Filed 8/26/22 Sun West Mortgage v. First Alliance Home Mortgage CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SUN WEST MORTGAGE 

COMPANY, INC.,

Plaintiff and Respondent,

v.

FIRST ALLIANCE HOME 

MORTGAGE, LLC,

Defendant and Appellant.

 B303510, B304901

 (Los Angeles County

 Super. Ct. No. BC659293)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Dennis J. Landin, Judge. Affirmed.

Law Offices of Russell J. Thomulka and Russell J. 

Thomulka for Defendant and Appellant.

Early Sullivan Wright Gizer & McRae, Scott E. Gizer and 

Diane M. Luczon for Plaintiff and Respondent.

____________________________
2

Defendant and appellant First Alliance Home Mortgage, 

LLC (First Alliance) issued a loan to a borrower to refinance an 

investment property. First Alliance later sold this loan to 

plaintiff and respondent Sun West Mortgage Company, Inc. 

(Sun West), which in turn sold the loan to Fannie Mae. 

Fannie Mae demanded that Sun West repurchase the loan 

because the borrower lacked sufficient cash reserves to satisfy 

Fannie Mae’s guidelines. Pursuant to an agreement that 

governed Sun West’s initial purchase of the loan from 

First Alliance, Sun West demanded that First Alliance 

repurchase the loan from Sun West. First Alliance did not 

repurchase the loan.

Sun West filed suit against First Alliance for breach of 

contract and indemnity. After a one-day bench trial, the trial 

court found in favor of Sun West on both causes of action and 

ordered (a) First Alliance to pay Sun West the amount Sun West 

had paid to Fannie Mae to repurchase the loan ($73,077.13); and 

(b) Sun West to transfer the loan back to First Alliance. The 

trial court awarded Sun West prejudgment interest at the rate 

of 10 percent, which accrued from the date Sun West repurchased 

the loan from Fannie Mae to the date First Alliance repurchased 

the loan from Sun West, along with $160,000 in attorney fees and 

$14,660.90 in expert fees and other costs.

On appeal, First Alliance principally argues that the 

trial court erred in: (1) ordering specific performance of the 

parties’ agreement by requiring First Alliance to repurchase the 

loan instead of awarding ordinary contract damages to Sun West; 

(2) awarding excessive attorney fees and costs, given that 

Sun West’s actual damages were (according to First Alliance) 

only $5,236.27; (3) selecting a prejudgment interest rate of 
3

10 percent instead of the 4.5 percent rate applicable to the 

underlying loan; and (4) applying that 10 percent interest rate to 

the repurchase price rather than what First Alliance contends 

are Sun West’s actual damages. We conclude First Alliance fails 

to establish that the trial court abused its discretion in granting 

specific performance and in awarding attorney fees and costs; the 

4.5 percent interest rate does not govern the prejudgment 

interest calculation because the 4.5 percent rate is owed by the 

borrower of the loan and not First Alliance; and the court did not 

err in applying the 10 percent rate to the repurchase price 

because the grant of specific performance was proper. Finding no 

error, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND1

We summarize only those facts that are pertinent to our 

disposition of this appeal.

1 Our factual and procedural background is derived in part 

from undisputed aspects of the trial court’s rulings, admissions 

made by the parties in their filings, and assertions Sun West 

raises in its respondent’s brief to which First Alliance does not 

respond in its reply. (See Baxter v. State Teachers’ Retirement 

System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the 

summary of facts provided in the trial court’s ruling]; Standards 

of Review, post [noting that the trial court’s orders and 

judgments are presumed correct]; Artal v. Allen (2003) 

111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are 

reliable indications of a party’s position on the facts as well as the 

law, and a reviewing court may make use of statements therein 

as admissions against the party.’ ”]; Rudick v. State Bd. of 

Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the 

appellants made an implicit concession by “failing to respond in 

their reply brief to the [respondent’s] argument on th[at] point”].)
4

1. The broker agreement

On August 28, 2012, Sun West and First Alliance entered 

into the mortgage broker and correspondent agreement (broker 

agreement). The broker agreement states that First Alliance is 

“in the business of originating, brokering, soliciting, and/or 

selling Mortgage Loans,” and that First Alliance “desires to sell” 

and Sun West “desires to purchase Mortgage Loans, in 

accordance with the terms of this Agreement.” This agreement 

governs the parties’ business transactions that occurred in 2013, 

and the document provides that “it shall be interpreted and 

construed in accordance with, and shall be governed by, the laws 

of the State of California.” 

