Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIC384363. Gloria Trask, Judge. Affirmed in part and reversed in part with directions.
Covington & Crowe, Robert E. Dougherty, Angie H. Kim, and Jesse T. Morrison for Plaintiffs and Appellants.
Bryan Cave, Robert E. Boone III, Jennifer Jackson, Heather Orr, and Douglas E. Winter for Defendant and Appellant.
OPINION
RICHLI J.
Plaintiffs Chandra Family Trust 851 (Chandra) and Quinn Paul Carney (Carney) defaulted on a loan, secured by real property, from defendant Countrywide Home Loans, Inc. (Countrywide). Countrywide started foreclosure proceedings but suspended them after plaintiffs entered into a “Repayment Agreement.” The repayment agreement provided that, if plaintiffs failed to comply with any of the terms of the agreement, Countrywide could foreclose without further notice.
The repayment agreement required plaintiffs to make further payments by cashier’s check, money order, or Western Union. When they tried to pay by third party checks, Countrywide did indeed foreclose without further notice.
In this action, plaintiffs alleged, among other things, that their tender complied with the repayment agreement and that Countrywide’s foreclosure breached the repayment agreement. The trial court granted summary judgment for Countrywide.
In this appeal, plaintiffs contend that their right to further notice before foreclosure proceedings resumed was statutorily nonwaivable. We will hold that plaintiffs forfeited this contention by failing to raise it below; moreover, assuming that they had a right to further notice at all, that right was waivable, and it was waived.
Plaintiffs further contend that the trial court erred by awarding $40,000 in attorney fees against them, on the theory that they had improperly denied two requests for admissions. (See Code Civ. Proc., § 2033.420.) Countrywide, however, has cross-appealed, contending that the trial court erred by refusing to award it the full $175,683 that it was seeking as contractual attorney fees, under the original trust deed. (See Civ. Code, § 1717.) We agree that Countrywide was entitled to contractual attorney fees; we will remand with directions to set the appropriate amount of such fees. Accordingly, plaintiffs’ challenge to the trial court’s award of attorney fees is moot.
I
FACTUAL BACKGROUND
Because this is an appeal from a summary judgment, we draw the following facts from the moving and opposition papers in connection with the motion for summary judgment. We accept all facts listed in Countrywide’s separate statement that plaintiffs did not dispute. We also accept all facts listed in Countrywide’s separate statement that plaintiffs did dispute, to the extent that (1) there is evidence to support them (Code Civ. Proc., § 437c, subd. (b)(1)), and (2) there is no evidence to support the dispute (id., subd. (b)(3)). Finally, we accept all facts listed in plaintiffs’ separate statement, to the extent that there is evidence to support them. (Ibid.) We disregard any evidence not called to the trial court’s attention in the separate statement of one side or the other, except as necessary to provide nondispositive background, color, or continuity. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 314-316.)
In April 1995, Carney borrowed $139,000, secured by a trust deed on a piece of real property that he owned in Moreno Valley. The loan was transferred to Countrywide for servicing.
On January 29, 1998, Carney conveyed the property to Chandra, which began making the payments on the loan. However, in June 2000, Chandra stopped making payments. On March 14, 2001, Countrywide recorded a notice of default. On June 15, 2001, Countrywide recorded a notice of trustee’s sale, setting the sale for July 6, 2001. Before the sale date, however, Carney and Countrywide entered into a “Repayment Agreement.” It required Carney to bring the loan current by making specified monthly payments through June 2002. It provided:
“ Collection and Foreclosure Actions/Bankruptcy .
If foreclosure action relating to your Loan has commenced, it will not be canceled, but it will be postponed by Countrywide provided there is no default by you under this Agreement. If you fail to comply with each and all of the terms and conditions of this Agreement, this Agreement, at Countrywide’s option, shall terminate immediately and automatically without further notice to you . . . . In such case, all amounts that are owing under your Loan shall become immediately due and payable, and Countrywide shall . . . continue . . . foreclosure proceedings . . . . Countrywide’s acceptance of any payments from you which, individually or collectively, are less than the total amount due to cure your default shall in no way prevent Countrywide from continuing with foreclosure action, or require Countrywide to re-notify you of your default, re-accelerate your loan, reissue any notice or recommence any process prior to Countrywide proceeding with foreclosure action.”
