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Filed 7/22/16 Sese v. Wells Fargo Bank CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

DANILO SESE,

Plaintiff and Appellant,

v.

WELLS FARGO BANK N.A.,

Defendant and Respondent.

C074663

(Super. Ct. No. 

34201300144287CUWEGDS)

Appellant Danilo Sese seeks to challenge an order denying his motion for interim

attorney fees under Civil Code section 2924.12, a provision in the California Homeowner 

Bill of Rights.1 Subdivision (i) of section 2924.12 provides that “[a] court may award a 

prevailing borrower reasonable attorney’s fees and costs in an action brought pursuant to 

this section. A borrower shall be deemed to have prevailed for purposes of this 

subdivision if the borrower obtained injunctive relief or was awarded damages pursuant 

to this section.” Having secured a preliminary injunction to enjoin the foreclosure sale of 

 

1 Undesignated statutory references are to the Civil Code.
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his residential real property, Sese moved for attorney fees of $100,865. The trial court 

denied the motion on grounds section 2924.12, subdivision (i), does not provide for 

interim attorney fees. 

Sese contends the order must be reversed because section 2924.12 provides 

attorney fees to a borrower immediately after successfully obtaining a preliminary 

injunction. Respondent Wells Fargo Bank N.A. (Wells Fargo) asserts the appeal must be 

dismissed because the trial court’s order is interlocutory in nature and nonappealable

under the one final judgment rule. After the completion of briefing, we asked the parties 

to address the effect, if any, of this court’s decision in Monterossa v. Superior Court of 

Sacramento County (2015) 237 Cal.App.4th 747, 751 (Monterossa) on the present 

appeal. Sese did not file a supplemental brief. However, we have received and 

considered a supplemental brief from Wells Fargo. 

We conclude the trial court’s order is nonappealable because it is interlocutory in 

nature. Accordingly, we dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

In 2007, Sese received a $472,000 residential property loan from Wells Fargo’s 

predecessor. Starting in 2009, Sese started missing regular monthly payments on the loan 

and failed to pay taxes on the residential property. In 2012, Wells Fargo and Sese agreed 

to modify the loan under the Home Affordable Mortgage Program. However, Sese 

defaulted on the agreement shortly after it was executed. 

The California Homeowner Bill of Rights became effective on January 1, 

2013. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86, 

fn. 14 [noting name and effective date of legislation at issue in this case].) Also in 

January 2013, Wells Fargo recorded a notice of default with the Sacramento County 

Recorder. Sese requested another modification of the loan, but did not submit the 

financial documentation necessary for a modification. In May 2013, Wells Fargo 
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recorded a notice of trustee’s sale and the property was scheduled for sale on June 4, 

2013.

On May 28, 2013, Sese filed a complaint against Wells Fargo that alleged 

violations of the California Homeowner Bill of Rights. At the same time, Sese filed an 

ex parte application for a temporary restraining order. The trial court granted the 

temporary restraining order. 

On June 3, 2013, Sese filed an application for a preliminary injunction to enjoin 

the sale of the property. Wells Fargo opposed the application for preliminary injunction. 

The trial court granted the preliminary injunction based on its findings Sese “met his 

burden to demonstrate a likelihood of prevailing on the merits of his claims” and that he 

“will undoubtedly suffer great injury if his residence is sold.” The trial court ordered 

that, “[p]ursuant to . . . § 2924(a)(2), the injunction shall remain in place until the court 

determines that Wells Fargo has corrected and remedied the dual tracking allegations” 

advanced by Sese. 

As the trial court explained, Sese’s dual-tracking allegations were that “[section] 

2923.6(c) prohibits a lender from recording a notice of default or notice of sale, or 

conducting a trustee’s sale while a loan modification is pending. A lender must make a 

written determination that the borrower is not eligible for a loan modification before it 

may proceed with the foreclosure process. (. . . §2923.6(c)(1).) [Sese’s] evidence 

indicates that Wells Fargo issued the Notice of Trustee’s Sale before it issued any 

determination of his eligibility for a loan modification. This is sufficient to demonstrate 

Wells Fargo’s failure to comply with . . . §2923.6 and shift the burden to Wells Fargo to

refute [Sese’s] showing.” 