In section 3 of the agreement, First Alliance makes several 

representations and warranties “[a]s to each Loan Application or 

Mortgage Loan submitted to” Sun West. For instance, 

paragraph 3(b)(i) provides: “The Loan Application or Mortgage 

Loan strictly complies with, and has been originated, processed, 

closed, and Funded in accordance with the Guides,[2] Applicable 

Law, the guidelines of the Insuring Agency, [Sun West’s] 

instructions, and FHA, HUD, VA, USDA-RD, Freddie Mac, 

2 The broker agreement defines “Guides” to “mean and 

include the [Sun West] Forward Mortgage Seller Guide (‘Forward 

Guide’), [Sun West] Reverse Mortgage Seller and Underwriting 

Guide (‘Reverse Guide’), [Sun West] Product Manual, lender 

alerts, and all other materials, including without limitation, 

product profiles, underwriting standards, loan commitments, 

closing instructions, other communications, overlays, 

announcements or guidelines published by [Sun West] on its 

website or provided to [First Alliance] from time to time, as 

amended and supplemented, that are in effect at loan Funding.” 
5

Fannie Mae, or Investor[3] guidelines.” Further, 

paragraph 3(b)(vi) provides: “All representations made by 

[First Alliance] to [Sun West] concerning the Mortgage Loan and 

all information contained in the Loan Application and in any 

document provided to [Sun West] have been verified by [First 

Alliance] as true and correct in all respects.” 

Section 5 identifies certain occurrences that constitute 

“Events of Default” under the broker agreement. (Boldface 

omitted.) For example, paragraph 5(a) states: “Uncured Breach. 

[First Alliance] has breached any representation, warranty, 

covenant, or other obligation contained in this Agreement and 

[First Alliance] has failed to cure such breach to the satisfaction 

of [Sun West] within ten (10) days of [Sun West’s] notice thereof.” 

Another example is paragraph 5(e), which provides: “Loan 

Ineligible For Purchase. In the reasonable judgment of [Sun 

West], the Mortgage Loan is not eligible for Ginnie Mae, Fannie 

Mae, or Freddie Mac pool participation or whole loan purchase or 

purchase by an Investor.” Additionally, paragraph 5(f) states 

that the following is included in the definition of “Events of 

Default”: “Investor Demand. For reasons other than the action 

of [Sun West], an Investor requires [Sun West] to repurchase a 

Mortgage Loan, indemnify the Investor, or reimburse the 

Investor for pricing premiums, fees, or other losses.” 

Paragraph 6(a) of the agreement enumerates certain 

remedies that Sun West “may elect” to recover “[u]pon the 

3 The broker agreement defines the term “Investor” as 

“any person or entity that has purchased a Mortgage Loan from 

[Sun West] and/or has issued a guaranty or policy of mortgage 

insurance and includes, without limitation, Ginnie Mae, 

Fannie Mae, Freddie Mac or an [sic] private investor.” 
6

occurrence of an Event of Default . . . .” Of particular relevance 

here is paragraph 6(a)(ii), which states: “Repurchase. 

[First Alliance] agrees to repurchase the Mortgage Loan (or the 

mortgaged property, if title thereto is held by [Sun West]) at the 

‘Repurchase Price’ (defined in the Guides), plus $2,000 as 

reimbursement for [Sun West’s] administrative expenses. All 

repurchases shall be completed within twenty (20) days following 

receipt of written notice from [Sun West] to repurchase.” 

Further, paragraph 6(a)(iii) provides in pertinent part: 

“Indemnification. [First Alliance] agrees to indemnify and defend 

and hold [Sun West] . . . harmless from and against, and shall 

reimburse [Sun West] with respect to, any and all losses, 

damages, demands, claims, liabilities, costs and expenses, 

including reasonable attorneys’ fees, whether or not a lawsuit is 

filed (collectively, ‘Losses’), of any nature or cause whatsoever, 

incurred by reason of or arising out of or in connection with: . . . 

an Event of Default . . . .” 

The broker agreement also contains the following feeshifting provision: “Attorneys’ Fees and Costs. In the event of 

any controversy, claim or action between the parties, arising from 

or related to this agreement, the prevailing party will be entitled 

to receive from the other party its reasonable attorneys’ fees and 

costs.” 

2. The loan transaction, Fannie Mae’s repurchase 

demand, and Sun West’s attempt to have 

First Alliance repurchase the loan

On March 15, 2013, First Alliance issued the subject loan to 

a borrower in the amount of $77,000 to allow him to refinance an 

investment property located in Pennsylvania. Pursuant to the 

terms of the broker agreement, Sun West later purchased the 
7

loan from First Alliance. Sun West subsequently sold the loan to 

Fannie Mae. 

