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Gilley v. Wells Fargo Home Mortgage, Inc.

Court of Appeals of California, Second District, Division Three.
Nov 5, 2003
No. B158816 (Cal. Ct. App. Nov. 5, 2003)

Opinion

B158816. B167711.

11-5-2003

EUGENE D. GILLEY et al., Plaintiffs and Appellants, v. WELLS FARGO HOME MORTGAGE, INC. et al., Defendants and Respondents.

Eugene D. Gilley, in pro. per., and Yolanda Gilley, in pro. per., for Plaintiffs and Appellants. Wright, Finlay & Zak and Jan A. Zemanek for Defendants and Respondents Wells Fargo Home Mortgage, Inc. and G.E. Capital Mortgage Services, Inc. Miles & Bauer and Domenic Puccio II for Defendant and Respondent Professional Lenders Alliance.


In this consolidated appeal, plaintiffs and appellants Yolanda Gilley and Eugene Gilley (collectively the Gilleys) appeal from judgments entered in favor of defendants and respondents Professional Lenders Alliance, LLC (Professional Lenders), Wells Fargo Home Mortgage, Inc. and G.E. Capital Mortgage Services, Inc. (collectively Wells Fargo). The underlying case involves the Gilleyss allegations that Professional Lenders and Wells Fargo improperly tried to foreclose on a home owned by Eugene Gilley. We hold that the trial court erred in imposing attorney fees against Yolanda Gilley. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

On September 3, 1992, Eugene Gilley purchased a home at 246 East Juanita Avenue, Glendora, California, by executing a note secured by a deed of trust. Wells Fargo held the beneficial interest in the August 26, 1992, deed of trust on the property. The loan was modified twice at Eugene Gilleys request to allow him to refinance arrearages.

The beneficial interest in the loan was assigned to G.E. Capital Mortgage Services, Inc., which later merged with Wells Fargo Home Mortgage, Inc.

On December 6, 2000, Professional Lenders was substituted as trustee under the note and a notice of default was recorded.

On March 15, 2001, Wells Fargo published and posted a notice of intent to sell the property at an April 5, 2001, public auction.

The Gilleys tried to stop the foreclosure proceedings. Wells Fargo renegotiated the amount owed in order to reinstate the loan. Soon thereafter, there was a dispute as to whether or not Wells Fargo was paid all sums owed. When the Gilleys did not tender all moneys Wells Fargo asserted were owed, Wells Fargo proceeded to sell the property to a third party at a foreclosure sale. Due to a procedural flaw, the sale was rescinded.

Yolanda Gilley is the daughter of Eugene Gilley. The Gilleys alleged that during the time that there were foreclosure proceedings, she had "entered into an agreement with her father, . . . whereby, [she] would reinstate the loan and take title to the subject property, subject to the existing loan of record." These allegations were based upon two letters. Both were dated August 8, 2000, and both were sent by facsimile to Wells Fargo.

The first letter was sent by Eugene Gilley. It stated in part, "I would like to ask, at this time, if you would transfer the Title and Loan to my daughter Yolanda Gilley. I want to give her this house. [¶] I would like to request that you continue to give us a break on the interest rate. If you would keep the rate at 7%, and make a new loan for 30 years it would make it easier for my daughter to keep her payments current." (Emphasis in original.) The second letter was sent by Yolanda Gilley. It stated, in part: "I would like to accept the ownership of my fathers [ sic ] home. The property taxes will not change upon parent to child transfer. [¶] I humbly request a new 30 year, 7% fixed rate loan. I would like to assume the balance owing on my fathers [sic] home and also transfer the Title and Loan to myself. [& para;] I was able to raise the capital of over $7600.00 to restore the loan to current statis [sic], but this was a lot of money fast. I believe if I could arrange for a new 30 year loan I would be able to have a lower payment and be able to keep the loan current." (Emphasis in original.)

The Gilleys believed that Professional Lenders and Wells Fargo wrongfully attempted to foreclose on the property and also wrongfully interfered with the purported agreement.

2. Procedure.

On June 1, 2001, the Gilleys filed the underlying lawsuit against Professional Lenders, Wells Fargo, and a number of other entities. The Gilleys alleged respondents wrongfully attempted to foreclose on the property and wrongfully interfered with their contract. The complaint alleged causes of action, inter alia, for interference with prospective advantage, intentional infliction of emotional distress, and accounting.

