Cho v. Patel CA2/5 ( 2022 )

Filed 9/12/22 Cho v. Patel CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
NAM MIN CHO, B312306
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV28254)
BALUBHAI G. PATEL,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Law Offices of David Won, David D. Won and David Brand
for Plaintiff and Appellant.
Frank A. Weiser for Defendant and Respondent.
I. INTRODUCTION
Plaintiff and appellant Nam Min Cho prevailed on a
summary judgment motion in a quiet title action against
defendant and respondent Balubhai Patel, as trustee of the
Balubhai Patel Revocable Trust Dated March 14, 2007, as to
certain real property. Plaintiff then filed a motion for attorney
fees pursuant to an asserted attorney fees provision in the deed of
trust on the property and Civil Code section 1717 1. The trial
court denied the motion and plaintiff appeals. We affirm.
II. DISCUSSION2
Plaintiff contends the trial court erred when it ruled that
the deed of trust did not contain an attorney fees provision. We
disagree.
A. Standard of Review
Ordinarily, we review a trial court’s ruling on an attorney
fees motion for an abuse of discretion. (Conservatorship of
Whitley (2010) 50 Cal.4th 1206, 1213.) When, however, the
1 All further statutory references are to the Civil Code unless
otherwise noted.
2 Because the only issue on appeal concerns the
interpretation of an attorney fees provision in a deed of trust, we
omit a recitation of the facts underlying plaintiff’s action against
defendant.
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entitlement to attorney fees requires a legal determination, we
review the court’s ruling de novo. (Ibid.)
B. Analysis
“A party may not recover attorney fees unless expressly
authorized by statute or contract. (Code Civ. Proc., § 1021 . . . .)
In the absence of a statute authorizing the recovery of attorney
fees, the parties may agree on whether and how to allocate
attorney fees. [Citation.]” (Brown Bark III, L.P. v. Haver (2013)
219 Cal.App.4th 809, 818.)
Section 1717, subdivision (a) provides, in part, “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.” Section 1717,
subdivision (b)(1) defines “prevailing party” as “the party who
recovered a greater relief in the action on the contract.”
“The primary purpose of section 1717 is to ensure
mutuality of remedy for attorney fee claims under contractual
attorney fee provisions.” (Santisas v. Goodin (1998) 17 Cal.4th
599, 610.) That is, section 1717 “makes an otherwise unilateral
right [to attorney fees] reciprocal, thereby ensuring mutuality of
remedy. . . .” (Id. at pp. 610–611.)
After the trial court granted plaintiff’s summary judgment
motion, plaintiff filed a motion for attorney fees. He contended
he was the prevailing party in an action to enforce the terms of
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the deed of trust and thus was entitled to recover his attorney
fees under the deed of trust’s asserted attorney fees provision and
section 1717. That asserted attorney fees provision states, in
part:
“Attorneys’ Fees; Expenses. If Lender institutes any
suit or action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys’ fees at trial and upon any
appeal. Whether or not any court action is involved, and to the
extent not prohibited by law, all reasonable expenses Lender
incurs that in Lender’s opinion are necessary at any time for the
protection of its interest or the enforcement of its rights shall
become a part of the Indebtedness payable on demand and shall
bear interest at the Note rate from the date of the expenditure
until repaid. Expenses covered by this paragraph include,
without limitation, however subject to any limits under
applicable law, Lender’s attorneys’ fees and Lender’s legal
expenses, whether or not there is a lawsuit, including attorneys’
fees and expenses for . . . appeals . . . . Trustor also will pay any
court costs, in addition to all other sums provided by law.”
The trial court denied plaintiff’s attorney fees motion.
Citing Chacker v. JPMorgan Chase Bank, N.A. (2018) 27
Cal.App.5th 351, 357 (Chacker) and Hart v. Clear Recon Corp.
(2018) 27 Cal.App.5th 322, 327 (Hart), the court ruled that the
attorney fees and expenses provision in the deed of trust did not
allow the lender to recover attorney fees as a separate award
from litigation and thus was not an attorney fees provision
within the meaning of section 1717.