In a letter dated November 18, 2013, Fannie Mae 

demanded that Sun West repurchase the loan because 

Fannie Mae claimed the borrower did not have sufficient cash 

reserves to meet Fannie Mae’s guidelines. On May 8, 2014, 

Sun West repurchased the loan from Fannie Mae for $73,077.13.4 

In a letter dated September 7, 2016, Sun West demanded 

that First Alliance repurchase the loan pursuant to 

paragraph 6(a)(ii) of the broker agreement within twenty days of 

the date of the letter. First Alliance failed to respond to this 

letter, and later claimed that it did not receive this 

correspondence because First Alliance had relocated and 

Sun West sent the letter to First Alliance’s prior address. 

3. The trial court proceedings

On April 28, 2017, Sun West filed a complaint against 

First Alliance, alleging two causes of action: (1) breach of 

4 Although Sun West presented stipulated testimony from 

its chief operations officer that Sun West repurchased the loan 

from Fannie Mae on May 8, 2014 for $76,067.45, the parties 

seemed to have agreed in their posttrial briefing that Sun West 

actually paid $73,077.13 to Fannie Mae to repurchase the loan. 

In addition, we note that First Alliance does not dispute 

Sun West’s claims that: (a) At some point before Sun West 

repurchased the loan from Fannie Mae, Sun West contacted 

First Alliance in an attempt to cure the aforesaid violation of 

Fannie Mae’s guidelines (i.e., the borrower’s insufficient cash 

reserves), and (b) “First Alliance was not able to provide any 

additional documentation” that would have achieved that 

objective. 
8

contract and (2) indemnity. In the complaint, Sun West averred 

that First Alliance’s breach of the broker agreement damaged 

Sun West “in an amount . . . no less than $80,000.” In its prayer 

for relief, Sun West sought “damages in an amount according to 

proof at trial; [¶] . . . pre-judgment interest at the legal rate for 

all amounts owed; [¶] . . . an award of reasonable attorneys’ fees 

pursuant to the Agreement; [¶] . . . costs of suit incurred herein; 

and [¶] . . . such other and further relief as the Court deems just 

and proper.” 

A one-day bench trial was held on May 29, 2019. On 

July 29, 2019, the trial court issued a tentative decision, wherein 

the court announced its intention to rule as follows: “[A]s to the 

first cause of action for breach of contract and the second cause of 

action for indemnity, the court finds in favor of [Sun West] and 

against [First Alliance]. [Sun West] will be awarded $73,077.13, 

pre-judgment interest, costs of suit and reasonable attorney 

fees. . . . Also, the parties are ordered to meet and confer to 

determine how and when the subject loan will be returned to 

[First Alliance] and what credit against the judgment, if any, 

should be allowed given that payments on the loan have been 

made.” On August 20, 2019, the trial court issued a minute order 

in which it “adopt[ed] the Tentative Ruling and [found] in favor of 

Sun West . . . .” 

On December 12, 2019, the trial court entered judgment in 

favor of Sun West (initial judgment). The initial judgment 

recited the following: “On September 24, 2019, First Alliance 

transferred to Sun West $72,634.00 to repurchase the subject 

loan. Sun West transferred back the subject loan to 

First Alliance and on October 22, 2019, transferred back the 
9

escrow balance of $1,858.47 to First Alliance.”5 The court 

decreed that “Sun West is entitled to pre-judgment interest at the 

rate of ten percent (10%) per annum on the amount awarded of 

$73,077.13 from May 8, 2014 to September 24, 2019,” and that 

“Sun West is entitled to attorney’s fees and costs in the amount of 

$174,660.90.” It further decreed that Sun West “is entitled to 

additional costs” and that “Sun West shall have and recover from 

First Alliance interest at the rate of ten percent (10%) per annum 

on any amounts outstanding under this Judgment from the date 

of entry of this Judgment until fully paid.” The initial judgment 

did not quantify the amount of the “additional costs” to which 

Sun West was entitled. First Alliance appealed the initial 

judgment on January 2, 2020.6

On February 6, 2020, the trial court entered an amended 

judgment that is substantially similar to the initial judgment; the 

only apparent difference between the two judgments is that the 

amended judgment provides that Sun West is entitled to 

additional costs of “$4,400.01.” First Alliance appealed the 

5 Although neither party explains why First Alliance paid 

less than $73,077.13 to repurchase the loan from Sun West, the 

disparity may be attributed to the trial court’s order requiring 

the parties to “meet and confer to determine . . . what credit 

against the judgment, if any, should be allowed given that 

payments on the loan have been made.” 

6 Although First Alliance’s counsel erroneously 

represented that “Plaintiff ASTRA PACIFIC OUTDOOR, LLC” 

was appealing a judgment purportedly entered on 

“August 6, 2019,” Sun West concedes that this notice of appeal 

was filed on behalf of First Alliance and that it concerns the 

initial judgment. 
10

amended judgment on March 9, 2020. We later consolidated 

First Alliance’s appeals of the initial and amended judgments.