On February 19, 2002, Wells Fargo and Professional Lenders each filed a motion for summary judgment or, in the alternative for summary adjudication. The Gilleys opposed both motions.

The two motions were heard on March 27, 2002. The trial court granted summary adjudication to Wells Fargo on all causes of action, except for the accounting cause of action. The trial court granted summary judgment in favor of Professional Lenders with regard to all causes of action.

On April 16, 2002, the trial court entered an order denying the Gilleyss motion to file a second amended complaint.

In April 2002, the Gilleys and Wells Fargo stipulated to dismiss the seventh cause of action for an accounting without prejudice and "[i]n the event [the Gilleys] appeal and prevail on appeal, they reserve the right to later pursue the accounting claim . . . ."

At the time the Gilleys executed the stipulation, they were represented by Attorney Julius Johnson.

Thereafter, a judgment was entered in favor of Wells Fargo. It did not include an attorney fee order which stated the amount of attorney fees awarded.

The appellate record contained no judgment. Pursuant to our order, Wells Fargo obtained a judgment, which was filed on September 2, 2003.

The judgment entered on April 16, 2002, in favor of Professional Lenders stated that "Eugene and Yolanda Gilley [were to] take nothing" and Professional Lenders was to "recover from . . . Eugene and Yolanda Gilley . . . costs in the amount of $2,277.12 and attorneys fees in the amount of $ ______." Notice thereof was given on April 23, 2002.

On May 15, 2002, the Gilleys filed a "Notice of Appeal of Trial Court Decision Granting Summary [Judgment] and Denying Motion to Amend." (Case No. B158816.)

The Gilleyss complaint also had alleged causes of action for quiet title, complaint to set aside sale, negligent infliction of emotional distress, and declaratory relief. Summary adjudication was granted against the Gilleys on these causes of action. In their briefs, the Gilleys have not raised issues regarding these causes of action.
Additionally, in their appellate briefs, the Gilleys have not raised any issues regarding the denial of the motion to amend.
All arguments not properly raised by the Gilleys have been deemed waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)

On October 4, 2002, Professional Lenders filed a motion to determine prevailing party and to award attorney fees. Professional Lenders argued that it was entitled to costs as prevailing party and attorney fees pursuant to the attorney fee provision in the deed of trust. Professional Lenders pointed to paragraphs 21 and 7 of the deed of trust.

The motion and related documents were not contained in the appellate record. We directed that these documents be submitted to us along with a request to take judicial notice. These documents have been submitted and we have taken judicial notice of them. (Evid. Code, §§ 452, 453.)

Paragraph 21 of the deed of trust read in part:
"Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but not limited to, reasonable attorneys fees and costs of title evidence."
Paragraph 7 of the deed of trust read in part: "If Borrower fails to perform the covenants and agreements contained in this Security Instrument . . . the Lender may do and pay for whatever is necessary to protect the value of the Property and Lenders rights in the Property. Lenders actions may include . . . paying reasonable attorneys fees . . . ."

After considering the opposition papers and argument, the trial court issued a January 17, 2003, order awarding Professional Lenders $37,200 in attorney fees and $2,277.12 in costs against both Eugene Gilley and Yolanda Gilley. On January 17, 2003, the trial court also filed a judgment by court. Notice of entry was served on January 27, 2003, and filed on January 29, 2003. On April 2, 2003, the trial court denied the Gilleys motion to vacate the January 17, 2003, judgment entered in favor of Professional Lenders.

On May 30, 2003, the Gilleys filed a second notice of appeal. In this notice of appeal, the Gilleys appealed from the trial courts decision "denying vacating of [judgment] on 4/2/03 re: attorney fees awarded to Professional Lenders Alliance, LLC." (Case No. B167711.)

By our order of August 5, 2003, we consolidated the two appeals, Case Nos. B167711 and B158816.

On July 16, 2003, we granted the motion of Professional Lenders to dismiss the appeal from the attorney fee order (Case No. B167711). Thereafter, we vacated the dismissal order and ordered the two cases consolidated.

DISCUSSION

1. Other than the argument relating to the imposition of attorney fees against Yolanda Gilley, the Gilleys briefs are insufficient.

