Filed 11/18/21 Bays v. Ashcraft CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RICHARD BAYS et al.,

Plaintiffs and Respondents,

v.

DODI ASHCRAFT,

Defendant and Appellant.

 D079056

 (Super. Ct. No. 16CV01663)

APPEAL from a postjudgment order of the Superior Court of Santa 

Cruz County, Timothy J. Schmal, Judge. Affirmed.

Watt, Tieder, Hoffar & Fitzgerald and Colin C. Holley, for Defendant 

and Appellant. 

Law Offices of Brian D. Liddicoat and Brian D. Liddicoat, for Plaintiffs 

and Respondents.

Plaintiffs and cross-defendants Richard Bays and Linda Bays 

(the Bayses) borrowed money from defendant and cross-complainant 

Dodi Ashcraft, evidenced by a promissory note secured by a deed of trust on 

the Bayses’ home. All of the issues at trial concerned whether the Bayses
2

still owed money on the note (and, if so, how much) and whether Ashcraft

could proceed with a nonjudicial foreclosure on the deed of trust. 

This is an appeal from a postjudgment order awarding contract-based 

attorney fees to the prevailing parties following a court trial and entry of 

judgment. Pursuant to Civil Code section 1717 (section 1717), the trial court 

determined the Bayses to be the prevailing parties and awarded them 

attorney fees to be paid by Ashcraft. 

On appeal, Ashcraft first contends that the trial court erred in 

determining the Bayses to be the prevailing parties. According to Ashcraft, 

the trial court applied an incorrect legal standard in determining the 

prevailing party for purposes of section 1717; and, in the event the court 

applied the proper standard, the Bayses did not recover the greater relief on 

the contract claims. As we explain, given the mixed results at trial, the trial 

court did not abuse its discretion either in the legal standard it applied or in 

determining the Bayses to be the prevailing parties. 

Ashcraft next argues that the court erred in awarding the Bayses

attorney fees for professional services related to two of the noncontract claims 

in the operative complaint. As we explain, the trial court did not err in 

concluding that, based on the nature of the Bayses’ noncontract causes of 

action at issue, they are “on the contract,” as that phrase has been 

interpreted and applied under section 1717.

Accordingly, we will affirm the order granting the Bayses’ motion for 

section 1717 attorney fees.
3

I. FACTUAL AND PROCEDURAL BACKGROUND1

A. The Parties

The parties in this appeal are the Bayses, as respondents, and 

Ashcraft, as appellant. They are the only parties to the postjudgment 

attorney fees order on review. 

The case went to trial on a first amended verified complaint 

(Complaint) and a first amended cross-complaint (Cross-complaint). In the 

trial court, the Bayses were the plaintiffs and were included among the crossdefendants; and Ashcraft was included among the defendants and was the 

cross-complainant. 

At all relevant times, the Bayses owned and lived in a single-family 

home in La Selva Beach. 

At all relevant times, Ashcraft was a “ ‘hard money’ ” lender, doing 

business as First Foundation Funding (FFF).2 She was a licensed real estate 

salesperson, although she “held no mortgage lending license or other finance 

license that would grant her an exception to California’s usury law.” 

B. The Bayses Borrow $150,000 from Ashcraft

In early 2008, the Bayses needed money and were able to offer a lender

a second mortgage on their home as collateral for a loan. When they were 

unable to obtain a conventional loan, their mortgage loan broker turned to a 

1 The judgment in this case is final. Thus, for this background, we rely 

principally on the court’s 24-page statement of decision issued after trial. 

2 The Bayses named “First Foundation Funding Corp.” in seven of the 

nine causes of action of the Complaint. The trial court found that FFF was a 

fictitious business name of Ashcraft, through which Ashcraft “attempted to 

operate an unlicensed lending business from her home.” We refer to FFF 

only when necessary to show that Ashcraft attempted to differentiate 

between herself and her fictitious business.
4

list of “ ‘hard money lenders.’ ”3 The broker contacted Ashcraft, who 

indicated an interest and requested initial background information for her to 

evaluate the potential loan. 

In April 2008, Ashcraft told the loan broker that she had approved the 

loan, and arrangements were made to open an escrow. In fact, Ashcraft had 

no money to loan when she “approved” the loan to the Bayses. After 

searching for weeks, Ashcraft convinced her friend, Michael Rudinica, to fund 

the loan escrow with $150,000. 

Ashcraft drafted the loan documents, including the promissory note, 

deed of trust, and closing statements. In doing so, she unilaterally 

established the terms of the loan—including, initially, a payment to Ashcraft

of over $20,000 in “various ‘fees’ ” directly from escrow. The note was for a 

two-year term, provided for an annual interest rate of 15 percent, and

required monthly interest-only payments until April or May of 2010, at which 

time the Bayses would owe a balloon payment of $151,875.4 

3 The court described “ ‘hard money lenders’ ” as “private lenders . . .

willing to finance riskier loans that do not qualify for conventional mortgage 

financing.” 

4 The uncertainty of the date of the balloon payment is due to the parties 

having presented two different promissory notes at trial—exhibit No. 2 from 

the Bayses, and exhibit No. 103 from Ashcraft. These two-page documents 

are the same in all material respects except for the payee and the date of the 

balloon payment. In the note produced by the Bayses, the lender/payee is 

identified as “Michael P. Rudinica, Trustee of the Rudinica Family Trust,

dated April 16, 1999,” and the final payment is due May 15, 2010. In the 

note produced by Ashcraft, the lender/payee is identified as FFF, and the 

final payment is due April 15, 2010. 

Ashcraft testified that, after the Bayses signed the note she presented 

(ex. No. 103), she created the note presented by the Bayses (ex. No. 2). She 

did this “without the [Bayses’] permission or knowledge” solely “to aid 
5

At the close of the escrow for the $150,000 loan, after payment of

$43,055.40 in “settlement charges,” the Bayses received $106,944.60. 

