Filed 7/28/14 Fed. Nat. Mortgage Assn. v. Rothman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
G048156
Plaintiff and Appellant,
(Super. Ct. No. 30-2010-00435329)
v.
OPINION
LARRY ROTHMAN et al.,
Defendants and Appellants;
BROOKHURST VILLAGE
HOMEOWNERS ASSOCIATION et al.,
Defendants and Respondents.
Appeals from a judgment and orders of the Superior Court of Orange
County, Derek W. Hunt, Judge. Affirmed.
Wright, Finlay & Zak, T. Robert Finlay, Michael J. Gilligan and Brian P.
Stewart for Plaintiff and Appellant.
The Durst Firm, The Justice Law Center, Lee H. Durst; Larry Rothman &
Associates and Larry Rothman for Defendants and Appellants.
Hatton, Petrie & Stackler, Arthur R. Petrie, II and John A. McMahon for
Defendants and Respondents.
* * *
Federal National Mortgage Association (Fannie Mae) brought 11 lawsuits
in Orange, Riverside, San Bernardino, and Los Angeles Counties against Larry Rothman
and a number of homeowners associations. The complaints alleged the respective
homeowners associations placed liens on condominiums owned by Fannie Mae, the
amount of the liens included fees incurred by the previous owners of the condominiums,
and Fannie Mae was required to pay off the liens to pass clear title, despite the fact
Fannie Mae was liable only for fees incurred during the period it owned the properties.
Rothman, an attorney for the homeowners associations, was alleged to have recorded the
notices of delinquent assessment when the previous owners failed to pay their
homeowners associations’ fees. It was also alleged Rothman acted with fraud, malice,
and bad faith in filing notices of delinquent assessment against the properties when
Fannie Mae failed to pay its homeowners associations’ fees. It was further alleged
Rothman subsequently demanded Fannie Mae pay funds to release the homeowners
associations’ liens, and received sums from Fannie Mae for the benefit of the
homeowners associations, knowing Fannie Mae would have to pay the demanded
amounts in order to close escrow on the condominiums it was selling.
Fannie Mae subsequently filed a motion to have all the cases transferred to
Orange County Superior Court Judge Derek W. Hunt’s court “for coordination and
consolidation.” All parties agreed to the transfer. Judge Hunt ordered the 11 cases
consolidated under one case number and ordered all parties to file all documents under
2
case No. 30-2010-00435329. All the actions were tried together on a stipulated set of
facts and exhibits. The court issued one judgment, finding in favor of Fannie Mae in four
of the matters and that Fannie Mae did not carry its burden of proof in the other seven
matters, i.e., the court found in favor of Rothman and the homeowners associations in the
seven remaining matters.
Rothman subsequently filed a memorandum of costs and a separate motion
for attorney fees in each matter where judgment was entered against Fannie Mae. Fannie
Mae filed a motion to tax costs. The court denied Rothman’s motion for attorney fees
and denied costs, stating there was no prevailing party in the consolidated action.
Rothman appeals from the orders denying attorney fees and costs. Fannie Mae appeals
from that portion of the judgment wherein the court found in favor of the homeowners
associations and Rothman. We affirm.
I
PROCEDURAL HISTORY AND FACTS
This matter involves 11 lawsuits brought by Fannie Mae in four different
counties (Orange, Los Angeles, Riverside, and San Bernardino) against Rothman and
various homeowners associations. Rothman was named as a defendant in all 11 cases.
Brookhurst Village Homeowners Association (Brookhurst) and Lakes at Corona
Homeowners Association (Lakes at Corona) were named as defendants in three cases.
Bishop Villas Homeowners Association (Bishop), Creekside Village Homeowners
Association (Creekside), Val Vista Obispo Homeowners Association (Val Vista), Val
Villas Homeowners Association (Val Villas), and Club View Villas Homeowners
Association (Club View) were each named as a defendant in one case.
