Filed 7/22/16 Sese v. Wells Fargo Bank CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
DANILO SESE,
Plaintiff and Appellant, C074663
v. (Super. Ct. No.
34201300144287CUWEGDS)
WELLS FARGO BANK N.A.,
Defendant and Respondent.
Appellant Danilo Sese seeks to challenge an order denying his motion for interim
attorney fees under Civil Code section 2924.12, a provision in the California Homeowner
Bill of Rights.1 Subdivision (i) of section 2924.12 provides that “[a] court may award a
prevailing borrower reasonable attorney’s fees and costs in an action brought pursuant to
this section. A borrower shall be deemed to have prevailed for purposes of this
subdivision if the borrower obtained injunctive relief or was awarded damages pursuant
to this section.” Having secured a preliminary injunction to enjoin the foreclosure sale of
1 Undesignated statutory references are to the Civil Code.
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his residential real property, Sese moved for attorney fees of $100,865. The trial court
denied the motion on grounds section 2924.12, subdivision (i), does not provide for
interim attorney fees.
Sese contends the order must be reversed because section 2924.12 provides
attorney fees to a borrower immediately after successfully obtaining a preliminary
injunction. Respondent Wells Fargo Bank N.A. (Wells Fargo) asserts the appeal must be
dismissed because the trial court’s order is interlocutory in nature and nonappealable
under the one final judgment rule. After the completion of briefing, we asked the parties
to address the effect, if any, of this court’s decision in Monterossa v. Superior Court of
Sacramento County (2015) 237 Cal.App.4th 747, 751 (Monterossa) on the present
appeal. Sese did not file a supplemental brief. However, we have received and
considered a supplemental brief from Wells Fargo.
We conclude the trial court’s order is nonappealable because it is interlocutory in
nature. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
In 2007, Sese received a $472,000 residential property loan from Wells Fargo’s
predecessor. Starting in 2009, Sese started missing regular monthly payments on the loan
and failed to pay taxes on the residential property. In 2012, Wells Fargo and Sese agreed
to modify the loan under the Home Affordable Mortgage Program. However, Sese
defaulted on the agreement shortly after it was executed.
The California Homeowner Bill of Rights became effective on January 1,
2013. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86,
fn. 14 [noting name and effective date of legislation at issue in this case].) Also in
January 2013, Wells Fargo recorded a notice of default with the Sacramento County
Recorder. Sese requested another modification of the loan, but did not submit the
financial documentation necessary for a modification. In May 2013, Wells Fargo
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recorded a notice of trustee’s sale and the property was scheduled for sale on June 4,
2013.
On May 28, 2013, Sese filed a complaint against Wells Fargo that alleged
violations of the California Homeowner Bill of Rights. At the same time, Sese filed an
ex parte application for a temporary restraining order. The trial court granted the
temporary restraining order.
On June 3, 2013, Sese filed an application for a preliminary injunction to enjoin
the sale of the property. Wells Fargo opposed the application for preliminary injunction.
The trial court granted the preliminary injunction based on its findings Sese “met his
burden to demonstrate a likelihood of prevailing on the merits of his claims” and that he
“will undoubtedly suffer great injury if his residence is sold.” The trial court ordered
that, “[p]ursuant to . . . § 2924(a)(2), the injunction shall remain in place until the court
determines that Wells Fargo has corrected and remedied the dual tracking allegations”
advanced by Sese.
As the trial court explained, Sese’s dual-tracking allegations were that “[section]
2923.6(c) prohibits a lender from recording a notice of default or notice of sale, or
conducting a trustee’s sale while a loan modification is pending. A lender must make a
written determination that the borrower is not eligible for a loan modification before it
may proceed with the foreclosure process. (. . . §2923.6(c)(1).) [Sese’s] evidence
indicates that Wells Fargo issued the Notice of Trustee’s Sale before it issued any
determination of his eligibility for a loan modification. This is sufficient to demonstrate
Wells Fargo’s failure to comply with . . . §2923.6 and shift the burden to Wells Fargo to
refute [Sese’s] showing.”
