Filed 8/28/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ROSANA M. BUSTOS, C085657
Plaintiff and Respondent, (Super. Ct. No. 34-2017-
00209395-CU-OR-GDS)
v.
WELLS FARGO BANK, N.A.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, David I.
Brown, Judge. Affirmed.
Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, and
Robin Carl Campbell for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part 2.0 of the Discussion section.
1
This is a nonjudicial foreclosure action. In 2012, California enacted legislation
known as the California Homeowner Bill of Rights, or HBOR, which imposed specific
limitations regarding the nonjudicial foreclosure of owner-occupied residential real
property. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86 &
fn. 14.) Among other things, the HBOR prohibits “dual track” foreclosures, which occur
when a mortgage servicer continues foreclosure proceedings while reviewing a
homeowner’s application for a loan modification. (Id. at p. 86, fn. 14; Civ. Code, §
2923.6, subd. (c).)1 The HBOR provides for injunctive relief to remedy statutory
violations that occur prior to foreclosure (§ 2924.12, subd. (a)), and monetary damages
when the borrower seeks relief for statutory violations after the foreclosure sale has
occurred (§ 2924.12, subd. (b)). The HBOR gives trial courts the discretion to award
reasonable attorney fees and costs to the “prevailing borrower,” providing: “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.” (§ 2924.12,
subd. (h).)
The trial court granted Rosana Bustos’s (Bustos) ex parte application for a
temporary restraining order (TRO) and order to show cause regarding preliminary
injunction, which sought to prevent a trustee’s sale of her home due to several alleged
violations of the HBOR related to her submission of a loan modification application. “At
the heart” of Bustos’s application was a “blatant violation” of the HBOR’s prohibition
against dual tracking. After the trial court denied Bustos’s request for a preliminary
injunction and vacated the TRO, it awarded her $4,260 in attorney fees and costs
1 Undesignated statutory references are to the Civil Code.
2
pursuant to section 2924.12, former subdivision (i).2 The court reasoned that Bustos was
a “prevailing borrower” under the HBOR because she obtained injunctive relief in the
form of a TRO against her mortgage servicer—Wells Fargo Bank, N.A. (Wells Fargo).3
This timely appeal followed.
On appeal, Wells Fargo contends the trial court erred in interpreting section
2924.12 as authorizing an award of attorney fees and costs to a borrower who obtains a
TRO enjoining a trustee’s sale of his or her residence. Wells Fargo alternatively
contends that the trial court abused its discretion in awarding attorney fees and costs to
Bustos under the circumstances of this case. We note that Bustos 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, overruled on another ground in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13; 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 trial
court’s order.
2 In 2014, section 2924.12 was amended and renumbered. The language in former
subdivision (i) was codified in subdivision (h) of section 2924.12 without substantive
change. The amended and renumbered version of the statute became operative on
January 1, 2018. (Stats. 2014, ch. 401, § 7.) In September 2018, the Legislature, again,
amended section 2924.12. (Stats. 2018, ch. 404, § 17.) The amendments have no impact
on this appeal.
3 Bustos filed this action against Wells Fargo and Clear Recon Corporation (CRC),
alleging three causes of action under the HBOR for violations of sections 2923.6,
subdivision (c) (dual tracking), 2923.7 (single point of contact), and 2924.10, subdivision
(a) (notice regarding loan modification process). The TRO issued by the trial court
prevented Wells Fargo and CRC from proceeding with the trustee’s sale of Bustos’s
property pending a determination of her request for a preliminary injunction. Thereafter,
Bustos obtained the award of attorney fees and costs against Wells Fargo. CRC is not a
party to this appeal.
