Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of San Diego County, No. PN22173 Richard G. Cline, Judge.
McINTYRE, J.
Ervin Sommer appeals from a judgment and numerous orders of the superior court in favor of Linda Hawkes, as the trustee of the Julia Jeppesen Hawkes Trust (collectively, the Trust), for which he acted as a co-trustee from September 1994 until his removal in October 1997. The judgment awarded the Trust compensatory and punitive damages arising out of Sommer's execution of promissory notes, payable by the Trust to him and secured by a deed of trust against Trust property, during the time that he was acting as a co-trustee, and also awarded the Trust $11,916.50 in attorney fees against him. Sommer contends that the judgment and the court's orders issued in the proceedings cannot stand. The Trust argues that certain of the decisions Sommer purports to appeal are not appealable, that his appeal from others is untimely and that, in any event, the appeal is without merit; it requests sanctions against Sommer for pursuing a frivolous appeal.
We conclude that we have no jurisdiction over Sommer's appeal as to the orders denying his request that the trial judge recuse from the case and striking his challenge for cause, its denial of his motion for reconsideration, its decision (or lack thereof) on his motion to vacate the judgment and the order granting a preliminary injunction and thus dismiss the appeal as to those matters. Insofar as Sommer appeals from the judgment and the order awarding attorney fees to the Trust, we conclude that the appeal is without merit and affirm the judgment and order in all respects. Because the Trust is entitled to recover its reasonable attorney fees in this appeal, we decline to award the Trust its fees a second time as a sanction.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is Sommer's ninth arising out of proceedings relating to the Trust. We grant the Trust's request that we take judicial notice of the prior appellate opinions in this case. (Evid. Code, § 459, subd. (a); Cal. Rules of Court, rule 8.54(a), all rule references are to the California Rules of Court.) We deny, however, its request for judicial notice of a prior unpublished opinion in Heinz v. Sommer (Apr. 19, 2006, D046125) [nonpub. opn.]), a case that is totally unrelated, and thus irrelevant, to these proceedings. (Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176, 182 [judicial notice properly denied as to irrelevant matters].) The following recitation is based on the matters as to which judicial notice has been granted and the evidence in the record; it only describes, however, those proceedings that are relevant to the current appeal.
Beginning in September 1994, Sommer and Ila Sullivan served as co-trustees of the Trust. In March 1997, Hawkes filed a petition seeking in part to have Sommer and Sullivan removed as trustees. (Hawkes v. Sommer (Feb. 2, 2000, D031268) [nonpub. opn.] p. 5.)
In August 1997, while the removal petition was still pending, Sommer secretly executed promissory notes payable by the Trust to him (the Notes) and recorded a deed of trust (the Deed of Trust) against a commercial rental property in Escondido (the Escondido Property) that was owned by the Trust as security therefore. The first note was for "$75,000.00 or more" and specified that it was for unpaid trustee's fees; the second one was for "$1,000.00 or more." Sommer signed the Notes and the Deed of Trust, but did not have Sullivan co-sign them, despite the fact that she was still acting as a co-trustee at that time. Thereafter, the probate court granted Hawkes' removal petition and appointed Hawkes as the successor trustee in October 1997. Sommer and Sullivan unsuccessfully appealed the probate court's order removing them. (Hawkes v. Sommer (Feb. 2, 2000, D031268) [nonpub. opn.].)
