Opinion
B315960
01-30-2024
BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, Plaintiff and Respondent, v. CARLOS GARAU et al., Defendants and Appellants
Olga H. Garau, in pro. per., and for Defendant and Appellant Carlos Garau. Law Offices of Robert E. Weiss and Cris A. Klingerman for Plaintiff and Respondent Barrett Daffin Frappier Treder &Weiss, LLP.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. YC072760 Deirdre H. Hill, Judge. Affirmed.
Olga H. Garau, in pro. per., and for Defendant and Appellant Carlos Garau.
Law Offices of Robert E. Weiss and Cris A. Klingerman for Plaintiff and Respondent Barrett Daffin Frappier Treder &Weiss, LLP.
ROTHSCHILD, P. J.
Defendants Olga and Carlos Garau's (collectively, the Garaus) home was sold at a foreclosure sale, and the trustee filed an interpleader action to resolve competing claims to the excess sale proceeds. The trial court granted the trustee's motion for discharge and awarded attorney fees and expenses. The Garaus appeal, arguing that the trustee had no right to interplead the excess sale proceeds and that there was no valid basis to award attorney fees. The Garaus' arguments lack merit and we affirm the trial court's order.
Because Olga and Carlos Carau share a last name, we may refer to them by their first names to avoid confusion. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
This is the Garaus' third appeal to this court arising from the foreclosure sale of their home. In 2018, we affirmed a judgment of dismissal after the trial court granted a motion for judgment on the pleadings in the Garaus' earlier action to prevent the foreclosure sale from proceeding. (Garau v. Nationstar Mortgage LLC (Dec. 12, 2018, B281879) [nonpub. opn.].) In an earlier appeal in this action, we affirmed an order denying Carlos's anti-SLAPP motion to strike the complaint in interpleader. (Barrett Daffin Frappier Treder &Weiss, LLP v. Garau (Oct. 29, 2020, B297827) [nonpub. opn.].) We summarize here only the facts that are relevant to the issues resolved by this appeal.
Barrett Daffin Frappier Treder &Weiss, LLP (plaintiff), acting as foreclosure trustee, conducted a foreclosure sale of property owned by the Garaus on September 29, 2017. The sale proceeds exceeded the indebtedness on the Garau property by $150,209.15. Thereafter, plaintiff received claims for payment from Torrance Unified School District (TUSD) and Investment Retrievers, Inc., two creditors holding recorded judgment liens on the Garau property. The Garaus challenged the validity of those creditors' liens and demanded that plaintiff pay them the entire amount of the surplus proceeds.
In response to these competing claims, plaintiff filed a complaint in interpleader, naming the Garaus and the other creditors as defendants, and deposited the surplus proceeds with the clerk of the court. Rather than litigate their right to the surplus proceeds against the other creditors, the Garaus instead challenged plaintiff's right to interplead those funds. Carlos filed a special motion to strike the complaint in interpleader (an anti-SLAPP motion) as well as a demurrer and a motion to strike. The trial court denied both motions to strike and overruled the demurrer. Carlos appealed the order denying his anti-SLAPP motion. We affirmed that order, and after the remittitur was issued the plaintiff filed a motion to be discharged from the interpleader action, and to recover its attorney fees and costs incurred in litigating the motions and appeal filed by Carlos.
A new round of attacks on the pleadings ensued. In addition to opposing plaintiff's motion for discharge, Carlos filed a second motion to strike the interpleader complaint as well as another demurrer. Plaintiff's counsel filed two supplemental declarations, bringing current the amount of attorney fees and costs the plaintiff had incurred litigating the interpleader action.
Only the cover page of the demurrer is included in the appendix prepared by the Garaus in support of their appeal. That cover sheet refers to an accompanying declaration and exhibits by Olga, as well as a request for judicial notice. Neither the declaration nor the request for judicial notice is in the record.