On July 9, 2020, the trial court entered a second amended 

judgment that does not appear to differ in any material respect 

from the amended judgment.7 On September 3, 2020, the trial 

court entered a third amended judgment that is substantially 

similar to the second amended judgment; the only apparent 

difference between the two documents is that the third amended 

judgment calculates the amount of prejudgment interest due 

thereunder, to wit, $39,341.46.

8 

STANDARDS OF REVIEW

“In reviewing a judgment based upon a statement of 

decision following a bench trial, we review questions of law 

de novo. [Citation.] We apply a substantial evidence standard of 

review to the trial court’s findings of fact. [Citation.] Under this 

7 In their respective appellate briefs, neither party 

identifies the differences between the various iterations of the 

judgment that the trial court issued. 

8 Although First Alliance did not appeal the second 

amended judgment or the third amended judgment, its failure to 

do so does not affect our jurisdiction because First Alliance’s 

appellate claims concern only rulings included in the initial 

judgment from which it timely appealed—i.e., the repurchase of 

the loan, the $174,660.90 attorney fees and costs award, and the 

method of calculating the prejudgment interest. (See Ellis v. 

Ellis (2015) 235 Cal.App.4th 837, 842–843 [holding that if an 

appealing “ ‘party can obtain the desired relief from a judgment 

before it is amended,’ ” then “any changes [included in an 

amended judgment] are considered to relate back to the original 

judgment and the time to appeal runs from the entry of the first 

judgment”].) 
11

deferential standard of review, findings of fact are liberally 

construed to support the judgment and we consider the evidence 

in the light most favorable to the prevailing party, drawing all 

reasonable inferences in support of the findings.” (Thompson v. 

Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).)

“Judgments and orders granting or denying specific 

performance . . . are reviewed under an abuse of discretion 

standard” (Petrolink, Inc. v. Lantel Enterprises (2022) 

81 Cal.App.5th 156, 165–166 (Petrolink, Inc.)), as are attorney fee 

awards (Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 289–290 

(Roth)). “[We also] review a trial court’s determination on which 

costs are reasonably necessary and reasonable in amount under 

the abuse of discretion standard.” (Charton v. Harkey (2016) 

247 Cal.App.4th 730, 739 (Charton).) “ ‘The abuse of discretion 

standard is “deferential,” but it “is not empty.” [Citation.] “[I]t 

asks in substance whether the ruling in question ‘falls outside the 

bounds of reason’ under the applicable law and the relevant 

facts.” ’ [Citation.]” (Roth, supra, 15 Cal.App.5th at p. 290.) 

“Determining whether the 10 percent interest rate of 

section 3289, subdivision (b) . . . applies is a question of law we 

review de novo.” (Carmel Development Co., Inc. v. Anderson

(2020) 48 Cal.App.5th 492, 525.)

“ ‘A judgment or order of a lower court is presumed to be 

correct on appeal, and all intendments and presumptions are 

indulged in favor of its correctness.’ [Citation.]” (Thompson, 

supra, 6 Cal.App.5th at p. 981.) Thus, “ ‘ “it is the appellant’s 

responsibility to affirmatively demonstrate error[,]” ’ ” and 

“ ‘ “review is limited to issues which have been adequately raised 

and briefed.” ’ [Citation.]” (See Los Angeles Unified School Dist. 

v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 
12

(Los Angeles Unified School Dist.).) “ ‘[T]o demonstrate error, an 

appellant must supply the reviewing court with some cogent 

argument supported by legal analysis and citation to the record.’ 

[Citation.]” (Hernandez v. First Student, Inc. (2019) 

37 Cal.App.5th 270, 277 (Hernandez).) The appellant bears this 

burden of rebutting the presumption of correctness accorded to 

the trial court’s decision, regardless of the applicable standard 

of review. (See Los Angeles Unified School Dist., at p. 492 [noting 

that these principles apply to “ ‘ “an appeal from any 

judgment” ’ ”]; see also Orange County Water Dist. v. Sabic 

Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 399 

[indicating that an appellant must affirmatively show the trial 

court erred even if the de novo standard of review applies].) 

Additionally, “ ‘[i]f the decision of a lower court is correct on 

any theory of law applicable to the case, the judgment or order 

will be affirmed regardless of the correctness of the grounds upon 

which the lower court reached its conclusion.’ [Citation.]” 

(Estate of Sapp (2019) 36 Cal.App.5th 86, 104.) 