With the preliminary injunction in place, Sese moved for attorney fees as the
prevailing party. Wells Fargo opposed the motion. During a hearing on the motion, the
trial court raised a question about the implication of Sese’s argument fees should be
awarded immediately after the granting of a preliminary injunction:
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“THE COURT: So a minute ago in the last motion you were talking about how
the greedy banks are trying to take over the situation by imposing too high a bond [to
secure the preliminary injunction]. But here if the court’s granting of the preliminary
injunction was improvident, and so found at trial, hypothetically, what happens to that
money [awarded as attorney fees]?” Sese’s attorney responded Wells Fargo would be
entitled to recoup the fees. The trial court noted the “absurd” consequence the attorney
fee money would “keep[] floating back and forth.” The trial court denied the request for
interim attorney fees in an order issued on August 30, 2013. Shortly thereafter, Sese filed
a notice of appeal from the order.
DISCUSSION
I
Appeal from Order Denying Interim Attorney Fees under Section 2924.12
Wells Fargo contends the order denying Sese’s motion for interim attorney fees
under section 2924.12 is not an appealable order. We agree.
A.
The One Final Judgment Rule
The existence of an appealable order or judgment is a jurisdictional prerequisite
for appellate review. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) As the California
Supreme Court has explained, “Under California’s ‘one final judgment’ rule, a judgment
that fails to dispose of all the causes of action pending between the parties is generally
not appealable. (Code Civ. Proc., § 904.1, subd. (a); Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 740-741 (Morehart).)” (Kurwa v. Kislinger (2013) 57
Cal.4th 1097, 1100, fn. omitted.) A final judgment “ ‘terminates the litigation between
the parties on the merits of the case and leaves nothing to be done but to enforce by
execution what has been determined.’ ” (Sullivan v. Delta Air Lines, Inc. (1997) 15
Cal.4th 288, 304, quoting Doudell v. Shoo (1911) 159 Cal. 448, 453.)
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In some instances, an order itself may be appealable. However, “[g]enerally an
order is not a final order until the final judgment in the matter has been entered. ‘Unless
otherwise provided by statute, an appeal lies only from a judgment that terminates the
proceedings in the lower court by completely disposing of the matter in controversy
[citations].’ (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 841.) [¶]
[When] there is no final judgment . . . , the issue is whether the order from which the
appeal has been taken fits within an exception to the one final judgment rule codified
in [Code of Civil Procedure] section 904.1. (See Kinoshita v. Horio (1986) 186
Cal.App.3d 959, 962-963.) A recognized exception to the ‘one final judgment’ rule is
that an interim order is appealable if: [¶] 1. The order is collateral to the subject matter
of the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The
order directs the payment of money by the appellant or the performance of an act by or
against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-
298, italics added.)
B.
Appeal from the Denial of Interim Attorney Fees
Sese’s notice of appeal was filed before a final judgment. As the trial court noted,
a trial on the merits of the complaint might reveal the preliminary injunction was
improvidently granted. Consequently, we consider whether the order denying the motion
of interim attorney fees is itself appealable. Sese contends the order is appealable under
subdivisions (6), (8), (11), and (12) of Code of Civil Procedure section 904.1. We
disagree.
In pertinent part, Code of Civil Procedure section 904.1 provides that “(a) . . . An
appeal . . . may be taken from any of the following: [¶] . . . [¶] (6) From an order
granting or dissolving an injunction, or refusing to grant or dissolve an injunction. [¶] . . .
[¶] (8) From an interlocutory judgment, order, or decree, hereafter made or entered in an
action to redeem real or personal property from a mortgage thereof, or a lien thereon,
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determining the right to redeem and directing an accounting. [¶] . . . [¶] (11) From an
interlocutory judgment directing payment of monetary sanctions by a party or an attorney
for a party if the amount exceeds five thousand dollars ($5,000). [¶] (12) From an order
directing payment of monetary sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000).” Each of these subdivisions is
inapplicable.