Chacker and Hart considered similar provisions in deeds of
trust that addressed attorney fees. (Chacker, supra, 27
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Cal.App.5th at p. 354; Hart, supra, 27 Cal.App.5th at p. 325.)
Chacker set forth the provision, entitled “‘Protection of Lender’s
Interest in the Property and Rights Under this Security
Instrument’” as follows: “In relevant part, section 9 provides: ‘If
(a) Borrower fails to perform the covenants and agreements
contained in this Security Instrument, [or] (b) there is a legal
proceeding that might significantly affect Lender’s interest in the
Property and/or rights under this Security Instrument (such as a
proceeding in bankruptcy, probate, for condemnation or
forfeiture, for enforcement of a lien which may attain priority
over this Security Instrument or to enforce laws or regulations)
. . . then Lender may do and pay for whatever is reasonable and
appropriate to protect Lender’s interest in the Property and
rights under this Security Instrument . . . . Lender’s actions can
include, but are not limited to . . . appearing in court . . . and . . .
paying reasonable attorneys’ fees to protect its interest in the
Property and/or rights in the Security Instrument . . . .’ Section 9
of the trust deed further states: ‘Any amounts disbursed by
Lender under this Section 9 shall become additional debt of
Borrower secured by this Security Instrument. These amounts
shall bear interest at the Note rate from the date of disbursement
and shall be payable, with such interest, upon notice from Lender
to Borrower requesting payment.’” (Chacker, supra, 27
Cal.App.5th at p. 354.)
Chacker held that the provision at issue did not authorize a
court to enter an attorney fee award that obligated the plaintiff to
pay attorney fees independent of the plaintiff’s repayment
obligation under the deed of trust and an associated promissory
note. (Chacker, supra, 27 Cal.App.5th at p. 356.) Rather, it
authorized the addition of attorney fees paid to protect the
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lender’s interest in the subject property to be added to the loan
amount. (Id. at p. 357.)
Likewise, Hart held that the provision at issue was “not a
provision that attorney’s fees ‘shall be awarded’; it [was], instead,
a provision that attorney’s fees, like any other expenses the
lender may incur to protect its interest, will be added to the
secured debt.” (Hart, supra, 27 Cal.App.5th at p. 327.)
Like the provisions at issue in Chacker and Hart, the
attorney fees and expenses provision in the deed of trust here
states that “all reasonable expenses Lender incurs that in
Lender’s opinion are necessary at any time for the protection of
its interest or the enforcement of its rights shall become a part of
the Indebtedness payable on demand and shall bear interest at
the Note rate from the date of the expenditure until repaid.
Expenses covered by this paragraph include, without limitation,
however subject to any limits under applicable law, Lender’s
attorneys’ fees . . . .”
Plaintiff argues Chacker and Hart are distinguishable
because the provisions at issue in those cases did not include a
sentence similar to the first sentence of the attorney fees and
expenses provision in this case—i.e., “If Lender institutes any
suit or action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys’ fees at trial and upon any
appeal.” That sentence, plaintiff argues, is a free standing
attorney fees provision.
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Reading the attorney fees and expenses provision as a
whole (see § 16413), the provision permits the lender to recover
attorney fees incurred to protect or enforce its rights under the
deed of trust “[w]hether or not any court action [was] involved”—
i.e., including attorney fees incurred under the provision’s first
sentence. Such attorney fees, however, were to “become a part of
the Indebtedness” and were not separately recoverable.
Accordingly, the attorney fees and expenses provision in the deed
of trust was not an attorney fees provision within the meaning of
section 1717 and the trial court did not err in denying plaintiff’s
attorney fees motion.
3 Section 1641 provides, “The whole of a contract is to be
taken together, so as to give effect to every part, if reasonably
practicable, each clause helping to interpret the other.”
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III. DISPOSITION
The judgment is affirmed. Defendant is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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