C. The Bayses Attempt to Repay the Loan

The deed of trust (drafted by Ashcraft) named FCI Lender Services 

(FCI), a commercial mortgage servicing firm, as the trustee. As required, the 

Bayses made their monthly payments to FCI; and pursuant to instructions

from Ashcraft, FCI forwarded the payments to her. 

Although Ashcraft’s agreement with Rudinica required Ashcraft to 

forward the monthly payments to him, she kept them for herself. Rudinica

sued Ashcraft for fraud, received a $332,668.69 judgment against her in 2009, 

and obtained an order on the judgment which directed FCI to forward the 

Bayses’ mortgage payments directly to him. 

In 2010, Ashcraft “fell out of contact” with the Bayses and Rudinica—

including when the Bayses stopped paying FCI or when the $151,875 balloon 

payment was unpaid in 2010 (and foreclosure proceedings could have been 

commenced). Shortly thereafter, Rudinica began acting as the Bayses’ 

lender. This allowed Rudinica to receive payments directly from the Bayses,

and together he and they negotiated extensions of the date of the balloon 

payment, which allowed the Bayses to continue making monthly interestonly payments to Rudinica through some date in 2014. By the end of 2013, 

the Bayses had paid approximately $133,287.50 in interest on the note. 

Mr. Rudinica in deceiving his wife as to what he (Rudinica) had done with the 

$150,000 from their family trust.” 

Ultimately, the court was unable to determine which of the two notes 

was, in the court’s words, “fraudulent, created for the purpose of deception,” 

or “fake.” There is no issue on appeal related to the genuineness of the 

promissory notes.
6

In 2015, the Bayses and Rudinica entered into a written agreement by 

which the Bayses would pay $12,000 to Rudinica in exchange for a 

reconveyance of the deed of trust. Only after escrow opened and the Bayses

funded the $12,000 did the parties learn that the lienholder—i.e., the 

beneficiary under the deed of trust—was FFF. 

Ashcraft would not cooperate when contacted on behalf of the parties to 

the escrow. Instead, she “saw an opportunity” and reached out to Rudinica

after the years of no contact, offering him $15,000 for an assignment of the 

Bayses’ loan5 and in full settlement of the $328,662.69 fraud judgment 

Rudinica had obtained against her in 2009. Rudinica accepted Ashcraft’s 

offer and backed out of the escrow, leaving the Bayses to deal with Ashcraft. 

D. The Bayses File the Underlying Action

In June 2016, the Bayses filed the underlying lawsuit. The record on 

appeal does not contain a copy of the complaint.

In February 2017, Ashcraft began nonjudicial foreclosure proceedings 

by recording a notice of default on the promissory note, indicating that the 

Bayses owed $232,954.06 on the secured loan. 

A few months later, the Bayses filed a first amended verified complaint 

(previously identified as the Complaint), alleging nine causes of action 

against Rudinica, Ashcraft, and FFF.6 The trial court described the following 

5 The requirement of an assignment “suggests that [Ashcraft] did not 

believe herself to be the actual lender on the Bays[es’] loan.” 

6 In the Complaint, the causes of action are entitled and alleged against 

the defendants as follows: first cause of action, “Cancellation of Deed of 

Trust” against Ashcraft and FFF; second cause of action, “Cancellation of 

Assignments of Deed of Trust” against Ashcraft and FFF; third cause of 

action, “Violations of the Civil Code re: The Notice of Default” against 
7

general relief sought by the Bayses: cancellation of the deed of trust, its

amendments, and the notice of default; quieting their title against these

encumbrances; and various remedies based on the determination that the 

interest rate on the note was usurious.

In response, Ashcraft filed her Cross-complaint, alleging five causes of 

action against the Bayses and a mortgage broker (Broker) who she alleged 

solicited, negotiated and/or arranged the loan to the Bayses.7 In the only 

cause of action against the Bayses, Ashcraft sought a declaration of the rights 

and duties of the Bayses and Ashcraft, as follows: “(a) That the Bayses 

signed a promissory note with the terms contained in Exhibit A” to the Crosscomplaint; “(b) That the Bayses have defaulted on their obligations under the 

promissory note and deed of trust”; “(c) That the loan was properly arranged 

Ashcraft and FFF; fourth cause of action, “Breach of Contract” against 

Rudinica, Ashcraft, and FFF; fifth cause of action, “Specific Performance to 

Compel Satisfaction and Accord” against Rudinica, Ashcraft, and FFF; sixth 

cause of action, “Quiet Title” against Ashcraft and FFF; seventh cause of 

action, “Breach of Fiduciary Duty re: Duty of Undivided Loyalty” against 

Ashcraft; eighth cause of action, “Breach of the Covenant of Good Faith and 

Fair Dealing” against Rudinica and Ashcraft; ninth cause of action, 

“Unlawful, Unfair or Fraudulent Business Practices in violation of California 

Business & Professions Code §17200” against Rudinica, Ashcraft, and FFF. 

(Some capitalization and bolding omitted.)

The Bayses tell us that “Rudinica was dismissed as a defendant before 

trial”—without further explanation or a record reference. 

7 In the Cross-complaint, the causes of action are entitled and alleged 

against the cross-defendants as follows: first cause of action, “Negligence . . .

In Brokering a Loan Beyond the Scope of Its Licenses” against the Broker; 

second cause of action, “Negligence . . . For Failure to Warn of Improperly 

Prepared Loan Documents” against the Broker; third cause of action, 

“Negligent Misrepresentation” against the Broker; fourth cause of action, 

“Equitable Indemnity” against the Broker; and fifth cause of action, 

“Declaratory Relief” against the Bayses. 
8

by [the Broker] and is exempt from the provisions of California’s usury laws”; 

“(d) That, at her option, [Ashcraft] may non-judicially foreclose upon the 

collateral under the power of sale contained in the deed of trust”; and 

“(e) That the Notice of Default recorded on or about February 6, 2017 was 

valid.” 

E. The Case Goes to Trial

Having waived jury, the parties proceeded to a court trial in October 

2018. The witnesses included Richard Bays, Ashcraft, Rudinica (by 

deposition), and two representatives of the Broker. In its statement of 

decision, the trial court ruled in part as follows. 

