This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:59:18 (UTC).

POONSOOK BRAINANGKUL VS SELECT PORTFOLIO SERVICING, INC.

Case Summary

On 10/11/2016 POONSOOK BRAINANGKUL filed a Property - Foreclosure lawsuit against SELECT PORTFOLIO SERVICING, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER, CURTIS A. KIN and DEBRE K. WEINTRAUB. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5616

  • Filing Date:

    10/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

CURTIS A. KIN

DEBRE K. WEINTRAUB

 

Party Details

Plaintiff and Cross Defendant

BRAINANGKUL POONSOOK

Defendants and Cross Defendants

SELECT PORTFOLIO SERVICING INC.

WOLF FIRM THE

BANK OF NEW YORK MELLON THE

BANK OF NEW YORK THE

VOLANTIS GLOBAL INC

THE BANK OF NEW YORK

THE BANK OF NEW YORK MELLON AS TRUSTEE

THE BENEFIT OF THE CERTIFCATEHOLDERS OF

THE BANK OF NEW YORK AS TRUSTEE

THE BANK OF NEW YORK MELLON

THE WOLF FIRM

ASSET-BACKED CERTIFICATES SERIES 2001-1

BRAINANGKUL POONSOOK

Defendant and Cross Plaintiff

VOLANTIS GLOBAL INC

Trustees and Defendants

BENEFIT OF THE CERTIFCATEHOLDERS OF THE

THE BENEFIT OF THE CERTIFCATEHOLDERS OF

Attorney/Law Firm Details

Plaintiff Attorneys

CONSUMER ACTION LAW GROUP PC

GUREVICH YELENA ANELEY

Defendant Attorneys

MCGLINCHEY STAFFORD

HAMBURG ADAM SCOTT

ABB WAYNE M.

SHATZ SANFORD PHILIP

WOLF LAW FIRM THE

 

Court Documents

Legacy Document

10/17/2016: Legacy Document

Request for Judicial Notice

1/20/2017: Request for Judicial Notice

RULING ON SUBMITTED MATTER - EX PARTE APPLICATION TO SHORTEN TIME

3/9/2017: RULING ON SUBMITTED MATTER - EX PARTE APPLICATION TO SHORTEN TIME

Legacy Document

4/25/2017: Legacy Document

Legacy Document

4/28/2017: Legacy Document

Notice of Rejection - Fax Filing

6/28/2017: Notice of Rejection - Fax Filing

Legacy Document

7/25/2017: Legacy Document

Legacy Document

12/7/2017: Legacy Document

Legacy Document

3/15/2018: Legacy Document

Legacy Document

5/23/2018: Legacy Document

Declaration

10/22/2018: Declaration

Opposition

11/28/2018: Opposition

Motion in Limine

11/30/2018: Motion in Limine

Stipulated Judgment

1/18/2019: Stipulated Judgment

Ex Parte Application

3/11/2019: Ex Parte Application

Proof of Service by Mail

3/18/2019: Proof of Service by Mail

Certificate of Mailing for

5/16/2019: Certificate of Mailing for

Minute Order

6/5/2019: Minute Order

310 More Documents Available

 

Docket Entries

  • 08/09/2019
  • DocketStipulation, Receipt and Order re: Release of Civil Exhibits (One Joint Exhibit Binder Plus Exhibit No. 23 to Plaintiff's Counsel, Yelena Gurvich, Esq)

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  • 08/09/2019
  • DocketExhibit List (Joint - Received in Evidence)

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  • 07/26/2019
  • Docketat 1:30 PM in Department D; Non-Jury Trial (On Title)

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  • 07/24/2019
  • Docketat 1:30 PM in Department D; Non-Jury Trial (On Title) - Not Held - Advanced and Continued - by Court

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  • 07/24/2019
  • DocketCertificate of Mailing for ((Civil Non-Jury Trial On Quite Title) of 07/24/2019); Filed by Clerk

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  • 07/24/2019
  • DocketMinute Order ( (Civil Non-Jury Trial On Quite Title)); Filed by Clerk

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  • 07/22/2019
  • DocketBrief (Post Trial Brief); Filed by VOLANTIS GLOBAL, INC (Defendant)

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  • 07/22/2019
  • DocketBrief (Post Trial Brief); Filed by VOLANTIS GLOBAL, INC (Defendant)

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  • 07/19/2019
  • DocketBrief (Plaintiffs Reference to Trial Exhibits in Support of Her Closing Brief); Filed by POONSOOK BRAINANGKUL (Plaintiff)

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  • 07/19/2019
  • DocketBrief (Plaintiffs Closing Brief); Filed by POONSOOK BRAINANGKUL (Plaintiff)

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649 More Docket Entries
  • 10/12/2016
  • DocketDeclaration (OF POONSOOK BRAINANGKUL IN SUPPORT OF PLTF'S EX PARTE APPL FOR TRO ); Filed by Attorney for Plaintiff

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  • 10/12/2016
  • DocketExParte Application (FOR TEMPORARY RESTRAINING ORDER; DECL OF POONSOOK BRAINANGKUL IN SUPPORT THEREOF; DECL OF NOTICE OF EX PARTE HEARING; (PROPOSED) ORDER ); Filed by Attorney for Plaintiff

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  • 10/11/2016
  • DocketNotice of Case Assignment

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  • 10/11/2016
  • DocketNotice of Case Management Conference

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  • 10/11/2016
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 10/11/2016
  • DocketCivil Case Cover Sheet

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  • 10/11/2016
  • DocketSummons; Filed by null

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  • 10/11/2016
  • DocketSummons Filed

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  • 10/11/2016
  • DocketComplaint filed-Summons Issued

    Read MoreRead Less
  • 10/11/2016
  • DocketNotice (of order to show cause RE failure to comply with trial court delay reduction act)

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Tentative Rulings

Case Number: EC065616    Hearing Date: April 23, 2021    Dept: D

TENTATIVE RULING

Calendar: 13

Date: 4/23/2021

Case No. EC 065616

Case Name: Brainangkul v. Select Portfolio Servicing, Inc., et al.

MOTION TO TAX COSTS

Moving Party: Defendants Select Portfolio Servicing, Inc. and The Bank of

New York Mellon

Responding Party: Plaintiff Poonsook Brainangkul

RELIEF REQUESTED:

Order striking and taxing costs claimed in Plaintiff’s Memorandum of Costs dated December 31, 2020

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Poonsook Brainangkul alleges that she is the owner of real property in Glendale where she resides as her principal residence. Plaintiff alleges that in July 2015, she submitted a loan modification application to defendant Select Portfolio Servicing, and was approved for a trial period plan, pursuant to which she would make three timely payments and thereafter her loan would be permanently modified. Plaintiff made all three payments, due from October 2015 through December 2015 on time. Plaintiff was provided a permanent modification agreement which she signed and returned to Select Portfolio. Plaintiff made the payments in January and February, which were accepted by Select Portfolio, but the March 2016 payment, received by Select Portfolio was returned, with indication that plaintiff had not returned the permanent loan modification. Plaintiff submitted the tracking number and assured Select Portfolio she had returned a signed permanent modification agreement, but Select Portfolio refused to permanently modify the loan and initiated foreclosure.

Select Portfolio invited plaintiff to submit another loan modification application, and in an effort to save her home, plaintiff submitted the application. Plaintiff alleges that during the second loan modification process, Select Portfolio constantly mishandled her documents, losing some and requesting resubmission, and making inquiry concerning whether submitted paystubs reflected regular or seasonal income, to which plaintiff responded, and then denying the loan modification because plaintiff had not sent in paystubs.

