Filed 2/11/14 Wells Fargo Bank v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A., Plaintiff and Respondent,

v. CHARLES SMITH, Defendant and Appellant. F063572 & F064074 (Super. Ct. No. 10CECG03693)



### OPINION

APPEAL from a judgment of the Superi or Court of Fresno County. Mark W. Snauffer, Judge. Charles Smith, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
-ooOoo-2. Plaintiff Wells Fargo Bank, N.A. (Wells Fargo), filed the present action for breach of contract against defendant Charles Smith (Smith), based on Smith’s failure to pay amounts due on a $130,000 home equity loan that Smith received from Wells Fargo in 2006 (the loan agreement ). Wells Fargo moved for summary judgment, presenting evidence of (i) the loan agreement and the lending of fund s to Smith, (ii) Smith’s failure to pay back the loan as required, and (iii) the amount Smith owed at that time. Smith’s opposition to the motion failed to show the existence of a triable issue of material fact, and the trial court granted summary judgment in favor of Wells Fargo. In a subsequent hearing, the trial court also granted Wells Fa rgo’s motion for attorney fees pursuant to the loan agreement. Smith sepa rately appeals from the su mmary judgment and from the order granting attorney fees. We have ordered the two a ppeals (case Nos. F063572 and F064074) consolidated for purposes of decision. 1 We conclude the trial court correctly granted summary judgment and did not abuse its discretion in awarding contractual attorney fees. Accordingly, we affirm the judgment and orde r of the trial court below.
FACTS AND PROCED URAL HISTORY Pleadings and Summary Judgment Motion Wells Fargo filed its complaint for breach of contract on October 19, 2010. The complaint contained a single cause of action for breach of written contract . It alleged that in September 2006, Smith entered into the loan agreement with Wells Fargo under the terms of which Wells Fargo agreed to lend a particular sum of money to Smith and Smith promised to repay Wells Fargo the sum loaned plus interest, as specified in the loan agreement. Smith alle gedly breached the loan agreemen t by failing to make payments as required and, at the time of the complain t, there was “due, owing and unpaid from [Smith] the sum of $133871.51 plus accruing interest thereon and late charges.” In

