Opinion
NOT TO BE PUBLISHED.
Appeal from the Superior Court of Riverside County, No. RIC397623, Gloria Trask, Judge.
A. L. Wisdom, in pro. per. for Defendant and Appellant.
Dabney B. Finch for Plaintiffs and Respondents.
OPINION
King, J.
I. INTRODUCTION
Defendant A.L. Wisdom loaned money to plaintiffs Richard and Kathryne Gilbert. The loan was evidenced by a promissory note and was secured by a deed of trust on the Gilberts’ real property. After Wisdom commenced nonjudicial foreclosure proceedings, the Gilberts sued to enjoin the foreclosure and to cancel the interest on the note on the ground that it was usurious. The trial court granted the Gilberts’ motion for summary adjudication as to the cause of action for cancellation of interest and subsequently entered judgment on the remaining causes of action based upon an apparent settlement agreement between the parties.
In a prior appeal in this case, we held that the trial court properly determined that the interest rate on the promissory note was usurious and that interest was properly cancelled, but we reversed the judgment because the proceedings regarding the purported settlement agreement and the entry of judgment were flawed. (We will refer to our prior unpublished opinion as Gilbert I.)
Gilbert v. Wisdom (July 23, 2007, E040559) (nonpub. opn.).
Following remand, a bench trial was held on the remaining claims. The court agreed with Gilbert’s arguments that the prior payments of interest should be set off against the principal on the note and, as a result, there was a balance of $3,602.72. After Wisdom’s motion for new trial was denied, judgment was entered. Wisdom filed a notice of appeal.
Kathryne Gilbert passed away prior to our remand after Gilbert I. For this reason, we will refer to the singular, “plaintiff” or “Gilbert,” where appropriate with respect to the postremand facts.
Wisdom subsequently filed a memorandum of costs. Gilbert moved to strike the memorandum on the ground that Wisdom was not the prevailing party. The court granted the motion to strike. Thereafter, the court granted Gilbert’s motion for an award of his attorney fees. Wisdom filed a notice of appeal from these orders. We dismissed this second appeal to the extent that it was from the order striking Wisdom’s memorandum of costs because the notice of appeal was untimely as to that order. We then consolidated the remaining issues on the two appeals and took judicial notice of the record in Gilbert I.
Wisdom makes the following contentions: (1) he was deprived of constitutional and statutory rights because the court did not call him by telephone for hearings at which he had been given permission to appear by telephone; (2) the court erred in denying his motion for new trial; (3) the court violated the law of the case by refusing to follow our direction in Gilbert I concerning the applicability of a statute of limitations; (4) the court erred in determining the balance on the promissory note and failing to include interest at the legal rate on the note after it matured; (5) the trial court did not have jurisdiction to hear Gilbert’s motion for attorney fees; (6) the court erred in awarding Gilbert his attorney fees; and (7) this court erred when it dismissed the appeal as to the order striking his memorandum of costs. For the reasons set forth below, we reject these arguments and affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Background
On July 26, 1983, the Gilberts borrowed $9,500 from Wisdom. The loan was evidenced by a promissory note and deed of trust on the Gilberts’ real property in Mountain Center. The interest rate on the loan was 15 percent per annum. Interest and principal were payable in monthly installments of $183.33. Any principal and interest unpaid as of September 8, 1990, was due and payable at that time. The promissory note also included the following language: “If action be instituted on this note I promise to pay such sum as the Court may fix as attorney’s fees.”
The Gilberts made some, but not all, of the installment payments on the note until November 19, 1988. Although the note thereafter remained unpaid, Wisdom did not demand further payment until November 19, 2002. On May 2, 2003, Wisdom commenced nonjudicial foreclosure proceedings against the real property securing the note.
In August 2003, the Gilberts filed a complaint against Wisdom. A first amended complaint was filed in January 2004. The Gilberts alleged the interest rate on the 1983 promissory note was usurious and that the total due on the note, without interest, was $2,536.98. They also alleged that Wisdom contended the note was not usurious and that the total due on the note was $40,690.72. In the first cause of action, for declaratory relief, the Gilberts sought a declaration that the interest rate on the note violated California’s usury law and that Wisdom “[was] not entitled to collect such usurious interest.” In the second cause of action, the Gilberts sought to enjoin the nonjudicial foreclosure of the Mountain Center property. In the third cause of action, the Gilberts sought to cancel “all interest on the promissory note... as usurious interest under the California Usury Law.” The Gilberts sought an accounting of the amounts owing on the note in the fourth cause of action. In the fifth cause of action, the Gilberts sought damages for the intentional infliction of emotional distress. A sixth cause of action, for negligent infliction of emotional distress, was alleged against Shoshone Service Corporation, the trustee under the deed of trust that is the subject of the nonjudicial foreclosure.
The Gilberts sought an award of attorney fees under the second cause of action (to enjoin the foreclosure) and the third cause of action (for cancellation of the interest due under the note). They also sought, as to all causes of action, “such other and further relief as the court deems just and proper.”
In April 2004, Wisdom successfully demurred to the fifth cause of action for intentional infliction of emotional distress.
In his answer to the first amended complaint, Wisdom generally denied the allegations of the first amended complaint and alleged four affirmative defenses: failure to state facts sufficient to constitute a cause of action; waiver; estoppel; and laches.
On June 16, 2005, the Gilberts filed a motion for summary adjudication of the first (declaratory relief) and third (cancellation of interest) causes of action. The trial court denied the motion as to the first cause of action and granted the motion as to the third cause of action. As to the first cause of action, the court explained that the motion did not completely dispose of the declaratory relief cause of action because the amount of usurious interest paid by the Gilberts had “not been proven and therefore, the court cannot offset usurious interest actually paid against the remaining principal balance of the note.” Regarding the third cause of action, the court found that the 15 percent interest rate violated the California usury law and that “all interest previously paid on the note or due on the note by the terms of the note, is cancelled as a matter of law.” The matter was then set for trial on the remaining causes of action.
On the trial date, the parties announced they had reached an agreement on the amounts due as a result of the court’s usury ruling. The basic terms of the settlement were stated on the record, but the parties told the court they would be reduced to writing. Before that was done, Wisdom’s attorney sought to withdraw as Wisdom’s counsel. Nevertheless, he subsequently signed a stipulation setting out the amounts due and the agreement of counsel on the remaining issues in the action. The Gilberts submitted a proposed judgment based on the stipulation, which the court signed. After offsetting interest paid by the Gilberts against the principal due under the note and an award of attorney fees in favor of the Gilberts, the judgment provided for a net award of $28,514 in the Gilberts’ favor.