DISCUSSION

A. First Alliance Fails to Establish the Trial Court 

Abused Its Discretion in Awarding Specific 

Performance to Sun West

First Alliance argues the trial court erred in granting 

specific performance of the broker agreement by ordering 

First Alliance to pay $73,077.13 and requiring Sun West to 

transfer the underlying loan back to First Alliance. In particular, 

First Alliance contends that Sun West did not request specific 

performance in its complaint, and that this remedy was improper 

because “damages were adequate and would have compensated 
13

Sun West . . . .” First Alliance insists the trial court should have 

instead awarded “ ‘benefit of the bargain’ ” damages, i.e., the 

difference between “the fair market value that Sun West paid to 

Fannie Mae which it had not anticipated having to pay” and “the 

fair market value of what Sun West received from Fannie Mae in 

exchange for that unanticipated payment.” (Some capitalization 

omitted.) First Alliance claims this formula “yields . . . actual 

damages of only $5,236.72 . . . .” 

As a preliminary matter, we assess the nature of the relief 

afforded to Sun West. In its statement of decision, the trial court 

ruled that Sun West “will be awarded $73,077.13, pre-judgment 

interest, costs of suit and reasonable attorney fees,” and it 

“ordered [the parties] to meet and confer to determine how and 

when the subject loan will be returned to” First Alliance. In 

essence, the court ordered First Alliance to perform an obligation 

that Sun West claimed had been imposed by the broker 

agreement—i.e., the “repurchase of the [l]oan” at the 

“[r]epurchase ‘[p]rice’ of $73,077.13 . . . .” We agree with 

First Alliance that this ruling constitutes an order granting 

specific performance.9 (See 58 Cal.Jur.3d (2020) Specific 

Performance, § 1 [“An action for specific performance [is a suit in 

9 First Alliance also asserts that “specific performance 

is not a remedy that [Sun West] ever requested.” During the 

proceedings below, First Alliance contended that ordering it to 

pay Sun West to reacquire the loan “would only be appropriate if 

[Sun West] were suing for specific performance, which it has not 

done.” In its posttrial rebuttal brief, Sun West responded: “[T]o 

the extent the Court views Sun West’s relief as requesting 

specific performance, the Court has the authority to order that 

relief . . . .” Thus, it does not appear that the trial court was 

acting sua sponte in awarding specific performance to Sun West.
14

which] one party to an agreement seeks to compel the other to 

perform as he or she agreed.”]; see also Petrolink, Inc., supra, 

81 Cal.App.5th at p. 165 [holding that “an order compelling a 

party to perform an affirmative act is inherently an order for 

specific performance,” e.g., an order requiring the parties to 

complete “a property sale transaction”].) 

Yet, we do not agree with First Alliance that the absence of 

a prayer for specific performance in the complaint precluded 

Sun West from obtaining this relief. Given that First Alliance 

answered the complaint, the trial court was authorized to 

“grant . . . any relief consistent with the case made by the 

complaint and embraced within the issue. . . . regardless of 

whether the theory upon which liability [was] sought to be 

imposed involve[d] legal or equitable principles.” (See Code Civ. 

Proc., § 580, subd. (a).) Specific performance is an equitable 

remedy for breach of contract.10 Furthermore, Sun West alleged 

in its complaint that the broker agreement obligated 

First Alliance to repurchase the loan, and Sun West sought “such 

other and further relief as the Court deems just and proper,” 

thereby notifying First Alliance that Sun West could seek relief 

other than damages. Because specific performance is relief that 

is consistent with the case made by the complaint and embraced 

10 (5 Witkin, Cal. Procedure (6th ed. 2021), § 780 [“Specific 

performance is an alternative remedy; the cause of action is for 

breach of contract.”]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 

1360, fn. 2 [“[S]pecific performance . . . [is an] equitable remed[y] 

and not [a] cause[ ] of action for injuries.”].)
15

within the issues raised thereby, Sun West’s failure to request 

that remedy in its pleading is immaterial.11 

First Alliance intimates for the first time in its reply that 

had Sun West sought specific performance in the complaint, then 

First Alliance would have conducted discovery on entitlement 

to that relief. First Alliance waived this argument by failing to 

raise it in a timely fashion. (Habitat & Watershed Caretakers v. 

City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6 

[“Arguments presented for the first time in an appellant’s reply 

brief are considered waived.”].) In any event, defense counsel’s 

failure to undertake discovery on this question does not 

demonstrate that the trial court erred in granting specific 

performance, given that Code of Civil Procedure section 580 put 

counsel on notice that Sun West could obtain remedies other than 

those identified in the complaint and Sun West alleged in the 

complaint that the broker agreement obligated First Alliance to 

repurchase the loan. (See Steinhart v. County of Los Angeles

(2010) 47 Cal.4th 1298, 1316 [“[A]ttorneys are ‘charged with 

knowledge of the law in California.’ ”].)