Subdivision (6) of Code of Civil Procedure section 904.1 is not applicable because
Sese is not challenging the granting or denial of an injunction. He is not arguing the
preliminary injunction should be dissolved. Instead, he contends only that attorney fees
should be awarded. Subdivision (8) of section 904.1 does not help Sese either. Sese’s
complaint does not seek redemption of the residential property. Instead, his only cause of
action seeks relief under the California Homeowner Bill of Rights. He is not seeking to
redeem the property by paying the full amount owed on the property. (E.g., Peterson v.
State of California (1982) 138 Cal.App.3d 110, 112.) Subdivisions (11) and (12) of Code
of Civil Procedure section 904.1 do not apply because the order does not direct payment
of sanctions. In short, an order denying interim attorney fees under section 2924.12 is not
included among appealable orders in Code of Civil Procedure section 904.1.
The order denying interim attorney fees is also not appealable as a collateral order.
The order does not direct the payment of any money. Neither does it compel an act by or
against Sese. Instead, the order represents a denial of fees that is not appealable as a
collateral order. (Marsh v. Mountain Zephyr, Inc., supra, 43 Cal.App.4th at pp. 297-
298.)
We reject Sese’s reliance on the Second Appellate District’s decision in Moore v.
Shaw (2004) 116 Cal.App.4th 182. In Doe v. Luster (2006) 145 Cal.App.4th 139, the
Second District considered its earlier decision in Moore and held Moore should not be
construed to allow an appeal from an interim attorney fee award. As the Doe court
explained, “[I]n Moore v. Shaw, supra, 116 Cal.App.4th 182, Division Three of this
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Court considered on the merits an appeal from the trial court’s denial of the defendant’s
special motion to strike under section 425.16 and the prevailing plaintiff’s cross-appeal
from the trial court’s order, made concurrently with the order denying the motion,
denying his request for attorney fees. (Moore at p. 186.) Although the court specifically
noted that the order denying a special motion to strike itself is appealable, citing both the
relevant subdivision of [Code of Civil Procedure] section 425.16 and section 904.1
(Moore, at p. 186, fn. 3), it did not address whether the order denying the request for
attorney fees, which was the subject of the cross-appeal, was also appealable. Because
the opinion does not suggest either that the parties raised the jurisdictional issue or that
the court considered it, Moore is not authority for [the] position that an interlocutory
order denying a request for attorney fees under [Code of Civil Procedure] section 425.16,
subdivision (c), is immediately appealable.” (Doe, supra, at pp. 149-150.) Thus, Moore
does not provide authority for holding an order granting interim attorney fees is
appealable.
We reject Sese’s reliance on Baharian–Mehr v. Smith (2010) 189 Cal.App.4th
265. Baharian–Mehr involved an appeal from a denial of a special motion to strike.
Because the merits of the special motion to strike were subject to review on appeal, the
Baharian–Mehr court also considered the propriety of the attorney fees granted to the
party that had opposed the motion. (Id. at pp. 274–275.) Baharian–Mehr did not
consider whether an attorney fee order is appealable by itself. (Ibid.) Thus, Baharian–
Mehr does not undermine our conclusion that the order denying interim attorney fees in
this case does not constitute an appealable order.
In another case involving the statutory interpretation of section 2924.12, this court
held a borrower who obtains only a preliminary, rather than permanent, injunction may
nonetheless be entitled to attorney fees. (Monterossa, supra, 237 Cal.App.4th at p. 751,
citing section 2924.12, subd. (i).) Because Monterossa came before us by writ petition,
we “expressly decline[d] to determine whether an order denying attorney fees and costs
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under section 2924.12 is immediately appealable or is reviewable upon appeal from a
final judgment in the case.” (Monterossa, at p. 751, fn. 3.) Thus, Monterossa left open
the issue we decide in this appeal. And as we have explained, the order denying interim
attorney fees under section 2924.12 is not an appealable order.
DISPOSITION
The appeal is dismissed. Wells Fargo Bank, N.A., shall recover its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
BUTZ, J.
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