Briefs must contain citations to pertinent and cognizable authority, and all statements of facts in briefs must be supported by citations to the record. (Cal. Rules of Court, rule 14(a)(1)(B), (C); Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 & fn. 2.) It is not our responsibility to scour the record to determine if the factual statements made by the Gilleys are accurate. (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5; Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301.) We may disregard offending portions of the briefs and treat as waived any points urged on appeal that do not comply with these requirements. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601; Annod Corp. v. Hamilton & Samuels, supra, at p. 1301; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

The briefs filed by the Gilleys in large part fail to comply with these appellate rules. We have considered waived all arguments that have not been properly presented by the Gilleys. We also note that the Gilleys briefs are inarticulate, rendering it almost impossible to ascertain many issues and arguments. Even though the Gilleys appeared in propria persona, they are expected to know the proper appellate procedures. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

In any event, the only persuasive argument raised by the Gilleys is that the trial court erred in imposing attorney fees against Yolanda Gilley.

2. Standard of review.

"A motion for summary adjudication . . . shall proceed in all procedural respects as a motion for summary judgment." (Code Civ. Proc., § 437c, subd. (f)(2).) "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) "[W]e review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citations.]" (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374.)

3. The trial court properly granted summary adjudication with regard to the cause of action for intentional interference with prospective economic advantage.

The Gilleys contend the trial court erred in granting summary adjudication with regard to the third cause of action for intentional interference with prospective economic advantage. This contention is not persuasive.

`The elements of intentional interference with prospective economic advantage have been stated as follows: "(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendants knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." [Citations.] [Citation.]" (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 339.) "`[A] plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiffs expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself." (Id. at p. 340 [original italics], citing Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393.)

Here, protecting a security interest by pursuing foreclosure, and the performance of a trustees statutory duties, are not acts that are wrongful by some measure other than the fact of interference itself. (Cf. Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 476-481 [suretys protection of its contractual rights which interfered with plaintiffs relationships with other sureties not "wrongful"].)

The trial court did not err in summarily adjudicating the cause of action for intentional interference with prospective economic advantage.

4. The trial court properly granted summary adjudication with regard to the cause of action for intentional infliction of emotional distress.

The Gilleys contend that the trial court erred in granting summary adjudication with regard to the cause of action for intentional infliction of emotional distress. This contention is unpersuasive.

"The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiffs injuries were actually and proximately caused by the defendants outrageous conduct. [Citation.]" (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

The only evidence submitted by the Gilleys as to severe or extreme emotional distress is one statement by Eugene Gilley that, "I believe the stress of this house transaction has aggravated my cancer." This statement does not supply the needed factual basis to establish the requisite severe mental suffering. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004 [claimed distress must be of such intensity and duration and of such substantial or enduring quality that no reasonable person in civilized society should be expected to endure it].) Further, the conduct of Wells Fargo and Professional Lenders was not extreme nor outrageous as they simply exercised contractual and statutory rights.

The trial court did not err in summarily adjudicating the cause of action for intentional infliction of emotional distress.

5. The Gilleys may not discuss the accounting cause of action.

The Gilleys contend the trial court erred in finding that there were no triable issues of fact with regard to the accounting cause of action that had been alleged against Wells Fargo. However, the trial court did not summarily adjudicate the accounting cause of action, as the Gilleys contention suggests. Rather, the Gilleys dismissed that cause of action without prejudice.

There were no accounting allegations relating to Professional Lenders.

Ordinarily, a party may not appeal from a voluntary dismissal without prejudice. (Compare Gray v. Superior Court (1997) 52 Cal.App.4th 165, 170-171, H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1364-1366 and Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975, with Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012, and Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 792-793.) Even if the Gilleys could appeal from this order (Stewart v. Colonial Western Agency, Inc., supra, at p. 1012; Ashland Chemical Co. v. Provence, supra, at pp. 792-793), their stipulation with Wells Fargo prevents them from doing so. The stipulation stated that the Gilleys dismissed this cause of action without prejudice, but reserved the right to pursue it if they prevailed on appeal from the summary adjudication of other causes of action. Having failed to prevail on appeal, the Gilleys many not resurrect the accounting cause of action.

We take no position on whether or not the Gilleys may, in subsequent proceedings, obtain an accounting.

The Gilleys are foreclosed in this appeal from raising any issues with regard to the accounting cause of action.

6. The trial court erred in imposing attorney fees against Yolanda Gilley. Yolanda Gilley is not foreclosed from raising the attorney fees issue.