Wisdom appealed. In July 2007, we issued our opinion in Gilbert I, in which we affirmed the trial court’s decision on the motion for summary adjudication on the third cause of action. However, we agreed with Wisdom that the subsequent procedure for entry of judgment was faulty. We therefore reversed the judgment and remanded for further proceedings on the remaining causes of action. Specifically, we stated that the court should reconsider “the interest offset issue” and “consider any issues which [Wisdom] raises relating to the award of attorney fees to [the Gilberts], and to the offset of such fees against the principal amount due.”
B. Postremand
Following remand, Wisdom represented himself in propria persona. In October 2007, the trial court set a hearing regarding the remittitur and gave notice of the hearing to the parties. The hearing was set for December 11, 2007, in department 4 of the court.
On November 26, 2007, the court received from Wisdom a request for accommodations by persons with disabilities (Judicial Council Forms, form MC-410, as rev. Jan. 1, 2007). Wisdom indicated that his request applied to the December 11, 2007, hearing regarding the remittitur “and future hearings.” The preprinted form provides a space for specifying the “[t]ype or types of accommodation requested,” after which Wisdom wrote, “to appear by telephone.” The space following the preprinted words, “Special requests or anticipated problems,” was left blank. The court’s register of actions indicates that the request was sent to department 4 of the court on December 5, 2007.
Neither party designated this document to be part of the record on appeal. We have, on our own motion, augmented the record to include the document and directed the clerk of this court to keep the document in the confidential portion of the file in this case.
On December 11, 2007, the hearing regarding the remittitur was held. The court had not yet acted upon Wisdom’s request for accommodations and it does not appear from the transcript of the hearing that the court was aware of the request. Gilbert was represented at the hearing by counsel. Wisdom did not appear either in person or telephonically. The court set the case for a court trial to begin on February 29, 2008.
On December 20, 2007, the court granted Wisdom’s request for accommodation by marking a check-box on the request for accommodations form submitted by Wisdom. Preprinted language on the form states: “The accommodation request is GRANTED and the court will provide the,” followed by three check-boxes next to three choices for completing the sentence. The court checked the box next to the phrase, “requested accommodation, in whole.”
The other two boxes state: “[R]equested accommodation, in part (specify below)” and “alternative accommodation (specify below).”
On January 2, 2008, Wisdom filed a motion to dismiss the action on the ground that “no issues remain for trial.” Wisdom did not indicate in his moving papers that he would be appearing telephonically or otherwise give notice to the court or Gilbert that he intended to appear by telephone, as required by rule 3.670(g) of the California Rules of Court. A hearing on the motion was set for March 13, 2008.
All further references to rules are to the California Rules of Court. Rule 3.670 provides, in part: “A party choosing to appear by telephone at a hearing, conference, or proceeding under this rule must either: [¶] (A) Place the phrase ‘Telephone Appearance’ below the title of the moving, opposing, or reply papers; or [¶] (B) At least three court days before the appearance, notify the court and all other parties of the party’s intent to appear by telephone. If the notice is oral, it must be given either in person or by telephone. If the notice is in writing, it must be given by filing a ‘Notice of Intent to Appear by Telephone’ with the court at least three court days before the appearance and by serving the notice at the same time on all other parties by personal delivery, fax transmission, express mail, or other means reasonably calculated to ensure delivery to the parties no later than the close of the next business day.”
The case was called for trial in department 1 of the court at 9:30 a.m. on February 29, 2008. Wisdom did not appear in person and did not call the court or arrange for a telephonic appearance. Counsel for Gilbert informed the court that the court had granted Wisdom’s request for accommodation, allowing him to appear telephonically. The court commented that Wisdom “should have arranged for [a telephonic appearance using a teleconferencing system known as CourtCall] because he’s the one that said he wanted to appear by phone.” After noting for the record that Wisdom “was allowed to appear telephonically,” the court called Wisdom by telephone. Wisdom acknowledged that he was aware that the matter had been set for trial that morning. The court informed him: “[T]he court granted your request to appear by phone. It is incumbent upon you to... make those arrangements through the clerk’s office and court call [sic] to be available by phone for the trial.” Wisdom did not say anything to indicate that he did not hear or understand this; nor did he inquire about making arrangements to appear by telephone.
After some colloquy among the court, Wisdom, and Gilbert’s counsel, the court set the matter for trial that afternoon in department 4 and directed Gilbert’s counsel to fax his trial exhibits to Wisdom. For reasons not disclosed in our record, the trial was continued to April 7, 2008. Wisdom received notice of the new trial date on March 8, 2008.
On March 13, 2008, Wisdom’s motion to dismiss came on for hearing. Wisdom was not present in court. The court confirmed with the courtroom clerk that Wisdom had not called in or registered with CourtCall to appear telephonically. The court then denied the motion, stating: “Essentially [Wisdom] is attempting in this motion to... receive summary judgment; but he does not comply with the procedural requirements pursuant to [Code of Civil Procedure] Section 437c; [¶] The Court of Appeal reversed the judgment in plaintiff’s favor, remanded for trial consistent with the opinion; and that does not support a judgment in favor of defendant as to the issues that were remanded for trial.” Gilbert’s counsel sent Wisdom a notice of the court’s ruling, which he received on March 17, 2008.
On March 26, 2008, Gilbert’s counsel responded to a letter from Wisdom in which Wisdom expressed concern that he was not included in the initial discussions between the court and Gilbert’s counsel when the matter was called for trial on February 29, 2008. Gilbert’s counsel informed Wisdom that following the granting of Wisdom’s request for telephonic appearances, “[i]t is now up to you and the court to arrange the procedure for trial in the context of the accommodation granted to you. You should immediately contact the court to work out the accommodation procedure for April 7, 2008.” There is nothing in the record that suggests that Wisdom made any attempt to contact the court to arrange for a telephonic appearance for trial.
On April 7, 2008, the matter was called for trial. Wisdom failed to appear either in person or by telephone. The courtroom clerk informed the court that Wisdom “was supposed to contact CourtCall and set it up, and he did not do that.” The court stated that Wisdom “was given all the information to contact CourtCall to set up his appearance via CourtCall. He has not done so.”
The trial proceeded without Wisdom. Following the submission of evidence by Gilbert, the court found that the principal amount remaining on the note was $3,602.72. The court further found that Gilbert was the prevailing party and that an award of attorney fees could offset the remaining principal on the note.
On April 21, 2008, Wisdom filed a motion for new trial. Among other arguments, Wisdom asserted: he was denied access to the court hearings in violation of his constitutional rights and the Americans with Disabilities Act because the court “refus[ed] to call Defendant by telephone....”; the court improperly awarded Gilbert his attorney fees and applied such fees and past interest as an offset against the amount owed on the note; the court did not have jurisdiction to enjoin the nonjudicial foreclosure; there was no basis for declaratory relief; and Gilbert was not entitled to attorney fees without a motion for such fees. The hearing on the motion was set for May 30, 2008.