In addition to its assertion that Sun West should have 

prayed for specific performance in the complaint, First Alliance 

also maintains that “specific performance was not lawfully 

11 (See Wright v. Rogers (1959) 172 Cal.App.2d 349, 367–

368 [“[W]hen an answer is filed, the case becomes one in which 

the court is authorized regardless of the prayer to grant any relief 

consistent with the plaintiff’s averments. The jurisdiction of the 

court to grant any particular relief depends not on the prayer but 

on the issues—that is, on the scope of the complaint and the 

issues made or which might have been made under it—and any 

relief consistent with the issues raised may be granted regardless 

of the prayer.”].)
16

justified.” “ ‘The basic rule is that . . . specific performance will be 

granted only when the legal remedy, such as an action for 

damages, is inadequate.’ [Citation.]” (Valley Crest Landscape 

Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 

238 Cal.App.4th 468, 492.) 

As Sun West points out in its briefing, Sun West’s chief 

executive officer testified that if Sun West attempted to resell the 

loan to an entity other than First Alliance, then Sun West would 

have needed to execute a mortgage loan purchase agreement 

exposing Sun West to liability for “anything in the loan that [the 

buyer is] not aware of . . . or any misrepresentations” in the loan 

documents. This corporate officer further testified that Sun West 

sought to avoid incurring this liability. In response to Sun West’s 

reliance on this evidence, First Alliance directs us to testimony 

from its own chief executive officer in which he stated his belief 

that First Alliance “could easily sell this [loan] without having to 

[agree to] indemnify” the purchaser of the loan.

Because granting or denying specific performance is a 

matter committed to the trial court’s discretion (see Petrolink, 

Inc., supra, 81 Cal.App.5th at pp. 165–166), the court was 

entitled to credit Sun West’s evidence on this point and reject the 

testimony of First Alliance’s chief executive officer. (See In re 

Caden C. (2021) 11 Cal.5th 614, 640–641 (Caden C.) [holding that 

when an appellate court reviews “ ‘the factual basis for an 

exercise of discretion,’ ” it “should ‘not reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary 

conflicts’ ”].) Moreover, First Alliance does not argue that the 

testimony from Sun West’s chief executive officer falls short of 

establishing that an award of damages would have been 

inadequate. In sum, First Alliance has failed to discharge its 
17

burden of affirmatively establishing the trial court abused its 

discretion in awarding Sun West specific performance of the 

broker agreement instead of “ ‘benefit of the bargain’ ” damages. 

(Capitalization omitted.) (See Los Angeles Unified School Dist.,

supra, 57 Cal.App.5th at p. 492.) 

B. First Alliance Does Not Show the Trial Court 

Abused Its Discretion in Awarding Attorney Fees 

and Costs to Sun West

“ ‘[T]he [attorney] fee setting inquiry in California 

ordinarily begins with the “lodestar,” i.e., the number of hours 

reasonably expended multiplied by the reasonable hourly rate.’ 

[Citation.] ‘The lodestar figure may then be adjusted, based on 

consideration of factors specific to the case, in order to fix the fee 

at the fair market value for the legal services provided. 

[Citation.] . . . .’ [Citation.]” (Roth, supra, 15 Cal.App.5th at 

p. 290.) “ ‘ “Because the ‘experienced trial judge is the best judge 

of the value of professional services rendered in his court,’ we will 

not disturb the trial court’s decision unless convinced that it is 

clearly wrong . . . .” ’ [Citation.]” (Ibid.)

“All costs awarded to a prevailing party must be 

(1) incurred by that party, whether or not paid; (2) ‘reasonably 

necessary to the conduct of the litigation rather than merely 

convenient or beneficial to its preparation’; and (3) reasonable in 

amount.” (Charton, supra, 247 Cal.App.4th at p. 739.)

During the proceedings below, the trial court granted 

Sun West’s motion for attorney fees and costs and awarded 

Sun West a total of $174,660.90, $160,000.00 of which were 

attorney fees, $8,784.70 of which were expert fees, and $5,876.20 

were other costs. The court stated the attorney fee award was 
18

“computed based on a blended rate of $400 per hour for 400 

hours, which . . . is the reasonable amount to litigate this case.” 

First Alliance argues the $174,660.90 attorney fees and 

costs award is “exorbitant” because “the actual economic damage 

[is] less than approximately . . . $8,000,” and “First Alliance . . . 

served an offer of compromise pursuant to [Code of Civil 

Procedure section] 998 in the amount of $8,000.00 ‘plus costs as 

allowed by the court,’ that would have addressed reasonable 

attorneys’ fees.” First Alliance also contends that because 

“Sun West’s damages predictably were . . . . less than one-third of 

the $25,000” ceiling on limited civil jurisdiction, the trial court 

should have denied costs or reduced the amount awarded 

pursuant to Code of Civil Procedure section 1033, 

subdivision (a).12 These arguments are unavailing because they 

rely on First Alliance’s flawed assertion that the trial court erred 

in ordering First Alliance to pay $73,077.13 to repurchase the 

loan.13 (See Discussion, part A, ante.)