On September 23, 2016, plaintiff spoke with her relationship manager for Select Portfolio, who recommended she appeal the decision. Plaintiff submitted the documents to appeal the decision that day, and on September 26, 2016 the relationship manager confirmed she had received the appeal and would submit it for review.

Plaintiff alleges that she called Select Portfolio or defendant The Wolf Firm every day to check on the status of the appeal, which they informed her was still pending. On October 4, 2016, the Wolf Firm conducted a trustee’s sale, in which the property was sold to Volantis, an experienced foreclosure sale buyer.

The operative complaint alleges that on October 11, 2016, plaintiff’s counsel provided ex parte notice to Volantis of its intent to seek a temporary restraining order enjoining Volantis from recording a TDUS pursuant to plaintiff’s claims against defendants. On October 12, 2016, at 8:30 a.m., plaintiff sought the TRO, but while plaintiff awaited the court to hear the matter, Volantis recorded the TDUS at 8:52 a.m.

The file shows that on February 9, 2018, the court heard a motion for summary judgment, or in the alternative summary adjudication, brought by defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon. The motion for summary adjudication was granted as to the third cause of action for breach of implied covenant of good faith and fair dealing. The motion was otherwise denied.

On January 17, 2019, the court entered a Judgment on Stipulation submitted by plaintiff Brainangkul and defendants Select Portfolio Servicing and The Bank of New York Mellon, entering judgment in favor of Plaintiff, declaring that plaintiff is the owner and title holder of the subject property, that BONY holds the loan encumbering the property, and that SPS is the servicer of the loan. The judgment provides that once plaintiff’s loan was modified, and the default cured, defendants lacked the power to sell the property under the power of sale in the DOT because there was no default to enforce and set aside the trustee’s sale of October 4, 2016 as void. The judgment states:

“7. The foreclosure sale shall be set aside and Volantis Global shall be entitled to a return of the sale proceeds of $502,000.00, and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

Plaintiff then filed a motion for attorney’s fees, which was originally scheduled to be heard on April 26, 2019. On that date, the court also heard a motion brought by Volantis Global to vacate the Judgment on Stipulation, arguing the court was not authorized to quiet title as to Volantis and the party to which the property has since been transferred, Half Life, based on the stipulation of plaintiff and the bank defendants, without including Volantis or conducting a properly noticed evidentiary hearing in open court.

The court heard the motion to set aside the judgment and set a non-jury trial on the issue of title and ruled that this attorney fee motion was to be set and heard after the trial was conducted.

The trial was conducted on June 19, 2019, and continued to July 24, 2019, and again to July 26, 2019. The court announced it oral statement of decision, finding that plaintiff prevails on the quiet title action as to causes of action Nos. 5, 6 and 7 of the Verified Second Amended Complaint, and cross-defendant prevails as to Volantis’ Second Amended Cross-Complaint for Declaratory Relief and to Quiet Title

On October 23, 2019, the court signed and filed its Judgment on Stipulation, finding that plaintiff owns the property subject to a loan held by BONY and serviced by SPS, the foreclosure sale of October 4, 2016 was void because defendants lacked the power of sale as there was no default on which the sale could be based, so the foreclosure sale was set aside as void. Judgment was entered in favor of plaintiff, with plaintiff and defendants to bear their own costs. The judgment states, “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Judgment on Stipulation, p. 5:8-9]. A Notice of Entry of Judgment was filed and served the same date.

On October 28, 2019, plaintiff filed a Notice of Lodging and Reinstating Plaintiff’s Attorney Fee Motion, with a hearing date of December 13, 2019.

On December 4, 2019, the court heard an ex parte application filed on behalf of defendant SPS and the Bank of New York Mellon, as Trustee, to continue the hearing on the motion for attorney fees, which was granted. The motion was continued several times while the Volantis appeal was pending.

On March 16, 2020, Volantis filed an Abandonment of Appeal, indicating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was evidently never served on the parties.

On May 6, 2020, Volantis filed a Motion for Further Orders on Judgment.

On May 20, 2020, Volantis filed another Abandonment of Appeal stating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was served on the parties.

On July 24, 2020, the court signed and filed a Stipulation Re: Disbursement of Purchase Funds Following Abandonment of Appeal, which was stipulated by all parties, including Volantis, and states, in pertinent part:

“12. On May 6, 2020, Volantis filed a Motion for Further Orders on Judgment (the “Motion for Further Orders”) seeking an Order compelling the Wolf Firm to remit the Purchase Amount to Volantis.

13. Subsequent to the filing of the Motion for Further Orders on May 6, 2020, Half Life contacted the Wolf Firm and counsel for Defendants and made a demand for payment of the Purchase Amount directly to Half Life.

14. On June 16, 2020, Volantis instructed, in writing, the remittance of the entire Purchase Amount directly to Half Life.

BASED ON THE ABOVE-STATED FACTS, IT IS HEREBY STIPULATED AND AGREED between the Parties that The Wolf Firm shall remit and return all of the sales proceeds (i.e. the Purchase Amount) from the void Trustee’s Sale in the amount of $502,000 directly to Half Life, and that, by doing so, any obligation of any type to return the Purchase Amount to Volantis shall be deemed to have been fully satisfied.”

On October 23, 2020, the court heard the motion for attorney’s fees as well as a motion by Volantis for further orders on the judgment previously entered. The motion for further orders was denied.

The motion for attorney’s fees was granted, and the court, after reviewing the evidence and billings, making deductions for apportionment and billing irregularity, calculated a lodestar of $350,782.25, applied a 1.5 multiplier on the work performed by attorneys other than Attorney Lee, and awarded total fees of $521,513.38.

On November 23, 2020, this court signed and filed an Amended Judgment which included the award of attorney’s fees. Notices of Entry of Judgment filed by defendants on December 14, 2020 attach a copy of a judgment dated December 7, 2020, which includes this same language, and indicate judgment was entered on December 7, 2020.

ANALYSIS:

Procedural

This is a motion to tax costs sought by plaintiff in a Memorandum of Costs After Judgment.

Such a motion is permitted under CCP section 685.070(c), which provides in connection with a judgment creditor’s claim for costs for enforcing a judgment:

“(c) Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.”

Defendants argue that the court should not consider the Memorandum, as it was not properly served on defendants, and was not served by the recognized means for service under the statute.

CCP section 685.070 (b) provides:

“(b) Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.

The opposition concedes that plaintiff did not serve the Memorandum on the judgment debtors directly, but on their counsel, indicating they are large corporations with headquarters outside California. Plaintiff also concedes that the Memorandum was served by email, not by personal service or mail.

Defendants rely on David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, in which the Second District interpreted section 685.070 in connection with statutes governing parties in default, and concluded “nonetheless that section 685.070 must be interpreted as requiring service of the memorandum of costs on all judgment debtors, including default judgment debtors…” and held that the judgment creditor was “required to serve” the application in that case on the judgment debtor, and that the trial court erred as a matter of law in concluding otherwise. Davis S. Karton, at 147-148.

Plaintiff argues that this case is distinguishable because in David S. Karton, no notice at all was given to the default judgment debtor in any manner, when in this case defendants’ counsel actually received the Memorandum as electronically served. No legal authority is cited under which the statute has been interpreted to permit an exception. The motion to strike accordingly is granted on the ground the Memorandum was not properly served on the judgment debtors.

Substantive

Defendants argue that the Memorandum, which seeks $28,258.50 in Attorney Fees, from “4/16/19-12/31/2020,” does not seek costs after judgment, but improperly seeks attorney fees incurred pre-judgment, and that plaintiff has failed to properly seek such fees by a memorandum or noticed motion addressed to pre-judgment costs and fees.