In support of the motion for new trial, Wisdom filed an affidavit in which he stated: he “was available, by telephone standby, for the hearing” regarding the remittitur held on December 11, 2007, but “never received a telephone call from the Court when the matter was called or heard”; on February 29, 2008, he “was available, by telephone standby, for the trial at 9:30 AM,” but “did not receive a call from the Court until 10:45 AM”; on March 13, 2008, the date of his motion to dismiss, he “was available by [his] telephone waiting for a call from the Court,” and “waited all day by the phone and never received a call from the Court”; on the date of the trial, April 7, 2008, he “waited by the phone all day and never received a call from the Court.”
Prior to the hearing on the new trial motion, a proposed judgment submitted by Gilbert’s counsel was entered by the court as the judgment on April 29, 2008. The judgment provided that interest on the promissory note was cancelled and that the amount of unpaid principal on the note was $3,602.72. The judgment also provided that Gilbert was the prevailing party, that he was entitled to recover his attorney fees, and that such fees shall offset the principal balance on the note. The judgment further provided that Wisdom was permanently enjoined from foreclosing the deed of trust that secures the note.
Wisdom’s motion for new trial was heard on May 30, 2008. He had not given notice of his intent to appear telephonically in the manner required by rule 3.670(g). He did not appear for the hearing in person, nor did he call into the court or check in with the CourtCall telephonic appearance system at the time of the hearing. The hearing was held without his participation. In denying the motion, the court stated: “The court finds that it is not incumbent on the court to call [Wisdom] and/or pay for CourtCall as an accommodation for the disability, when all he asked for was to appear by phone, nor are we required to pay for CourtCall for him. Particularly[,] he has not asked. He has not contacted the court in any manner. And so he is creating that much of what he complains of in this instance.”
However, although the court denied the motion for new trial, it vacated the judgment and directed Gilbert’s counsel to prepare a new judgment that omitted the findings that Gilbert was the prevailing party, that he was entitled to recover attorney fees, and that he was entitled to offset the unpaid principal on the note with an award of attorney fees. Such issues, the court stated, must be determined by postjudgment motion.
A new judgment was entered on November 19, 2008. On the first cause of action for declaratory relief, the court declared that the 15 percent interest rate on the note violated California’s usury law, all interest on the note was cancelled, and “[a]fter canceling all interest on the promissory note and crediting [Wisdom] with his advances and applicable late charges and crediting [Gilbert] with all payments made on the promissory note the unpaid note principal is $3,602.72.” The second cause of action to enjoin the nonjudicial foreclosure was dismissed. Judgment on the third cause of action for cancellation of interest was stated in the same terms as the judgment on the declaratory relief cause of action. On the fourth cause of action for an accounting, the judgment repeated the language quoted above for the first cause of action.
Wisdom filed a notice of appeal from the judgment on November 24, 2008.
On December 2, 2008, Wisdom filed a memorandum of costs. Gilbert moved to strike the memorandum of costs on the ground that Wisdom was not the prevailing party. At the hearing on this motion, the court called Wisdom via CourtCall as “a special accommodation” for Wisdom, who then participated in the hearing by telephone. The court found that “based upon the facts of this case and the note balance being reduced from 40,000 and change to 3,000 and change, it appears to the court that the greater recovery would be for the Gilberts.” Therefore, the court concluded, Wisdom “is not the prevailing party.” The order granting the motion to strike the memorandum of costs was entered on January 21, 2009. Gilbert served notice of the court’s order granting the motion the following day.
On January 16, 2009, Gilbert filed a motion for award of attorney fees, based upon the attorney fees provision in the promissory note and Civil Code section 1717, in which he sought $43,960. Wisdom opposed the motion. On March 4, 2009, the matter was heard, with Wisdom appearing by telephone via CourtCall. Following argument, the trial court granted the motion and awarded fees in the amount requested.
On May 15, 2009, Wisdom filed a notice of appeal from the order striking his memorandum of costs and the order granting Gilbert’s motion for attorney fees. On June 1, 2009, we dismissed the appeal as to the order striking the memorandum of costs on the ground that it was untimely. Wisdom thereafter filed a motion to vacate the dismissal, which we denied. We also consolidated the appeal from the judgment and the appeal from the order awarding attorney fees.
III. DISCUSSION
A. Telephonic Appearance Issues
Wisdom argues, as he did below, that his constitutional rights to due process, equal protection, and travel, as well as his rights under the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) and the Unruh Civil Rights Act (Civ. Code, § 51) were violated because the court did not call him for the telephonic hearings and for trial.
The constitutional right of due process entitled Wisdom to an opportunity to be heard at a meaningful time and in a meaningful manner. (Goldberg v. Kelly (1970) 397 U.S. 254, 267; Boddie v. Connecticut (1971) 401 U.S. 371, 377; California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 335.) That opportunity “must be tailored to the capacities and circumstances of those who are to be heard.” (Goldberg v. Kelly, supra, at pp. 268-269, fn. omitted.) How the meaningful opportunity to be heard is to be achieved in a particular case is to be determined by the exercise of discretion by the trial court. (Payne v. Superior Court (1976) 17 Cal.3d 908, 927.)
Here, Wisdom requested that he be permitted to appear at court hearings by telephone because of a disability. The court granted his request “in whole,” thereby permitting Wisdom to attend hearings telephonically. Although the form provided space for “Special requests or anticipated problems,” in which Wisdom could have requested that the court initiate the call, Wisdom left this space blank. The court was equipped with the technology to hold telephonic hearings via the CourtCall teleconferencing system. Although there is little in our record concerning the mechanics of that system, it appears from statements made by the court and the courtroom clerk that litigants and counsel who appear by telephone ordinarily initiate the call by registering or checking in with the CourtCall service prior to the appearance. There is nothing in the record to suggest that Wisdom was ever prevented from using or was otherwise unable to use CourtCall. Under these circumstances, even if we assume that due process required the court to allow Wisdom to appear by telephone, the requirement was satisfied because the court granted his request and the CourtCall teleconferencing system was available to him and allowed for his access to, and participation in, the hearings in a meaningful manner.
Wisdom asserts the trial court made his request for accommodation available “for public viewing” on the Internet contrary to the requirement that the information be kept confidential. (See rule 1.100(c)(4).) After Wisdom contacted the court to complain, the court responded by removing the document from the Internet. It does not appear to us that he is asserting these facts as a basis for reversal.
Nevertheless, Wisdom contends he was denied access to the courts because the court did not call him to initiate the telephonic hearings. We disagree. Granting litigants the opportunity to appear by telephone does not create or imply an obligation on the part of the court to call the party at the time of the hearing. Although physical access to the courts requires the courthouse doors be open, one cannot stand outside the open building while his case is heard and then claim that he was deprived access to the court. Similarly, a party given permission to appear by telephone cannot, as Wisdom did, simply wait by the telephone as hearings take place and then complain that he was deprived of the opportunity to participate. The fact that Wisdom did not take advantage of the opportunity provided to him does not mean that it was not given to him.