The Gilleys contend that the trial court erred in issuing an order awarding attorney fees and costs to Professional Lenders against Yolanda Gilley. This contention is persuasive.

Before we address the merits of this contention, we discuss a procedural argument raised by Professional Lenders.

Professional Lenders argues the attorney fee issue cannot be raised because the second notice of appeal, the one that followed the January 17, 2003 attorney fee order, was untimely. However, the first notice of appeal was sufficient to raise the issue.

The judgment rendered in favor of Professional Lenders on April 16, 2002, specifically included an award of attorney fees, but left blank a space for a subsequent determination of the amount. This judgment subsumes the subsequent order filed on January 17, 2003, that fixed the amount of attorney fees, and the appeal filed on May 15, 2002, confers appellate jurisdiction over the later order. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998; R. P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158; compare with DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43-45.)

We now turn to the merits of Yolanda Gilleys contention that there was no legal basis to order her to pay attorney fees. The determination of the legal basis for an attorney fees award is a question of law subject to de novo review. (Sessions Payroll Management, Inc. v. Nobel Construction Co. (2000) 84 Cal.App.4th 671, 677.)

Professional Lenders argues the attorney fee provisions in the deed of trust provide justification for the attorney fee award. (See fn. 5, ante.) However, this generic argument is made without distinguishing between Eugene Gilley and Yolanda Gilley. Professional Lenders has not addressed in its brief the contention that the attorney fee award was improperly imposed against Yolanda Gilley. Yolanda Gilley did not own the home and she was not a signatory to the deed of trust. Professional Lenders never explains how Yolanda Gilley, as the non-signatory plaintiff, was responsible for attorney fees.

Professional Lenders relied on Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 to support its statement that even though it was an assignee and not a signatory to the deed of trust, it would be entitled to attorney fees. Professional Lenders cited no case holding that a non-signatory defendant could be entitled to attorney fees from a non-signatory plaintiff. Further, applying the rationale of Reynolds, Professional Lenders would be entitled to attorney fees against Yolanda Gilley only if she would have been entitled to attorney fees had she been successful against Professional Lenders. However, the basis of Yolanda Gilleys claims was her contract with her father, Eugene Gilley, to transfer the property to her and not based upon the deed of trust.

In Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d 124, individual defendants were sued as alter egos of a defunct corporation. The corporation had given two promissory notes to plaintiff that included attorney fee provisions. A judgment for defendants was rendered and the court held defendants were entitled to recover attorney fees as had plaintiff been victorious, plaintiff would have been entitled to attorney fees. (Id. at p. 128.)

The imposition of costs against Yolanda Gilley was proper as Professional Lenders was the prevailing party. (Code Civ. Proc., § 1032.)

We shall order that the January 17, 2003, judgment be amended nunc pro tunc to delete that portion of the judgment awarding Professional Lenders attorney fees imposed against Yolanda Gilley.

DISPOSITION

The judgment in favor of Wells Fargo is affirmed.

The judgment dated January 17, 2003, in favor of Professional Lenders is amended nunc pro tunc to delete Yolanda Gilley from that part of the judgment imposing attorney fees against her. The judgment dated January 17, 2003, shall read "IT IS ORDERED, ADJUDGED AND DECREED that: [¶] 1. Plaintiffs, Eugene D. Gilley and Yolanda Gilley shall take nothing, and that Defendant, Professional Lenders Alliance, LLC shall recover from said Plaintiffs costs of suit in the amount of $2,277.12 and additionally shall recover from Plaintiff Eugene D. Gilley attorney fees in the amount of $37,200.00." The judgment as amended is affirmed.

The Gilleys and Professional Lenders are to pay costs on appeal.

We concur: CROSKEY, Acting P.J., ALDRICH, J.


Summaries of

Gilley v. Wells Fargo Home Mortgage, Inc.

Court of Appeals of California, Second District, Division Three.
Nov 5, 2003
No. B158816 (Cal. Ct. App. Nov. 5, 2003)
Case details for

Gilley v. Wells Fargo Home Mortgage, Inc.

Case Details

Full title:EUGENE D. GILLEY et al., Plaintiffs and Appellants, v. WELLS FARGO HOME…

Court:Court of Appeals of California, Second District, Division Three.

Date published: Nov 5, 2003

Citations

No. B158816 (Cal. Ct. App. Nov. 5, 2003)