The file shows that on November 23, 2020, this court signed and filed an Amended Judgment which provides, in pertinent part:

“Plaintiff filed her motion for attorney’s fees on March 18, 2019 and Defendants filed their opposition to said motion for attorney’s fees on April 15, 2019. The Court held a hearing on Plaintiff's motion for attorney’s fees on October 23, 2020 and granted attorney’s fees in the amount of $521,513.38 to be paid by Defendants within 60 days of its order. Interest shall accrue from the date of entry of this judgment on the unsatisfied principal amount of this money judgment in accordance with Code of Civil Procedure section 685.010.”

[Amended Judgment, para. 8].

The Notices of Entry of Judgment filed by defendants on December 14, 2020 attach a copy of a judgment dated December 7, 2020, which includes this same language.

The Memorandum seeks to recover attorney’s fees plaintiff claims were incurred in connection with the motion for attorney’s fees heard on October 23, 2020, which were evidently not included in that motion. As argued by defendants, these are not costs or fees which are not recognized as being recoverable pursuant to a Memorandum of Costs After Judgment; they are pre-judgment costs incurred to obtain the judgment, not to enforce the judgment.

Under CCP section 685.070:

“(a) The judgment creditor may claim under this section the following costs of enforcing a judgment:…  (6) Attorney's fees, if allowed by Section 685.040.”

CCP § 685.040 provides:

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”

(Emphasis added).

Subparagraph (A) of paragraph (10) of subdivision (a) of CCP § 1033.5 provides that allowable costs include:

“(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.”

There is no dispute here that the court awarded attorney’s fees as authorized by contract. However, the fees sought now, as reflected in the declarations attached to the Memorandum, describe work performed by the various attorneys in connection with the attorney’s fees motion (which could have been sought by actual evidence or projections in that motion), or in pursuing mediation, which appears to have occurred prior to the previous hearing on fees or prior to the entry of judgment.

The opposition does not explain how any of the charges would qualify as fees incurred in enforcing a judgment. Such fees might reasonably include fees to pursue writs of execution, judgment debtor examinations, or post-trial discovery.

The other allowable costs under a Memorandum of costs enforcing judgment under CCP section 685.070 (a), for example, are clearly limited to conduct in enforcing the judgment, and include:

“(a)

Defendants rely on Highland Springs Conference & Training Center v. City of Banning (2019) 42 Cal.App.5th 416, in which the court of appeal found that the trial court had erred in ruling that section 685.040 and 685.080 applied to fees motions brought by plaintiffs to recover fees which had been incurred in pursuing an alter ego motion under section 187, seeking to add a third party as an additional judgment debtor on an underlying judgment. The court of appeal found that all of the fees incurred in pursuing the alter ego motion, to the date of the judgment granting that motion, are “prejudgment fees.” Highland Springs, at 423, italics in original.

The court of appeal noted that a section 187 motion to add an additional judgment debtor is generally recognized as not amending a judgment, but merely inserting the correct name of the real defendant, and noted that the Enforcement of Judgment Laws although not defining “enforcement,” do provide some guidance on this matter:

“As noted in McQueen, the EJL “addresses in detail several means of enforcing a judgment, including liens on real and personal property (§§ 697.010-697.920), writs of execution (§§ 699.010-701.830), garnishment of wages (§§ 706.010-706.154) and writs of possession or sale (§§ 712.010-716.030)....” (McQueensupra, 59 Cal.4th at p. 609, 174 Cal.Rptr.3d 55, 328 P.3d 46.) Each of these means of enforcing a judgment results, at least to some degree, in the satisfaction of the judgment. But a section 187 motion to amend a judgment to add an additional judgment debtor does nothing to satisfy the judgment the movant seeks to amend.”

Highlands Springs, at 425-426.

It would appear even more clearly in this case that the attorney’s fees incurred to recover attorney’s fees to be included in the judgment were not incurred to satisfy the judgment, but to obtain that judgment. The fees were not incurred toward any efforts ordinarily considered to be pursuing satisfaction of that judgment.

Plaintiffs in opposition argue that plaintiff is entitled to all of the attorney’s fees she requested, arguing that there may be recovery of fees incurred to recover attorney’s fees, and seems to argue that the court simply ignore that the fees were not incurred to enforce the judgment, and not elevate form over substance in this matter.

This is not a matter of elevating form over substance, as plaintiff is not entitled to relief pursuant to the Memorandum of Costs After Judgment and its statutory scheme under which such fees have been sought. Any pre-judgment fees must be sought under the procedures governing the award of such fees.

The motion accordingly is granted, and the request for attorney’s fees in the Memorandum of Costs After Judgment will be stricken on the additional ground that such fees are not allowed by CCP section 685.040, as not incurred in enforcing a judgment.

Plaintiff in opposition requests that the Memorandum of Costs be stricken without prejudice and that plaintiff be given leave to file a motion for attorney’s fees for the additional fees claimed. Plaintiff fails to explain why the information supporting the Memorandum here was not available to plaintiff and presented prior to the hearing on the prior motion for pre-judgment attorney’s fees, which involved extensive briefing, and a hearing date which was continued several times and occurred after most of the purported fees in the current Memorandum were incurred. Such motions typically project fees which an attorney expects to incur in connection with the fees motions, such as the time to prepare reply papers and appear at the hearing.

The moving parties take the position that such a motion would be untimely and the claim to those fees would be waived. The court takes no position at this time with respect to those arguments, but will determine the issues in connection with motions, if appropriate, seeking relief to which the issues would apply.

RULING:

Defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon’s Motion to Strike and Tax Costs is GRANTED.

Procedurally, the Memorandum of Costs After Judgment was not served on the Judgment Creditors, as required under CCP section 685.070 (b)

Substantively, plaintiff has failed to establish that such fees are allowed by CCP section 685.040, as they do not appear to have been “incurred in enforcing a judgment.”

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest filed on December 31, 2020 is ordered stricken.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC065616    Hearing Date: October 23, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 13

Date: 10/23/2020

Case No: EC 065616 Trial Date: None Set

Case Name: Brainangkul v. Select Portfolio Servicing, Inc., et al.

MOTION FOR ATTORNEY’S FEES

MOTION FOR FURTHER ORDERS ON JUDGMENT

Moving Party: Plaintiff Poonsook Brainangkul (Fees)

Defendant Volantis Global, Inc. (Further Orders)

Responding Party: Defendants Select Portfolio Servicing, Inc. and the Bank of

New York Mellon, as Trustee (Both)

The Wolf Firm (Further Orders)

RELIEF REQUESTED:

Attorney’s Fees

Award of attorneys’ fees in favor of plaintiff and against defendants Select Portfolio Servicing and the Bank of New York Mellon in the sum of $554,485.50.

Further Orders on Judgment

Further orders on the judgment entered 1/17/2019

SUMMARY OF FACTS:

Plaintiff Poonsook Brainangkul alleges that she is the owner of real property in Glendale where she resides as her principal residence. Plaintiff alleges that in July 2015, she submitted a loan modification application to defendant Select Portfolio Servicing, and was approved for a trial period plan, pursuant to which she would make three timely payments and thereafter her loan would be permanently modified. Plaintiff made all three payments, due from October 2015 through December 2015 on time. Plaintiff was provided a permanent modification agreement which she signed and returned to Select Portfolio. Plaintiff made the payments in January and February, which were accepted by Select Portfolio, but the March 2016 payment, received by Select Portfolio was returned, with indication that plaintiff had not returned the permanent loan modification. Plaintiff submitted the tracking number, and assured Select Portfolio she had returned a signed permanent modification agreement, but Select Portfolio refused to permanently modify the loan and initiated foreclosure.