Nor can Wisdom reasonably assert he was deprived of notice of the procedure for appearing telephonically. Initially, we note that a request to appear by telephone, without more, implies that the requesting party knows how to make a telephonic appearance or intends to learn how to do so before the hearing; one ordinarily does not request permission to do something that one does not know how to do. In granting the request, the trial court could thus reasonably conclude that Wisdom knew what he needed to do in order to appear by telephone and would do it. Nevertheless, even if Wisdom actually believed the court would call him at the time of the hearings, he was expressly informed by the court at the first trial call that it was “incumbent upon [him]” to make the arrangements for the conference through the clerk’s office and CourtCall. In his opening brief, Wisdom dismisses this admonition as an “offhand comment.” We disagree with his characterization of the court’s statement, as well as his assertion that the statement “was obviously not heard.” After the court made the statement, Wisdom gave no indication that he did not hear what the court said.
In addition, Gilbert’s counsel told Wisdom in writing prior to the trial that he “should immediately contact the court to work out the [telephonic appearance] accommodation procedure for April 7, 2008.” Wisdom ignored this advice and, instead of contacting the court to arrange for the telephonic conference, “waited by the phone all day and never received a call from the Court.” Finally, even if Wisdom still believed on the date of the hearing on his motion to dismiss, on the date of trial, or the date of the hearing on his motion for new trial that the court would initiate the call, a reasonable person in his position who has not received that call within a short time after the appointed time for the call would call the court to find out why the call had not come; he would not simply wait by the telephone all day. In light of these circumstances, we agree with the trial court’s conclusion that Wisdom “creat[ed] that much of what he complains of in this instance.” For all the foregoing reasons, we hold that Wisdom was not deprived of access to the court or to due process.
In Jameson v. Desta (2009) 179 Cal.App.4th 672, the First Division of this court recently reversed an order dismissing an action after the plaintiff failed to appear telephonically for hearings. In Jameson, however, the plaintiff was incarcerated and prison personnel did not permit him to make the telephone calls necessary to appear at the hearings. (Id. at pp. 681-682.) Although the plaintiff repeatedly informed the trial court of this fact, the court failed to inquire into the complaints. (Ibid.) Under these circumstances, the Court of Appeal held that the court failed to ensure that the plaintiff was able to exercise his right of meaningful access to the court. (Id. at p. 683.) Jameson is easily distinguished. In contrast to the plaintiff in that case, Wisdom is not incarcerated and was not prevented in any way from making the telephone calls necessary to appear at his hearings.
Wisdom refers us to section 3.1(d) of the California Standards of Judicial Administration in which the Judicial Council recommends that courts adopt a local rule specifying “[w]hether the court or the attorney initiates the telephone call for a telephone appearance.” (Cal. Stds. Jud. Admin.,§ 3.1(d).) Riverside County Superior Court has not adopted such a rule. The standard, however, is not mandatory. Wisdom also cites to rule 3.670(m), which requires trial courts to “publish notice providing parties with the particular information necessary for them to appear by telephone at conferences, hearings, and proceedings in that court....” Although the Riverside County Superior Court has not included such notice in their local rules, we cannot determine from our record that the court has not otherwise “publish[ed]” such notice. However, even if the court did not comply with this rule, we conclude that Wisdom had sufficient notice of the requirement that he initiate a telephonic appearance for the reasons explained above.
In addition to asserting a violation of due process, Wisdom refers to his constitutional rights to equal protection and to travel, as well as to the ADA and the Unruh Civil Rights Act. However, he does not explain how these rights are implicated or violated. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [Court of Appeal need not discuss points that are argued in conculsionary form only].) Nor can we discern any basis for a claim under these laws that would not be disposed of by the above analysis. Accordingly, we reject such arguments as unsupported and without merit.
B. Motion for New Trial and Determination of Damages
Wisdom contends the court erred in denying his motion for new trial. First, he argues that he should receive a new trial because the court “refus[ed] to include” him in the trial. He is referring to the court’s failure to call him on the telephone. His second argument is that the court “erred in excluding [him] from the hearing on the Motion for New Trial.” Both of these arguments are without merit for the reasons set forth above; Wisdom was never excluded from the hearings, he simply did not call in to make an appearance.
Wisdom’s third argument is that the court “erred in refusing to provide due process consideration to the merits of [his] Motion for New Trial.” He is apparently referring to the court’s brief discussion of the motion at the hearing and the failure of the court to expressly address each of his arguments. He does not cite to any authority for this contention. Indeed, a court is not required to state its reasons for denying a motion for new trial. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 931; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1657.) There was no error.
Wisdom’s fourth argument pertaining to the motion for new trial is that the court “erred in refusing to allow [him] the principal on the note, statutory interest thereon from maturity (September 8, 1990), property tax impound account in [his] favor, statutory interest thereon and late fees with statutory interest thereon.” In essence, he contends the court should not have set off the usurious interest paid by Gilbert against the unpaid principal on the note and that he was entitled to “statutory interest” on the unpaid balance after the date the note matured. Similar and related arguments are asserted in his opening brief under the headings, “The Trial Judge erred in refusing to follow the directions of this Court,” and “The Trial Court erred in the determination of the note balance.” To avoid repetition, we will address these arguments together in the following sections.
1. Right to Set Off Interest Paid by the Gilberts Against the Principal Balance on the Note
The court determined that the remaining principal amount on the note was $3,602.72. This was based upon evidence that the total principal on the note (after adding late fees and advances by Wisdom for the payment of property taxes) equaled $12,129.05, and the total payments by the Gilberts equaled $8,526.33. The $3,602.72 amount is arrived at by setting off the $8,526.33 sum against the $12,129.05 of principal. Wisdom, not being present at trial, presented no evidence or argument to support a different calculation.
Wisdom contends the set off of interest against principal was erroneous as a matter of law because the statute of limitations for recovering the interest payments had expired prior to the commencement of this action. He relies primarily upon language in Gilbert I, which he contends established law of the case on this issue. The pertinent passage from Gilbert I is: “Although we agree with the trial court that interest on the note was properly cancelled following a usury finding, the interest offset issue involves a determination of whether past interest is recoverable from the lender as an offset to the principal due on the note. [¶] A borrower is normally limited in his or her recovery of past interest to that paid within the past two years ([Code Civ. Proc.,] § 339), but this limitation is not applicable when the lender brings a foreclosure action, and the borrower files a counterclaim for usury. (8 Miller & Starr, Cal. Real Estate [(3d ed. 2001)] § 21:37, p. 161.) Since the lender here did not bring a judicial foreclosure action, and no counterclaim was filed, it would appear that the statute of limitations may be applicable.” (Gilbert I, at pp. 22-23.)