The Bayses received $106,944.60 in actual loan proceeds in 2008. 

Between 2008 and 2013, the Bayses made interest payments of $133,287.50. 

Without deciding which of the two promissory notes was “authentic” 

(since Ashcraft was “the effective payee” under both and the beneficiary of 

the deed of trust), the court ruled that the loan was “clearly usurious”8 and 

that none of the legal exceptions to usury applied. Accordingly, Ashcraft was 

required to “forfeit[ ] all interest,” which resulted in the application of all

interest payments to reduce the principal. (Citing Gibbo v. Berger (2004) 123 

Cal.App.4th 396, 403-404; see id. at p. 403 [“ ‘When a loan is usurious, the 

creditor is entitled to repayment of the principal sum only. He is entitled to 

no interest whatsoever.’ ”].) In addition, the court voided Ashcraft’s notice of 

8 Depending on whether the principal amount of the loan was $150,000 

or $106,944.60 and depending on whether the balloon payment was due in 

April or May of 2010, the annual interest rate was at least 15 percent and 

perhaps as high as 25 percent. In 2008 when Rudinica funded the loan, the 

legal annual rate of interest could not exceed 10 percent. (See Cal. Const., 

art. XV, § 1.)
9

default (which contended that the Bayses owed $232,954.06 as of Feb. 3,

2017). 

“Exercising its powers of equity”9 on the Complaint, the court ruled 

that, as of October 4, 2018, the Bayses owed Ashcraft $24,868.32—$18,877.22 

in principal and $5,991.10 in interest, which would continue to accrue at a 

daily rate of $3.62.10 The $24,868.32 that the Bayses owed Ashcraft was to 

be offset by any award of costs in favor of the Bayses and against Ashcraft. 

Upon receipt (or offset) of the amount owed, Ashcraft was to reconvey the 

deed of trust, to acknowledge in writing that the loan has been fully repaid, 

and to execute any other documents necessary to clear title to the Bayses’ 

home from any lien or encumbrance resulting from the loan. 

As to the Cross-complaint, the court ruled against Ashcraft on each 

cause of action. As applicable to this appeal, the court denied Ashcraft’s fifth 

cause of action for declaratory relief against the Bayses. 

9 The court’s equitable considerations were based, at least in part, on the 

following findings: “The doctrine of unclean hands applies to both matters of 

law and equity in California, and Ms. Ashcraft’s conduct constituted unclean 

hands under the law. In her activities as to the 2008 Bays Loan and 

Mr. Rudinica, she appeared to have violated numerous state laws. She 

engaged in outright deception and, in her dealings with Mr. Rudinica, 

outright fraud. She was a predatory lender and a usurer. Her attempt to 

gain usurious interest through foreclosure was likely both oppressive and 

malicious. She admitted to creating a false promissory note in order to 

deceive a third party (Mrs. Rudinica), a clear violation of the real estate 

salesperson[’s] code of ethics, regardless of whether it was criminal 

forgery. . . . All of that weighed on the equities of the matter.” 

10 October 4, 2018, was the last day of presentation of evidence at trial. 

On that date, the parties stipulated to these dollar amounts in the event the 

court ruled that the loan was usurious. 
10

In closing, as between the Bayses and Ashcraft, for purposes of 

statutory costs (Code Civ. Proc., § 1032), the court deemed the Bayses to be 

the prevailing parties on both the Complaint and the Cross-complaint.11 

In July 2019, the court entered a judgment consistent with its 

statement of decision. 

F. The Court Awards the Bayses Attorney Fees in a Postjudgment Order

In postjudgment proceedings, the Bayses filed a motion for attorney 

fees and costs pursuant to section 1717 and Code of Civil Procedure 

sections 1021 and 1032. 

Relying on the broad unilateral attorney fees provisions in both the 

promissory note and the deed of trust (drafted by Ashcraft), the Bayses

requested fees for both contract and noncontract claims.12 The Bayses

acknowledged that they did not prevail on all of the claims, arguing instead 

that the results of the litigation were “ ‘mixed,’ ” and overall they (the Bayses) 

recovered the “ ‘greater relief.’ ” 

11 On the Cross-complaint, as between Ashcraft and the Broker, the court 

deemed the Broker to be the prevailing party for purposes of statutory costs 

(Code Civ. Proc., § 1032). 

12 In both notes (trial ex. Nos. 2 and 103), the Bayses agreed as follows: 

“If the Note Holder has required [the Bayses] to pay immediately in full as 

described above [i.e., following default], the Note Holder will have the right to 

be paid back for all it’s [sic] costs and expenses to the extent not prohibited by 

law; those expenses include, for example, reasonable attorney’s fees.”

In the deed of trust, the Bayses agreed: “To appear in and defend any 

action or proceeding purporting to affect the security hereof or the rights or 

powers of [FFF] or [FCI]; and to pay all costs and expenses, including cost of 

evidence of title and attorney’s fees in a reasonable sum, in any such action or 

proceeding in which [FFF] or [FCI] may appear, and in any suit brought by 

[FFF] to foreclose this Deed.” 
11

Ashcraft opposed the motion, contending that, based on the specifics of 

the mixed results at trial, there was no prevailing party. Alternatively, 

Ashcraft argued that the Bayses were not entitled to an award of fees 

incurred in connection with the noncontract claims and that, in any event,

the Bayses did not present sufficiently detailed time records to allow an 

allocation of services between the contract and noncontract claims. 

The Bayses replied to Ashcraft’s opposition, principally emphasizing 

that all of the claims in the case were “ ‘on the contract’ ” for purposes of 

section 1717, even if not alleged as contract claims. 

Following oral argument, in a written order filed in December 2019, the 

trial court awarded the Bayses $107,605.20, which was the full amount of 

attorney fees they claimed. Ashcraft timely appealed from this order. 