In April 1998, the Trust petitioned the court for a surcharge against Sommer and Sullivan based on their mismanagement of Trust assets and overcharging of trustee fees during their tenure as trustees. The Trust's evidence showed that as trustees Sommer and Sullivan had paid themselves more than $200,000 in trustee fees, including two $10,000 payments made shortly before their removal. (Hawkes v. Sommer (June 14, 2000, D033115) [nonpub. opn.] p. 9.) (Notably, although Sommer steadfastly contends that he did not keep secret the existence of the Notes or the Deed of Trust, it is curious that he did not bring those documents to the court's attention in the proceedings on the surcharge petition despite the fact that his entitlement to compensation for work he performed as a trustee was the only issue presented therein.) The probate court found that Sommer and Sullivan were not entitled to any additional compensation for their work as trustees, but in fact had overpaid themselves, and that the Trust was entitled to a $100,129.54 surcharge ($80,046.93 of which was for excess trustee fees already paid) against them; the court thereafter entered judgment in the amount of the surcharge, plus $4,000 in attorney fees previously awarded to the Trust, in the Trust's favor. (Hawkes v. Sommer (June 14, 2000, D033115) [nonpub. opn.] pp. 3, 9.)
Sommer and Sullivan challenged the surcharge judgment in this court, again without success. (Hawkes v. Sommer (June 14, 2000, D033115) [nonpub. opn.].) Sullivan then paid the Trust $100,000 to settle its claim against her. Thereafter, the Trust took steps to enforce the remainder of the judgment against Sommer, although its efforts were not entirely successful. (See Hawkes v. Sommer (Nov. 29, 2001, D037530) [nonpub. opn.] p. 3.)
In the fall of 2005, the Trust agreed to sell the Escondido Property to a third party. Within a month or so, Sommer recorded a notice of default under the Deed of Trust and intent to sell against the Escondido Property, claiming that he was owed $167,500 for work he did and expenses he incurred between October 9, 1997 and January 15, 1998 (after his removal, when he was clearly no longer acting as trustee or entitled to receive fees as such). The Trust demanded that Sommer sign a deed of reconveyance cancelling the Deed of Trust, but he refused to do so and in fact initiated foreclosure proceedings against the Escondido Property. To facilitate the sale, the Trust and the buyers agreed that $252,000 of the sale proceeds would be held in escrow pending the resolution of Sommer's claim.
In December 2005, the Trust filed a petition against Sommer seeking declaratory relief, damages resulting from breach of trust, cancellation of the Notes and the Deed of Trust and quiet title to the Escondido Property, preliminary and permanent injunctive relief and the appointment of an elisor. Subsequently the court granted its request for a stay of the foreclosure proceedings pending a hearing on the petition.
In June 2006, the court held an evidentiary hearing on the petition. After the Trust had rested its case, Sommer moved to have the judge recuse from the proceedings and for a continuance of the hearing, both of which motions the court denied. Sommer thereafter presented the remainder of his evidence and rested and the court took the matter under submission.
On August 8, 2006, the court issued a tentative decision finding that Sommer's claim for additional compensation was "totally without merit," that he had willfully and fraudulently concealed the existence of the Notes and the Deed of Trust, in violation of court order and his fiduciary obligations, and that the Notes and the Deed of Trust were in any event invalid because they were not also signed by Sullivan as required by Probate Code section 15620. The decision declared that the Trust did not owe Sommer any additional compensation relating to his service as a co-trustee and that the Trust was entitled to have the Notes and Deed of Trust cancelled; it awarded the Trust punitive damages and "reasonable attorney's fees and costs." It also provided that Sommer would be required to post a bond to stay execution of the judgment if he wished to appeal.
Sommer filed objections to the tentative decision, which he characterized as "incompetent," "driveling nonsense," and "laughable." He also demanded a hearing on his objections and that the court prepare a statement of decision. Sommer again demanded that the judge recuse from the proceedings and filed a separate challenge for cause against the judge. The court struck the challenge for lack of proper service, as untimely and for lack of evidentiary support; Sommer filed multiple written objections to this ruling.