The last sentence in this excerpt suggests that the statute of limitations may apply to the recovery and set off of interest payments in this case because Wisdom did not bring a judicial foreclosure action and the Gilberts did not file a counterclaim. Nevertheless, our statement did not establish law of the case on this point. Under the doctrine of law of the case, “‘[t]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ [Citation.]” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Here, the statement relied upon by Wisdom does not conclusively establish any rule; we stated that the statute of limitations may apply, not that it does apply.
Moreover, when the statement relied upon by Wisdom is read in the context of the entire opinion, it is clear that the trial court was not bound by our opinion to apply the statute of limitations to the interest payments. Immediately following the language relied upon by Wisdom, we stated: “Defendant now contends the trial court erred by signing a judgment which ordered an offset for past interest paid. However, the judgment is not that clear because it is based on a stipulated principal amount. The judgment does not state whether the court automatically applied an offset for all past interest paid. Since any such offset was based on the stipulated amount, and since the stipulation is not enforceable against defendant, the interest offset issue should be reconsidered by the trial court on remand.” (Gilbert I, at p. 23, italics added, fn. omitted.) We directed the trial court to reconsider the issue, and it did so.
The question remains whether, as a matter of law, the statute of limitations bars the application of interest payments to offset the principal debt. The issue was addressed in Richlin v. Schleimer (1932) 120 Cal.App. 40 (Richlin). In that case, the plaintiffs borrowed money from the defendants and secured the loan with a deed of trust against their property. (Id. at p. 42.) The interest rate on the loan was usurious. (Ibid.) The plaintiffs made interest payments for several years, then defaulted. The defendants commenced nonjudicial foreclosure proceedings against the property. (Ibid.) The plaintiffs responded by suing the defendants to enjoin the foreclosure sale and to cancel the interest. (Ibid.) The defendants argued that the court could not set off the payments made against the principal owed because an action to recover the payments would be barred by the statute of limitations. (Id. at pp. 43-44.) They acknowledged that the statute of limitations does not apply to a debtor who is sued in a judicial foreclosure action, but argued that this rule does not apply when the borrower brings an action in response to a nonjudicial foreclosure. (Id. at p. 44.) The Richlin court rejected this argument, stating that the “true rule... to be that when the lender attempts at any time to enforce the usurious obligation by action or otherwise, there is no statute of limitations which bars the right of the borrower to assert the invalidity thereof as to unpaid interest and he may do so in any appropriate manner which the circumstances may require.” (Ibid.) The court further explained: “We deem it immaterial that by reason of the nature of foreclosure proceedings under a deed of trust, it becomes necessary in such case for the borrower to assert his rights as plaintiff in an action seeking to enjoin the threatened foreclosure rather than as a defendant urging his defense in an action brought by the lender.” (Ibid.)
More recently, this court addressed the issue in Gibbo v. Berger (2004) 123 Cal.App.4th 396 [Fourth Dist., Div. Two] (Gibbo). In Gibbo, the defendant, Berger, initiated nonjudicial foreclosure proceedings concerning property securing a $15,000 note made by plaintiff Gibbo. (Id. at p. 398.) Gibbo filed a complaint to quiet title to the property based upon allegations that the interest on the note was usurious and that the interest payments she made had exceeded the principal amount of the note. (Ibid.) The trial court found that the loan was exempt from the usury laws. We reversed. Because the loan was subject to the usury laws and the interest rate was usurious, “Gibbo also was entitled to recover from Berger the usurious interest Gibbo had paid on the note under her cause of action for unjust enrichment. [Citation.] The interest should be calculated by deducting the $15,000 principal from the amount of money Gibbo actually had paid to Berger [$19,125]. The balance would represent interest which Gibbo is entitled to recover from Berger. Moreover, because Berger sought to foreclose on the note and thus initiated proceedings to that end against Gibbo, the statute of limitations does not apply and Gibbo may recover all interest actually paid.” (Id. at p. 404, italics added.)
These cases control the issue here. Wisdom, like the defendants in Richlin and Gibbo, initiated nonjudicial foreclosure proceedings against property secured by a note with a usurious interest rate. The Gilberts, like the plaintiffs in those cases, responded to the nonjudicial foreclosure by suing the foreclosing lender based upon the usury law and sought to apply the interest payments to the loan principal. Therefore, the Gilberts, like the plaintiffs in Richlin and Gibbo, were entitled not only to cancellation of the interest, but to recover the usurious interest they had paid without regard to the statute of limitations. (See also Westman v. Dye (1931) 214 Cal. 28, 38-39 [statute of limitations does not bar set off of usurious interest payments against principal of unpaid debt].)
The Gilberts did not specifically request the recovery of interest payments or to have such payments set off against principal. However, in Gilbert I, we stated that the allegations of the first amended complaint, including the prayer for “‘such other and further relief as the court deems just and proper,’” adequately supported the request for an offset. (Gilbert I, supra, at pp. 21-22.)
Wisdom attempts to distinguish Gibbo on its facts, arguing that Berger, the lender in that case, filed a cross-complaint in that case and that some of the interest was paid within two years of the commencement of the action. Our statement in Gibbo regarding the inapplicability of the statute of limitations, however, was based upon Berger’s efforts to nonjudicially foreclose on the deed of trust, not because of the cross-complaint. (Gibbo, supra, 123 Cal.App.4th at p. 404.) And although some of the usurious interest was paid within two years of the commencement of the action, most of it was paid prior to the two-year limitations period; yet recovery of all the payments was permitted. (Id. at pp. 399, 403-404.) The factual differences between Gibbo and the present case do not affect the applicability of the rule here.
In light of Richlin and Gibbo, the statute of limitations did not bar a set off of the interest paid against the principal on the note. The motion for new trial on this ground was therefore properly denied.
Wisdom did not assert a statute of limitations defense in his answer. Gilbert, however, does not assert this failure on appeal, so we do not consider whether such failure would provide an additional basis for rejecting Wisdom’s argument.
2. Right to Statutory Interest After Note Matures
The original principal amount of the note was $9,500. By its terms, all unpaid principal became due on September 8, 1990. Wisdom contends that even if the interest called for in the note is usurious, the interest is cancelled only until the maturity date of the note; if, as in this case, the principal is still unpaid at maturity, he is thereafter “entitled to statutory interest” until it is paid. For this proposition, he cites to Epstein v. Frank (1981) 125 Cal.App.3d 111, 117, Rochester Capital Leasing Corp. v. K & L Litho Corp. (1970) 13 Cal.App.3d 697, and Puppo v. Larosa (1924) 194 Cal. 717. These cases are not controlling here.