II. DISCUSSION

Based on the unilateral attorney fees provisions in the note and in the 

deed of trust, Ashcraft contends the trial court erred in awarding

section 1717 attorney fees. She argues first that, based on the mixed results 

at trial, the court abused its discretion in determining the Bayses to be the 

prevailing parties. Next, she argues that the reciprocity provided by 

section 1717 to unilateral attorney fees provisions does not apply here, 

because section 1717 applies only to contract claims and the court awarded 

the Bayses fees for noncontract claims.

As we explain, Ashcraft has not met her burden of establishing 

reversible error. The trial court did not abuse its discretion, and the two 

noncontract causes of action at issue on appeal are “on the contract” as that 

phrase is interpreted and applied in section 1717 proceedings.

“Under the American rule, each party to a lawsuit ordinarily pays its 

own attorney fees.” (Mountain Air Enterprises, LLC v. Sundowner Towers, 
12

LLC (2017) 3 Cal.5th 744, 751 (Mountain Air).) This rule is codified in Code 

of Civil Procedure section 1021,13 which also “permits parties to ‘ “contract 

out” of the American rule’ by executing an agreement that allocates attorney 

fees.” (Mountain Air, at p. 751.) “ ‘ “Parties may validly agree that the 

prevailing party will be awarded attorney fees incurred in any litigation 

between themselves, whether such litigation sounds in tort or in contract.” ’ ” 

(Ibid.) Contracting parties may also “limit the recovery of fees only to claims 

arising from certain transactions or events, or award them only on certain 

types of claims.” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809,

818 (Brown Bark).)

As an express statutory exception to Code of Civil Procedure 

section 1021, section 1717, subdivision (a) authorizes an award of attorney 

fees in any action “on a contract.”14 (Blickman Turkus, LP v. MF Downtown 

Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894 (Blickman Turkus).)

“ ‘ “On review of an award of attorney fees after trial, the normal 

standard of review is abuse of discretion. However, de novo review of such a 

trial court order is warranted where the determination of whether the 

13 Code of Civil Procedure section 1021 provides: “Except as attorney’s 

fees are specifically provided for by statute, the measure and mode of 

compensation of attorneys and counselors at law is left to the agreement, 

express or implied, of the parties; but parties to actions or proceedings are 

entitled to their costs, as hereinafter provided.”

14 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.” (Italics added.)
13

criteria for an award of attorney fees and costs in this context have been 

satisfied amounts to statutory construction and a question of law.” ’ ” 

(Mountain Air, supra, 3 Cal.5th at p. 751.) The appellant has the burden of 

establishing reversible error in an appeal from an order awarding 

section 1717 fees on a contract. (Dieckmeyer v. Redevelopment Agency of 

Huntington Beach (2005) 127 Cal.App.4th 248, 260.)

A. Prevailing Party “on the Contract”

Ashcraft argues the trial court erred in determining that the Bayses

were the prevailing parties on the contract for purposes of section 1717, 

subdivision (a). As we explain, the court did not abuse its discretion in 

determining that, overall, the Bayses received the greater relief on the 

contract claims.

1. Law

Under section 1717, the prevailing party in an action to enforce a 

contract is entitled to reasonable attorney fees when the contract provides for 

such award. (§ 1717, subd. (a).) The role of the trial court is to “determine 

who is the party prevailing on the contract for purposes of this section . . . .” 

(§ 1717, subd. (b)(1).) Where, for example, a party obtains a “ ‘simple, 

unqualified win’ ” on the contract, the court “ha[s] no discretion to deny . . .

attorney fees under section 1717 by finding, expressly or impliedly, that there 

was no party prevailing on the contract.” (Hsu v. Abbara (1995) 9 Cal.4th 

863, 877 (Hsu).) However, “[i]f neither party achieves a complete victory on 

all the contract claims, it is within the discretion of the trial court to 

determine which party prevailed on the contract or whether, on balance,

neither party prevailed sufficiently to justify an award of attorney fees.” 

(Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.)
14

In Hsu, supra, 9 Cal.4th at page 876, our Supreme Court established 

the procedure for determining whether there is a “party prevailing on the 

contract” for purposes of section 1717, subdivision (b)(1): “[T]he trial court is 

to compare the relief awarded on the contract claim or claims with the 

parties’ demands on those same claims and their litigation objectives as 

disclosed by the pleadings, trial briefs, opening statements, and similar 

sources. The prevailing party determination is to be made only upon final 

resolution of the contract claims and only by ‘a comparison of the extent to 

which each party ha[s] succeeded and failed to succeed in its contentions.’ ”

In determining litigation success, the trial court “should respect substance 

rather than form, and to this extent should be guided by ‘equitable 

considerations.’ ” (Hsu, at p. 877.)

In reviewing the trial court’s determination of a prevailing party for an 

abuse of discretion (Mountain Air, supra, 3 Cal.5th at p. 751; Blickman 

Turkus, supra, 162 Cal.App.4th at p. 894 [“The trial court exercises a 

particularly ‘wide discretion’ in determining who, if anyone, is the prevailing 

party for purposes of section 1717”]), a section 1717 attorney fees award on a 

contract “ ‘will not be overturned in the absence of a manifest abuse of 

discretion, a prejudicial error of law, or necessary findings not supported by 

substantial evidence’ ” (Blickman Turkus, at p. 894). 

2. Analysis

Ashcraft argues that the trial court abused its discretion both by 

applying an incorrect legal standard and by finding that the Bayses were the 

prevailing parties based on the evidence presented. We are not persuaded.

a. Legal Standards Applied

With regard to the legal standard applied, Ashcraft first contends that, 

in determining that the Bayses were the prevailing parties for purposes of 
15

section 1717, the court improperly relied on its ruling that the Bayses were 

the prevailing parties for purposes of Code of Civil Procedure section 1032. 

In both the statement of decision and the judgment, the court ruled 

that, for purposes of Code of Civil Procedure section 1032, the Bayses were 

the prevailing parties on the Complaint and the Cross-complaint. In both the 

statement of decision and the judgment, the court expressly declined to rule 

on any section 1717 issue without a noticed motion.15

The order granting the Bayses’ attorney fees motion reflects that “the 

Judgment of this court stated that the BAYS[ES] were the prevailing parties

— as to each and every cause of action on the Complaint — as well as to each 

cause of action on the Cross-Complaint” for purposes of Code of Civil 

Procedure section 1032. (Emphasis in original.) Contrary to the premise of 

Ashcraft’s argument, however, the order does not grant relief based on the 

prior award of section 1032 costs. 

