Judge: Stephen I. Goorvitch, Case: 22STCV02424, Date: 2024-01-10 Tentative Ruling

Case Number: 22STCV02424    Hearing Date: January 10, 2024    Dept: 39

Jesus Diaz, et al. v. RTED Irvine, LLP, et al.

Case No. 22STCV02424

Motion for Attorneys’ Fees

            Plaintiffs Jesus Diaz and Araceli Diaz (collectively, “Plaintiffs”) filed this action against RTED Irvine LLC (“Defendant”), asserting causes of action for quiet title, fraud, breach of contract, and negligence.  The Court granted summary judgment, and Defendant now seeks attorneys’ fees under Civil Code section 1717 and Code of Civil Procedure 1021.  Attorneys’ fees are available “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce the contract, shall be awarded . . . .”  (Civ. Code, § 1717.)   

In this case, Defendant relies on an attorneys’ fees provision in the deed of trust, which states: “[Plaintiffs] agree[] to pay all costs and expenses incurred by [Defendant] in collecting, enforcing or protecting [Defendant]’s rights under this Security Instrument.  This Amount may include, but is not limited to attorneys’ fees, court costs, and other legal expenses.”  (Declaration of Richard J. Reynolds, Exhibit A, § 10.)  However, Plaintiffs’ action “was not an action ‘on a contract’ containing an attorney’s fees provision . . . .”  (See Hyduke's Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 436.)  Rather, Plaintiffs alleged that Defendant promised to forgive a certain amount of the debt as part of a modification of the loan and stay the foreclosure if Plaintiffs paid a certain amount of money.  (See Complaint, ¶¶ 18-19.)  This is not a lawsuit to enforce the contract at issue.  Nor was Defendant’s defense related to collecting, enforcing, or protecting its rights under the deed because the foreclosure was completed before the lawsuit was filed.  (See Complaint, ¶ 24.) 

Based upon the foregoing, Defendant’s motion is denied.  Defendant shall provide notice and file proof of such with the Court.