Select Portfolio invited plaintiff to submit another loan modification application, and in an effort to save her home, plaintiff submitted the application. Plaintiff alleges that during the second loan modification process, Select Portfolio constantly mishandled her documents, losing some and requesting resubmission, and making inquiry concerning whether submitted paystubs reflected regular or seasonal income, to which plaintiff responded, and then denying the loan modification because plaintiff had not sent in paystubs.

On September 23, 2016, plaintiff spoke with her relationship manager for Select Portfolio, who recommended she appeal the decision. Plaintiff submitted the documents to appeal the decision that day, and on September 26, 2016 the relationship manager confirmed she had received the appeal and would submit it for review.

Plaintiff alleges that she called Select Portfolio or defendant The Wolf Firm every day to check on the status of the appeal, which they informed her was still pending. On October 4, 2016, the Wolf Firm conducted a trustee’s sale, in which the property was sold to Volantis, an experienced foreclosure sale buyer.

The operative complaint alleges that on October 11, 2016, plaintiff’s counsel provided ex parte notice to Volantis of its intent to seek a temporary restraining order enjoining Volantis from recording a TDUS pursuant to plaintiff’s claims against defendants. On October 12, 2016, at 8:30 a.m., plaintiff sought the TRO, but while plaintiff awaited the court to hear the matter, Volantis recorded the TDUS at 8:52 a.m.

The file shows that on February 9, 2018, the court heard a motion for summary judgment, or in the alternative summary adjudication, brought by defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon. The motion for summary adjudication was granted as to the third cause of action for breach of implied covenant of good faith and fair dealing. The motion was otherwise denied.

On January 17, 2019, the court entered a Judgment on Stipulation submitted by plaintiff Brainangkul and defendants Select Portfolio Servicing and The Bank of New York Mellon, entering judgment in favor of Plaintiff, declaring that plaintiff is the owner and title holder of the subject property, that BONY holds the loan encumbering the property, and that SPS is the servicer of the loan. The judgment provides that once plaintiff’s loan was modified, and the default cured, defendants lacked the power to sell the property under the power of sale in the DOT because there was no default to enforce, and set aside the trustee’s sale of October 4, 2016 as void. The judgment states:

“7. The foreclosure sale shall be set aside and Volantis Global shall be entitled to a return of the sale proceeds of $502,000.00, and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

This motion for attorney’s fees was originally scheduled to be heard on April 26, 2019. On that date, the court also heard a motion brought by Volantis Global to vacate the Judgment on Stipulation, arguing the court was not authorized to quiet title as to Volantis and the party to which the property has since been transferred, Half Life, based on the stipulation of plaintiff and the bank defendants, without including Volantis or conducting a properly noticed evidentiary hearing in open court.

The court heard the motion to set aside the judgment and set a non-jury trial on the issue of title, and ruled that this attorney fee motion was to be set and heard after the trial was conducted.

The trial was conducted on June 19, 2019, and continued to July 24, 2019, and again to July 26, 2019. The court announced its oral statement of decision, finding that plaintiff prevails on the quiet title action as to causes of action Nos. 5, 6 and 7 of the Verified Second Amended Complaint, and cross-defendant prevails as to Volantis’ Second Amended Cross-Complaint for Declaratory Relief and to Quiet Title

On October 23, 2019, the court signed and filed its Judgment on Stipulation, finding that plaintiff owns the property subject to a loan held by BONY and serviced by SPS, the foreclosure sale of October 4, 2016 was void because defendants lacked the power of sale as there was no default on which the sale could be based, so the foreclosure sale was set aside as void. Judgment was entered in favor of plaintiff, with plaintiff and defendants to bear their own costs. The judgment states, “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Judgment on Stipulation, p. 5:8-9]. A Notice of Entry of Judgment was filed and served the same date.

On October 28, 2019, plaintiff filed a Notice of Lodging and Reinstating Plaintiff’s Attorney Fee Motion, with a hearing date of December 13, 2019.

On December 4, 2019, the court heard an ex parte application filed on behalf of defendant SPS and the Bank of New York Mellon, at Trustee, to continue the hearing on the motion for attorney fees, which was granted. The motion has been continued several times while the Volantis appeal has been pending.

On March 16, 2020, Volantis filed an Abandonment of Appeal, indicating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was evidently never served on the parties.

On May 6, 2020, Volantis filed a Motion for Further Orders on Judgment, which is set for hearing this date.

On May 20, 2020, Volantis filed another Abandonment of Appeal stating that the undersigned appellant herby abandons the appeal filed on 12/09/2019 in this action. This document was served on the parties.

On July 24, 2020, the court signed and filed a Stipulation Re: Disbursement of Purchase Funds Following Abandonment of Appeal, which was stipulated by all parties, including Volantis, and states, in pertinent part:

“12. On May 6, 2020, Volantis filed a Motion for Further Orders on Judgmetn (the “Motion for Further Orders”) seeking an Order compelling the Wolf Firm to remit the Purchase Amount to Volantis.

13. Subsequent to the filing of the Motion for Further Orders on May 6, 2020, Half Life contacted the Wolf Firm and counsel for Defendants and made a demand for payment of the Purchase Amount directly to Half Life.

14. On June 16, 2020, Volantis instructed, in writing, the remittance of the entire Purchase Amount directly to Half Life.

BASED ON THE ABOVE-STATED FACTS, IT IS HEREBY STIPULATED AND AGREED between the Parties that The Wolf Firm shall remit and return all of the sales proceeds (i.e. the Purchase Amount) from the void Trustee’s Sale in the amount of $502,000 directly to Half Life, and that, by doing so, any obligation of any type to return the Purchase Amount to Volantis shall be deemed to have been fully satisfied.”

ANALYSIS:

Motion for Further Orders

Volantis has filed a motion for further orders in connection with the judgment.

As an initial matter, the opposition filed by Select Portfolio and The Bank of New York argues that the court lacks jurisdiction to hear this motion, as Volantis’ appeal is still pending, and has not been properly abandoned, and no remittitur has issued from the court of appeal.

The docket for the appeal does not show any disposition of this matter, or that any abandonment has been filed in the appeal. It also does not show that the record on appeal has been received, only that it was due on April 7, 2020. The file in this matter shows that the transcripts were received by the Civil Appeals unit of the LASC on April 2, 2020, but not that the record was filed with the Court of Appeal

CRC Rule 8.244 (b) (1) provides: “Before the record is filed in the Court of Appeal, the appellant may serve and file in superior court an abandonment of the appeal…. The filing effects a dismissal of the appeal and restores the superior court’s jurisdiction.”

It is not established here that the record had been filed in the Court of Appeal, so it appears that jurisdiction has been restored to this court.

Both oppositions also argue that the motion itself does not sufficiently notice what relief is being sought. Under CCP section 1010, “the notice of a motion… must state when, and the grounds upon which it will be made….”

Under CRC Rule 3.1110(a):

“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”

Under CRC Rule 3.1112(d), the required elements of a motion are set forth, including that the motion “name the parties to whom it is addressed,” and that it “[b]riefly state the basis for the motion and the relief sought.” (Emphasis added).