3
DISCUSSION
1.0 Attorney Fees and Costs Under Section 2924.12
A TRO, as an interim provisional order granting injunctive relief, is immediately
appealable under Code of Civil Procedure section 904.1, subdivision (a)(6). (In re
Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1576; McLellan v. McLellan (1972)
23 Cal.App.3d 343, 357.) An order awarding attorney fees is separately appealable if
made after an appealable order or judgment. (Code Civ. Proc., § 904.1, subd. (a)(2);
DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)
“ ‘Generally, we review an award of fees and costs by the trial court for abuse of
discretion. [Citation.] “However, de novo review of such a trial court order is warranted
where the determination of whether the criteria for an award of attorney fees and costs in
this context have been satisfied amounts to statutory construction and a question of
law.” ’ ” (Monterossa v. Superior Court (2015) 237 Cal.App.4th 747, 751
(Monterossa).)
In determining the proper interpretation of a statute, we begin with the statutory
language. “ ‘ “As in any case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate the law’s purpose.”
[Citation.] “We begin with the plain language of the statute, affording the words of the
provision their ordinary and usual meaning and viewing them in their statutory context,
because the language employed in the Legislature’s enactment generally is the most
reliable indicator of legislative intent.” [Citations.] The plain meaning controls if there is
no ambiguity in the statutory language. [Citation.] If, however, “the statutory language
may reasonably be given more than one interpretation, ‘ “ ‘courts may consider various
extrinsic aids, including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme encompassing the
statute.’ ” ’ ” [Citation.]’ ” (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175,
1198.)
4
“ ‘[O]n July 2, 2012, the California Legislature passed Assembly Bill No. 278 and
Senate Bill No. 900 (2011-2012 Reg. Sess.), which have since been signed into law by
the Governor. These provisions address more pointedly the foreclosure crisis in our state
through even greater encouragement to lenders and loan servicers to engage in good faith
loan modification efforts. [¶] One of the targets of the legislation is a practice that has
come to be known as “dual tracking.” “Dual tracking refers to a common bank tactic.
When a borrower in default seeks a loan modification, the institution often continues to
pursue foreclosure at the same time.” (Lazo, Banks are foreclosing while homeowners
pursue loan modifications, L.A. Times (Apr. 14, 2011); see Sen. Floor Analyses, Conf.
Rep. on Assem. Bill No. 278, as amended June 27, 2012, p. 3.) The result is that the
borrower does not know where he or she stands, and by the time foreclosure becomes the
lender’s clear choice, it is too late for the borrower to find options to avoid it. “Mortgage
lenders call it ‘dual tracking,’ but for homeowners struggling to avoid foreclosure, it
might go by another name: the double-cross.” (Lazo, Banks are foreclosing.)’
[Citation.]” (Monterossa, supra, 237 Cal.App.4th at p. 752.)
The prohibition against dual tracking is found in section 2923.6, subdivision (c),
which provides in pertinent part: “If a borrower submits a complete application for a first
lien loan modification offered by, or through, the borrower’s mortgage servicer[,] . . . a
mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a
notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien
loan modification application is pending.”
And the prohibition against dual tracking is given teeth by section 2924.12, which
provides remedies for a violation of section 2923.6 or other specified provisions of the
statutory scheme. The remedies are different, depending on whether a trustee’s deed
upon sale has been recorded. “If a trustee’s deed upon sale has not been recorded, a
borrower may bring an action for injunctive relief to enjoin a material violation of
Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.” (§ 2924.12,
5
subd. (a)(1).) “Any injunction shall remain in place and any trustee’s sale shall be
enjoined until the court determines that the mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent has corrected and remedied the violation or violations
giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an
injunction based on a showing that the material violation has been corrected and
remedied.” (§ 2924.12, subd. (a)(2).)
“After a trustee’s deed upon sale has been recorded, a mortgage servicer,
mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for
actual economic damages pursuant to Section 3281, resulting from a material violation of
Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage
servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not
corrected and remedied prior to the recordation of the trustee’s deed upon sale. If the
court finds that the material violation was intentional or reckless, or resulted from willful
misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent,
the court may award the borrower the greater of treble actual damages or statutory
damages of fifty thousand dollars ($50,000).” (§ 2924.12, subd. (b).)