The causes of action against the homeowners associations included money
had and received, breach of applicable covenants, conditions, and restrictions (CC&Rs),
breach of the covenant of good faith and fair dealing, breach of fiduciary duty, and
violation of Civil Code former sections 1367.1 and 1368. The actions against Rothman
3
included money had and received, and violation of the same Civil Code sections. The
matters were consolidated and tried together in Orange County on stipulated facts and
exhibits. Generally, the stipulation established each homeowners association was entitled
to collect assessments on the condominiums in the association; an individual borrowed
money to buy a condominium within the association, secured the loan with a first deed of
trust on the condominium, failed to pay the homeowners association assessed fees, and
defaulted on the deed of trust; assessments were past due and owing at the time the
trustee foreclosed on the first deed of trust and Fannie Mae acquired the property; Fannie
Mae has a policy and practice of refusing to pay homeowners association fees on
property it owns until such time as it resells the property; Rothman and the homeowners
associations recorded notices of default under the terms of the homeowners associations’
CC&Rs, and sent Fannie Mae letters setting forth the monthly dues, applicable late fees,
and the balance of fees due on the condominium; and Fannie Mae paid the amount
demanded by Rothman. On occasion, the payment was made “under protest.” In a
number of cases, Rothman also wrote a letter to the escrow company handling Fannie
Mae’s sale of the condominium, seeking payment of assessment fees from escrow. In
each of the 11 actions, the liens on the related properties were released once Fannie Mae
paid the claimed assessments, fees, and penalties.1 The goal of the lawsuits was to force
Rothman and the homeowners to disgorge what Fannie Mae considered inflated and
unlawfully obtained assessments.
The court subsequently entered judgment in favor of Fannie Mae and
against Rothman and Brookhurst in two of the matters, against Rothman and Club View
in one matter and against Rothman and Val Vista in another matter. In each of the
remaining seven matters, the court ruled Fannie Mae should take nothing by its complaint
and entered judgment in favor of Rothman and the homeowners associations.
1
Further facts, such as the amounts claimed to be owed Rothman and the
homeowners association, are set forth in the discussion below, where relevant.
4
II
DISCUSSION
A. Fannie Mae’s Appeal
1. Timeliness
Fannie Mae’s appeal from the court’s judgment entered on October 12,
2012, was filed on March 21, 2013. Rothman argues Fannie Mae’s appeal is untimely.
According to Rothman, Fannie Mae was required to file its notice of appeal within 60
days of the clerk mailing the notice of entry of judgment on October 10, 2012. The
record does not support Rothman’s contention. On October 12, 2012, the clerk of the
court served a copy of the court’s minute order from the same date, not a notice of entry
of judgment. California Rules of Court, rule 8.104(a)(1)(A) requires an appellant to file a
notice of appeal no later than 60 days after the clerk of the court serves the party with “a
document entitled ‘Notice of Entry’ of judgment or a file stamped copy of the judgment.”
The minute order met neither of these requirements. It merely stated the
court reviewed two different judgments—one consisted of “11 different single
judgments,” the other was one combined judgment for all 11 cases—and the court
approved and signed the combined judgment. There is no indication the judgment was
served on the parties at the same time the minute order was served. The clerk’s proof of
service states a copy of the minute order was served. Consequently, there is no evidence
Fannie Mae was served with notice of entry of judgment or a copy of the judgment on
October 12, 2012. Fannie Mae was therefore entitled to file its notice of appeal within
180 days from the date the court entered judgment. (Cal. Rules of Court, rule
8.104(a)(1)(C).) The March 21, 2013 notice of appeal was timely filed.
2. Standard of Review
The trial court did not find in favor of Rothman and the homeowners
associations in seven matters because the court found Fannie Mae was responsible for
fees incurred prior to Fannie Mae’s purchase of the properties. Rather, the court found in
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favor of Rothman and the homeowners associations in these seven matters because the
court implicitly found Fannie Mae did not meet its burden of proof. The court’s minute
order setting forth the reasons for its decision states: “Unlike the four properties [in
which Fannie Mae prevailed], all of the others show HOA liens from periods before and
after the Fannie Mae foreclosure. Possibly the pre-foreclosure amounts were included in
the post-foreclosure calculations: the court has already noted that with each new lien the
claimed amount became larger. Of course this observation is not proof, except of the
most inferential kind. Pre-trial interrogatories could easily have been used to establish
the facts—and under oath.” (Italics omitted.)2
“When the trier of fact has expressly or implicitly concluded that the party
with the burden of proof failed to carry that burden and that party appeals, it is somewhat
misleading to characterize the failure-of-proof issue as whether substantial evidence
supports the judgment. This is because such a characterization is conceptually one that
allows an attack on (1) the evidence supporting the party who had no burden of proof,
and (2) the trier of fact’s unassailable conclusion that the party with the burden did not
prove one or more elements of the case. [Citations.] Thus, where the issue on appeal
turns on a failure of proof at trial, the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s evidence was (1)
‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a finding.’