The motion here indicates that Volantis will seek “further orders on the judgment entered 1/17/2019…” without specifying what orders are sought, or, significantly, against whom they are sought. To the extent relief is sought against the Wolf firm, it argues that has filed Declarations of Nonmonetary Status, so no monetary relief can be awarded against it without a proper motion pursuant to CCP section 473. Under Civil Code section 2924l (d) and (e) with respect to such Declarations:

“(d) In the event that no objection is served within the 15–day objection period, the trustee shall not be required to participate any further in the action or proceeding, shall not be subject to any monetary awards as and for damages, attorneys' fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is the subject of the action or proceeding.

(e) In the event of a timely objection to the declaration of nonmonetary status, the trustee shall thereafter be required to participate in the action or proceeding.

Additionally, in the event that the parties elect not to, or fail to, timely object to the declaration of nonmonetary status, but later through discovery, or otherwise, determine that the trustee should participate in the action because of the performance of its duties as a trustee, the parties may file and serve on all parties and the trustee a motion pursuant to Section 473 of the Code of Civil Procedure that specifies the factual basis for the demand. Upon the court's granting of the motion, the trustee shall thereafter be required to participate in the action or proceeding, and the court shall provide sufficient time prior to trial for the trustee to be able to respond to the complaint, to conduct discovery, and to bring other pretrial motions in accordance with the Code of Civil Procedure.”

(Emphasis added).

No timely objection was made, or motion filed here.

In any case, the motion appears to seek to rescind an agreement leading to the Trustee’s Deed Upon Sale, but it is not clear what agreement is referenced, and no evidence of this is submitted. There is also a brief argument that in rescinding a contract to purchase realty, parties are entitled to interest on money they paid. The motion also states that Volantis is concurrently applying to the court for a right to attach order with respect to funds held by Wolf in the amount of $502,000.00. There is no application for a writ of attachment filed concurrently.

To the extent the motion seeks funds held by Wolf in the amount of $502,000, the motion appears to be mooted by the voluntary entry of this party into a stipulation after the motion was filed for the release of the funds to Half Life. The opposition by Wolf submits evidence that these funds have in fact been forwarded to and received by Half Life.

To the extent the conclusion appears to seek the return of the funds, “plus costs and interest on the funds,” there is no clear legal argument supporting entitlement to costs and interest, and no evidence submitted showing what interest would be due, or what figure is sought, or how that figure would be calculated.

In fact, it is not made clear until the reply that what the motion seeks is interest on the funds, and, again, it is not clear from whom. The reply seeks prejudgment interest at the rate of 7% per annum, and post judgment interest at the rate of 10% per annum, with figures specified, but again without evidence or evidentiary calculations supporting those figures.

This request and legal argument supporting it is improperly first made in the reply papers. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”

Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d. 1002, 1010.

Moreover, the request appears to have been disposed of by the Stipulation of July 24, 2020, made after this motion was filed and while Volantis was evidently aware of the interest issue, in which Volantis voluntarily agreed that once payment of the $502,000 was made to Half Life, “any obligation of any type to return the Purchase Amount to Volantis shall be deemed to have been fully satisfied.”

The reply also indicates for the first time that relief is sought pursuant to the Court’s Judgment on Stipulation filed January 17, 2019, and the Judgment on Stipulation filed on October 23, 2019, specifically language stating, “Volantis Global shall be entitled to return of the sale proceeds and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

This again is mentioned for the first time in the reply, so that the opposing parties have not had the opportunity to address the argument. In addition, the oppositions, in response to the notice of motion which expressly sought relief only pursuant to the January 17, 2019 Judgment on Stipulation, pointed out that the judgment under which relief was sought was set aside, on motion of Volantis, so could not form the basis for any relief here.

The oppositions also point out that Volantis does not in the single cause of action remaining in its operative cross-complaint, for declaratory relief, seek interest or monetary relief, and has not otherwise sought to adjudicate such an issue. Volantis does not argue otherwise.

Overall, the moving papers are so devoid of notice, evidence or appropriate legal argument upon which appropriate relief can be granted, the motion is denied.

Motion for Attorney’s Fees

Plaintiff Brainangkul argues that she is entitled to attorney’s fees in this action, because the Note and Deed of Trust upon which this action was based each provide for the payment of expenses and reasonable attorney’s fees.

In general, under CCP § 1021:

“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...”

Where there is an agreement for attorney’s fees, Civil Code 1717 provides:

“(a) In an 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. ...Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”

CCP § 1032 defines “prevailing party”:

“(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides...”

Here, since plaintiff prevailed on her claims for breach of contract, negligence, violation of Business Code § 17200, and declaratory relief, as well as obtaining title to the subject property in the quiet title judgment, plaintiff is the prevailing party in the action.

The Note pursuant to which the mortgage loan at issue was secured provides in connection with the borrower’s failure to pay as required:

“If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney’s fees.”

[Gurevitch Decl., Ex. 1 ¶ 6]

The Deed of Trust between plaintiff Brainangkul and the original “Lender” provides at paragraph 22 for acceleration and remedies of the lender in the event of default and the procedures for invoking the power of sale, and provides, “Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.” [Gurevitch Decl., Ex. 2 ¶22].

While these provisions entitle the Note Holder and Lender to recover expenses incurred, including attorney’s fees, and not the borrower, under CCP § 1717, “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.”

It is held, “Section 1717 was enacted to establish mutuality of remedy where a contractual provision makes recovery of attorney's fees available for only one party, and to prevent oppressive use of one-sided attorney's fees provisions.” Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128, citations omitted.

The opposition argues that the provisions at issue do not specifically provide for an “award” of attorney’s fees and costs, or make any reference to a prevailing party. The argument is that the Note merely allows the lender to be “paid back” for attorney’s fees it incurs once it calls the note due, and the Deed of Trust allows the lender to “collect” attorney’s fees, but then describes that they are to be collected by the foreclosure trustee applying the proceeds of sale in a particular order, not via an award of attorney’s fees.

Defendants rely on Hart v. Clear Recon Corporation (2018) 27 Cal.App.5th 322, in which the Second District reversed an attorney fees award in favor of the successor to a lender under a deed of trust, specifically paragraph 9, which permits the lender to engage in certain acts to protect its interest in the property, and provides for expenses, including attorneys’ fees to become additional debt of the borrower. The Second District found that paragraph 9 is not an attorney’s fees provision subject to Civil Code § 1717:

“Pursuant to the language quoted above, section 1717 applies only where a “contract specifically provides that attorney’s fees ... shall be awarded” to one party or the prevailing party. We must consider whether paragraph 9 of the deed of trust specifically so provides. By its plain language, it does not. The paragraph allows the lender to take numerous actions, including incurring attorney’s fees, to protect its interest. It then provides, in the language we emphasized above, that “any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument.” This is not a provision that attorney’s fees “shall be awarded”; it is, 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, at 327.

However, as argued in the opposition, the Second District in Hart did not address whether fees were recoverable under paragraph 22, as is claimed here, as the issue was only raised by the lender for the first time on appeal:

Because this paragraph was only raised on appeal, Nationstar failed to provide evidence in the trial court that this paragraph applies. That is, there is no evidence that Nationstar gave proper notice of default, and that the borrower failed to cure the default, allowing acceleration. As such, Nationstar cannot rely on this paragraph as an after-the-fact justification for the fees awarded by the trial court on a different basis.”

Hart, at 330.

This paragraph is followed by a footnote, in which the Second District also notes that the lender sought to justify the fee award under an attorney’s fees clause in the Note, but the Note had not been before the trial court, and plaintiffs had not signed or sued on the Note. Here, the Note has an attorney’s fees provision and is properly before the court, and forms the basis for the foreclosure acts at issue here.

Defendants also rely on Chacker v. JP Morgan Chase Bank, N.A. (2018) 27 Cal.App.5th 351, which again addresses paragraphs 9 and 14 of the deed of trust, not paragraph 22.