“All payments made by you to Countrywide under this Agreement shall be payable by means of a cashier’s check, money order or certified check.” Instructions attached to the repayment agreement indicated that payments could also be made via Western Union.
From July 2001 through January 2002, plaintiffs made timely payments, either by cashier’s check or by Western Union. In February 2002, however, they attempted to make the next payment by tendering several third party checks. On March 8, 2002, without notifying plaintiffs that it was rejecting this tender — indeed, without any further notice to plaintiffs at all — Countrywide held a foreclosure sale. One month later, it returned the third party checks to plaintiffs.
II
PROCEDURAL BACKGROUND
On November 6, 2002, plaintiffs filed this action, asserting causes of action for breach of contract, negligence, fraud, violation of the Unfair Business Practices Act (Bus. & Prof. Code, § 17200), and violation of the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.).
On June 30, 2006, Countrywide filed a motion for summary judgment, on the ground that plaintiffs’ tender of third party checks breached the repayment agreement and entitled Countrywide to foreclose without further notice. On October 25, 2006, the trial court granted the motion. On November 13, 2006, it entered judgment in favor of Countrywide and against plaintiffs.
III
THE VALIDITY OF THE WAIVERS IN THE REPAYMENT AGREEMENT
Plaintiffs contend that the purported waivers in the repayment agreement were statutorily void.
Plaintiffs concede that they did not raise this contention below. Countrywide argues that it has therefore been forfeited. We agree.
When a motion for summary judgment has been granted, “[t]he opposing party may not raise an issue for the first time on appeal. [Citation.]” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465.) “‘The rule which forbids raising a new issue for the first time on appeal takes on added significance in summary judgment proceedings because “[t]he moving party’s burden on a motion for summary judgment is only to ‘negate the existence of triable issues of fact in a fashion that [entitles] it to judgment on the issues raised by the pleadings. [Citation.] It [is] not required to refute liability on some theoretical possibility not included in the pleadings.’ [Citation.]”’ [Citation.]” (Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472, quoting Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 989, quoting American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281, quoting IT Corp. v. Superior Court (1978) 83 Cal.App.3d 443, 451-452.)
Plaintiffs cite Fisher v. City of Berkeley (1984) 37 Cal.3d 644 to the effect that “parties may advance new theories on appeal when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy. [Citations.]” (Id. at p. 654, fn. 3.) The focus of this case, however, is on the purely private question of whether Countrywide was entitled to foreclose on plaintiffs’ property. The mere fact that plaintiffs rely on specified Civil Code sections is not enough; virtually every statute exists to vindicate some important public policy. (Cf. Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 515 [“[t]he reasonableness of a [Code of Civil Procedure] section 998 award . . . does not involve an important question of public policy or public concern, but simply determines whether in this particular case a trial court abused its discretion in deciding how much one party should pay another”].) In any event, the doctrine stated in Fisher is purely discretionary, and “[c]ourts have declined to exercise this discretion. [Citations.]” (Manco Contracting Co. v. Bezdikian (2007) 151 Cal.App.4th 749, 754.)
Separately and alternatively, the contention lacks merit. Civil Code section 2953 provides: “Any express agreement made or entered into by a borrower at the time of or in connection with the making of or renewing of any loan secured by a deed of trust . . . whereby the borrower agrees to waive the rights, or privileges conferred upon him by Sections 2924 [or] 2924c of the Civil Code . . . shall be void and of no effect.”
Civil Code section 2924 requires the trustee under a deed of trust to “give notice of sale, stating the time and place thereof . . . .” (Civ. Code, § 2924, subd. (a)(3).)