On September 11, 2006, Sommer filed a "motion to reconsider and vacate [the] statement of decision," essentially contending that the decision was contrary to the evidence presented at the hearing. (As the court did not sign its statement of decision until a week after this motion was filed, it appears that the motion related to the court's tentative decision.) After the court adopted the tentative decision as its statement of decision, Sommer filed written objections to the latter, reiterating his prior contentions, including that the Trust continued to owe him compensation and that the Notes and the Deed of Trust were valid. (Notably, however, Sommer did not address the primary basis for the court's ruling in that regard, to wit, that the compensation issue had been already decided against him by the trial court in a decision that was affirmed on appeal and thus the issue was no longer disputable.) On October 6, 2006, the court reissued its statement of decision, indicating that it had considered Sommer's motion to reconsider and vacate as objections thereto, which it implicitly rejected. That same day, the court entered judgment in the Trust's favor.
Sommer filed a second motion to reconsider and vacate the statement of decision, reiterating at great length the objections that he had raised to the decision on prior occasions, although the court apparently took that motion off calendar in light of its previous entry of judgment. Within days, Sommer filed yet another motion to reconsider and vacate the statement of decision and filed written objections to the court's decision to take the previous motion off calendar.
In the meantime, the Trust filed a motion to recover $11,916.50 in attorney fees from Sommer, which he opposed by filing a document entitled "declaration-response-objection" and several more documents three days before the hearing. Noting that Sommer was not entitled to file "limitless oppositions to a single motion," the court declined to consider Sommer's filings other than his first-filed written objections.
In ruling on the merits, the court awarded the Trust all the requested fees. Sommer filed multiple sets of written objections to the court's order, as well as additional numerous documents in support of his motion to reconsider and vacate the statement of decision. The court denied the reconsideration motion on the grounds that the entry of judgment divested it of jurisdiction to rule on such a motion and that, even if jurisdiction otherwise existed, Sommer had not set forth new facts or law to support granting the motion. Sommer filed multiple written objections to that ruling, to no avail. He now appeals.
DISCUSSION
1. Appealability
We have jurisdiction over a direct appeal only when there is an appealable order or an appealable judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) The Trust urges us to dismiss Sommer's appeals from certain of the court's orders and its statement of decision as not properly appealable. We address each in turn below.
A. The Trial Court's Failure to Recuse or Disqualify Itself
"The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought . . . within 10 days after service of written notice of entry of the court's order determining the question of disqualification." (Code Civ. Proc., § 170.3, subd. (d).) Moreover, Sommer in fact filed a petition for writ of mandate seeking relief from the court's denial of his multiple requests to have the judge recuse or be disqualified; his writ petition was summarily denied. (Sommer v. Superior Court (Nov. 14, 2006, D049755) [writ. den.].) Sommer cannot now challenge these rulings by appeal, nor can we consider the scurrilous and unsubstantiated accusations he makes against the judge. (See Rossco Holdings Inc. v. Bank of America (2007) 149 Cal.App.4th 1353, 1364.) We dismiss his appeal from the orders denying his requests for recusal and striking the motion to disqualify the judge for cause.
B. Statement of Decision
A statement of decision is generally not appealable, although one that constitutes the trial court's final determination on the merits may be treated as appealable where no subsequent judgment is entered. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 [a statement of decision is not appealable when a formal order or judgment is entered thereafter].) Here, a judgment was entered and Sommer has appealed therefrom. Thus, the court's statement of decision is not separately appealable, although Sommer's arguments are properly considered as part of his appeal from the judgment.
C. Order Denying Sommer's Motion for Reconsideration
The denial of a motion for reconsideration is not an appealable order and thus we dismiss Sommer's appeal from that order. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229-1230.)
D. Court's Failure to Rule on Sommer's Motion to Vacate the Judgment
Sommer purports to appeal from the denial of his motion to vacate the judgment pursuant to Code of Civil Procedure section 663, an order that is generally considered a separately appealable order. (Norager v. Nakamura (1996) 42 Cal.App.4th 1817, 1819, fn. 1; contra City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 820-823 .) Here, however, Sommer admits that the court made no ruling on his motion to vacate the judgment and thus there is no issue to consider independent of the challenges Sommer raises to the judgment itself. (See Howard v. Lufkin (1988) 206 Cal.App.3d 297, 300-303 [recognizing that on an appeal from an order denying a vacation motion, the only issue is whether the trial court correctly ruled on the motion].) For this reason, we dismiss Sommer's purported appeal from an order the court never made.