These cases, directed to entirely different provisions of the standard Deed of Trust, do not dictate that fees may not be awarded under paragraph 22, which permit attorney’s fees to be collected for the expenses of enforcement by a foreclosure, and would by the reciprocity recognized entitle a borrower to collect such fees for the expense of resisting enforcement by the foreclosure process. This appears to be a classic case where reciprocity would avoid the oppressive use by the party drafting the agreement of one-sided attorney’s fees provisions. The contractual language is sufficient to entitle plaintiff to a reciprocal fee award here.

Defendants then argue that plaintiff is not entitled to recover fees, because under the terms of the judgment, “Plaintiff and Defendants shall each bear their own costs.” [Ex. C, p. 5 ¶ 7]. Defendants argue that this constitutes a waiver of fees, as fees recoverable under Section 1717 are “costs.” Defendant relies on Civil Code § 1033.5 (c)(5)(B), which provides:

(B) Attorney's fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 as authorized by subparagraph (A) of paragraph (10) of subdivision (a).”

The argument is that the fees here are designated “allowable costs” which have been waived.

Plaintiff argues in reply that the parties here expressly agreed in the Judgment on Stipulation that “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Ex. C, p. 4 ¶ 23]. The argument is that this represents an understanding and intent that the parties were specifically carving out attorney’s fees from the other costs to be borne by the parties who bore them. [See Reply Gurvevich Decl. ¶ 7]. Plaintiff argues that ordinarily the costs of a civil action consist of the expenses of litigation, usually excluding attorney fees, and that the cost provisions summarized in Civil Code §§ 1033.5 were intended to restate existing law, and provide a comprehensive lists of allowable and not allowable costs in one easily accessible place, and not to affect the nature of those expenses.

Plaintiff relies on Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, in which the California Supreme Court observed, “The ‘costs’ of a civil action consist of the expenses of litigation, usually excusing attorney fees.” Davis, at 439. In analyzing whether under FEHA the fees of experts not ordered by the court were properly awarded, the Court reviewed the legislative history of CCP § 1033.5:

“Subsequent to the enactment of Government Code section 12965, the Legislature enacted Code of Civil Procedure section 1033.5, to expressly define the term “costs” as used in Code of Civil Procedure section 1032, the principal statute governing the right of a prevailing party to recover costs. Code of Civil Procedure section 1033.5 specifies which costs are “allowable” (id., subd. (a)), which are “not allowable ..., except when expressly authorized by law” (id., subd. (b)), and which may be allowed or denied in the court's discretion (id., subd. (c)). Allowable costs include ordinary witness fees and the fees of experts ordered by the court, so long as they are “reasonably necessary” to the conduct of the litigation and “reasonable” in amount. (Code Civ. Proc. 1033.5, subds. (a)(7) & (8), (c)(1), (2), & (3).) Nonallowable costs include fees of experts not ordered by the court, “except when expressly authorized by law.” (Id., 1033.5, subd. (b)(1).)

As explained in an analysis prepared by the Assembly Judiciary Committee, Code of Civil Procedure section 1033.5 was intended not to alter existing law but, instead, to eliminate confusion by specifying for general purposes “which costs are and which costs are not allowable.” (Assem. Jud. Com., 3d reading analysis of Sen. Bill No. 654 (1985-1986 Reg. Sess.) Apr. 17, 1986, p. 1.) The lists of allowable and nonallowable costs included in the statute, it explains, “are essentially restatements of existing law, and to a large extent are codifications of case law.” (Ibid.) “The California Judges Association (CJA), which is the source of this bill, states that the existing law, rules and procedures relating to the awarding of litigation costs are hard to find and hard to follow. This bill is intended to rectify that situation by enacting comprehensive statutory lists of which costs are and are not allowable so that litigants and judges will no longer have to search through myriad statutes, cases and treatises in order to determine whether a particular cost item is allowable. CJA states that the list is not intended to substantively change existing law but rather to, as nearly as possible, merely restate it in a central statutory location.” (Id. at p. 2.)

Davis, at 441.

Plaintiff argues that the previously existing Civil Code 1717 provides a distinction between fees and costs, which should continue to be honored:

“(a) In an 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.”

(Emphasis added).

The fees here are not denied on the basis of a waiver of costs.

Instead, the court finds that it is sufficiently established that plaintiff is entitled, pursuant to the Note and Deed of Trust, to reasonable attorney’s fees incurred in defeating defendants’ claims that they were entitled to foreclose on the subject property.

Court’s Determination of Reasonableness of Fees

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:

“the fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

Thus, applying the lodestar approach to the determination of an award under Civil Code section 1717, the Court of Appeal in Sternwest Corp. v. Ash (1986) 183 Cal.App.3d 74, 77 [227 Cal.Rptr. 804] explained: “Section 1717 provides for the payment of a 'reasonable' fee. After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.”

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624 [134 Cal.Rptr. 602].)

PLCM, at 1095-1096. (Bold print added).

The Court also held that the standard of review with respect to this determination is abuse of discretion:

““The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”-- meaning that it abused its discretion.”

PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.

The motion argues that a reasonable lodestar figure for the successful prosecution of this action is $369,657.00. Plaintiff also seeks an upward multiplier of 1.5, for a total amount of fees of $554,485.50.

The motion presents detailed declarations with billing records showing the following hours and fees:

Bryan Miller 69.6 hours $715 per hour $49,764

Pauliana Lara 72.2 hours $595 per hour $42,959

Matthew Faler 51 hours $565 per hour $28,815

Yelena Gurevich 351.5 hours $500 per hour $175,750

Maximilian Lee 23.3 hours $400 per hour $9,320

Lauren Rode 6.3 hours $375 per hour $2,362.50

Sage Stone 155.8 hours $275 per hour $42,845.00

Farah Ballout 80.1 hours $275 per hour $22,027.50

The motion also shows that these rates are lower than the rates provided by an adjusted Laffey Matrix calculation. The motion also submits expert declarations from V. James DeSimone, Mike Arias, and Dan Stormer explaining the reasonableness of the fees sought, and the contingency risks for such matters.

The opposition argues that at least $64,612 of the fees were incurred by plaintiff solely in connection with the conduct of Volantis, not with the conduct of defendants with respect to the enforcement of the note and DOT.

The opposition argues that plaintiff can recover fees incurred in connection with Volantis’ UD action only if that separate lawsuit was inextricable intertwined with this action, i.e., were closely related and involved identical issues. The opposition cites to Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, in which the court of appeal found that the trial court had appropriately found separate proceedings “intertwined inextricably” for purposes of a fee award, the court of appeal concluding that the legal services performed in the other proceedings “were both useful and necessary to the ultimate resolution of the action, and directly contributed to that resolution.” Wallace, at 848-849.

As argued in the reply, the interests of Volantis, and its efforts to obtain possession of the property, were closely intertwined with the issues raised by the foreclosure, as the issue of Volantis’ rights with respect to the property would not have arisen had defendants not pursued a foreclosure which the judgment has now determined was void. The UD action involved a determination that the foreclosure sale was regularly and properly conducted, which is the main issue plaintiff prevailed on in this action, and under the note and DOT, which provides for fees.

The opposition also argues that fees cannot be recovered for plaintiff’s non-contractual claims.