Moreover, given the standard to be applied, the court’s statement fully 

supports the ultimate award, since “the court cannot ignore [Code of Civil 

Procedure section ]1032 . . . for purposes of . . . [section ]1717 fee awards.” 

(Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter 

Group 2021) ¶ 17:891, p. 17-192.) We acknowledge (as argued by Ashcraft) 

that, just because a party is determined to be a prevailing party for purposes 

of costs under Code of Civil Procedure section 1032, that party is “not 

necessarily” the prevailing party for purposes of an award of attorney fees on 

a contract under section 1717. (Zintel Holdings, LLC v. McLean (2012) 209 

Cal.App.4th 431, 438, fn. 1; see Goodman v. Lozano (2010) 47 Cal.4th 1327, 

15 The court also required that the parties meet and confer before filing 

any such motion for attorney fees. 
16

1335, fn. 3 [noting differences in definition of “prevailing party” in the two 

statutes].) However, “generally no award of attorney fees as ‘an element of 

the costs of suit’ under . . . section 1717 can be made to a litigant who has not 

also been determined to be the prevailing party under [Code of Civil 

Procedure] section 1032.” (Zintel Holdings, at p. 438, fn. 1; see Goodman, at 

pp. 1335, fn. 3, 1338-1339.) Here, before awarding section 1717 fees to 

the Bayses, the court did nothing more than state that it had already made a 

Code of Civil Procedure section 1032 costs award in favor of the Bayses.

Ashcraft next criticizes the trial court’s legal analysis for failing to 

compare “all of the specific adjudications it made in . . . the Judgment . . .

with the parties’ litigation objectives.” (See Hsu, supra, 9 Cal.4th at p. 877, 

quoted ante.) Ashcraft assumes the court failed to analyze the issue as 

required by Hsu based solely on the fact that, in the order granting the 

motion, the court only gave three examples of how Ashcraft did not meet her 

litigation objectives and the Bayses did.16 Ashcraft’s criticism is unfounded. 

The judge who ruled on the Bayses’ motion was the same judge who 

tried the case. (See In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 578 

[in analyzing an exercise of discretion under § 1717, consideration should be 

given to the fact that the judge “has handled th[e] litigation from its 

commencement”].) In addition, the issues were fully briefed by the parties,

16 In its order, the court “note[d]”: “ASHCRAFT’s Notice of Default was 

declared void and was cancelled”; Ashcraft sought $232,954.06, but was 

awarded “a mere $24,868.32 on the note, roughly 11% of the amount sought”; 

and rather than “the $50,000.00 in interest ASHCRAFT sought,” the court 

awarded “a mere $3.62 in interest — per day,” which the court calculated to 

be $1,371.98 or “less than 3% of the amount sought.” 
17

both at the start of the trial and before closing arguments.17 In any event, in 

section 1717 proceedings, “[t]he court [i]s not required to explain its rationale 

for the final fee award absent a request for a statement of decision” (Tobacco 

Cases I, at p. 589)—which Ashcraft did not make here. We presume the 

court’s order is correct (Ketchum, supra, 24 Cal.4th at p. 1140), and Ashcraft’s 

desire—expressed for the first time on appeal—that the court make detailed 

findings is not an affirmative showing of reversible error.18 Contrary to 

Ashcraft’s unfounded speculation as to the trial court’s reasoning and 

consistent with our presumption on appeal, “[w]e have no reason to doubt 

that the superior court conducted an independent assessment of the evidence 

presented.” (Ibid.)

For the foregoing reasons, Ashcraft did not meet her burden of 

establishing an abuse of discretion based on a prejudicial error of law.

17 However, we do not know what counsel argued either during the 

closing arguments or at the hearing on the Bayses’ motion, since Ashcraft did 

not provide a complete reporter’s transcript or a settled statement of these 

proceedings. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 (Ketchum) 

[even without a court reporter, Ashcraft should have augmented the record 

with a settled statement].) “ ‘It is the burden of the party challenging the fee 

award on appeal to provide an adequate record to assess error.’ ” (Id. at 

pp. 1140-1141.) 

18 In this regard, Ashcraft compares seven examples of the “Relief 

the Bays[es] Sought at Trial” with the “Adjudication in [the] Judgment” and 

two examples of the “Relief Ms. Ashcraft Sought at Trial” with the 

“Adjudication in [the] Judgment.” (Bolding and emphasis omitted.) 

Ashcraft’s presentation is nothing more than her suggestion that these 

examples—at least three of which strongly favor the Bayses—are more 

persuasive than those the trial court “note[d]” in its order.
18

b. Finding of Prevailing Party

Suggesting that, had the court “properly compared all its adjudications 

to the parties’ litigation objectives,” Ashcraft argues that “the court should 

have found Ms. Ashcraft to be the prevailing party for purposes of 

Section 1717” or “at a minimum . . . [made] a determination of no prevailing 

party.” This argument is nothing more than a substantial evidence 

contention that, if the court had “properly” weighed the evidence in favor of 

Ashcraft’s position, then the court would have made a different finding. 