Rochester involved certain sale and lease-back agreements that were characterized by the trial court as usurious loans. (Rochester Capital Leasing Corp. v. K & L Litho Corp., supra, 13 Cal.App.3d at pp. 699-701.) The case does not hold or even suggest that the lender of a usurious loan can recover statutory interest after the loan matures. Nor did it have occasion to address that issue, because the lender in that case received the entire principal amount of the loan and its claim for damages was “unenforceable.” (Id. at pp. 704-705.) Indeed, if Rochester has any bearing on this issue, it suggests a rule contrary to Wisdom’s position when it states: “While the principal of [a] usurious transaction is recoverable [citation], no interest whatsoever can be claimed by the usurious lender.” (Id. at p. 703, italics added.)
Puppo involved an action on a note where no interest rate was stated. (Puppo v. Larosa, supra, 194 Cal. at pp. 719-720.) The court held that although the lender was not entitled to interest prior to the maturity date because the note did not provide for interest, he was nevertheless entitled to “draw interest from its maturity by operation of law without prior demand, and at the legal rate.” (Id. at p. 720.) Puppo did not involve usury and is not, therefore, authority for the proposition that a lender of a usurious loan is entitled to interest at the legal rate after the loan matures.
In Epstein, lenders sued borrowers to recover on numerous notes, some of which had usurious interest rates. (Epstein v. Frank, supra, 125 Cal.App.3d at pp. 117, 122.) The lenders sought “the recovery of interest on the five usurious notes from the maturity date of the notes to the date of judgment.” (Id. at p. 122.) The court held that “the payee of a note with a usurious interest provision would be entitled to damages in the nature of interest at the legal rate for that period of time which the obligor on the note withheld the principal beyond the date of maturity.” (Id. at p. 123.) Epstein relied primarily upon Rochester and Puppo, discussed above, which provide questionable persuasive authority at best for the proffered proposition. Nevertheless, even if Epstein is good authority for the rule it states, it does not control here. The postmaturity interest allowed in Epstein was awarded as damages on the lenders’ affirmative claims for such damages. Here, by contrast, Wisdom did not seek any damages or other affirmative relief in this action. Thus, even if a lender can, as a general matter, recover interest as damages at the legal rate on a usurious loan after it matures, Wisdom is not entitled to it because he never demanded such damages. Accordingly, Wisdom’s claim for postmaturity interest fails, and the court’s denial of his motion for new trial on that ground was not error.
C. Jurisdiction to Determine Gilbert’s Motion for Attorney Fees
Wisdom contends that because he filed the notice of appeal from the judgment before Gilbert filed his motion for attorney fees, the trial court lacked jurisdiction to hear Gilbert’s motion. We disagree.
Courts of Appeal have repeatedly rejected similar arguments and held that a trial court has jurisdiction to consider a motion for attorney fees after a notice of appeal from the judgment has been filed. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360; Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368; Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1639; Sherry H. v. Thomas B. (1988) 203 Cal.App.3d 1500, 1502-1503; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 20, p. 82 [“Pending appeal, the trial court retains jurisdiction to determine matters related to attorneys’ fees”]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 7:21, pp 7-9 to 7-10 (rev. # 1, 2007) [“The trial court retains jurisdiction to award or tax costs after an appeal is taken”].)
The rule is based in part upon the text of Code of Civil Procedure section 916, subdivision (a), which states that (except as provided in certain statutes not applicable here), “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Italics added.) A ruling on a postjudgment motion for attorney fees is a “matter which is embraced in the action but is not affected by the [judgment or] order,” and therefore not stayed by the appeal from the judgment. (See Bankes v. Lucas, supra, 9 Cal.App.4th at p. 369; Sherry H. v. Thomas B., supra, 203 Cal.App.3d at pp. 1502-1503; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487.)
Wisdom relies upon Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918 (Butler-Rupp II). In that case, there was a prior appeal in which the Court of Appeal affirmed a judgment in favor of the plaintiff as to an award of damages on a contract cause of action, reversed the judgment as to an award of damages on a tort cause of action, and directed the parties “‘to bear their own costs on appeal.’” (Id. at p. 922.) The court expressly remanded “the case for a determination of the amount of attorney fees which plaintiff is entitled to recover from the [defendants].” (Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1231.) Following remand, the plaintiff moved in the trial court for an award of attorney fees based upon its success on the contract claim, including fees incurred in connection with the appeal. (Butler-Rupp II, supra, at p. 922.) The trial court granted the motion, including an award of $200,000 for fees on appeal. (Ibid.) The defendants appealed, arguing that the trial court did not have jurisdiction to award attorney fees incurred for the first appeal in light of the Court of Appeal’s statement that the parties were to bear their own costs on appeal. (Ibid.) Because the Court of Appeal did not order an award of costs for the appeal, the defendants argued, an award of fees was not recoverable. (Id. at p. 925.) The Butler-Rupp II court rejected this argument and affirmed the trial court’s award, explaining that its prior statement “did not preclude the trial court from awarding respondents reasonable attorney fees incurred in successfully defending their judgment on the contract cause of action.” (Id. at p. 927.) The court’s prior reference to costs on appeal, the court concluded, “had no bearing on the entitlement to attorney fees.” (Id. at p. 928.)
During the course of the opinion, the Butler-Rupp II court stated the following: “In cases where Civil Code section 1717’s definition of ‘prevailing party’ applies, the identification of the party entitled to a fee award must be determined by the final result of the litigation, i.e., after conclusion of the appeal if an appeal is taken. [Citations.] [¶] Thus, for example, if a litigant successfully obtains reversal on appeal of an unfavorable summary judgment on a contract cause of action, he or she cannot collect an award of attorney fees under Civil Code section 1717 until the case has been remanded, tried on the merits and reviewed on appeal, if an appeal is taken, because the party ultimately prevailing on the cause of action cannot be known with certainty until the case is at an end. If the successful appellant loses on the merits after trial, he or she will not be entitled to [Civil Code] section 1717 attorney fees for the appeal because he or she ultimately was not the prevailing party with respect to the contract cause of action.” (Butler-Rupp II, supra, 154 Cal.App.4th at p. 928.) Wisdom relies upon this language for the proposition that the trial court in this case could not determine which party is the prevailing party until after the appeal is final. Viewed in isolation and out of context, the above quoted language from Butler-Rupp II does indeed appear to support his assertion. However, language in an opinion must “be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) The Butler-Rupp II court was concerned with whether its order that the parties bear their own “costs on appeal” deprived the trial court of jurisdiction from subsequently awarding attorney fees incurred on appeal to the prevailing party in the litigation. It did not consider the issue presented here—whether the trial court has jurisdiction to rule on a motion for attorney fees after an appeal is taken from the judgment. Nor did the Butler-Rupp II court consider or disagree with any of the authorities cited above for the rule that the trial court has such jurisdiction. Viewed in its context and in light of the facts and issues presented in that case, the language in Butler-Rupp II that Wisdom relies upon does not apply to the issue presented here.