Civil Code section 2924c provides: “In the event the sale does not take place on the date set forth in the initial recorded notice of sale or a subsequent recorded notice of sale is required to be given, the right of reinstatement shall be revived as of the date of recordation of the subsequent notice of sale, and shall continue from that date until five business days prior to the date of sale set forth in the subsequently recorded notice of sale.” (Civ. Code, § 2924c, subd. (e).)
We may assume, without deciding, that but for the waivers in the repayment agreement, Countrywide’s failure to renotice the foreclosure sale would have violated Civil Code section 2924 and 2924c. (But see Civ. Code, §§ 2924c, subd. (e), 2924g, subds. (a), (c).) Even so assuming, however, those waivers did not fall afoul of Civil Code section 2953. Civil Code section 2953, by its terms, applies only to a waiver “entered into . . . at the time of or in connection with the making of or renewing of any loan secured by a deed of trust . . . .” Thus, the statute “is entirely consistent with the right of a mortgagor or trustor to make a subsequent waiver . . . .” (Salter v. Ulrich (1943) 22 Cal.2d 263, 267; accord, Williams v. Reed (1957) 48 Cal.2d 57, 67; Morello v. Metzenbaum (1944) 25 Cal.2d 494, 499.)
The repayment agreement was signed only by Carney, not by Chandra. It is undisputed, however, that Chandra negotiated the terms of the repayment agreement, and Chandra has never argued that the waivers in the repayment agreement were not binding on it. To the contrary, in their opening brief, plaintiffs state that: “[A]ccording to the Repayment Agreement’s terms, Countrywide did not have any duty to notify Appellants, Chandra and/or Carney, of the cancellation of the Repayment Agreement or the proceedings of the foreclosure sale against them.” (Italics added.)
Plaintiffs complain bitterly that, when they tried to make the February 2002 payment, the payor on several of the third party checks was Countrywide itself, and the payee on one of them was Carney. They also point out that Countrywide “did not immediately reject this tender.” Nevertheless, the issues fairly raised in this appeal (see Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief must state each point under a separate heading or subheading summarizing the point]) do not extend to whether Countrywide had to accept — or even whether it effectively did accept — plaintiffs’ February 2002 payment. Moreover, plaintiffs do not dispute that the repayment agreement at least purported to waive their right to notice of a nonconforming tender. (See Code Civ. Proc., § 2076.) We therefore do not address any of these issues.
We conclude that Civil Code section 2953 did not require the trial court to deny the motion for summary judgment.
IV
ATTORNEY FEES
Plaintiffs contend that the trial court erred by awarding Countrywide $40,000 in attorney fees based on their denial of certain requests for admissions. (Code Civ. Proc., § 2033.420.)
In its cross-appeal, Countrywide contends that the trial court erred by refusing to award it the full $175,683 in attorney fees that it was seeking, either as contractual attorney fees (Civ. Code, § 1717) or under the CLRA (Civ. Code, § 1780, subd. (d)). We will address Countrywide’s claim to contractual attorney fees first, because, as we will conclude, it is dispositive.
A. Additional Procedural Background.
The trust deed provided:
“To Protect the Security of This Deed Of Trust, Trustor Agrees: [¶] . . . [¶]
“14. Should [Trustor] fail to make any payments or to do any act as herein provided, then Beneficiary or Trustee . . . may: Make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. Beneficiary or Trustee being authorized to . . . commence, appear in and defend any action or proceeding purporting to affect the security hereof or the rights or the powers of Beneficiary or Trustee; . . . and in exercising any such powers, incur any liability [and] expend whatever amounts are reasonably necessary therefor, including . . . reasonable counsel fees.
“15. To pay within 30 days after demand all sums properly expended hereunder by Beneficiary or Trustee, . . . and the repayment thereof shall be secured hereby.”
In the course of discovery, plaintiffs denied the following two requests for admissions:
“Admit that YOU never tendered the full, undisputed amount owing on the note.”
“Admit that YOU never completed the payoff plan in the AGREEMENT.”