[Citation.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279.)
3. The Merits of Fannie Mae’s Appeal
Fannie Mae maintains the assessment liens put in place by Rothman and the
demand statements he sent to Fannie Mae included fees and costs imposed prior to
2At a subsequent hearing, the court reiterated it had reached its decision because it
found the evidence “to be incomplete.”
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Fannie Mae’s ownership of the condominiums and are not authorized by the CC&Rs,
which state an owner is only liable for reasonable fees incurred during ownership, not for
fees incurred by a previous owner. Additionally, Fannie Mae argues fees charged over
and above the monthly fees and late charges were unreasonable. Fannie Mae claims it
received notice it owed between $2,500 and $5,000 in legal fees to Rothman shortly after
it took title to the condominiums. From this it argues there was no basis for such charges,
although it concedes “the dubious nature of these charges may not have been exposed as
thoroughly as possible.”
The seven instances in which the court found in favor of the homeowners
association and Rothman involve Bishop unit 101, Brookhurst unit 1015, Val Villas unit
4, Lakes at Corona units B, C, and H, and Creekside unit 306.
a. Bishop Unit 101
The previous owner of unit 101 defaulted on his deed of trust and Fannie
Mae acquired the property on May 20, 2009, at the foreclosure sale under the deed of
trust. By that time, the previous owner owed Bishop $4,130 in monthly assessments, late
charges, and a special assessment. Rothman had filed a lien against unit 101 prior to the
foreclosure sale.
On June 24, 2009, just over a month after Fannie Mae acquired title to unit
101, Rothman filed another lien on unit 101 in the amount of $12,770. Bishop’s log
sheet had a July 10, 2009 entry reflecting an assessment balance of $3,775 through
August 10, 2009. It also reflected various other fees which, when added to the
assessment balance, totaled $12,770. In July 2009, Bishop sent Fannie Mae a letter
stating the monthly homeowners association dues were $200 a month and there was a $15
fee for late payments.
In September 2009, Rothman sent a letter to the agency handling the
escrow for Fannie Mae’s sale of unit 101 demanding $16,135 for accrued fees and costs.
The letter stated the check should be made out to Rothman. Fannie Mae paid Rothman
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the demanded amount. The itemized accounting accompanying Rothman’s demand
showed that of the $16,135 Rothman claimed was due and owning, $4,990 was a
previous balance covering January 2008 through September 2009.
b. Brookhurst Unit 1015
The previous owner of unit 1015 owed Brookhurst $4,419 in delinquent
assessments through September 24, 2009. He also defaulted on his trust deed and Fannie
Mae purchased unit 1015 at the foreclosure sale on October 14, 2009. On December 1,
2009, Rothman signed a notice of delinquent assessment in the amount of $9,721 against
the unit now owned by Fannie Mae. On January 29, 2010, Rothman and Brookhurst sent
Fannie Mae a demand claiming assessments of $10,500 were owed through February 10,
2010, and on April 30, 2010, Fannie Mae paid under protest the $12,565 Rothman
claimed was due.
c. Val Villas Unit 4
The previous owner of unit 4 secured her purchase of the unit with a first
deed of trust on the property. On June 25, 2009, Val Villas filed a notice of delinquent
assessment, claiming she owed assessments and late fees in the amount of $4,253. The
owner defaulted on her trust deed and Fannie Mae purchased the unit on July 23, 2009, at
the foreclosure sale. On September 4, 2009, another notice of delinquent assessment was
recorded. This time the lien was in the amount of $9,047 and included late fees.
Rothman subsequently recorded a notice of default for failure to comply with the
applicable CC&Rs and faxed a letter to Fannie Mae’s agent stating the balance on Fannie
Mae’s account was $13,863 through May 22, 2010. In August 2010, Rothman sent
Fannie Mae a letter stating a notice of trustee’s sale was recorded against the property
and the balance on the account for unit 4 was now $12,163. Fannie Mae paid Rothman
the $12,163 under protest.