With the preliminary injunction in place, Sese moved for attorney fees as the 

prevailing party. Wells Fargo opposed the motion. During a hearing on the motion, the 

trial court raised a question about the implication of Sese’s argument fees should be 

awarded immediately after the granting of a preliminary injunction: 
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“THE COURT: So a minute ago in the last motion you were talking about how 

the greedy banks are trying to take over the situation by imposing too high a bond [to 

secure the preliminary injunction]. But here if the court’s granting of the preliminary 

injunction was improvident, and so found at trial, hypothetically, what happens to that 

money [awarded as attorney fees]?” Sese’s attorney responded Wells Fargo would be 

entitled to recoup the fees. The trial court noted the “absurd” consequence the attorney 

fee money would “keep[] floating back and forth.” The trial court denied the request for 

interim attorney fees in an order issued on August 30, 2013. Shortly thereafter, Sese filed 

a notice of appeal from the order. 

DISCUSSION

I

Appeal from Order Denying Interim Attorney Fees under Section 2924.12

Wells Fargo contends the order denying Sese’s motion for interim attorney fees 

under section 2924.12 is not an appealable order. We agree.

A.

The One Final Judgment Rule

The existence of an appealable order or judgment is a jurisdictional prerequisite 

for appellate review. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) As the California 

Supreme Court has explained, “Under California’s ‘one final judgment’ rule, a judgment 

that fails to dispose of all the causes of action pending between the parties is generally 

not appealable. (Code Civ. Proc., § 904.1, subd. (a); Morehart v. County of Santa 

Barbara (1994) 7 Cal.4th 725, 740-741 (Morehart).)” (Kurwa v. Kislinger (2013) 57 

Cal.4th 1097, 1100, fn. omitted.) A final judgment “ ‘terminates the litigation between 

the parties on the merits of the case and leaves nothing to be done but to enforce by 

execution what has been determined.’ ” (Sullivan v. Delta Air Lines, Inc. (1997) 15 

Cal.4th 288, 304, quoting Doudell v. Shoo (1911) 159 Cal. 448, 453.)
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In some instances, an order itself may be appealable. However, “[g]enerally an 

order is not a final order until the final judgment in the matter has been entered. ‘Unless 

otherwise provided by statute, an appeal lies only from a judgment that terminates the 

proceedings in the lower court by completely disposing of the matter in controversy 

[citations].’ (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 841.) [¶] 

[When] there is no final judgment . . . , the issue is whether the order from which the 

appeal has been taken fits within an exception to the one final judgment rule codified 

in [Code of Civil Procedure] section 904.1. (See Kinoshita v. Horio (1986) 186 

Cal.App.3d 959, 962-963.) A recognized exception to the ‘one final judgment’ rule is 

that an interim order is appealable if: [¶] 1. The order is collateral to the subject matter 

of the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The 

order directs the payment of money by the appellant or the performance of an act by or 

against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-

298, italics added.)

B.

Appeal from the Denial of Interim Attorney Fees

Sese’s notice of appeal was filed before a final judgment. As the trial court noted, 

a trial on the merits of the complaint might reveal the preliminary injunction was 

improvidently granted. Consequently, we consider whether the order denying the motion 

of interim attorney fees is itself appealable. Sese contends the order is appealable under 

subdivisions (6), (8), (11), and (12) of Code of Civil Procedure section 904.1. We 

disagree.

In pertinent part, Code of Civil Procedure section 904.1 provides that “(a) . . . An 

appeal . . . may be taken from any of the following: [¶] . . . [¶] (6) From an order 

granting or dissolving an injunction, or refusing to grant or dissolve an injunction. [¶] . . . 

[¶] (8) From an interlocutory judgment, order, or decree, hereafter made or entered in an 

action to redeem real or personal property from a mortgage thereof, or a lien thereon, 
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determining the right to redeem and directing an accounting. [¶] . . . [¶] (11) From an 

interlocutory judgment directing payment of monetary sanctions by a party or an attorney 

for a party if the amount exceeds five thousand dollars ($5,000). [¶] (12) From an order 

directing payment of monetary sanctions by a party or an attorney for a party if the 

amount exceeds five thousand dollars ($5,000).” Each of these subdivisions is 

inapplicable.

