Filed 9/12/22 Cho v. Patel CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

NAM MIN CHO,

Plaintiff and Appellant,

v.

BALUBH AI G. PATEL,

Defendant and Respondent. B312306

(Los Angeles County Super. Ct. No. 19STCV28254)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Law Offices of Da vid Won, David D. Won and David Brand for Plaintiff and Appellant. Frank A. Weiser for Defendant and Respondent.2 I. INTRODUCTION

Plaintiff and appellant Nam Min Cho prevailed on a summary judgment motion in a quiet title action against
defendant and re spondent Balubhai Patel, as trustee of the
Balubhai Patel Revocable Trust Date d March 14, 2007, as to certain real property. P laintiff then filed a motion for attorney fees pursuant to an asserted attorney fees provision in the deed of trust on the proper ty and Civil Code section 1717 1

. The trial court denied the motion and plaintiff appeals. We affirm

.

II. DISCUSSION 2

Plaintiff contends the trial court erred when it ruled that the deed of trust did not contain an attorney fees provision. We disagree

.

A. Standard of Review

Ordinarily, we review a trial court’s ruling on an attorney
fees motion for an abuse of discretion . ( Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213.) When, h owever, the

1 All further statutory references are to the Civil Code unless otherw ise noted

.

2 Because the only issue on appeal concerns the interpretation of an attorney fees provision in a deed of trust, we omit a recitation of the facts underlying plaintiff’s action against defendant.3

entitlement to attorney fee s requires a legal det ermination, we review the court’s ruling de novo. ( Ibid. )

B. Analysis

“A party may not recover attorney fees unless expressly authorized by statute or contract. (Code Civ. Proc., § 1021 . . . .) In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees. [Citation.]” ( Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818.)
S ection 1717, subdivision (a) provides, in part, “In any action on a contract, where the co ntract 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.” S ection 1717, subdivision (b)(1) defines “prevailing party” as “the party who recovered a greater relief in the action on the contract.” “The primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions. ” ( Santisas v. Goodin (1998) 17 Cal.4th 599, 610.) That is, section 1717 “ makes an otherwise unilateral right [to attorney fees] reciprocal, thereby ensuring mutuality of remedy

. . . . ” (

Id

. at pp. 610

– 611. ) After the trial court granted plaintiff ’s summary judgment motion, plaintiff filed a motion for attorney fees. He contended he was the pr evailing party in an action to enforce the terms of4

the deed of trust and thus was entitled to recover his attorney
fees under the deed of trust ’ s asserted attorney fees provision and
section 1717 . That asserted attorney fees provision states , in part :

“ Attorneys ’ Fees; Expenses

. If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys ’ fees at trial and upon any appeal. W hethe r or not any court act i on is involved, and to the extent not prohibited by law, all reasonable expenses Lender
incurs that in Lender ’ s opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender ’ s att orneys ’ fees and Lender ’ s legal expenses, whether or not there is a lawsuit, including attorneys ’ fees and expenses for

. . . appeals

. . . . Trustor also will pay any court costs, in addition to all other sums provided by law. ” The trial court denied pl aintiff’s attorney fees motion

. Citing Chacker v. JPMorgan Chase Bank, N.A. (2018) 27 Cal.App.5th 351, 357 ( Chacker ) and Hart v. Clear Recon Corp. (2018) 27 Cal.App.5th 322, 327 ( Hart )

, the court ruled that the attorney fees and expenses provision in the deed of trust did not
allow the lender to recover attorney fees as a separate award from litigation and thus was not an attorney fees provision within the meaning of section 1717.
Chacker and Hart consider ed similar provision s in deeds of

trust that addre ssed attorney fees

. ( Chacker, supra

, 275

Cal.App.5th at p. 354; Hart, supra

, 27 Cal.App.5th at p. 325.)
Chacker set forth the provision, entitled “ ‘ P rotection of Lender’s Interest in the Property and Rights Under this Security
Instrument ’ ” as follows: “I n relevant part, section 9 provides: ‘If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, [or] (b) there is a legal proceeding that might significantly affect Lender’s interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or regulations)

. . . then Lender may do and pay for whatever is reasonable and appropriate to protect Lender’s interest in the Property and rights under this Security Instrument . . . . Lender’s actions can include, but are not limited to . . . appearing in court . . . and . . . paying reasonable a ttorneys’ fees to protect its interest in the Property and/or rights in the Security Instrument . . . .’ Section 9 of the trust deed further states: ‘Any amounts disbursed by
Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument. These amounts
shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.’” ( Chacker, supra

, 27 Cal.App.5 th at p. 354.)
C hacker held that the provision at issue did not authorize a court to enter an attorney fee award that obligated the plaintiff to

pay attorney fees independent of the plaintiff’s repayment obligation under the deed of trust and an associated promissory

note

. ( Chacker, supra

, 27 Cal.App.5th at p. 356.) Rather, it authorized the addition of attorney fees paid to protect the6

lender’s interest in the subject property to be added to the loan amount. (

Id. at p. 357.) Likewise, Hart held that the provision at i ssue was “not a provision that attorney’s fees ‘shall be award ed ’; it [was] , instead, a provision that attorney’s fees, like any other expenses the lender may incur to protect its interest, will be added to the secured debt.” ( Hart, supra

, 27 Cal.App.5th at p. 327.) Like the provision s at issue in Chacker and Hart , the attorney fees and expenses provision in the deed of trust here

states that “all reasonable expenses Lender incurs that in Lender’s opinion are necessary at any time for the protection of
it s interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation,
h owever subject to any limits under applicable law, Lender’s attorneys’ fees . . . .” Plaintiff argues Chacker and Hart are distinguishable because the provision s at issue in those cases did not include a
sentence similar to the first sentence of the attor ney fees and expenses provision in this case

— i.e., “If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys’ fees at trial and upon any appeal.” That sentence, plaintiff argues, is a free standing attorney fees provision.7 Reading the attorney fees and expenses provision as a whole (see § 1641 3 ), the provision permits the lender to recover attorney fees incurred to protect or enf orce its rights under the
deed of trust “[w]hether or not any court action [was] involved”

— i.e., including attorney fees incurred under the provision’s first

sentence. S uch attorney fees , however, were to “become a part of
the Indebtedness” and were not s eparately recoverable. Accordingly

, the attorney fees and expenses provision in the deed
of trust was not an attorney fees provision within the meaning of
section 1717 and the trial court did not err in denying plaintiff’s attorney fees motion

.

3 S ection 1641 provides, “The whole of a contr act is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.”8 III

. DIS POSITION

The judgment is affirmed. Defendant is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.