8
d. Lakes at Corona Unit B
In January 2007, the previous owners of unit B secured their purchase of
the unit with a first deed of trust. At the end of October 2008, a notice of delinquent
assessment was filed because the owners owed Lakes at Corona $2,927.35 in fees
through November 2008. Fannie Mae purchased the property on September 17, 2009,
when the trustee of the first deed of trust unit B sold the unit at a foreclosure sale. In
December 2009, Lakes at Corona filed another notice of delinquent assessment alleging
Fannie Mae owed $10,999.30 in assessments. Ten days later, Rothman sent Fannie Mae
a letter setting forth the monthly dues and stating it owed Lakes at Corona $11,548.78
through January 5, 2010. In March 2010, Fannie Mae paid Rothman under protest
$13,061.30, the full amount demanded.
e. Lakes at Corona Unit C
The previous owners of unit C secured their purchase of the property with a
first deed of trust. After the owners failed to pay assessments on unit C in October 2008,
a notice of delinquent assessment was filed. Lakes at Corona alleged the owners owed
$3,433.04 in fees through November 25, 2008. The owners defaulted on their first deed
of trust and Fannie Mae purchased the property at the foreclosure sale on August 19,
2009. In October 2009, Rothman filed another notice of delinquent assessment and
alleged Fannie Mae owed $10,780.63 in assessments and fees through October 29, 2009.
By November 3, 2009, Lakes at Corona and Rothman contended Fannie Mae owed
$11,949.32. On December 17, 2009, Fannie Mae paid Rothman the latest claimed
amount of $12,978.01 under protest.
f. Lakes at Corona Unit H
The previous owners of unit H secured their purchase of the property with a
first deed of trust. The owners failed to pay assessments due to Lakes at Corona in July
2008, and the homeowners association served a notice of delinquent assessment, alleging
the owners owed Lakes at Corona $2,570.92 for fees through July 24, 2008. A second
9
notice of delinquent assessment was recorded in August 2008, alleging the owners owed
$1,641.70 in fees through March 31, 2009. The former owners defaulted on the first deed
of trust and Fannie Mae purchased unit H on December 18, 2009, at the foreclosure sale.
Two months later, Rothman recorded another notice of delinquent assessment alleging
Fannie Mae owed $4,845 in fees through February 28, 2010. In April 2010, Fannie Mae
paid Rothman $11,448.29 under protest.
g. Creekside Unit 306
The previous owners of unit 306 secured their purchase of the unit with a
first deed of trust. Rothman served a notice of delinquent assessment after the owners
failed to pay Creekside’s assessment in July 2009. The notice alleged the owners owed
$4,076.60 in fees through August 2009. The owners defaulted on the first deed of trust
and Fannie Mae purchased unit 306 at the foreclosure sale on June 2, 2010. In August
2010, Rothman recorded a notice of trustee’s sale under Creekside’s CC&Rs. The next
month, Rothman faxed a demand letter to Fannie Mae claiming the balance owed was
$7,399.23 through September 13, 2010. On September 16, 2010, Fannie Mae paid
Rothman the claimed amount under protest.
h. Common Facts
The trustees that foreclosed on the various condominium units Fannie Mae
purchased did not notify Rothman or the respective homeowners association of the
foreclosures. Fannie Mae has a policy and practice of refusing to pay assessment fees to
the responsible homeowners association until such time as it resells the condominium.
Once Fannie Mae paid the above fees to Rothman, the liens placed on those properties
were released.
i. Analysis
Fannie May contends the trial court erred in finding in favor of Rothman
and the homeowners associations in the above matters because the evidence established
Fannie Mae was required by Rothman and the homeowners associations to pay
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assessments incurred by prior owners of the condominium units, and it was not liable for
assessments incurred by prior owners. The trial court accepted the stipulated facts and
denied Fannie Mae relief in each of these seven matters.
The trial court noted liens placed on properties by homeowners associations
for failure to pay assessments are senior only to subsequent recorded liens, citing Civil
Code former sections 1367, subdivision (d) and 1367.1, subdivision (f). In other words,
the liens were not senior to the first deeds of trusts in these matters. The Civil Code
sections relied on by the court and the parties were repealed as of January 1, 2014. (Stats.