In general, where an action involves other causes of action beyond the contract, the prevailing party may recover attorney’s fees under § 1717 only as they relate to the contract action. Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d 124, 129-130. Reynolds also held, however, the a plaintiff’s joinder of causes of action should not dilute its right to attorney’s fees, and that fees “need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.” Reynolds, at 130. It appears that the trial court may apportion fees among the contractual and non-contractual claims, as long as it sufficiently substantiates its order to reduce a fee award. See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 690 (finding record before the court of appeal devoid of indication that the trial court had apportioned between contractual and noncontractual claims in reducing award).

The opposition argues that while plaintiff appears to be claiming that the issues here were intertwined, she should not be awarded fees for pursuing her HBOR claim or her negligence claim, which were non-contractual claims, and were based, in part, on the allegations that defendants foreclosed before issuing a written denial of plaintiff’s appeal of the loan modification denial, and that defendants improperly denied plaintiff a loan modification for failure to supply paystubs. The argument is that these issues are distinct from the issue of whether defendants failed to apply a loan modification, the contract claim in the SAC and the only claim resolved via stipulated judgment. The opposition requests that if the court is inclined to award attorney’s fees, that it apportion the amount to account for plaintiff’s time spent on these two non-contract-based claims. Defendants indicate that they cannot accurately apportion the time spent on those claims, and requests that the court fairly apportion the fees. Defendants indicate in a footnote that the time sheets show approximately $5,386.13 in fees was incurred because of plaintiff’s non-contract claims, and refers to objections filed.

A review of those objections shows that defendants have used the “objections” to identify certain billing entries which defendants claim are not appropriate or reasonable here. This does not appear to be the appropriate use of objections, and plaintiff in reply has responded that these objections are not a legal objection concerning the admissibility of evidence by an argument regarding the weight of that evidence.

The objections accordingly are overruled. However, the court could consider treating those objections as challenges to the reasonableness of the charges, but the court elects not to do so because such objections as posed do not constitute a proper challenge as to the reasonableness of any such fees as opposed to an objection regarding allocation of fees as to causes of action.

However, Objection No. 79 objects with specificity to tasks which defendants argue were devoted to the HBOR, negligence and other tort theories, such as wrongful foreclosure. According to billing records, at least some of that time was devoted to non-contractual theories. The time at issue is 5.1 hours for Bryan Miller ($715), 6.2 hours for Matthew Faler ($565) and 1.5 hours for Attorney Gurevich ($400). This totals Miller ($3,646.50), Faler ($3,503), and Gurevich ($600) which equals $7,749.50. Reducing half of these fees would result in a reduction of $3,874.75, which is an appropriate apportionment.

The opposition also argues that the lodestar figure is unreasonable, primarily arguing that the work performed was not reasonably necessary, as plaintiff could have resolved the case for the terms agreed upon in the stipulated judgment a year before the final settlement, and that plaintiff only retracted her demand for damages when she had inadequately prepared for trial, and lost a motion to compel a deposition and for leave to file a third amended complaint on the eve of trial. This argument does not specifically establish any unreasonableness here. A review of the docket submitted with the opposition, and the file, shows this was a highly litigated matter, with plaintiff placed fundamentally in a defensive position of preventing the loss of her home despite the void foreclosure proceedings, and the effect of those proceedings on Volantis’ position with respect to the property.

There is also an argument that plaintiff’s attorneys improperly seek to recover for fees that are clerical in nature, such as filing papers, and for fees for internal discussions, and for three attorneys to attend trial, but do not in the opposition point to any specific entries which would fall into these categories. The “objections” point to specific tasks objected to on these grounds.

A review of those specific entries does show some potential clerical tasks, but they do not appear excessive or for long duration. The team meetings and internal discussions do not appear unreasonable. There is one entry for 42 hours in one day for Attorney Gurevich to complete an opposition to MSJ, which can be reduced due to a mistaken time entry of 42 hours, to 12 hours, so a reduction of 30 hours at $500 per hour or $15,000. [See Objection No. 76].

Moreover, if the court, who presided over the trial, believes that three attorneys should not have attended the trial, each attorney billed 7 hours for that date, and a reduction can be made. [See Objection No. 91].

Defendants also argue that the claimed hourly rates are unjustifiable, arguing that the declarations of plaintiff’s attorneys are insufficient to provide support for the rates. It appears that the declarations submit appropriate evidence on the issue. The opposition argues that defendant’s counsel bills at $350 per hour, and that a broad national survey conducted in attorneys’ fees in consumer law found rates to range from $258 for 1 to 3 years practicing consumer law, to $534 for 21 to 25 years. The hourly rates charged, however, are appropriately supported, and the court will not reduce the hourly rates for any of the plaintiff’s attorneys.

Defendants also argue that attorney Gurevich lacks credibility, as she previously sought to recover attorney’s fees at $450 per hour for work that attorney Ballout performed, who seeks fees at $275 per hour in the motion. [See Ex. 11]. The opposition also indicates that two of the attorneys, Attorney Gurevich and Attorney Faler, have been disciplined by the State Bar in unrelated matters. This information does not justify a reduction in the billing rates for the work performed here, and, as argued in the reply, appears to be an improper tactic in connection with the reasonableness of the fees in this matter.

Overall, it would appear that the lodestar is reasonable with the reductions of $3,874.75 for apportionment of non-contractual issues, and $15,000 for time overbilled on one date. That would leave the lodestar of $369,657.00, less these sums, or $350,782.25.

This leaves the issue of the multiplier which is requested by plaintiff for 1.5 times the lodestar figure, only for the attorneys associated with the Consumer Action Law Group, not Attorney Lee. Plaintiff relies on Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, in which the court of appeal, in finding a trial court had not abused its discretion in deciding not to apply a multiplier to its lodestar calculation, set forth the factors which are traditionally considered in such situations:

““The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Group, supra, .) These factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum, supra, .)”

Holguin, at 1332.

Plaintiff argues that the issues here were novel and difficult, as plaintiff’s right to stay in her home required interpretation of ever-evolving statutory and common law, and that the skill in presenting the questions was considerable, as multiple motions were made by defendants, including demurrers, and a motion for summary judgment/adjudication, and ex parte applications, which were substantially defeated by counsel for plaintiffs. Indeed, even this motion for fees required considerable research and the addressing of multiple issues.

Plaintiff indicates that most significantly, the contingent nature of the fee award weighs in favor of the multiplier. [Gurevich Decl., para 24]. It appears that the agreement was a contingency agreement, and that the Consumer Law Group attorneys spent significant time on this matter which could have been spent on other matters, have had a significant delay in receiving payment, and that the attorneys faced a significant risk that the matter would resolve against plaintiff, or in her favor but without significant monetary recovery or a fee award. A multiplier of 1.5 is reasonable here and will be applied to the lodestar sum for the attorneys other than Attorney Lee.

This results in an award of $9,320 for the services of Attorney Lee, and a remaining lodestar of $350,782.25, less $9,320, or $341,462.25. Multiplying this sum by 1.5 results in a sum of $512,193.38. Adding this to the $9,320 results in a total fee award of $521,513.38.

RULING:

Motion for Further Orders on Judgment is DENIED.

Plaintiff Poonsook Brainangkul’s Motion for Attorney’s Fees is GRANTED. The Court finds that plaintiff Poonsook Brainangkul was the prevailing party in the action, and that the action arose from the enforcement of a written promissory note between the parties and a deed of trust which include applicable attorney’s fees provisions.

The Court has reviewed the evidence and billings and finds the reasonable lodestar, after deductions for apportionment and billing irregularity, is $350,782.25. The Court also finds that plaintiff has sufficiently established entitlement to a 1.5 multiplier on work performed by attorneys other than Attorney Lee, so that the total fees awarded are $521,513.38. These fees are to be awarded to plaintiff Poonsook Brainangkul against defendants Select Portfolio Servicing, Inc. and the Bank of New York Mellon, as Trustee.

