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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

NAM MIN CHO,

 Plaintiff and Appellant,

v.

BALUBHAI 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 David 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 respondent Balubhai Patel, as trustee of the 

Balubhai Patel Revocable Trust Dated March 14, 2007, as to 

certain real property. Plaintiff then filed a motion for attorney 

fees pursuant to an asserted attorney fees provision in the deed of 

trust on the property and Civil Code section 17171. The trial 

court denied the motion and plaintiff appeals. We affirm.

II. DISCUSSION2

Plaintiff contends the trial court erred when it ruled that 

the deed of trust did not contain an attorney fees provision. We 

disagree.

A. Standard of Review

Ordinarily, we review a trial court’s ruling on an attorney 

fees motion for an abuse of discretion. (Conservatorship of 

Whitley (2010) 50 Cal.4th 1206, 1213.) When, however, the 

1 All further statutory references are to the Civil Code unless 

otherwise noted.

2 Because the only issue on appeal concerns the 

interpretation of an attorney fees provision in a deed of trust, we 

omit a recitation of the facts underlying plaintiff’s action against 

defendant.
3

entitlement to attorney fees requires a legal determination, we 

review the court’s ruling de novo. (Ibid.)

B. Analysis

“A party may not recover attorney fees unless expressly 

authorized by statute or contract. (Code Civ. Proc., § 1021 . . . .) 

In the absence of a statute authorizing the recovery of attorney 

fees, the parties may agree on whether and how to allocate 

attorney fees. [Citation.]” (Brown Bark III, L.P. v. Haver (2013) 

219 Cal.App.4th 809, 818.)

Section 1717, subdivision (a) provides, in part, “In any 

action on a contract, where the contract specifically provides that 

attorney’s fees and costs, which are incurred to enforce that 

contract, shall be awarded either to one of the parties or to the 

prevailing party, then the party who is determined to be the 

party prevailing on the contract, whether he or she is the party 

specified in the contract or not, shall be entitled to reasonable 

attorney’s fees in addition to other costs.” Section 1717, 

subdivision (b)(1) defines “prevailing party” as “the party who 

recovered a greater relief in the action on the contract.”

“The primary purpose of section 1717 is to ensure 

mutuality of remedy for attorney fee claims under contractual 

attorney fee provisions.” (Santisas v. Goodin (1998) 17 Cal.4th 

599, 610.) That is, section 1717 “makes an otherwise unilateral 

right [to attorney fees] reciprocal, thereby ensuring mutuality of 

remedy. . . .” (Id. at pp. 610–611.)

After the trial court granted plaintiff’s summary judgment

motion, plaintiff filed a motion for attorney fees. He contended 

he was the prevailing party in an action to enforce the terms of 
4

the deed of trust and thus was entitled to recover his attorney 

fees under the deed of trust’s asserted attorney fees provision and 

section 1717. That asserted attorney fees provision states, in 

part:

“Attorneys’ Fees; Expenses. If Lender institutes any 

suit or action to enforce any of the terms of this Deed of Trust, 

Lender shall be entitled to recover such sum as the court may 

adjudge reasonable as attorneys’ fees at trial and upon any 

appeal. Whether or not any court action is involved, and to the 

extent not prohibited by law, all reasonable expenses Lender 

incurs that in Lender’s opinion are necessary at any time for the 

protection of its interest or the enforcement of its rights shall 

become a part of the Indebtedness payable on demand and shall 

bear interest at the Note rate from the date of the expenditure 

until repaid. Expenses covered by this paragraph include, 

without limitation, however subject to any limits under 

applicable law, Lender’s attorneys’ fees and Lender’s legal 

expenses, whether or not there is a lawsuit, including attorneys’

fees and expenses for . . . appeals . . . . Trustor also will pay any 

court costs, in addition to all other sums provided by law.”

The trial court denied plaintiff’s attorney fees motion. 

Citing Chacker v. JPMorgan Chase Bank, N.A. (2018) 27 

Cal.App.5th 351, 357 (Chacker) and Hart v. Clear Recon Corp.

(2018) 27 Cal.App.5th 322, 327 (Hart), the court ruled that the 

attorney fees and expenses provision in the deed of trust did not 

allow the lender to recover attorney fees as a separate award 

from litigation and thus was not an attorney fees provision 

within the meaning of section 1717.