2012, ch. 180, § 1, operative Jan. 1, 2014.)3 At the time of the trial, former section 1367,
subdivision (b) of the Civil Code permitted a homeowners association to obtain a lien
against a condominium subject to assessments by the homeowners association for unpaid
assessments, “plus any costs of collection, late charges, and interest.” (Civ. Code, former
§ 1367, subd. (b); Stats. 2002, ch. 1111, § 7.) “A lien created pursuant to subdivision (b)
shall be prior to all other liens recorded subsequent to the notice of assessment, except
that the declaration may provide for the subordination thereof to any other liens and
encumbrances.” (Civ. Code, former § 1367, subd. (d); Stats. 2002, ch. 1111, § 7; cf. Civ.
Code, former § 1367.1, subd. (f); Stats. 2006, ch. 575, § 2.) Here, the trustees of the first
deeds of trust on the condominium units foreclosed on their superior liens. Thus, the
court held Fannie Mae was responsible only for post-foreclosure liens. In awarding
judgment to Fannie Mae in the four cases not before us, the superior court found the
homeowners associations’ liens were “wiped out” when Fannie Mae purchased the
properties after the homeowners associations’ liens had been recorded.
3 These statutes were part of the Davis-Sterling Common Interest
Development Act. (Civ. Code, former § 1350; Stats. 1985, ch. 874, § 14, repealed by
Stats. 2012, ch. 180, § 1, operative Jan 1, 2014.) This act is now found in Civil Code
section 4000 et seq.
11
The court noted a difference in the seven matters on appeal in that in each
case there were pre- and post-Fannie Mae delinquencies. The court found for Rothman
and the homeowners association in each of these matters because it could not conclude
the assessments and fees were incurred prior to Fannie Mae’s ownership of the
condominium. Again, even Fannie Mae concedes the “nature of these charges may not
have been exposed as thoroughly as possible.” But it was Fannie Mae’s burden.
As the plaintiff in these matters, Fannie Mae had the “burden of proof as to
each fact the existence or nonexistence of which is essential to the claim for relief.”
(Evid. Code, § 500.) Thus, in order to prevail on its claim that Rothman and the
homeowners associations forced it to pay fees incurred prior to its purchase of the
condominiums, Fannie Mae had to prove by a preponderance of the evidence (Valentine
v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1486) the fees it paid included
amounts not incurred during its ownership of the condominiums. The trial court’s
judgment in favor of Rothman and the homeowners associations in these seven matters
was the result of what it saw as a failure of proof.
It appears the lion’s share of the amounts claimed by Rothman and the
homeowners associations were for costs incurred in attempting to collect the delinquent
fees. For example, in connection with Bishop unit 101, the alleged delinquent assessment
was $3,775 and the remaining $8,795 was claimed as costs. Civil Code former section
1367.1, subd. (a) authorized homeowners associations to charge “reasonable fees and
costs of collection, reasonable attorney’s fees, if any, and interest, if any” over and above
delinquent assessments and late fees. (States. 2006, ch 575, § 2.)
To the extent Fannie Mae contends Rothman and the homeowners
associations overcharged it in each of these seven matters, it failed to establish the
amount previously owed by the prior owner was included in the claims made against it.
This could have been accomplished by submitting interrogatories to Rothman and the
homeowners associations, demanding to know how Rothman and the homeowners
12
associations calculated each figure and on what date(s) the various fees and costs were
incurred, as the trial court noted. The stipulated facts upon which the trial was conducted
were incomplete.
Applying the standard of review in matters such as this, and keeping in
mind the judgment “is presumed to be correct on appeal, and all intendments and
presumptions are indulged in favor of its correctness” (In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133), we cannot say the incomplete facts were “‘of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ [Citation.]” (Shaw v. County of Santa Cruz, supra, 170
Cal.App.4th at p. 279.) In other words, the state of the evidence was not such that Fannie
Mae was entitled to judgment in its favor as a matter of law. (Roesch v. De Mota (1944)
24 Cal.2d 563, 570-571.) Accordingly, we affirm the court’s challenged judgment in
favor of Rothman and the homeowners associations.
B. Rothman’s Appeal
Rothman’s notice of appeal states that he appeals from the court’s orders on
January 8, 2013 (the order taxing costs), and January 17, 2013 (the order denying
attorney fees). Fannie Mae’s motion to tax costs and Rothman’s motion for attorney fees
pertained only to the seven cases in which the court entered judgment in favor of
Rothman and the homeowners associations. The attachment to the notice of appeal stated
“Larry Rothman is appealing all of these cases” and the notice of appeal “does not
include” Brookhurst or Creekside. (Capitalization omitted.)