Wisdom also relies upon Hsu v. Abbara (1995) 9 Cal.4th 863 (Hsu), which is cited by the Butler-Rupp II court as support for the language discussed above. In Hsu, the plaintiffs filed a complaint against the defendants for specific performance of a contract to sell certain real property to the plaintiffs. (Hsu, supra, at p. 867.) The contract included a provision for an award of attorney fees to the “prevailing party.” (Id. at p. 866.) After the plaintiffs rested their case, the court granted the defendants’ motion for judgment. (Id. at p. 868.) The defendants then moved for an award of their attorney fees, which the court denied. (Id. at p. 869.) Judgment was thereafter entered, which included the court’s ruling denying the request for fees. (Ibid.) Appeals by both sides followed. (Id. at pp. 869-870.)
The issue in Hsu was “whether a trial court may determine that there is no ‘party prevailing on the contract’ when the court renders a simple, unqualified decision in favor of the defendant on the only contract claim in the action.” (Hsu, supra, 9 Cal.4th at pp. 865-866.) The court held “that in deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Id. at p. 876.) The court then added the following language relied upon by Wisdom (and the Butler-Rupp II court): “The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’ [Citation.]” (Hsu, supra, at p. 876.)
As with Butler-Rupp II, the Hsu court was not faced with the issue presented in our case. The issue Wisdom raises regarding the trial court’s jurisdiction arises because he filed his notice of appeal before the court ruled on the motion for attorney fees. In Hsu, the trial court judgment was not entered until after the ruling on the motion for attorney fees, and the appeal did not commence until after the judgment was entered. (Hsu, supra, 9 Cal.4th at p. 869.) The court had no occasion to consider the issue presented here and Hsu has no affect upon the rule we set forth above or suggests any disapproval of the authorities that support that rule.
Wisdom also relies upon Jackson v. Homeowners Assn. Monte Vista Estates-East (2001) 93 Cal.App.4th 773 [Fourth Dist., Div. Two] (Jackson), Snyder v. Marcus & Millichap (1996) 46 Cal.App.4th 1099 (Snyder), and Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959 (Presley). As we explain below, none of these authorities are applicable.
In Jackson, the parties entered into a settlement agreement that resolved the litigation between them, but which left the issue of an award of costs and fees to be determined by the court. (Jackson, supra, 93 Cal.App.4th at p. 778.) Both parties argued before the trial court that they were the prevailing party. (Ibid.) The trial court found that the plaintiffs were the prevailing parties and awarded them attorney fees. (Ibid.) The issue on appeal was whether the plaintiffs could be prevailing parties in light of Civil Code section 1717, subdivision (b)(2), which provides that “there shall be no prevailing party” when the action has been dismissed pursuant to a settlement of the case. (Jackson, supra, at p. 776.) This court held that this provision did not preclude an award of fees under the facts in that case. (Id. at pp. 776, 786.)
In Snyder, the plaintiff obtained a judgment against the defendant that included awards of punitive damages and damages for emotional distress, as well as compensatory damages. (Snyder, supra, 46 Cal.App.4th at p. 1101.) The defendant appealed, challenging only the award of punitive and emotional distress damages, not the award of compensatory damages. (Ibid.) The Court of Appeal reversed. (Ibid.) On remand, the defendant moved for an award of attorney fees on the ground that it was successful on appeal. (Ibid.) The trial court denied the motion because the defendant “was not the prevailing party in the lawsuit, and had only prevailed in the appeal by reducing the amount of the judgment against it[.]” (Id. at p. 1102.) The defendant appealed again. This time, the Court of Appeal affirmed, stating that the plaintiff “was clearly the prevailing party on the contract, because she received a net judgment of $834,900 against [the defendant].” (Ibid.)
In Presley, the court granted the defendant’s motion for summary judgment, which was reversed by the appellate court. (Presley, supra, 146 Cal.App.3d at p.960.) After remand, the plaintiff filed a memorandum of costs on appeal that included $8,699 in attorney fees based upon a contract entitling the prevailing party to recover attorney fees in any proceeding relating to the contract. (Ibid.) The trial court awarded the plaintiff the fees and the defendant appealed. (Ibid.) The court reversed the award because “the suit is still ongoing [citation]. There must be a prevailing party before the fee provision applies, and no one has yet prevailed here.” (Id. at p. 961.)
None of these cases cited by Wisdom involved or considered the jurisdictional issue raised by Wisdom. Jackson was concerned with the interplay between a statute that precludes an award of attorney fees when a case is voluntarily dismissed pursuant to a settlement, and the parties’ settlement agreement that allowed the court to determine an award of attorney fees; the Snyder court was presented with the question whether a party is a prevailing party for purposes of determining a contractual right to attorney fees when the party successfully challenges awards of punitive and emotional distress damages but is still subject to a judgment for compensatory damages; and Presley considered whether a party that successfully appeals a summary judgment can recover attorney fees as a prevailing party on the appeal when the case is still ongoing in the trial court. These cases are factually distinguishable from the present case and have no bearing upon the issue presented.
The trial court, we conclude, had jurisdiction to hear and rule upon Gilbert’s motion for attorney fees.
D. Award of Attorney Fees
Wisdom contends the court erred by failing to explain the legal basis for granting the motion, Gilbert failed to cite to the attorney fees provision in his moving papers, and the court erred in finding that Gilbert was the prevailing party. We reject each of these arguments.
“Generally, the trial court’s determination of the prevailing party for purposes of awarding attorney fees is an exercise of discretion, which should not be disturbed on appeal absent a clear showing of abuse of discretion. [Citations.] But the determination of the legal basis for an attorney fee award is subject to independent review.” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176; see also Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158 [trial court is given wide discretion in determining which party has prevailed].)
Attorney fees, when authorized by contract, are an item allowable as costs recoverable by a prevailing party in an action. (Code Civ. Proc., §§ 1032, 1033.5, subd. (a)(10).) The prevailing party “includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, [and] a defendant where neither plaintiff nor defendant obtains any relief.... When any party recovers other than monetary relief... the ‘prevailing party’ shall be as determined by the court... in its discretion....” (Id., § 1032, subd. (a)(4).) Applying this definition in this case, the court found that Gilbert was the prevailing party.
Wisdom argues that the court “did not explain the legal basis for the fee award.” He does not, however, refer us to any authority that required the court to do so. This court addressed a similar argument in Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 [Fourth Dist., Div. Two]. In that case, the defendant brought a motion for attorney fees under Code of Civil Procedure section 1038, which required the court to make certain findings when denying such a motion. The trial court denied the motion without stating its reasons or making any express findings on the record. (Laabs v. City of Victorville, supra, at p. 1271.) This court held that although the specified determinations must be made, a reviewing court will presume that the trial court made the requisite determinations under the doctrine of implied findings. (Id. at pp. 1271-1272.) Although there are instances where the Legislature has required the court to state its reasons for granting a motion, we stated, “these situations are rare.” (Id. at p. 1272.) Because Code of Civil Procedure section 1038 included no such requirement, the trial court was not required to expressly state its reasons. (Laabs v. City of Victorville, supra, at p. 1272.) Similarly here, none of the applicable court rules and statutes required the court to expressly state its reasons for ruling on a motion for attorney fees. (See Code Civ. Proc., §§ 1032, 1033.5; Civ. Code, § 1717; rule 3.1702.)