In support of her position, Ashcraft focuses exclusively on the 

adjudications and litigation objectives that weighed in her favor. Such a 

presentation is not helpful. Our appellate review for substantial evidence is 

limited to a determination of whether the “ ‘necessary findings’ ” are 

supported by substantial evidence (Blickman Turkus, supra, 162 Cal.App.4th

at p. 894)—not, as argued by Ashcraft, whether the record contains 

substantial evidence that would support a different finding. Indeed, in 

conducting our substantial evidence review, “the evidence most favorable to 

[the ruling on appeal] must be accepted as true and conflicting evidence must 

be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 

118 (Campbell), italics added; accord, Howard v. Owens Corning (1999) 72 

Cal.App.4th 621, 631 (Howard) [“we will look only at the evidence and 

reasonable inferences supporting the successful party, and disregard the 

contrary showing” (italics added)].) That is because we determine only

“ ‘whether there is any substantial evidence, contradicted or uncontradicted, 

which will support the [finding actually made].’ ” (Western States Petroleum 

Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) 

For these reasons, “the appellant is required to provide a summary of

all of the evidence, not merely his or her own evidence” (Carrington v. 
19

Starbucks Corp. (2018) 30 Cal.App.5th 504, 518, italics added); and, for the 

evidence that supports the challenged finding, the appellant “ ‘must . . . show 

how and why it is insufficient’ ” (Schmidlin v. City of Palo Alto (2007) 157 

Cal.App.4th 728, 738, original italics). Where the appellant fails to make a 

sufficient presentation on appeal, i.e., “ ‘[w]here a party presents only facts 

and inferences favorable to his or her position, the “contention that the 

findings are not supported by substantial evidence may be deemed 

waived.” ’ ” (Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 391.) 

Here, because Ashcraft focuses only on the results at trial that she believes 

favored her litigation goals (without attempting to establish a lack of 

substantial evidence to support a finding that the Bayses achieved their 

litigation goals), Ashcraft forfeited appellate review of this substantial 

evidence review.

In any event, even if we were to reach the substantial evidence issue 

(in the context of our review of the ruling for abuse of discretion), the result 

would be no different. Having independently reviewed the Complaint, the 

Cross-complaint, the parties’ trial briefs, counsel’s opening statements, the

parties’ closing argument briefs, and the statement of decision—and

disregarding evidence that supports a finding other than the Bayses are the 

prevailing parties for purposes of section 1717 (Campbell, supra, 32 Cal.3d at 

p. 118; Howard, supra, 72 Cal.App.4th at p. 631)—we would have no 

difficulty concluding that substantial evidence of the adjudications and 

litigation objectives supports the court’s finding that the Bayses are the 

prevailing parties. Indeed, the three findings expressly noted in the order 

granting the Bayses’ section 1717 motion set forth at footnote 16, ante, 

combined with the Bayses’ litigation goal and adjudication quieting title to 

the property in their favor, are more than substantial evidence to support the 
20

finding that, for purposes of section 1717, the Bayses were the prevailing 

parties “on the contract.”19

For the foregoing reasons, Ashcraft did not meet her burden of 

establishing an abuse of discretion based on a lack of substantial evidence to 

support the trial court’s finding of the prevailing party.

B. Claims “on the Contract”

Ashcraft argues that the trial court erred in awarding section 1717 

attorney fees to the Bayses for their attorney’s services related to the “tort 

and non-contract claims.” More specifically, she contends that, pursuant to 

section 1717 and the language of the attorney fees provisions at issue, 

the Bayses are not entitled to recover attorney fees for professional services 

related to two specific causes of action in the Complaint: (1) breach of 

fiduciary duty; and (2) unlawful, unfair, or fraudulent business practices in 

violation of Business and Professions Code section 17200. She contends that, 

because these causes of action do not contain contract claims, the mutuality 

of remedy provision of section 1717—which only applies to an “action on a 

contract”—is inapplicable. (Citing Brown Bark, supra, 219 Cal.App.4th 809; 

19 In briefing and at oral argument, Ashcraft emphasized the opinion

Marina Pacifica Homeowners Assn. v. Southern California Financial Corp.

(2018) 20 Cal.App.5th 191. In Marina Pacifica, in exercising its discretion, 

the trial court found there was no prevailing party for section 1717 purposes. 

(Marina Pacifica, at p. 200.) However, Marina Pacifica does not provide 

guidance in this case, since the appellate court merely ruled that, based on 

the evidence and argument in that case, the trial court acted within its 

discretion in finding there was no prevailing party on the contract. (Id. at 

pp. 202-207.) The appellate court did not suggest that the trial court was 

required to exercise its discretion the way it did or that the trial court would 

have abused its discretion had it ruled otherwise.
21

Moallem v. Coldwell Banker Com. Group (1994) 25 Cal.App.4th 1827

(Moallem).) 

As we explain, based on our de novo review, the trial court did not err 

in concluding that these two causes of action were “on the contract,” as that 

phrase is applied in determining a section 1717 award of attorney fees. 

1. Law

Section 1717 was enacted “to establish mutuality of remedy . . . and to 

prevent the oppressive use of one-sided attorney fees provisions.” (PLCM 

Group v. Drexler (2000) 22 Cal.4th 1084, 1090-1091; see Santisas v. Goodin

(1998) 17 Cal.4th 599, 610 [“The primary purpose of section 1717 is to ensure 

mutuality of remedy for attorney fee claims under contractual attorney fee 

provisions.”]; Brown Bark, supra, 219 Cal.App.4th at p. 820 [§ 1717’s “ ‘only 

effect is to make an otherwise unilateral right to attorney fees reciprocally 

binding upon all parties to actions to enforce the contract.’ ”].) Section 1717, 

subdivision (a) authorizes awards of attorney fees in “ ‘any action on a 

contract.’ ” (See Blickman Turkus, supra, 162 Cal.App.4th at p. 893, fn. 11.) 