On August 19, 2021, the court heard plaintiff's motion for discharge, and Carlos's attacks on the interpleader complaint. Addressing first the plaintiff's motion for discharge, the trial court quoted at length from our unpublished opinion affirming the order denying Carlos's anti-SLAPP motion:
"Further, the case has already been determined to be proper for interpleader.... See also appellate court opinion dated October 29, 2020, stating that '[w]e agree with the trial court's analysis' of the trial court finding that 'the interpleader action arose from the competing claims to the surplus f[u]nds asserted by TUSD, Investment Retrievers, and the Garaus themselves.' The appellate opinion states that, 'Barrett indisputably received three claims to the surplus funds: one from TUSD and one from Investment Retrievers based on their separate judgments against Garau, and a third from the Garaus.' The appellate court also stated that 'Barrett's interpleader claim was thus simply a procedural mechanism for placing in one action competing claims to a fund it was holding and in which Barrett itself had no claim.' The appellate court further found that 'receipt of claims by TUSD, Investment Re[trie]vers, and the Garaus was, in and of itself, sufficient to trigger Barrett's statutory right to interpleader. Barrett owed no duty to attempt to resolve the dispute between the warring claimants. Thus, it was the existence of these competing claims, and not the foreclosure proceedings that generated the surplus funds, that gave rise to the complaint in interpleader.' "
The court found that "plaintiff makes no claim to the deposited funds and is a disinterested shareholder," and that "plaintiff properly deposited the funds with the court," and concluded that "plaintiff has met the required elements for its discharge from the interpleader action." (Capitalization omitted.) Turning to the request for attorney fees, the court reviewed the history of the litigation between plaintiff and the Garaus, quoting plaintiff's assertions that the Garaus had "vastly over-litigated" the matter in an attempt "to strike back at plaintiff for foreclosing [on] their home and to delay payment of the surplus funds to their creditors." (Capitalization omitted.) The court found that the fee request was reasonable, and awarded fees and costs in the amount of $71,777.80. Plaintiff served notice of entry of the discharge and attorney fee order on September 15, 2021. The Garaus filed a timely notice of appeal.
DISCUSSION
A. The Issues on Appeal and the Standard of Review
The Garaus' brief argues, at great length, that the September 2017 foreclosure sale was improper, and that the liens asserted by TUSD and Investment Retrievers are invalid and should be set aside. We do not address these arguments. No pleading in the record in this case puts in issue the validity of the foreclosure sale or the validity of the liens, and the trial court did not address either in its order dated August 19, 2021.
The only issues before us are whether the trial court properly granted plaintiff's discharge motion, and whether the plaintiff was entitled to an award of attorney fees and costs. An order discharging the interpleader plaintiff and awarding attorney fees is appealable. (Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 490 (Southern California Gas); Sweeney v. McClaran (1976) 58 Cal.App.3d 824, 827-828.) We review the trial court's interpretation of the interpleader statutes de novo, and the findings of fact supporting the order discharging plaintiff for substantial evidence. We review the legal basis for an award of attorney fees de novo; we review the amount of fees awarded for abuse of discretion. (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 [" 'it is a discretionary trial court decision on the propriety or amount of statutory attorney fees to be awarded, but a determination of the legal basis for an attorney fee award is a question of law to be reviewed de novo' "]; San Francisco CDC LLC v. Webcor Construction L.P. (2021) 62 Cal.App.5th 266, 285 [same].)
The August 19, 2021 minute order also overrules the Garaus' demurrer to, and denies their motion to strike, the interpleader complaint. The order overruling the demurrer and denying the motion to strike is not appealable. (Southern California Telephone Co. v. Damenstein (1947) 81 Cal.App.2d 216, 217 [order overruling demurrer is not appealable]; Stanton v. Andrews (1959) 170 Cal.App.2d 269, 270 [order denying motion to strike is not appealable].)