1 Case Nos. F063572 and F064074 we re ordered consolidated under case No. F063572 on D ecember 2, 2013.3. addition to the amount due unde r the loan agreement, Wells Fargo’s prayer for relief in the complaint sought recovery of its atto rney fees under a provision of the loan agreement. On January 20, 2011, Smith filed his an swer to the complaint. His answer consisted of a denial of each of the paragr aphs of the complaint, and a statement of
various affirmative defenses. Smith also atta ched miscellaneous exhibits to his answer. The exhibits included a copy of a letter Sm ith had sent to Wells Fargo asking for
verification of “W ET I NK S IGNATURES ,” and also a document that Smith prepared and mailed to Wells Fargo entitled “A FFIDAVIT OF N OTICE , D ECLARATION , AND D EMAND
F AIR N OTICE AND W ARNING OF C OMMERCIAL G RACE N OTICE OF N ON -J UDICIAL
P ROCEEDING T HIS IS A U.S. S.E.C. T RACER F LAG , N OT A P OINT OF L AW ” (the Commercial Affidavit). On March 28, 2011, Wells Fargo filed its motion for summary judgment. The separate statement of undisputed material fa cts (separate statement) in support of the motion provided: “1. On September 22, 20 06, [Smith] borrowed the principal sum of $130,000.00 from [Wells Fargo] pursuant to [the loan agre ement]. [¶] 2. [Smith] defaulted on the [loan agreemen t]. [¶] 3. [Wells Fargo] has performed all conditions
and covenants as required in accordance with the te rms and conditions of the [loan agreement]. [¶] 4. The amount due and owing [Wells Fargo] is $133,645.00 as of September 9, 2009. [¶] 5. The amount due and owing to [Wells Fargo] is $150,946.61 as of June 29, 2011.” In support of the matters stated by Wells Fargo in its separate statement, the motion for summary judgment included the declaration of Travis Ashman, a Legal Operations Specialist in the collections depa rtment of Wells Fargo with knowledge of
Smith’s loan. Attached to Ashman’s decl aration was a copy of the loan agreement between Wells Fargo and Smith, signed by Smith, under the terms of which Smith was loaned $130,000 on a home equity line of credit. In hi s declaration, Ashman asserted that4. Smith defaulted on the loan agreement by failing to make the monthly payment that came due on September 28, 2009, and fa iling to make all subsequent payments after that date. Referencing section 17 of the loan agreement, Ashman stated that as a result of Smith’s failure to make the required payments, Wells Fargo became entitled to immediate repayment of the entire outstandi ng balance of the account. He reported that under Wells Fargo’s records, copies of which were attached to the declaration, the unpaid balance due and owing as of September 9, 2009, was $133,645. Ashman’s declaration reflected that Wells Fargo performed its obligation to loan funds to Smith under the loan agreement, but Smith did not honor his end of the bargai n. Wells Fargo demanded that Smith pay the sums due and owing, but Smith “has fail ed, refused, and neglected to pay [Wells Fargo]” and he continued to w ithhold payment due to Wells Far go. Pursuant to section 4 of the loan agreement, Ashm an asserted that prejudgmen t interest in the sum of $10,212.16 was due from the date of the last in terest calculation (Sept. 9, 2009) to the date of the motion for summary judgment. Finally, pursuant to section 10 of the loan agreement, Ashman requested that the summary judgment entered by the trial court include an award of attorney fees ($6,086.45) and costs ($1,003). In support of the motion fo r summary judgment, a points and authorities was also filed by Wells Fargo, which ex plained that Wells Fargo’s in itial burden had been satisfied because it had supported the elements of its breach of contract cause of action against
Smith. On June 14, 2011, Smith filed his oppos ition to the motion for summary judgment. Smith pointed out he had served various discovery requests on Wells Fargo, and he generally argued that the case should be permitte d to go to trial, but he did not set forth any evidence establishing a triable issue of mate rial fact. Smith’s se parate statement in opposition to the motion mere ly cited to his answer to the complaint. Smith’s declaration, which was not referenced in his se parate statement, asserted that Wells Fargo5. had not adequately responded to his Commercia l Affidavit or his letter seeking to verify wet ink signatures on loan documents. Wells Fargo filed a reply in support of th e motion, pointing out that the burden had
shifted to Smith to demonstrate the existence of a triable issue of material fact, Smith failed to meet that burden and, ther efore, the motion must be granted. At the June 29, 2011, hearing, the tria l court took the matter under submission. On June 30, 2011, the trial court issued its order granting th e motion for summary judgment in favor of Wells Fargo. Wells Fargo was directed to submit a proposed judgment consistent with the summary judgme nt ruling. However, the trial court ruled that the request by Wells Fargo for attorney fe es was premature at that time, and on that basis the attorney fees request was deni ed without prejudice to a subsequent, postjudgment motion. On July 25, 2011, ju dgment in favor of Wells Fargo was entered by the trial court for the principal sum of $133,6 45 plus interest thereon in th e amount of $10,212.16. The judgment left a blank for attorney fees and costs to be inserted. For reasons that are not clear, Smith file d without leave of the court additional papers in opposition to the mo tion for summary judgment on July 8, 2011, even though the motion had already been heard and decided. On July 27, 2011, Smith moved to vaca te the judgment under Code of Civil
Procedure section 473. 2 Wells Fargo filed opposition to the motion to vacate, arguing that the motion was baseless. On September 14, 2011, the trial c ourt issued its written order explaining why none of the arguments raised by Smith showed that grounds for
relief under section 473 existed. Hence, Smith’s motion was denied.
Smith then filed his notice of appeal from the judgment.