E. The Award of Attorney Fees
"An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed." (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 .) "'[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified -- in either a single notice of appeal or multiple notices of appeal -- in order to be reviewable on appeal.'" (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1998) § 3:119.1, p. 3-34 (rev. #1, 1997), italics omitted.)
Here, the October 2006 judgment stated "Sommer must pay [the Trust's] reasonable attorney's fees and costs" and the following month the court granted the Trust's motion for an award of fees and costs. In his notice of appeal, Sommer did not check the box indicating that he was appealing from the post-trial order awarding fees, although the appendix attached thereto raised arguments as to the propriety of the attorney fee award.
Although Sommer did not file a separate notice of appeal from the order awarding fees, we nonetheless have jurisdiction to hear his challenges to the fee award because the judgment itself provided that the Trust was to recover its reasonable attorney fees. Under such a circumstance, an appeal from the judgment incorporates the decision to award fees and thus Sommer's appeal from the judgment is sufficient to confer appellate jurisdiction over the issue. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 [where the judgment expressly awards attorney fees to a party, but leaves the amount of those fees for subsequent resolution, the notice of appeal from the judgment "subsumes any later order setting the amounts of the award" and allows the appellate court to assert jurisdiction over challenges to the propriety of the attorney fee award]; see also DeZerega v. Meggs, supra, 83 Cal.App.4th at pp. 43-44.)
2. Timeliness of Sommer's Appeal from the Preliminary Injunction and the Judgment
A timely notice of appeal is a prerequisite to the vesting of jurisdiction in the Court of Appeal (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864); the time for filing the notice of appeal is thus jurisdictional and, if the deadline for doing so expires before a notice is filed, the appellate court cannot entertain the appeal. (Rule 8.104(b); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; see also Estate of Hanley (1943) 23 Cal.2d 120, 123 [in the face of an untimely notice, the court must dismiss the appeal, even on its own motion if no objection is made].) Here, the Trust contends that we lack jurisdiction to consider Sommer's appeal from the order granting the preliminary injunction and the judgment because it was not timely taken.
A. The Order Granting the Preliminary Injunction
An order granting a preliminary injunction is immediately appealable. (Code Civ. Proc., § 904.1, subd. (a)(6); County of San Diego v. State of California (1997) 15 Cal.4th 68, 110.) Here, the court entered the order granting the Trust's request for injunctive relief on March 2, 2006, but Sommer did not notice an appeal from the order until January 24, 2007, well beyond the statutory deadline for doing so. Because Sommer's appeal from the order was untimely, we must dismiss the appeal from that order. (County of San Diego v. State of California, supra, 15 Cal.4th at p. 110; see Code Civ. Proc., § 906.)
B. The Judgment
Rule 8.104, states in relevant part:
"(a) Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
"(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
"(3) 180 days after entry of judgment."
Here, judgment was entered on October 6, 2006 and the clerk mailed out a file stamped copy of the judgment, a file stamped copy of the court's statement of decision, a proof of service showing that the Trust served Sommer with certain documents on September 18, 2006 and the clerk's certificate of mailing dated October 6, 2006. Sommer filed his notice of appeal on January 24, 2007.
The Trust argues, although somewhat half-heartedly, that Sommer's appeal from the judgment was untimely since he failed to file his notice of appeal within 60 days of the date on which the clerk mailed him the file-stamped copy of the judgment. However, the 60-day period does not commence to run unless the court clerk mails a "notice of entry" of judgment, or a file-stamped copy of the judgment, that itself includes a certificate of mailing. (Alan v. American Honda Motor Co., Inc., supra, 40 Cal.4th at p. 905 [interpreting rule 8.104(a)(1), as requiring that the notice or judgment "itself show the date on which it was mailed" and that a notice merely accompanied by a separate certificate of mailing does not comply with this requirement].) Further, as the Trust admits, the file-stamped copy of the judgment mailed by the clerk did not include a certificate of mailing, but was instead accompanied by a separate certificate. Accordingly, the clerk's mailing of the document package that included the file-stamped copy of the judgment did not commence the running of the 60-day period for noticing an appeal thereof and thus did not render Sommer's notice of appeal untimely.
