Judge: David A. Hoffer, Case: 30-2019-1086347, Date: 2022-10-31 Tentative Ruling

The Motion for Attorney’s Fees filed by Defendant M&T Bank (“Bank”), seeking an award of fees incurred as the prevailing party in this action in the amount of $129,483.00, is GRANTED IN PART.

The Motion asserts that fees may be claimed here under Civil Code §1717 based on the attorney’s fees provisions in the Promissory Note at § 7 (in Ex. A to the Henderson Declaration at ROA 307) and the Deed of Trust at §§ 9 and 14 (in RJN Ex. 1 at ROA 301).

Plaintiff argues that neither document permits a fee award here, pointing to, inter alia, Hart v. Clear Recon Corp. (2018) 27 Cal.App.5th 322, 328 and Valencia v. Carrington Mortg. Services, LLC (D. Hawaii, June 25, 2013, No. CIV. 10-00558 LEK) 2013 WL 3223628, at *4. But Valencia was based on Hawaii law and thus is not even persuasive authority here. The Hart court concluded that ¶ 9 of a similar Deed of Trust was not a litigation attorney’s fees provision sufficient to permit a fee award.  But Hart did not consider the other provisions at issue here in §7 of the Note and §14 of the Deed of Trust, and noted that none would apply in any event to a nonsignatory. (Id. at 330, fn. 6.) 

The other provisions at issue here in §7 of the Promissory Note and §14 of the Deed of Trust suffice to permit a fee award here. (See Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 544; Samuels v. Wells Fargo Bank, N.A. (C.D. Cal., 9/26/12, No. CV116067PSGPJWX) 2012 WL 13008997, at *2; and Lacayo v. Seterus, Inc. (C.D. Cal., 6/25/18, No. CV1702783ABJEMX) 2018 WL 3326662, at *4.) As these provisions do not require that such fees be added to the debt, it is appropriate here that any sum so awarded instead be included in the final judgment.

As for the sums claimed, the fee setting inquiry ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  Here, the hourly rates claimed appear reasonable, and the time claimed as reflected in the billing records appears reasonably expended. 

However, where claims based on the contract providing for attorney's fees are joined with non-contract claims, the prevailing party may recover attorney's fees under Civil Code § 1717 only as they relate to the contract action. (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at 129.)  Such fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. (Id.; see also PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 69.)

Here, although all of the defense litigation efforts were  generally directed to preserving Bank’s rights under the Note and Deed of Trust, multiple non-contract claims were also presented, and a substantial portion of the demurrers were devoted to non-contract claims. (See e.g. ROAs 60 and 160.)  The Court has thus concluded that a reduction of 25% overall should be imposed to preclude recovery for fees incurred on what were distinct non-contract claims. The Court thus concludes that of the $129,483 sum claimed, Bank is entitled to recover $97,112.25 in attorney’s fees here.

Bank’s unopposed Requests for Judicial Notice are GRANTED under Ev. Code §§ 452(c) and (d), as to the existence of the documents and their legal effects. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Defendant Bank is ordered to submit a proposed ruling in accordance with C.R.C 3.1312 and to give notice of this ruling.