Our review of the order discharging plaintiff is limited by omissions from the appendix prepared by the Garaus." 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appealing party has the burden to provide the reviewing court with an adequate and accurate record on appeal to demonstrate reversible error. (See Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["[i]t is the burden of appellant to provide an accurate record on appeal to demonstrate error"]; see also Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725, fn. 3 ["[i]t was of course the duty of Srithong, as the appellant, to furnish an adequate record for review"].) "A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish &Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) For example, the Garaus' appendix does not include plaintiff's complaint in interpleader, leaving us no choice but to presume that the trial court correctly concluded that the complaint alleged a factual basis for interpleader.
B. Plaintiff Was Entitled to be Discharged from the Interpleader Action
A person subject to competing claims for money may bring an interpleader action to compel the claimants to litigate their claims among themselves. By disclaiming an interest in the disputed funds and depositing the funds with the court, he may be discharged from liability to the claimants and avoid involvement in further litigation over the disputed funds. "The purpose of interpleader is to prevent a multiplicity of suits and double vexation. [Citation.] 'The right to the remedy by interpleader is founded, however, not on the consideration that a [person] may be subjected to double liability, but on the fact that he is threatened with double vexation in respect to one liability.' [Citation.]" (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) The right to file an interpleader action is provided in Code of Civil Procedure section 386: "Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims." (Code Civ. Proc., § 386, subd. (b).) The plaintiff's right to interplead the competing claims of the Garaus, TUSD and Investment Retrievers is found in Civil Code section 2924j, subdivision (e), authorizing the foreclosure trustee to "file an interpleader action in order to resolve a dispute about the proceeds of a trustee's sale."
An "interpleader proceeding is traditionally viewed as two lawsuits in one," where the "first dispute is between the stakeholder and the claimants to determine the right to interplead the funds," and the "second dispute to be resolved is who is to receive the interpleaded funds." (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 43.) The complaint must show that" 'the defendants make conflicting claims'" to the subject matter, and that the plaintiff" 'cannot safely determine which claim is valid and offers to deposit the money in court . . . .' [Citations.]" (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 607-608.) Another requirement that applies here, where the stakeholder is interpleading surplus funds following a foreclosure sale pursuant to Civil Code section 2924j, is that the competing claimants' rights are based on liens recorded before the foreclosure sale. (Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1114 (Placer).)
The trial court granted plaintiff's motion for discharge based on specific findings that plaintiff was a disinterested stakeholder, that TUSD, Investment Retrievers and the Garaus were making competing claims to the surplus funds following the foreclosure sale, and that plaintiff deposited those funds with the court. Those findings are supported by substantial evidence, in the form of the unopposed declaration John A. Perry filed in support of plaintiff's motion for discharge and attorney fees on March 3, 2021. "When a civil appeal challenges findings of fact, the appellate court's power begins and ends with a determination of whether there is any substantial evidence-contradicted or uncontradicted-to support the trial court findings. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.]" (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582 (Schmidt).) Applying that standard here, substantial evidence supports the trial court's findings.
Although not included among the trial court's specific findings, paragraph 4 of Perry's declaration avers that the claims of TUSD and Investment Retrievers were based on liens recorded prior to the foreclosure sale, and thus comprises substantial evidence that plaintiff's interpleader complaint satisfied the preexisting lien requirement of Placer, supra, 23 Cal.App.5th 1109 .
The trial court's order granting plaintiff's discharge also cited, at length, the prior appellate opinion in this matter reciting the legal and factual basis for the plaintiff to file the interpleader complaint. The Garaus argue that the portions of our opinion relied on by the trial court are dictum. Even if they are correct, we would nevertheless affirm the trial court's order. Because that order is presumed valid, in the absence of contrary findings of fact "we must presume in favor of the judgment every finding of fact necessary to support it [that is] warranted by the evidence." (Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984.) Thus, in support of the order discharging plaintiff we may infer that the trial court made the findings of fact that it quoted from our prior opinion, including that the interpleader action arose from the competing claims to the surplus funds asserted by TUSD, Investment Retrievers, and the Garaus themselves, and that the plaintiff indisputably received claims to the surplus funds from TUSD and Investment Retrievers based on their separate judgments against Carlos, and a claim from the Garaus themselves.