The Trust also argues, however, that Sommer's notice of appeal was untimely under rule 8.108(c), which provides in relevant part:
"(c) If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move -- or a valid motion -- to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:
"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
"(2) 90 days after the first notice of intention to move -- or motion --is filed; or
"(3) 180 days after entry of judgment." (Italics added.)
Specifically, the Trust contends that because Sommer filed his motions for reconsideration and vacation of the judgment on October 12, 2006, the deadline for him to file a notice of appeal was 90 days later (Jan. 11, 2007), making his January 24, 2007 notice of appeal untimely. However, the provisions of rule 8.108(c) only operate to extend, not shorten, the appeal period otherwise applicable under rule 8.104(a). (Advisory Com. com., West's Ann. Court Rules (2006 ed.) foll. rule 8.108, p. 488; cf. Maides v. Ralphs Grocery Co. (2000) 77 Cal.App.4th 1363, 1368-1369 [applying former rules 3(b) and 2(a), the predecessors to rules 8.108(c) and 8.104(a), respectively]; see also rule 8.108(a) [amended as of Jan. 1, 2008 to specifically so provide].) Thus, the application of rule 8.108(c) does not render Sommer's appeal untimely.
3. The Merits of Sommer's Remaining Challenges
For the reasons discussed above, we only have jurisdiction to consider Sommer's challenges to the judgment and the order awarding the Trust its attorney fees. As to these, Sommer contends that (A) the probate court lacked subject matter jurisdiction over the matter, which was (apparently) the subject of a foreclosure action he filed in June 2006; (B) the Trust lacked standing to pursue its claims, and the court lacked jurisdiction over them, since the claims were barred by the statute of limitations; (C) the evidence and the law established his entitlement to compensation, his right to execute the Notes for the compensation owed to him by the Trust and the validity of the Deed of Trust; (D) the court erred in awarding the Trust punitive damages against him; (E) the court erred in ordering him to pay the Trust's attorney fees; and (F) the court violated his due process rights by failing to consider his objections to the statement of decision and by taking certain hearings off calendar. We address these arguments in turn below.
A. Subject Matter Jurisdiction
Sommer suggests in passing that the probate court lacked subject matter jurisdiction over the Trust's December 2005 petition for relief from his attempts to foreclose on the Escondido Property, based on his apparent filing of a civil foreclosure action against the new property owners in June 2006. However, Sommer does not cite to any evidence in the record or any authority supporting his contention, nor does he make any meaningful argument (other than simply stating it to be so), as he is required to do. (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; rule 8.204(a)(1)(B), (C).) Since we are not responsible for combing the appellate record for pertinent evidence, or conducting legal research in search of authority, to support the contentions on appeal (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768), we consider the issue waived. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
B. Statute of Limitations
Sommer contends that the evidence shows the successor trustees of the Trust were on notice of the Notes and the Deed of Trust in late 1997 and thus the Trust's petition for relief relating to those instruments was barred by the statute of limitations. However, the record before us does not include the reporter's transcripts of the evidentiary hearing proceedings and thus we have no way of reliably determining what evidence was presented to the probate court at the hearing. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 ["Without the proper record, [a reviewing court] cannot evaluate issues requiring a factual analysis," as there is no way to verify the facts asserted].) Although Sommer attempted to augment the record to include the reporter's transcripts in September 2007, his request was denied, presumably in part because his designation of the record specifically provided that no reporter's transcript was to be included and because he had already filed his opening brief, both of which made clear that he was proceeding without the need for transcripts. (See rule 8.204(a)(1)(C) [requiring that an opening brief include citations to the relevant portions of the record]; see also Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
In the absence of a reporter's transcript, we cannot rely on Sommer's characterization of the evidence, but must instead presume that the evidence introduced at the hearing supported the court's decision. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Further, as discussed further below, the doctrine of collateral estoppel bars Sommer from enforcing the Notes and the Deed of Trust, thus essentially rendering his statute of limitations argument moot.