After the trial court entered judgment, Countrywide filed a motion for attorney fees totaling $175,683, asserting three grounds:
1. Countrywide was entitled to contractual attorney fees under the trust deed. (Civ. Code, § 1717.)
2. Plaintiffs’ claim under the CLRA was not in good faith. (Civ. Code, § 1780, subd. (d).)
3. Because plaintiffs had denied the requests for admissions quoted above, plaintiffs were liable for Countrywide’s expenses of proving the matters denied. (Code Civ. Proc., § 2033.420.)
The trial court ruled that Countrywide was not entitled to attorney fees under either Civil Code section 1717 or Civil Code section 1780. However, it did award Countrywide $40,000 in attorney fees under Code of Civil Procedure section 2033.420.
B. Analysis.
As already noted, Countrywide contends that it was entitled to recover all of its attorney fees as contractual fees under Civil Code section 1717.
This contention requires us to construe and apply the “reasonable counsel fees” provision of the trust deed. Because there was no extrinsic evidence regarding the provision, this presents a question of law that we review independently. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1169-1170.)
Similarly worded trust deed provisions have been held to authorize the recovery of attorney fees in an action to enjoin a foreclosure. (Buck v. Barb (1983) 147 Cal.App.3d 920, 924-925; Valley Bible Center v. Western Title Ins. Co. (1983) 138 Cal.App.3d 931, 932-933; Gudel v. Ellis (1962) 200 Cal.App.2d 849, 853, 855-857; Johns v. Moore (1959) 168 Cal.App.2d 709, 712, 714-715; see also Smith v. Krueger (1983) 150 Cal.App.3d 752, 755-758 [action for declaratory relief concerning beneficiary’s right to foreclose].)
The trial court reasoned that the foreclosure had already occurred; hence, this action concerned the repayment agreement, rather than the trust deed. The attorney fee provision, however, applies to “any action . . . purporting to affect” either “the security hereof” or “the rights or the powers of Beneficiary . . . .” In this action, plaintiffs’ core position is that the foreclosure constituted a breach of the repayment agreement. Thus, they called into question whether Countrywide was entitled to obtain the benefit of the security of the trust deed by foreclosing. Certainly a judgment in plaintiffs’ favor — holding Countrywide liable in damages for exercising its right to foreclose under the trust deed — would “affect . . . the security” of the trust deed. Moreover, plaintiffs called into question Countrywide’s “rights” and powers” under the trust deed, basically arguing that they were limited and qualified by the repayment agreement.
We therefore conclude that this action was within the scope of the attorney fee provision of the trust deed. It follows that the trial court erred by refusing to grant Countrywide attorney fees under Civil Code section 1717.
Plaintiffs have never argued that, because the attorney fees are to be secured by the trust deed, an award of attorney fees would be a deficiency judgment and hence barred under Code of Civil Procedure section 580b and/or 580d. Any such contention has long since been forfeited.
In opposition to the motion for attorney fees, plaintiffs argued, among other things, that there was insufficient evidence that the amount of fees Countrywide was seeking was reasonable. Because the trial court ruled that Countrywide was not entitled to fees at all under this theory, it has never been called upon to determine the appropriate amount of such fees. Hence, we will direct it to make this determination on remand.
V
DISPOSITION
The judgment is affirmed.
The order granting Countrywide’s motion for attorney fees in part and denying it in part is reversed. On remand, the trial court shall award Countrywide contractual attorney fees under Civil Code section 1717 in an amount that it determines to be appropriate. In its discretion, it may receive additional evidence, briefing, or oral argument, although it is not required to do so. Unless it sets a briefing and/or hearing schedule within 30 days after our remittitur issues, the matter will be deemed to have been submitted on the date of the remittitur. Countrywide is awarded costs on appeal against plaintiffs.
We concur: RAMIREZ, P.J., KING, J.
Similarly, Chandra has never argued that it is not liable for attorney fees because it was not a party to the trust deed. This contention, too, has been forfeited.