, 2020 is granted.  (Evid. Code, § 452, subd. (d).)

Discussion

           A motion for attorney’s fees on appeal must be filed and served within 40 days after issuance of the remittitur under California Rules of Court Rule, rule 8.278(c)(1).  The notice of issuance of remittitur is dated April 1, 2022. (Levinson Decl., Ex. C.) The Motion for Attorney’s Fees is timely filed and served 35 days later on May 6, 2022.  

           “Generally speaking, each party to a lawsuit must pay his or her own attorney’s fees unless a statute or contract provides otherwise. ‘Where a contract specifically provides for an award of attorney fees,¿Civil Code section 1717 allows recovery of attorney fees by whichever contracting party prevails, regardless of whether the contract specifies that party.”  (Hart v. Clear Recon Corp.¿(2018) 27 Cal.App.5th 322, 326.)  “In pertinent part,¿subdivision (a) of section 1717 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, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.’ ”  (Ibid.)  

           “Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is also entitled to attorney fees on appeal.” (Villinger/Nicholls Development Co. v. Meleyco (1995) 31 Cal.App.4th 321, 329.) 

           Defendant Gilerman’s opposition that the temporary restraining order was not an action “on the contract” lacks merit.  The ex-parte request was directly in response to Redwood’s notice of default under Civil Code section 2924.  Gilerman sought to prevent the sale, to which Redwood had a statutory and contractual right to initiate.  (Civ. Code, § 2932; Burwell Decl., Exs. B, C.)  Courts liberally construe the term “on the contract” and as long as the action “ ‘ “involve[s]” a contract it is “ ‘on [the] contract’ ” within the meaning of [Civil Code] section 1717. [Citations.]’ ”  (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894.)

Plaintiff Redwood prevailed on an action “on the contract” because it successfully opposed Defendant Gilerman’s request for a restraining order to halt the nonjudicial foreclosure sale.  Because the sale is now complete and Redwood is the owner, the action is final.  (See Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1230.) 

           Gilerman’s reliance on Chacker, supra, 27 Cal.App.5^th 351, is unpersuasive. In that case, the fee provision provided that:  “ ‘[a]ny amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument.’ ” (Id. at p. 354.)  Gilerman claims that the “Redwood Note similarly makes costs and expenses part of the amounts to be paid back as part of the loan.”  But she points to no provisions in the promissory note or deeds of trust that she signed in which attorney’s fees and litigation expenses become her additional secured debt. (Cf. Burwell Decl., Exhs. A, B, C.)

Reasonableness of fees

           The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court considers such factors as “ ‘the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (Ibid.) “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea¿(2009) 175 Cal.App.4th 1363, 1375; City of Colton v. Singletary¿(2012) 206 Cal.App.4th 751, 785 [“the declaration constitutes reliable evidence to establish the fees earned by Coates, and therefore, the trial court did not abuse its discretion in relying on the declaration”].)

Plaintiff seeks attorney’s fees of $17,550.00, representing a total of 39 hours of work billed at $450.00 per hour.  (Levinson Decl., ¶ 11.)  Defendant asserts that the invoices are “broad and vague,” but makes no specific objections as to why, merely arguing that each entry relates to multiple tasks that “must have occurred on different days.”  The Court finds that the hourly rate and hours expended to be reasonable.  Upon review of the Mr. Levinson’s declaration and the corresponding entries, the Court declines to make any reductions. 

In addition, the Court also finds the requested costs to be reasonable.  Plaintiff’s counsel requests a total of $906.11 in the memorandum of costs and an additional $74.77 for the filing of the motion for attorney fees.  (Levinson Decl., ¶ 12, Ex. D.)  These costs are appropriate because they are for filing fees, copies of the clerk’s transcript, preparation of the reporter’s transcript, copying of briefs, and transmitting and serving the papers.  (See generally Cal. Rules of Court, rule 8.278(d)(1)(A)-(G).)

Accordingly, Plaintiff is entitled to attorney’s fees and costs in the requested amount of $18,530.88 ($17,550.00 for attorney work incurred and $980.88 in costs).  Defendant Erina Gilerman is ordered to pay $18,530.88 to the Law Office of Benjamin R. Levinson, 4340 Stevens Creek Boulevard, Suite 199, San Jose, California 95129, on or before August 15, 2022.