Opinion
C083724
10-31-2018
DANILO SESE, Plaintiff and Respondent, v. WELLS FARGO BANK, N.A., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2013-00144287-CU-WE-GDS)
In Monterossa v. Superior Court (2015) 237 Cal.App.4th 747 (Monterossa), this panel held that the " 'California Homeowner Bill of Rights' " or HBOR (Monterossa, at p. 749, fn. 1; Stats. 2012, chs. 86 & 87) authorized an award of legal fees to borrowers who obtained a preliminary injunction preventing a trustee's sale of their residence. In the present case, after granting a preliminary injunction in 2013 to plaintiff Danilo Sese against the trustee's sale of his residence, the trial court initially denied an award of legal fees. We concluded this was not an appealable order. (Sese v. Wells Fargo Bank, N.A. (2016) 2 Cal.App.5th 710.) After our decision in Monterossa, Sese renewed his request for legal fees. The trial court issued an order in December 2016 awarding him almost $13,000 in legal fees. Defendant Wells Fargo Bank, N.A., appeals from that order; in contrast with Sese's prior appeal, this collateral order is appealable because it directs the payment of money. (Compare Sese, at p. 716 with Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298.) Following a bench trial, the trial court subsequently entered an interlocutory judgment in October 2017 in favor of Wells Fargo on Sese's count alleging violations of HBOR; a count alleging negligence is apparently still pending.
On appeal, Wells Fargo essentially asks us to reconsider our interpretation of HBOR in Monterossa and limit an award of legal fees to the issuance of a permanent injunction against violations of HBOR's provisions. At oral argument, Wells Fargo urged the "timing" of an award of legal fees should await the trial court's determination of the merits of the dispute. Wells Fargo also contends that our holding violates due process in the context of a temporary restraining order. Finally, in a scant page of analysis, Wells Fargo claims that Monterossa runs afoul of federal banking law precluding any "attachment, injunction, or execution" against a national bank before final judgment. (12 U.S.C. § 91.) We note Sese has not filed a respondent's brief, although this does not absolve us of adjudicating the merits of Wells Fargo's appeal. (In re Bryce C. (1995) 12 Cal.4th 226, 232-233; People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178, fn. 3; see Cal. Const., art. VI, § 13.) We shall affirm the order.
To this end, Wells Fargo filed an "unopposed" request to take judicial notice of the defendant bank's briefing in Monterossa for the purpose of establishing its lack of "robust analysis." We grant the request for judicial notice. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
It is evident from the tenor of its briefing that Wells Fargo was displeased with the conduct of this litigation on the part of Sese's trial counsel. There is, however, nothing else relevant in the 20-plus pages of background in Wells Fargo's brief or the nearly 2000-page appendix to add to the facts set out in our introduction.
DISCUSSION
The legal basis for an award of legal fees is an issue we review de novo. (Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1078.) Wells Fargo does not contest the amount of fees awarded, which is within the trial court's discretion. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 429.)
With respect to Wells Fargo's criticisms of the statutory analysis in Monterossa, we note the Supreme Court did not depublish the decision on its own motion, and Wells Fargo has not called our attention to any legislative response to the decision since 2015. In addition, the 29 or so published and unpublished decisions citing Monterossa do not offer any criticism of its conclusion allowing legal fees for interim relief that preserves the status quo until a court can decide the merits of a dispute over a foreclosure. We thus do not discern any cogent basis for coming to a different result in the present case. Nor do we find support for delaying consideration of an award of fees for interim relief until the court decides the merits of a dispute. Wells Fargo is free to present its arguments in a petition for review with the Supreme Court that awarding interim legal fees under HBOR, to a plaintiff who ultimately is not successful, is not warranted.
With respect to Wells Fargo's argument that Monterossa's holding would violate due process in the context of a temporary restraining order, that was not the factual context of Monterossa and as a result does not play any part in its ratio decidendi. (DeVore v. California Highway Patrol (2013) 221 Cal.App.4th 454, 461.) It is also a question that is not presented in the instant facts such that we need to address it.
Finally, with respect to Wells Fargo's abbreviated invocation of the supremacy clause in connection with the prohibition in title 12 United States Code section 91 against an "attachment, injunction, or execution" before final judgment in any proceeding, we question whether it even has any application in the present case. "It appears likely that when originally passed the provision barring prejudgment writs actually was aimed at preventing preferences by creditors. . . . There does not seem to have been any similar problem with actions by noncreditors. It seems improbable, for instance, that there were many actions by mortgagors to enjoin foreclosures by national banks, because at that time national banks were allowed to accept mortgages only in very limited circumstances. [Fn. omitted.] [¶] . . . The implication is strong that Congress intended only to prevent state judicial action, prior to final judgment, which would have the effect of seizing the bank's property." (Third Nat. Bank in Nashville v. Impac Limited., Inc. (1977) 432 U.S. 312, 322-323 [53 L.Ed.2d 368, 377-378] [holding that the statute does not preclude a preliminary injunction restraining a national bank from holding a foreclosure sale], italics added.) Nor does Wells Fargo present any argument demonstrating that an interlocutory order awarding legal fees comes within the meaning of the federal statute. We therefore reject this theory as well.
DISPOSITION
The order awarding legal fees to Sese is affirmed. Because no party other than appellant filed a brief or otherwise made an appearance on appeal, no costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
BUTZ, Acting P. J. We concur: MURRAY, J. DUARTE, J.