Chacker and Hart considered similar provisions in deeds of 

trust that addressed attorney fees. (Chacker, supra, 27 
5

Cal.App.5th at p. 354; Hart, supra, 27 Cal.App.5th at p. 325.) 

Chacker set forth the provision, entitled “‘Protection of Lender’s 

Interest in the Property and Rights Under this Security 

Instrument’” as follows: “In relevant part, section 9 provides: ‘If 

(a) Borrower fails to perform the covenants and agreements 

contained in this Security Instrument, [or] (b) there is a legal 

proceeding that might significantly affect Lender’s interest in the 

Property and/or rights under this Security Instrument (such as a 

proceeding in bankruptcy, probate, for condemnation or 

forfeiture, for enforcement of a lien which may attain priority 

over this Security Instrument or to enforce laws or regulations) 

. . . then Lender may do and pay for whatever is reasonable and 

appropriate to protect Lender’s interest in the Property and 

rights under this Security Instrument . . . . Lender’s actions can 

include, but are not limited to . . . appearing in court . . . and . . . 

paying reasonable attorneys’ fees to protect its interest in the 

Property and/or rights in the Security Instrument . . . .’ Section 9 

of the trust deed further states: ‘Any amounts disbursed by 

Lender under this Section 9 shall become additional debt of 

Borrower secured by this Security Instrument. These amounts 

shall bear interest at the Note rate from the date of disbursement 

and shall be payable, with such interest, upon notice from Lender 

to Borrower requesting payment.’” (Chacker, supra, 27 

Cal.App.5th at p. 354.)

Chacker held that the provision at issue did not authorize a 

court to enter an attorney fee award that obligated the plaintiff to 

pay attorney fees independent of the plaintiff’s repayment 

obligation under the deed of trust and an associated promissory 

note. (Chacker, supra, 27 Cal.App.5th at p. 356.) Rather, it 

authorized the addition of attorney fees paid to protect the 
6

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

amount. (Id. at p. 357.)

Likewise, Hart held that the provision at issue was “not a 

provision that attorney’s fees ‘shall be awarded’; it [was], instead, 

a provision that attorney’s fees, like any other expenses the 

lender may incur to protect its interest, will be added to the 

secured debt.” (Hart, supra, 27 Cal.App.5th at p. 327.)

Like the provisions at issue in Chacker and Hart, the 

attorney fees and expenses provision in the deed of trust here 

states that “all reasonable expenses Lender incurs that in 

Lender’s opinion are necessary at any time for the protection of 

its interest or the enforcement of its rights shall become a part of 

the Indebtedness payable on demand and shall bear interest at 

the Note rate from the date of the expenditure until repaid. 

Expenses covered by this paragraph include, without limitation, 

however subject to any limits under applicable law, Lender’s 

attorneys’ fees . . . .”

Plaintiff argues Chacker and Hart are distinguishable 

because the provisions at issue in those cases did not include a 

sentence similar to the first sentence of the attorney fees and 

expenses provision in this case—i.e., “If Lender institutes any 

suit or action to enforce any of the terms of this Deed of Trust, 

Lender shall be entitled to recover such sum as the court may 

adjudge reasonable as attorneys’ fees at trial and upon any 

appeal.” That sentence, plaintiff argues, is a free standing 

attorney fees provision.
7

Reading the attorney fees and expenses provision as a 

whole (see § 16413), the provision permits the lender to recover 

attorney fees incurred to protect or enforce its rights under the 

deed of trust “[w]hether or not any court action [was] involved”—

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

sentence. Such attorney fees, however, were to “become a part of 

the Indebtedness” and were not separately recoverable. 

Accordingly, the attorney fees and expenses provision in the deed 

of trust was not an attorney fees provision within the meaning of 

section 1717 and the trial court did not err in denying plaintiff’s 

attorney fees motion.

3 Section 1641 provides, “The whole of a contract is to be 

taken together, so as to give effect to every part, if reasonably 

practicable, each clause helping to interpret the other.”
8

III. DISPOSITION

The judgment is affirmed. Defendant is awarded costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.