C. Sommer's Entitlement to Compensation/The Validity of the Notes and Trust Deed
Sommer contends that the evidence and the law establish his entitlement to compensation and the validity of the deed of trust. However, in the absence of an adequate record, we must presume that the evidence supported the court's decision. (See also Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126 ["a litigant . . . appearing in propria persona . . . is entitled to the same, but no greater, consideration than other litigants and attorneys. . . ."].)
Moreover, a prior decision of this court establishes the primary basis for the probate court's ruling, i.e., that the issue of Sommer's entitlement to compensation was previously litigated, decided against him (with the probate court finding that he and Sullivan had overpaid themselves for the work performed and were not owed any additional compensation, but were in fact liable to the Trust for excess fees they had already received) and affirmed on appeal. (Hawkes v. Sommer (June 14, 2000, D033115) [nonpub. opn.].) Because the compensation issue has been completely and finally determined, Sommer cannot now relitigate that issue. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 [principles of collateral estoppel preclude relitigation of issues argued and decided in prior proceedings]; see Hylton v. Badgley (1959) 170 Cal.App.2d 76, 79.)
Further, as the trial court found here and Sommer concedes, the Notes and the Deed of Trust existed purely by virtue of the existence of an alleged obligation by the Trust to pay Sommer additional compensation. Because it has been finally determined that no such obligation exists, the trial court correctly determined that Sommer's attempt to enforce the Notes and the Deed of Trust (whether against the Trust or against the purchaser of the Escondido Property) was improper. (See, e.g., Roesch v. DeMota (1944) 24 Cal.2d 563, 569 [recognizing well-established law that an obligor's full compliance with the payment obligations under a promissory note is a defense to an action to recover money thereunder]; also Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 606 [full satisfaction extinguishes a related lien].)
D. The Award of Punitive Damages
Sommer argues that the court improperly relied on the Trust's evidence (testimony of an appraiser) that fraudulently overstated the value of his home as a basis for the punitive damage award. Again, in the absence of a reporter's transcript, we are not at liberty to guess as to what the evidence at the evidentiary hearing showed. Further, to the extent that Sommer suggests that the court was required to accept the credibility of his own opinion on this subject, he is mistaken. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [the testimony of a single witness will generally suffice to constitute substantial evidence in support of a judgment, regardless of the number of witnesses or the amount of other evidence to the contrary].) Sommer has not established that the probate court committed error in awarding the Trust punitive damages. In light of this conclusion, the Trust's motion for this court to make a factual finding that it suffered actual damage as a result of Sommer's enforcement of the Deed of Trust is moot.
E. The Award of Attorney Fees
Civil Code section 1717, subdivision (a) provides in part:
"In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."
The primary purpose of Civil Code section 1717 is to ensure mutuality of remedy and to prevent oppressive use of one-sided attorney fee provisions. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128.) Even where a party prevails in establishing that the contract authorizing the recovery of attorney fees is inapplicable, invalid, unenforceable or nonexistent, Civil Code section 1717 authorizes that party to recover fees if the other party "would have been entitled to attorney's fees under the contract had [he] prevailed." (Santisas v. Goodin (1998) 17 Cal.4th 599, 611; Hsu v. Abbara (1995) 9 Cal.4th 863, 870.)