In this context, “California courts liberally construe the term ‘on a 

contract’ ”; thus, “ ‘ “[a]s long as the action ‘involve[s]’ a contract, it is ‘ “on 

[the] contract” ’ within the meaning of section 1717.” ’ ” (Yoon v. Cam IX 

Trust (2021) 60 Cal.App.5th 388, 393 (Yoon), citing and quoting Blickman 

Turkus, supra, 162 Cal.App.4th at p. 894.) “Any action that is based on a 

contract is an action on that contract regardless of the relief sought.” (Brown 

Bark, supra, 219 Cal.App.4th at p. 821, italics added.) Because “ ‘it is 

irrelevant if the fees were incurred offensively or defensively[,] . . . fees 

should be awarded to the extent that the action in fact is an action to 

enforce—or avoid enforcement of—the specific contract.’ ” (Yoon, at p. 393.)
22

In Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174

(Kangarlou), the purchaser of a home successfully sued the escrow holder for 

breach of fiduciary duty and, as the prevailing party, sought section 1717 

attorney fees under an attorney fees provision in the escrow contract. (Id. at 

pp. 1176-1177.) Reversing the trial court’s denial of the requested fees, the 

appellate court remanded with directions that the trial court determine an 

appropriate award. (Id. at p. 1180.) Quoting established law from our court, 

Kangarlou instructs: “ ‘Whether an action is based on contract or tort 

depends upon the nature of the right sued upon, not the form of the pleading 

or relief demanded. If based on breach of promise it is contractual; if based 

on breach of a noncontractual duty it is tortious. [Citation.] If unclear the 

action will be considered based on contract rather than tort. [Citation.] [¶] 

In the final analysis we look to the pleading to determine the nature of 

plaintiff’s claim.’ ” (Id. at pp. 1178-1179, quoting Arthur L. Sachs, Inc. v. City 

of Oceanside (1984) 151 Cal.App.3d 315, 322.)

In Kachlon v. Markowitz (2008) 168 Cal.App.4th 316 (Kachlon), for 

example, the causes of action at issue in the section 1717 proceedings 

involved a declaration of rights, an injunction, and a ruling quieting title in 

residential real property. (Id. at p. 346.) Despite the equitable nature of this 

relief, the appellate court concluded that the causes of action were 

nonetheless “ ‘on the contract’ ” for purposes of section 1717, since: (1) the 

requested declaration was to cancel a promissory note for the purchase of the 

property; (2) the requested injunction was to enjoin a nonjudicial foreclosure 

on the deed of trust that secured the promissory note on the property; and 

(3) the requested clear title was to the property subject to the deed of trust. 

(Id. at pp. 347-348.) 
23

As we introduced ante, the trial court abuses its discretion if it applies 

the wrong law. (Blickman Turkus, supra, 162 Cal.App.4th at p. 894.) In this 

regard, the trial court’s determination of the legal basis for an award of 

attorney fees is a question of law, which we review de novo. (Mountain Air, 

supra, 3 Cal.5th at p. 751.)

2. Analysis

As required, we first look to the pleadings to determine the nature of 

the action. (Kangarlou, supra, 128 Cal.App.4th at pp. 1178-1179.) A review 

of the Complaint and the Cross-complaint leads to the inescapable conclusion 

that the sole purposes of the underlying litigation were to determine 

(1) whether (and, if so, how much) the Bayses owed Ashcraft on the 2008 

promissory note, and (2) whether Ashcraft could foreclose on the deed of trust 

the Bayses provided to secure their payment of the 2008 promissory note. 

Thus, for purposes of section 1717, this action appears to be on a contract

(actually, on two contracts—i.e., the note and the deed of trust). We next 

turn to the specific causes of action which Ashcraft contends are not on a 

contract.

In their breach of fiduciary duty cause of action, the Bayses alleged 

that Ashcraft acted as their “mortgage broker with regard to arranging their 

loan and owe[d] them a fiduciary duty to act with undivided loyalty with 

regard to their loan.” (Italics added.) In their unfair business practices cause 

of action, the Bayses alleged that Ashcraft “unlawfully arranged a usurious 

loan to [the Bayses] (‘loan-sharking’) and then worked to obtain a Deed of 

Trust purportedly allowing [her and FFF] to foreclose upon [the Bayses’]

home.” (Italics added.) Based on these allegations, under the standards set 

forth ante regarding the application of section 1717 (Yoon, supra, 60 

Cal.App.5th at p. 393; Brown Bark, supra, 219 Cal.App.4th at p. 821; 
24

Blickman Turkus, supra, 162 Cal.App.4th at p. 894), the Bayses’ causes of 

action for breach of fiduciary duty and for unfair business practices are on a 

contract. (See Kachlon, supra, 168 Cal.App.4th at pp. 346-347.)

In Yoon, supra, 60 Cal.App.5th 388, for example, the borrower sued the 

lender in an attempt to prevent the lender from exercising its nonjudicial 

foreclosure rights under a deed of trust given to secure payment of the 

promissory note for the loan. (Id. at p. 391.) The parties went to trial on two 

of the borrower’s tort causes of action—negligence and fraud. (Id. at pp. 391, 

393.) The appellate court affirmed the trial court’s award of section 1717 

attorney fees in favor of the lender, despite no contract claim by the borrower, 

reasoning: “[The borrower’s] tort claims ‘directly relate to enforcement of the 

note through foreclosure,’ ” since, by his complaint, the borrower “sought to 

avoid his obligations under the note by making claims [the lender] acted 

negligently and fraudulently during the foreclosure process.” (Id. at p. 393.)

Although the prevailing party in the present action (the borrower) is 

different than in Yoon, supra, 60 Cal.App.5th 388, we find persuasive the 

analysis, reasoning, and holding in Yoon. As the trial court ruled here, 

the Bayses’ causes of action for breach of fiduciary duty and unfair business 

practices “pertain to enforcing the contractual rights between the parties as 

to the Deed of Trust and/or promissory note.” Accordingly, the trial court did 

not err in ruling that these two causes of action “are ‘on the contract’ ” for 

purposes of section 1717.

We are not persuaded by Ashcraft’s argument to the contrary.

Ashcraft correctly cites Brown Bark, supra, 219 Cal.App.4th at 

pages 820, 827-829, and Moallem, supra, 25 Cal.App.4th at pages 1831-1833, 

for the proposition that tort and other noncontract claims are not subject to 

section 1717, including its reciprocity provision. However, as we explain, 
25

Brown Bark and Moallem are distinguishable: In those cases, the tort or 

other noncontract claims were not “on the contract” for purposes of an 

application of the reciprocity provision in section 1717, subdivision (a). By 

contrast, here (as we just concluded) the Bayses’ causes of action for breach of 

fiduciary duty and unfair business practices are “on the contract” for 

purposes of section 1717.