Furthermore, First Alliance alleges the trial court should 

have reduced the award of attorney fees and costs because it had 

a “good faith” defense. Specifically, First Alliance argues the 

12 Code of Civil Procedure section 1033, subdivision (a) 

provides in pertinent part: “Costs or any portion of claimed costs 

shall be as determined by the court in its discretion in a case 

other than a limited civil case . . . where the prevailing party 

recovers a judgment that could have been rendered in a limited 

civil case.” (Code Civ. Proc., § 1033, subd. (a).)

13 For instance, First Alliance argues in its reply brief that 

“the inflated award of attorneys’ fees clearly was unreasonable 

given the amount of actual damages.” (Italics added; boldface & 

capitalization omitted.)
19

“sole” provision of the broker agreement the complaint alleged 

that First Alliance had breached was paragraph 5(f), which 

provision “explicitly required the absence of fault by Sun West.” 

According to First Alliance, the trial court’s statement of decision 

“specifically recognized that Sun West was involved in the 

underwriting, knew about the account deficiency at the closing, 

and . . . made the affirmative decision to proceed with the 

closing.” First Alliance thus submits paragraph 5(f) “exonerated 

First Alliance,” meaning “First Alliance’s defense to this matter 

was reasonable.” 

First Alliance misreads the record. In its statement of 

decision, the trial court stated that although one exhibit 

“suggests that Sun West may have engaged in an underwriting 

function, the balance of the evidence shows that it was only First 

Alliance that served as the underwriter relative to the subject 

loan.” The court deemed “credible and reasonable” the evidence 

showing that First Alliance was the sole underwriter. The court 

further stated that “even if Sun West personnel were engaged in

tasks similar to those of an underwriter, they were not given 

information about the borrower’s insufficient cash reserves until 

the time of closing.” Consequently, the lower court ruled that 

“the contract provision that First Alliance seeks to invoke to 

avoid repurchasing the loan, i.e. that when Sun West makes a 

mistake, First Alliance is relieved of its repurchase obligation, is 

not applicable.” 

Under the deferential abuse of discretion standard of 

review applicable to First Alliance’s claim of error (Roth, supra, 

15 Cal.App.5th at p. 290; Charton, supra, 247 Cal.App.4th at 

p. 739), the trial court’s finding that Sun West was not at fault 

vis-à-vis the loan transaction is conclusive. (See Caden C., supra, 
20

11 Cal.5th at pp. 640–641 [holding that a reviewing court 

may not reweigh the evidence in assessing the factual basis for a 

trial court’s exercise of discretion].) First Alliance’s good faith 

defense argument thus fails.

For the foregoing reasons, we conclude that First Alliance 

has not shown the trial court erred in awarding $174,660.90 in 

attorney fees and costs to Sun West.

C. First Alliance Fails to Demonstrate the Trial 

Court Erred in Awarding Prejudgment Interest to 

Sun West

The trial court awarded Sun West prejudgment interest at 

the rate of 10 percent per annum on $73,077.13, accruing from 

May 8, 2014, the date on which Sun West repurchased the loan 

from Fannie Mae, to September 24, 2019, the date on which 

First Alliance repurchased the loan from Sun West. (See Factual 

& Procedural Background, parts 2–3, ante.) First Alliance 

maintains that under Civil Code section 3289, prejudgment 

interest should have been calculated using the 4.5 percent rate 

owed by the borrower on the underlying loan and, because “it was 

always a fully performing loan,” Sun West “was not entitled to 

any pre-judgment interest.” First Alliance further claims that 

“the award by the Trial Court of 10% interest in addition to the 

4 1⁄2% yielded Sun West actual interest received in the amount of 

14 1⁄2%,” which “was clearly an error.” Additionally, 

First Alliance insists that, “even assuming for the sake of 

argument . . . Sun West was entitled to some additional interest, 

the interest would only apply to the minimal correctly calculated 

damages and not to the full amount paid by Sun West to Fannie 

Mae without any deduction for the value of the . . . [l]oan received 

by Sun West.” 
21

Civil Code section 3289 provides: “(a) Any legal rate of 

interest stipulated by a contract remains chargeable after a 

breach thereof, as before, until the contract is superseded by a 

verdict or other new obligation. [¶] (b) If a contract entered into 

after January 1, 1986, does not stipulate a legal rate of interest, 

the obligation shall bear interest at a rate of 10 percent per 

annum after a breach. [¶] For the purposes of this subdivision, 

the term contract shall not include a note secured by a deed of 

trust on real property.” (Civ. Code, § 3289.)