2 Unless otherwise indicated, all further stat utory references are to the Code of Civil Procedure.6. Motion for Attorney Fees On September 19, 2011, Wells Fargo file d its motion for attorney fees. The motion was based on the attorney fee provisi on set forth in the lo an agreement and on
attached records to substantia te the amount of attorney fe es incurred by Wells Fargo in seeking to enforce its rights u nder the loan agreement. Wells Fargo requested a total of $7,162.50 in attorney fees. The trial cour t granted the motion on October 20, 2011, awarding to Wells Fargo attorney fees in the amount of $7,012.50. On December 2, 2011, Smith filed his notice of appeal from th e attorney fee order, his second appeal in
this matter. Two Appeals Consolidated As previously discussed in footnote 1, ante , we ordered the two appeals in this case consolidated for purposes of decision on December 2, 2013.
DISCUSSION I. Summary Judgment Properly Granted
A. Standard of Review We begin with the summary judgment mo tion. “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” ( Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 843.) Summary judgment is appropriate when a ll of the papers submitted show there is
no triable issue of material fact and the movi ng party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) As applicable here, a plaintiff meets his or her burden as the moving party by proving each el ement of the “cause of action” entitling him or her to judgment. ( Id ., subd. (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co . (2010) 186 Cal.App.4th 383, 388; Weil & Brown, Cal. Prac tice Guide: Civil Procedure Before Trial (The Rutter Group 2013) § 10:233, pp. 10 -102.) A plaintiff moving for summary judgment need not disprove any defense assert ed by the defendant: “A ll that the plaintiff7. need do is to ‘prove[] each element of the cause of action.’” ( Aguilar v. Atlantic Richfield Co. , supra , 25 Cal.4th at p. 853.) If a pl aintiff makes such a prima facie showing, the burden shifts to the defendant to demonstrate that a triable issue of material
fact exists as to that cause of action or a defense thereto. (§ 437c, subd. (p)(1); Santa Ana Unified School Dist. v. Ora nge County Development Agency (2001) 90 Cal.App.4th 404, 411.) “The defendant ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of mate rial fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(1).) On appeal from a summary judgment, our task is to independently determine
whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. ( Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) We review the trial court’s decision de novo, considering all of the evidence set forth in the moving and opposin g papers except that to whic h objections were made and sustained. ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) We liberally construe the opposing party’s evidence, strictly construe the moving party’s evidence, and resolve all
doubts in favor of th e opposing party. ( Johnson v. American Standard, Inc . (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
B. Wells Fargo Met Its Burden as Moving Party Wells Fargo’s sole cause of action was for breach of contract. The essential elements of such a cause of action are: “(1) the contract, (2) plaintiff’s performance or excuse for nonperform ance, (3) defendant’s breach, a nd (4) the resulting damages to plaintiff.” ( Reichert v. General Ins. Co . (1968) 68 Cal.2d 822, 830.) Wells Fargo’s separate statement included each of the ab ove elements and made reference to the declaration of Ashman (and exhi bits thereto) to support its evidentiary bu rden as the moving party.8. As observed above, Ashman’s declara tion adequately described the loan agreement and a copy of the lo an agreement was atta ched to the declar ation. It also asserted that Wells Fargo performed its e nd of the bargain by loaning plaintiff the $130,000 as a home equity lo an. Smith’s material breach of the loan agreement—his failure to make payments after a certain da te—was clearly specified and shown by the declaration. Finally, the declaration and exhi bits thereto reflected the amount of resulting damages—i.e., the amount due and owing under the loan agreement plus accrued interest. We conclude that Wells Fargo met its initial burden as the m oving party, and the burden
shifted to Smith to demonstrate the existence of a triable issue of material fact. (§ 437c, subd. (p)(1).)
C. Smith Failed to Show Tr iable Issue of Fact Smith’s burden was to produce admissib le evidence showing a triable issue of material fact. ( Santa Ana Unified School Dist. v. Orange County Development Agency , supra , 90 Cal.App.4th at p. 411.) He may not rely on defenses alleged in his pleadings without producing evidence to support them. ( Ibid .; § 437c, subd. (p)(1).) Smith did not meet this burden. His separate statement mere ly referred to denials alleged in his answer.
He failed to set forth evidence showing the existence of a triable issue of material fact. Although not mentioned in his separate statement, Smith did file his own declaration in opposition to the motion for su mmary judgment. Smith’s declaration noted that Wells Fargo had fa iled to respond to his Commercial Affidavit a nd his letter seeking to confirm wet ink signatures. However, Sm ith’s opposition failed to cite any law or authority explaining how such matters conceiva bly created a triable issue of fact relating to Wells Fargo’s breach of contract cause of ac tion or a defense thereto. Indeed, as Wells Fargo pointed out in its reply, Smith’s declara tion did not even disput e that he entered the loan agreement, borrowed the money from Wells Fargo, failed to pay that money back as required, and owed the amounts that were sp ecified by Wells Fargo. Finally, Smith’s points and authorities in oppos ition to the motion merely focu sed on the fact that Smith9. had served discovery requests on Wells Far go and Smith was not satisfied with the responses to same. 3 As with the other documents file d by Smith in opposition, nothing was presented that would affect the out come of the motion under section 437c. We conclude that plaintiff failed to demo nstrate the existence of a triable issue of material fact. Accordingly, the trial c ourt correctly granted the motion for summary judgment in favor of Wells Fargo. 4 II. Contractual Attorney Fees Properly Granted Attorney fees are recoverable as costs to the prevailing part y when authorized by the parties’ contract. (§ 1033.5, subd. (a )(10); Civ. Code, § 1717; Code Civ. Proc., § 1021.) Civil Code section 1717, subdivi sion (a), provides: “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 pa rty who is determined to be the party prevailing on the contract, ... shall be entitled to reasonable atto rney’s fees in addition to other costs.” In the loan agreemen t, Smith expressly agreed that if he defaulted and Wells Fargo enforced its rights under the lo an agreement, Smith would be obligated to pay costs and attorney fees of such an enforcement action. Wells Far go, as the prevailing party in the