In Moallem, supra, 25 Cal.App.4th 1827, the tenant cross-complained 

against his real estate agents for breach of contract, negligence, and breach of 

fiduciary duty. (Id. at pp. 1828-1829.) The jury returned a verdict in favor of 

the tenant for negligence and breach of fiduciary duty and in favor of the 

agents on the claim for breach of the real estate brokerage agreement. (Id. at 

p. 1830.) The attorney fee provision in the agreement was unilateral, 

providing that only the agents could recover attorney fees and only if the 

claim “related to” the contract. (Ibid.) The appellate court affirmed the trial 

court’s denial of an award of section 1717 attorney fees to the prevailing 

party tenant. (Moallem, at p. 1833.) The attorney fee provision in the 

agreement was broad enough to include a tort action. (Id. at p. 1831.) 

However, the provision was not reciprocal; and since section 1717’s 

reciprocity provision does not apply to tort claims—even tort claims “related 

to” the contract—the tenant was not entitled to recover his attorney fees on 

the causes of action for negligence and breach of fiduciary duty. (Moallem, at 

p. 1833.) In contrast to the present appeal, in Moallem no issue or argument 

was raised with regard to whether the tort claims were “on the contract” for 

purposes of an application of the reciprocity provision in section 1717, 

subdivision (a). (See Brown Bark, supra, 219 Cal.App.4th at p. 828 [“Because 

the claims at issue [in Moallem] were not on the contract, the plaintiff 

[tenant] could not rely on section 1717’s reciprocity principles to make the 
26

unilateral fee provision reciprocal” (italics added)].)

In Brown Bark, supra, 219 Cal.App.4th 809, the plaintiff lender sued 

the defendant borrower’s former employee and her new corporation in an 

effort to recover funds that were owed by the former employer on a line of 

credit that the lender had extended. (Id. at p. 814.) Since the new 

corporation was not a party to the contracts that created the line of credit 

that was in default, the lender named the new corporation on a successor 

liability theory in causes of action for breach of contract. (Ibid.) The lender

also named the former employee and the successor corporation in causes of 

action for conversion and fraud related to the line of credit. (Ibid.) Following 

trial, the court entered judgment in favor of the former employee and the 

successor corporation on all three causes of action. (Ibid.) The trial court

later denied their section 1717 motion for attorney fees under unilateral 

provisions (to the benefit of the lender) in the contracts evidencing the line of 

credit. (Brown Bark, at p. 814.) 

The appellate court affirmed as to the tort claims and reversed as to the 

breach of contract claims. In ruling that the successor corporation was 

entitled to a section 1717 fee award on the contract claims, the court 

reasoned:

“Civil Code section 1717 makes an otherwise unilateral 

attorney fee provision reciprocal and entitles a 

noncontracting party to recover contractual attorney fees 

when it defeats a contract-based cause of action that would 

have made the noncontracting party liable for contractual 

attorney fees had it lost. [The lender] would have 

recovered its attorney fees if it had prevailed on its 

successor liability theory against [the successor

corporation] because the line of credit contracts made their 

fee provisions binding on the contracting parties’ successors. 

Section 1717 therefore allows [the successor corporation] to 

recover its attorney fees because it defeated claims for 
27

breach of the line of credit contracts that would have 

exposed [the successor corporation] to attorney fee liability 

had it lost.” (Brown Bark, supra, 219 Cal.App.4th at 

pp. 814-815, fn. omitted, italics added.)

By contrast, since “[s]ection 1717 only applies to contract causes of action,” 

the trial court properly denied the successor corporation’s fees “on the tort

causes of action.”20 (Brown Bark, at p. 815.)

With no discussion of the Brown Bark court’s analysis or the 

application of section 1717 to noncontract causes of action “on the contract,”

Ashcraft relies only on the following single statement in the opinion: 

“ ‘Section 1717’s reciprocity principles . . . make a unilateral attorney fee 

provision reciprocal only on contract claims; they do not make a unilateral 

provision reciprocal on tort claims.[’] ” (Quoting Brown Bark, supra, 219 

Cal.App.4th at p. 828.) However, unlike the present appeal, the successor 

corporation in Brown Bark did not argue that it was entitled to recover its 

attorney fees on the theory that the tort causes of action were “on the 

contract” for purposes of section 1717’s reciprocity provision. For this reason, 

Brown Bark’s generic statement about section 1717 not applying to tort 

causes of action is neither controlling nor persuasive. (See B.B. v. County of 

Los Angeles (2020) 10 Cal.5th 1, 23 [“ ‘ “cases are not authority for

propositions not considered” ’ ”].)

20 The appellate court also affirmed the denial of all fees to the former 

employee. (Brown Bark, supra, 219 Cal.App.4th at p. 815.) Because she was 

not a party to the line of credit contracts and the lender did not sue her for 

breaching those contracts, she never faced potential liability for attorney fees 

under the contracts. (Ibid.) Thus, she could not invoke the reciprocity 

provision of section 1717 to recover her fees. (Ibid.) The ruling as to the 

former employee in Brown Bark does not affect any issue in the present 

appeal, since (unlike the former employee in Brown Bark) the Bayses were

signatories to the contracts at issue. 
28

For the foregoing reasons, Ashcraft did not meet her burden of 

establishing that the trial court erred in ruling that the Bayses’ causes of 

action for breach of contract and for unlawful, unfair, or fraudulent business 

practices in violation of Business and Professions Code section 17200 were 

“ ‘on the contract’ ”—where “the contract” was the note and/or deed of 

trust associated with Ashcraft’s usurious loan to the Bayses.21

III. DISPOSITION

The December 2019 order granting the Bayses’ motion for attorney fees 

is affirmed. The Bayses are entitled to their costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

21 Because we conclude that the trial court properly awarded the Bayses

attorney fees on the two noncontract causes of action at issue, there is no 

issue as to an allocation of professional services for claims on the contract. 

Thus, we do not reach Ashcraft’s appellate argument that the Bayses failed to

present sufficiently detailed time records to allow an allocation of services 

between the contract and noncontract claims.