Defendants’ Objections to Declarations and Evidence Submitted in Support of Plaintiff’s Motion for Attorney’s Fees are OVERRULED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: EC065616    Hearing Date: February 14, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 21

Date: 2/14/20

Case No: EC 065616 Trial Date: None Set

Case Name: Brainangkul v. Select Portfolio Servicing, Inc., et al.

MOTION FOR ATTORNEY’S FEES

Moving Party: Plaintiff Poonsook Brainangkul

Responding Party: Defendants Select Portfolio Servicing, Inc. and the

Bank of New York Mellon, as Trustee

RELIEF REQUESTED:

Award of attorneys’ fees in favor of plaintiff and against defendants Select Portfolio Servicing and the Bank of New York Mellon in the sum of $554,485.50.

SUMMARY OF FACTS:

Plaintiff Poonsook Brainangkul alleges that she is the owner of real property in Glendale where she resides as her principal residence. Plaintiff alleges that in July 2015, she submitted a loan modification application to defendant Select Portfolio Servicing, and was approved for a trial period plan, pursuant to which she would make three timely payments and thereafter her loan would be permanently modified. Plaintiff made all three payments, due from October 2015 through December 2015 on time. Plaintiff was provided a permanent modification agreement which she signed and returned to Select Portfolio. Plaintiff made the payments in January and February, which were accepted by Select Portfolio, but the March 2016 payment, received by Select Portfolio was returned, with indication that plaintiff had not returned the permanent loan modification. Plaintiff submitted the tracking number and assured Select Portfolio she had returned a signed permanent modification agreement, but Select Portfolio refused to permanently modify the loan and initiated foreclosure.

Select Portfolio invited plaintiff to submit another loan modification application, and in an effort to save her home, plaintiff submitted the application. Plaintiff alleges that during the second loan modification process, Select Portfolio constantly mishandled her documents, losing some and requesting resubmission, and making inquiry concerning whether submitted paystubs reflected regular or seasonal income, to which plaintiff responded, and then denying the loan modification because plaintiff had not sent in paystubs.

On September 23, 2016, plaintiff spoke with her relationship manager for Select Portfolio, who recommended she appeal the decision. Plaintiff submitted the documents to appeal the decision that day, and on September 26, 2016 the relationship manager confirmed she had received the appeal and would submit it for review.

Plaintiff alleges that she called Select Portfolio or defendant The Wolf Firm every day to check on the status of the appeal, which they informed her was still pending. On October 4, 2016, the Wolf Firm conducted a trustee’s sale, in which the property was sold to Volantis, an experienced foreclosure sale buyer.

The operative complaint alleges that on October 11, 2016, plaintiff’s counsel provided ex parte notice to Volantis of its intent to seek a temporary restraining order enjoining Volantis from recording a TDUS pursuant to plaintiff’s claims against defendants. On October 12, 2016, at 8:30 a.m., plaintiff sought the TRO, but while plaintiff awaited the court to hear the matter, Volantis recorded the TDUS at 8:52 a.m.

The file shows that on February 9, 2018, the court heard a motion for summary judgment, or in the alternative summary adjudication, brought by defendants Select Portfolio Servicing, Inc. and The Bank of New York Mellon. The motion for summary adjudication was granted as to the third cause of action for breach of implied covenant of good faith and fair dealing. The motion was otherwise denied.

On January 17, 2019, the court entered a Judgment on Stipulation submitted by plaintiff Brainangkul and defendants Select Portfolio Servicing and The Bank of New York Mellon, entering judgment in favor of Plaintiff, declaring that plaintiff is the owner and title holder of the subject property, that BONY holds the loan encumbering the property, and that SPS is the servicer of the loan. The judgment provides that once plaintiff’s loan was modified, and the default cured, defendants lacked the power to sell the property under the power of sale in the DOR because there was no default to enforce and set aside the trustee’s sale of October 4, 2016 as void. The judgment states:

“7. The foreclosure sale shall be set aside and Volantis Global shall be entitled to a return of the sale proceeds of $502,000.00, and such other relief as is proper under the Civil Code when a foreclosure sale is set aside.”

This motion was originally scheduled to be heard on April 26, 2019. On that date, the court also heard a motion brought by Volantis Global to vacate the Judgment on Stipulation, arguing the court was not authorized to quiet title as to Volantis and the party to which the property has since been transferred, Half Life, based on the stipulation of plaintiff and the bank defendants, without including Volantis or conducting a properly noticed evidentiary hearing in open court.

The court heard the motion to set aside the judgment and set a non-jury trial on the issue of title and ruled that this attorney fee motion was to be set and heard after the trial was conducted.

The trial was conducted on June 19, 2019, and continued to July 24, 2019, and again to July 26, 2019. The court announced it oral statement of decision, finding that plaintiff prevailed on the quiet title action as to causes of action Nos. 5, 6 and 7 of the Verified Second Amended Complaint, and cross-defendant prevailed as to Volantis’ Second Amended Cross-Complaint for Declaratory Relief and to Quiet Title

On October 23, 2019, the court signed and filed its Judgment on Stipulation, finding that plaintiff owns the property subject to a loan held by BONY and serviced by SPS, the foreclosure sale of October 4, 2016 was void because defendants lacked the power of sale as there was no default on which the sale could be based, so the foreclosure sale was set aside as void. Judgment was entered in favor of plaintiff, with plaintiff and defendants to bear their own costs. The judgment states, “Plaintiff may bring a motion for attorneys’ fees, and Defendants may oppose the motion for attorneys’ fees on any grounds available to them.” [Judgment on Stipulation, p. 5:8-9]. A Notice of Entry of Judgment was filed and served the same date.

On October 28, 2019, plaintiff filed a Notice of Lodging and Reinstating Plaintiff’s Attorney Fee Motion, with a hearing date of December 13, 2019.

On December 4, 2019, the court heard an ex parte application filed on behalf of defendant SPS and the Bank of New York Mellon, at Trustee to continue the hearing on the motion for attorney fees, which was granted, and the motion continued to this date.

On December 23, 2019, Volantis filed a Notice of Appeal giving notice that Volantis appeals from the Judgment on Stipulation entered on October 23, 2019. On December 9, 2019, Volantis filed a Notice of appeal from the adverse judgment from the court trial on Volantis cross-complaint against the plaintiff to quiet title.

RULING:

Plaintiff Poonsook Brainangkul’s Amended Motion for Attorney’s Fees is CONTINUED to October 23, 2020 at 9:00 a.m. as a “place holder” hearing date in light of the pendency of the appeals by Volantis Global Inc. from the Judgment on Stipulation and from the adverse judgment from the court trial on Volantis’ cross-complaint. On October 23, 2020, the court will also conduct a status conference regarding the two appeals. The court will not resolve attorney fee motion now because if Volantis prevails on any of its two appeals, the Motion for Attorneys Fees will either be moot or premature, given the likelihood of more litigation, and the plaintiff losing its status as the prevailing party until a re-trial is concluded. Any re-trial would require the court to make a new determination of the prevailing party, even if plaintiff were to prevail on any such re-trial. Therefore, any determination of plaintiff as the prevailing party at this time before the appeals are resolved could be subject to a de facto nullification if the Court of Appeal were to reverse any one of the two judgments the court entered in favor of the plaintiff. Hence, the court will not proceed at this juncture on plaintiff’s Motion for Attorney’s Fees due to the potential waste of judicial resources even though the court technically has jurisdiction to adjudicate the attorney’s fees motion while the appeals are pending.

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