3 As the trial court observed in its order granting summary judgment, Smith presented no evidence substan tiating the allegedly inadequate discovery responses. He also failed to show that he followed statut ory discovery procedures to obtain further responses. Additionally, Smith failed to expl ain how the purported discovery dispute had any bearing on the outcome of the motion for summary judgment. Fi nally, nothing in the record reflects that Smith ever requested a continuance pursuant to subdivision (h) of section 437c.
4 To the extent that Smith al so intended to app eal from the trial court’s denial of his motion to vacate judgment unde r section 473, Smith failed to present any adequate legal or factual analysis on that issue. Accord ingly, we treat that matter as forfeited and disregard it. ( Nelson v. Avondale Homeowners Assn . (2009) 172 Cal.App.4th 857, 862; Yield Dynamics, Inc. v. TEA Systems Corp . (2007) 154 Cal.App.4th 547, 556-557; People v. Stanley (1995) 10 Cal.4th 764, 793.)10. action for breach of contract, was clearly entitle d to an award of reasonable attorney fees under this contractual provision. After c onsidering the moving an d opposing papers, the attorney billing records, and th e parties’ oral argument at the hearing, the trial court awarded attorney fees to Wells Fargo in th e amount of $7,012.50. Smith has failed to present any discernable argument that the amou nt awarded was not reasonable in amount.
What constitutes reasonable atto rney fees in a particular case is within the trial court’s discretion, and such a determin ation will not be disturbed on appeal unless there has been a manifest abuse of discretion. ( Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507.) No such abuse has b een shown here. The award wa s not only reasonable but well
within the bounds of the trial court’s discretion.
DISPOSITION The judgments and orders of the trial court are affirmed. Costs on appeal are awarded to Wells Fargo.

_____________________ Kane, Acting P.J. WE CONCUR:

_____________________ Detjen, J.

_____________________ Franson, J.