C. The Trial Court Properly Awarded Plaintiff Attorney Fees and Costs
Code of Civil Procedure section 386.6, subdivision (a), provides that the interpleader plaintiff "may insert in his motion, petition, complaint, or cross[-]complaint a request for allowance of his costs and reasonable attorney fees incurred in such action. In ordering the discharge of such party, the court may, in its discretion, award such party his costs and reasonable attorney fees from the amount in dispute which has been deposited with the court." Consistent with this statute, plaintiff included a request for attorney fees and costs in its motion for discharge. We affirm the order awarding attorney fees and costs to the plaintiff: Substantial evidence supports the amount of fees and costs awarded, and the Garaus have not shown that the trial court abused its discretion by awarding fees and costs in this or any amount.
The decision to award fees is left to the trial court's 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 Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Plaintiff's application for fees and costs is supported by substantial evidence in the declarations by plaintiff's counsel, including a list of hundreds of billing entries showing work done in litigating against the Garaus. The record does not include either objections by the Garaus to plaintiff's evidence, nor any declarations of their own controverting that evidence. The trial court was entitled to afford plaintiff's uncontradicted evidence whatever weight it felt appropriate. We cannot second-guess its assessment of the weight and credibility of plaintiff's evidence. "Venerable precedent holds that, in a bench trial, the trial court is the 'sole judge' of witness credibility. [Citation.] The trial judge may believe or disbelieve uncontradicted witnesses if there is any rational ground for doing so. [Citation.] The fact finder's determination of the veracity of a witness is final." (Schmidt, supra, 44 Cal.App.5th at p. 582.)
In light of the substantial, uncontradicted evidence supporting plaintiff's fee request, combined with the trial judge's knowledge of the case acquired during the interpleader litigation, we are satisfied that the court did not abuse its discretion when it awarded plaintiff its attorney fees and costs. (See Southern California Gas, supra, 232 Cal.App.4th at p. 492 [no abuse of discretion in awarding $81,053.44 in fees and costs to interpleader plaintiff who litigated anti-SLAPP motion and discharge motion, and where opposing party "did not present any evidence to . . . counter the declarations submitted by counsel" in support of the fee request].)
D. The Garaus' Remaining Arguments Lack Merit
In the final eight pages of their brief, under the heading "Attorneys Fees and Costs Award is Statutorily Contraindicated and Excessive," the Garaus offer five arguments, identified as A through E. These range from argument A, that section 386.6 "discriminates against female lawyers, on its face" to argument E, that plaintiff "did not and cannot meet [Code of Civil Procedure section] 386.6 prerequisites." These arguments have in common that they are conclusory, are not supported by citations to authority, and are based on assertions of fact unaccompanied by citations to the record showing that those facts exist.
"In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has forfeited a point urged on appeal when it is not supported by accurate citations to the record. [Citations.] Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority." (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.) Likewise, "stating what purport to be facts-and not unimportant facts-without support in the record . . . is a violation of the rules, specifically rule 8.204(a)(1)(C) of the California Rules of Court, with the consequence that such assertions will, at a minimum, be disregarded." (Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 846.) The Garaus have failed to show error for the reasons articulated in Pizzaro v. Reynoso (2017) 10 Cal.App.5th 172, 181: "It is not our responsibility to act as counsel for [the Garaus] and attempt to arrange [their] arguments coherently.... [The Garaus'] failure to provide coherent organization to [their] arguments forfeits consideration of those arguments on appeal."
DISPOSITION
The order discharging plaintiff, and awarding attorney fees and costs, is affirmed. Plaintiff is awarded its costs on appeal.
We concur: CHANEY, J. BENDIX, J.