Sommer does not challenge these legal principles, but instead argues that no applicable contract provisions authorized an award of fees here and thus the Trust is required to pay its own fees in these proceedings. However, he is mistaken. Each of the Notes includes a provision that "[i]f any action be instituted on this note, the undersigned promisee[] [must] pay such sum as the Court may fix as attorney's fees." The Deed of Trust also incorporated by reference the provisions of the recorded fictitious deed of trust, which includes a provision authorizing the recovery of attorney fees in an action relating thereto. (Smith v. Krueger (1983) 150 Cal.App.3d 752, 755; see generally Civ. Code, § 2952 [authorizing the incorporation by reference into a deed of trust of the terms of a recorded fictitious deed of trust rather than restating such terms in full therein].)
Sommer also makes a passing argument in his reply brief complaining that the Trust did not submit a detailed statement of its counsel's hours and the work performed. Again, the argument is made without any meaningful argument or citation to relevant authority and thus the argument offers too little; further, as Sommer did not raise such a challenge in his written oppositions to the motion in the proceedings below, it also comes too late. For these reasons, we decline to consider it.
Pursuant to the authorities cited above, the Trust is entitled to recover its attorney fees as the party prevailing on the claim that the Notes and the Deed of Trust (each of which includes a provision authorizing an award of attorney fees to the prevailing party).
F. Due Process
Sommer argues that the court violated his due process rights by signing the statement of decision and the judgment that were prepared by the Trust, but never served on him, and without considering his objections and his evidence and by preventing him from being heard. However, the record shows that both the tentative statement of decision and the virtually identical statement of decision were served on Sommer and that he filed repeated objections to each of those documents. The record also shows that the court considered Sommer's objections, ultimately rejecting them. Sommer had notice and an opportunity to be heard on the issues raised by the Trust's petition for relief and on the form of the statement of decision and thus the court did not violate his due process rights. (In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)
Sommer also suggests that the court violated his due process rights by taking off calendar certain hearings that he scheduled (specifically, the August 2006 ex parte hearing on Sommer's request for the judge to recuse, the October 2006 hearing on his objections to the tentative statement of decision, the December 2006 hearing on his second motion to reconsider and vacate the statement of decision, the November ex parte hearing on his opposition to the attorney fee motion and the November 2006 hearing on his objections to the order awarding attorney fees to the Trust). However, Sommer does not cite any authority to establish that he was entitled to the type of hearing he had requested (for example, ex parte consideration of his opposed request for the court to recuse or any type of hearing on his objections to the tentative or final statements of decision). Further, the record shows that the court considered each of these objections (many of which were asserted multiple times), again establishing notice and an opportunity to be heard. (In re Joshua M., supra, 66 Cal.App.4th at p. 471.) Accordingly, we find no basis for concluding that the court violated Sommer's due process rights.
4. The Trust's Motion for Sanctions
During the pendency of appeal, the Trust has filed two motions regarding Sommer's conduct, one of which is expressly designated as a motion for sanctions for a frivolous appeal and the other of which challenges Sommer's repeated assertions of unmeritorious motions in this court, a motion that this court has deemed to be an additional request for sanctions. The Trust has specifically requested that the court impose sanctions of $16,320, an amount equal to its attorney fees incurred in defending against Sommer's appeal.
Although we agree that Sommer's appeal is totally without merit, in accordance with the analysis elsewhere in this opinion, the Trust (as the prevailing party on this appeal) is entitled to recover its reasonable attorney fees incurred in defending this appeal pursuant to the provisions of the Notes and the Deed of Trust. Because the Trust is already entitled to recover its $16,320 in attorney fees, we decline to require Sommer to pay those fees a second time as a sanction.
DISPOSITION
The appeal is dismissed as to the orders denying Sommer's request that the trial judge recuse from the case and striking his challenge for cause, the order denying his motion for reconsideration, its failure to rule on his motion to vacate the judgment and the order granting a preliminary injunction. The judgment and the order awarding attorney fees to the Trust are affirmed in their entirety. The motion for sanctions is denied. The Trust is awarded its costs and $16,320 in reasonable attorney fees incurred on appeal.
WE CONCUR: HUFFMAN, Acting P.J., NARES, J.