Subdivision (6) of Code of Civil Procedure section 904.1 is not applicable because 

Sese is not challenging the granting or denial of an injunction. He is not arguing the 

preliminary injunction should be dissolved. Instead, he contends only that attorney fees 

should be awarded. Subdivision (8) of section 904.1 does not help Sese either. Sese’s 

complaint does not seek redemption of the residential property. Instead, his only cause of 

action seeks relief under the California Homeowner Bill of Rights. He is not seeking to 

redeem the property by paying the full amount owed on the property. (E.g., Peterson v. 

State of California (1982) 138 Cal.App.3d 110, 112.) Subdivisions (11) and (12) of Code 

of Civil Procedure section 904.1 do not apply because the order does not direct payment 

of sanctions. In short, an order denying interim attorney fees under section 2924.12 is not 

included among appealable orders in Code of Civil Procedure section 904.1.

The order denying interim attorney fees is also not appealable as a collateral order. 

The order does not direct the payment of any money. Neither does it compel an act by or 

against Sese. Instead, the order represents a denial of fees that is not appealable as a 

collateral order. (Marsh v. Mountain Zephyr, Inc., supra, 43 Cal.App.4th at pp. 297-

298.)

We reject Sese’s reliance on the Second Appellate District’s decision in Moore v. 

Shaw (2004) 116 Cal.App.4th 182. In Doe v. Luster (2006) 145 Cal.App.4th 139, the 

Second District considered its earlier decision in Moore and held Moore should not be 

construed to allow an appeal from an interim attorney fee award. As the Doe court

explained, “[I]n Moore v. Shaw, supra, 116 Cal.App.4th 182, Division Three of this 
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Court considered on the merits an appeal from the trial court’s denial of the defendant’s 

special motion to strike under section 425.16 and the prevailing plaintiff’s cross-appeal 

from the trial court’s order, made concurrently with the order denying the motion, 

denying his request for attorney fees. (Moore at p. 186.) Although the court specifically 

noted that the order denying a special motion to strike itself is appealable, citing both the 

relevant subdivision of [Code of Civil Procedure] section 425.16 and section 904.1 

(Moore, at p. 186, fn. 3), it did not address whether the order denying the request for 

attorney fees, which was the subject of the cross-appeal, was also appealable. Because 

the opinion does not suggest either that the parties raised the jurisdictional issue or that 

the court considered it, Moore is not authority for [the] position that an interlocutory 

order denying a request for attorney fees under [Code of Civil Procedure] section 425.16, 

subdivision (c), is immediately appealable.” (Doe, supra, at pp. 149-150.) Thus, Moore 

does not provide authority for holding an order granting interim attorney fees is 

appealable.

We reject Sese’s reliance on Baharian–Mehr v. Smith (2010) 189 Cal.App.4th 

265. Baharian–Mehr involved an appeal from a denial of a special motion to strike. 

Because the merits of the special motion to strike were subject to review on appeal, the 

Baharian–Mehr court also considered the propriety of the attorney fees granted to the 

party that had opposed the motion. (Id. at pp. 274–275.) Baharian–Mehr did not 

consider whether an attorney fee order is appealable by itself. (Ibid.) Thus, Baharian–

Mehr does not undermine our conclusion that the order denying interim attorney fees in 

this case does not constitute an appealable order.

In another case involving the statutory interpretation of section 2924.12, this court 

held a borrower who obtains only a preliminary, rather than permanent, injunction may 

nonetheless be entitled to attorney fees. (Monterossa, supra, 237 Cal.App.4th at p. 751, 

citing section 2924.12, subd. (i).) Because Monterossa came before us by writ petition, 

we “expressly decline[d] to determine whether an order denying attorney fees and costs 
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under section 2924.12 is immediately appealable or is reviewable upon appeal from a 

final judgment in the case.” (Monterossa, at p. 751, fn. 3.) Thus, Monterossa left open 

the issue we decide in this appeal. And as we have explained, the order denying interim 

attorney fees under section 2924.12 is not an appealable order.

DISPOSITION

The appeal is dismissed. Wells Fargo Bank, N.A., shall recover its costs on 

appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

 /s/

HOCH, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

BUTZ, J.