An order taxing costs may be appealed as an appealable order after
judgment. (Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th
87, 92.) We review the trial court’s order taxing costs for an abuse of discretion (Van de
Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1291) because whether a claimed
expense was reasonably necessary to the litigation is a question of fact to be decided by
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the trial court (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774).
Code of Civil Procedure4 section 1033.5 sets forth those items allowable as
costs under section 1032. (§ 1033.5, subd. (a).) Subdivision (b) of section 1033.5 lists
items not allowable as costs. The court denied costs to Rothman and the homeowners
associations that had judgment entered in their favor. Rothman contends the court erred.
He claims the homeowners associations that had judgment entered in their favor are
entitled as a matter of right to recover their costs. “Except as otherwise expressly
provided by statute, a prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” (§ 1032, subd. (b).)
In denying costs, the court stated it was exercising its discretion. (See
Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332 [trial court has discretion under
section 1032, subdivision (a)(4) to determine whether a party prevailed at trial].)
“‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose
favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any
relief, and a defendant as against those plaintiffs who do not recover any relief against
that defendant. When any party recovers other than monetary relief and in situations
other than as specified, the ‘prevailing party’ shall be as determined by the court, and
under those circumstances, the court, in its discretion, may allow costs or not and, if
allowed may apportion costs between the parties on the same or adverse sides pursuant to
rules adopted under Section 1034.” (§ 1032, subd. (a)(4).) The court found no prevailing
parties as the outcome of the case resulted in “partial wins and partial losses between
each side.”
Rothman contends the court erred because although the matters had been
consolidated, they remained separate cases and he and each of the homeowners
associations that had judgment entered in their favor prevailed on those cases and are
4 All undesignated statutory references are to the Code of Civil Procedure.
14
entitled to costs as a matter of right. He argues the court consolidated the 11 cases for
trial only and the cases otherwise remained separate.
“[S]ection 1048, subdivision (a), authorizes the trial court, when
appropriate, to ‘order a joint hearing or trial’ or to ‘order all the actions consolidated.’
Under the statute and the case law, there are thus two types of consolidation: a
consolidation for purposes of trial only, where the two actions remain otherwise separate;
and a complete consolidation or consolidation for all purposes, where the two actions are
merged into a single proceeding under one case number and result in only one verdict or
set of findings and one judgment. [Citations.]” (Hamilton v. Asbestos Corp. (2000) 22
Cal.4th 1127, 1147.) The consolidation that occurred in the present case was a complete
consolidation for all purposes. The court consolidated all the cases into case No. 30-
2010-00435329, and ordered the parties to file all documents under that case number.
The parties submitted the trial on one set of stipulated facts and exhibits. After trial, the
court was provided with 11 separate proposed judgments, one as to each matter, and with
one judgment disposing of all 11 claims. The court chose the single judgment filed under
the assigned case number.
Because the matters were consolidated for all purposes, the court was in a
position to decide whether one side or the other prevailed, or whether there was no
prevailing party. It found no prevailing party. The court’s conclusion was not an abuse
of discretion. Although Fannie Mae claimed it paid more than $100,000 in the combined
cases and had been overcharged, it received a substantial judgment in its favor of more
than $53,000. We therefore reject Rothman’s contention that the court erred in denying
costs.
For the same reason we reject Rothman’s contention that the court erred in
denying him attorney fees. “The trial court exercises wide discretion in determining who,
if anyone, is the prevailing party for purposes of attorney fees. [Citation.] We thus
review the trial court’s ruling that there was no prevailing party for an abuse of
15
discretion. Such an abuse occurs only when the trial court acts in an ‘“‘“arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.”’”’ [Citation.]” (Cussler v. Crusader Entertainment, LLC (2012) 212
Cal.App.4th 356, 366.)
III
DISPOSITION
The judgment and orders are affirmed. In the interest of justice, and
because neither Rothman nor Fannie Mae prevailed on their respective appeals, each
party shall bear his or its own costs. Brookhurst shall recover its costs on appeal as it was
not party to Rothman’s appeal.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
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