Next, Wisdom argues that Gilbert’s motion should have been denied because his moving papers “failed to cite to any attorney fees or prevailing party provision in the Promissory Note.” It is not clear what Wisdom means by Gilbert’s failure to “cite” to an attorney fee provision. If he is complaining about the sufficiency of the notice of the grounds for the motion, we reject the argument. Gilbert’s notice of motion states that it is based upon the notice, “the attached Memorandum of Points and Authorities, the Declarations, submitted herewith in support of this motion, the entirety of the court file and such other oral and documentary evidence as may be presented at the hearing on the motion.” The accompanying memorandum of points and authorities states: “The contract which contains the attorney’s fee provision relevant to Civil Code [section] 1717 and Code of Civil Procedure [section] 1033.5 is [a] promissory note between the parties dated July 26, 1983. This promissory note is Exhibit ‘A’ to the First Amended Complaint of [the] GILBERTS filed January 29, 2004 and was taken into evidence by the court at trial on April 7, 2008.” The referenced promissory note includes the following language: “If action be instituted on this note I promise to pay such sum as the Court may fix as attorney’s fees.” These documents and statements are sufficient to give Wisdom notice of the contractual language Gilbert is relying upon in support of the motion.
If, by complaining that Gilbert failed to cite to an attorney fees provision, Wisdom is arguing that there is no applicable contractual attorney fees provision, we reject the argument. Courts faced with language identical to the attorney fees provision in this case have held that such language is sufficient to entitle the prevailing party to recover attorney fees. (Del Mar v. Caspe (1990) 222 Cal.App.3d 1316, 1335; Winnett v. Roberts (1986) 179 Cal.App.3d 909, 923; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 347.) Although the provision is stated in terms of an obligation by the borrowers (the Gilberts) to pay the lender (Wisdom), Civil Code section 1717 makes this provision reciprocal, allowing recovery “to... the prevailing party on the contract, whether he or she is the party specified in the contract or not....” (Civ. Code, § 1717, subd. (a).)
Wisdom further argues that the Gilberts were not the prevailing parties. Under Civil Code section 1717, subdivision (b)(1), “the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” A lawsuit attacking a promissory note as usurious is an action on the contract for purposes of recovering attorney fees under the note. (Winnett v. Roberts, supra, 179 Cal.App.3d at p. 923.) “[I]n determining litigation success, courts should respect substance rather than form, and to this extent should be guided by ‘equitable considerations.’ For example, a party who is denied direct relief on a claim may nonetheless be found to be a prevailing party if it is clear that the party has otherwise achieved its main litigation objective.” (Hsu, supra, 9 Cal.4th at p. 877.) A party may be deemed the prevailing party even though he did not successfully obtain all the relief which he sought in the action. (Epstein v. Frank, supra, 125 Cal.App.3d at pp. 124-125.) Indeed, “the party who prevails on all of the issues which were actually litigated at the trial will be deemed the prevailing party even though the judgment may be entered in favor of the opposing party. [Citation.]” (Ibid.)
Here, the central issues arising from the promissory note were whether the interest rate on the promissory note was usurious and whether, in determining the balance on the note, interest payments on the note could be applied as a set off against the principal on the note. On these issues, Gilbert unequivocally prevailed. The trial court found that the interest rate was usurious and cancelled the interest. The court further agreed with Gilbert’s manner of accounting for the balance owed on the note, including permitting the interest set off, and made the judicial declaration Gilbert sought at trial. Thus, even though the court concluded that a balance remained on the note and dismissed the cause of action for an injunction against the foreclosure of the property, its finding that Gilbert was the prevailing party is well within its discretion.
Wisdom argues that he should be considered the prevailing party because he “prevailed on all but one cause of action.” There were five causes of action asserted against him in the first amended complaint: (1) declaratory relief, (2) injunctive relief as to the nonjudicial foreclosure, (3) cancellation of usurious interest, (4) accounting, and (5) intentional infliction of emotional distress. Wisdom successfully demurred to the fifth cause of action and the court ultimately dismissed the second cause of action for injunction. However, the court could reasonably conclude that Gilbert prevailed on the other three causes of action. In the first cause of action for declaratory relief, the Gilberts alleged a dispute whereby Wisdom claimed he was owed $40,690.72 on the note and the Gilberts believed they owed $2,536.98. In the fourth cause of action, the Gilberts sought an accounting on the note based on Wisdom’s claim of the amount owed and the assertion that the interest rate was usurious. At the time of trial, Gilbert asserted that the amount owed was actually $3,602.72 and presented evidence and argument to support an accounting to arrive at that amount. The court agreed with Gilbert. In the judgment on the first cause of action, the court judicially declared that the unpaid note principal was $3,602.72, and on the fourth cause of action adjudged: “After canceling all interest on the promissory note and crediting [Wisdom] with his advances and applicable late charges and crediting [the Gilberts] with all payments made on the promissory note the unpaid note principal is $3,602.72[.]”
In light of the issues that were litigated and the results at trial, the court could reasonably conclude that Wisdom was “the party prevailing on the contract.” There was thus no abuse of discretion.
E. Appeal from Order Striking Wisdom’s Memorandum of Costs
In his opening brief, Wisdom challenges our orders dismissing his appeal as to the order striking his memorandum of costs. He argues the appeal should be heard and that our dismissal of the appeal is a “miscarriage of justice.” We reject the argument.
“A postjudgment order awarding or denying costs is a separately appealable order.” (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.) Rule 8.104(a) provides that a notice of appeal must be filed within 60 days following the service of notice of entry of judgment or an appealable order or 180 days after entry of judgment or an appealable order, whichever is earlier. “[N]otice of entry of judgment must be in writing. However, no particular form is required; any notice in writing which will convey to a losing party that judgment has been entered is sufficient.” (National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 618.) Here, Gilbert served a notice of the court’s order granting the motion to strike Wisdom’s memorandum of costs on January 22, 2009. Wisdom’s notice of appeal was filed on May 15, 2009—113 days later. Because the appeal was filed more than 60 days after service of the notice of the court’s order, the appeal was untimely and we were required to dismiss it. (See rule 8.104(b).)
IV. DISPOSITION
The judgment and the order awarding attorney fees are affirmed. Gilbert is awarded his costs on appeal.
We concur: Ramirez, P.J., Richli, J.