It appears that First Alliance is claiming that Civil Code 

section 3289, subdivision (a) required the trial court to utilize the 

4.5 percent interest rate owed by the underlying loan borrower, 

and that the court erred in instead utilizing subdivision (b)’s 

10 percent rate to compute prejudgment interest. As Sun West 

points out in its respondent’s brief, however, the 4.5 percent rate 

of interest is imposed by “a contract between Sun West and the 

borrower, not First Alliance.” (Italics added.) This fact 

precludes First Alliance from invoking Civil Code section 3289, 

subdivision (a), given that this subdivision has been interpreted 

to provide that “the contractual rate agreed upon by the parties in 

the contract governs following a breach . . . .”14 (See Cavalry 

SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1092, italics 

added; see also Harm v. Frasher (1960) 181 Cal.App.2d 405, 418 

[rejecting the defendants’ assertion that a prior version of Civil 

Code, § 3289, subd. (a) required the trial court to “use[ ] the 

contract interest rate of 5 per cent per annum” because “the 

plaintiffs [were] not suing the party who agreed to pay” that 

14 First Alliance does not claim that the broker agreement 

supplies an applicable prejudgment interest rate. 
22

interest rate]; cf. Cavalry SPV I, LLC, at pp. 1075–1077, 1094–

1095 [holding that Civil Code, § 3289, subd. (a) barred the holder 

of credit card debt from utilizing subd. (b)’s 10 percent 

prejudgment interest rate because the credit card agreement 

specified a different interest rate].) Accordingly, First Alliance 

fails to establish the trial court erred in employing the 10 percent 

rate provided in subdivision (b).

Sun West characterizes First Alliance’s contention 

regarding the 14.5 percent interest rate as “a confusing argument 

about an offset on the interest amount.” Sun West further argues 

that this argument is not properly before us because 

First Alliance “presented [it] without any citation to legal 

authority . . . .” In response, First Alliance argues in its reply 

brief that the “actual interest rate received of 141⁄2% . . . . was 

clearly in excess of the . . . Civil Code §3289 rate and the award of 

that rate was an error.” 

We agree with Sun West that, aside from First Alliance’s 

citation to Civil Code section 3289 in its opening and reply briefs, 

First Alliance does not supply any legal authority to support its 

argument that the trial court erroneously allowed Sun West to 

obtain “an actual interest rate” of 14.5 percent. Insofar as 

First Alliance is arguing that the trial court erred by awarding 

prejudgment interest at a rate that exceeds 4.5 percent, that 

contention fails because, as explained above, the rate charged to 

the borrower does not govern the prejudgment interest 

calculation as to First Alliance’s breach of its contract with 

Sun West. To the extent that First Alliance maintains the 

interest Sun West collected from the borrower should have been 

subtracted from the award of prejudgment interest, 

5First Alliance fails cogently to raise that argument and support 
23

it with any pertinent legal authority. (Hernandez, supra, 

37 Cal.App.5th at p. 277 [“We may and do ‘disregard conclusory 

arguments that are not supported by pertinent legal authority or 

fail to disclose the reasoning by which the appellant reached the 

conclusion he wants us to adopt.’ ”].) Our declination to discuss 

this matter further rests largely on the principle that an 

appellant must provide a respondent with a reasonable 

opportunity to refute the appellant’s claims of error.15 (Cf. 

Hernandez, at pp. 277–278 [“ ‘Fairness militates against allowing 

an appellant to raise an issue for the first time in a reply brief 

because consideration of the issue deprives the respondent of the 

opportunity to counter the appellant by raising opposing 

arguments about the new issue.’ ”].) 

Lastly, First Alliance’s argument that the prejudgment 

interest rate should have been applied to only “the minimal 

correctly calculated damages and not to the full amount paid by 

Sun West to Fannie Mae” is predicated on First Alliance’s 

assertion that the trial court should not have granted specific 

performance to Sun West. Given that this premise is flawed (see 

Discussion, part A, ante), we reject First Alliance’s assertion that 

15 As we noted in our Factual and Procedural Background, 

the trial court ordered the parties to “meet and confer to 

determine . . . what credit against the judgment, if any, should be 

allowed given that payments on the loan have been made,” 

First Alliance later paid Sun West $72,634 to repurchase the

loan, and Sun West thereafter transferred an escrow balance of 

$1,858.47 to First Alliance. (See Factual & Procedural 

Background, part 3, ante.) First Alliance does not argue, let 

alone offer evidence establishing, that these apparent reductions 

to the $73,077.13 repurchase price failed to account adequately 

for the interest payments that the borrower made to Sun West. 
24

the trial court erroneously calculated the award of prejudgment 

interest. 

DISPOSITION

The judgment is affirmed. Respondent Sun West Mortgage 

Company, Inc. is awarded its costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

KELLEY, J.*

* Judge of the Los Angeles County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.