In the present case, Bustos filed an ex parte application for TRO and order to show
cause regarding preliminary injunction on March 17, 2017, seeking to prevent the
trustee’s sale of her home, which was then scheduled for March 22, 2017. In her
application, Bustos argued that injunctive relief was warranted due to several violations
of the HBOR. As noted, “[a]t the heart” of her application was Wells Fargo’s “blatant
violation” of the HBOR’s prohibition against dual tracking. On March 20, 2017, the trial
court granted Bustos’s request for a TRO and set a hearing on her request for a
preliminary injunction. In granting the TRO, the court found that Bustos had shown that
“great or irreparable injury” would result to her “before the matter [could] be heard on
notice.” Wells Fargo did not file a written response to Bustos’s application or appear at
the hearing on her request for a TRO.
6
After two stipulated continuances, the trial court denied Bustos’s request for a
preliminary injunction and vacated the TRO on July 13, 2017. In doing so, the court
found that Bustos had failed to demonstrate that she was likely to prevail on the merits of
any of her HBOR claims. On August 18, 2017, the court awarded Bustos $4,260 in
attorney fees and costs pursuant to section 2924.12.4 The court reasoned that Bustos was
a prevailing borrower within the meaning of the HBOR because she obtained
“ ‘injunctive relief’ by virtue of the TRO.” The court explained that a TRO is a form of
injunctive relief requiring the moving party to establish both the threat of irreparable
harm and “the legal basis for relief that would justify maintaining the status quo pending
a full hearing,” and that “if the Legislature had intended to make attorney fees and costs
exclusively available to prevailing parties solely if they obtained either a preliminary or
permanent injunction, they could have stated so.” The court rejected Wells Fargo’s
argument that awarding Bustos attorney fees and costs would violate its due process
rights because Bustos did not provide timely notice of her ex parte application for a TRO.
The court noted that a copy of the application had been faxed to Wells Fargo three days
prior to the hearing and that Wells Fargo did not argue that such notice failed to afford it
a fair opportunity to oppose the application.
We find no error. The plain text of section 2924.12, subdivision (h) does not
discriminate between the different types of injunctive relief—i.e., temporary, preliminary,
or permanent. As we have indicated, the statute provides, “A court may award a
prevailing borrower reasonable attorney’s fees and costs . . . . A borrower shall be
deemed to have prevailed for purposes of this subdivision if the borrower obtained
injunctive relief . . . .” (§ 2924.12, subd. (h).) This court held that the “injunctive relief”
referred to in the statute “plainly incorporates both preliminary and permanent injunctive
4 In her motion, Bustos requested an award of attorney fees and costs in the amount of
$10,800. The trial court found her request unreasonable. It determined that an award of
$4,200 in attorney fees and $60 in costs was appropriate.
7
relief.” (Monterossa, supra, 237 Cal.App.4th at p. 753.) In so holding, we rejected the
trial court’s interpretation of the statute; namely, “that the phrase ‘prevailing borrower . . .
in an action’ suggests the Legislature intended for an award of attorney fees and costs
solely at the conclusion of the action, i.e., after a judgment issuing a permanent
injunction.” (Id. at pp. 753-754.) We explained that “a preliminary injunction is
obtained ‘in an action.’ And a borrower who obtains a preliminary injunction has
prevailed in obtaining ‘injunctive relief.’ Thus, the plain language of . . . section 2924.12
provides for attorney fees and costs to a borrower who obtains a preliminary injunction.”
(Id. at p. 754.)
In Monterossa, we went on to conclude that, even assuming the phrase “prevailing
borrower . . . in an action” created an ambiguity as to whether the Legislature intended to
authorize attorney fees and costs when a preliminary injunction is issued, “the language
and purpose of the statutory scheme, and its legislative history, demonstrate the
Legislature intended to authorize an award of attorney fees and costs when a preliminary
injunction issues.” (Monterossa, supra, 237 Cal.App.4th at p. 754.) In reaching this
conclusion, we reasoned as follows:
“Under this unique statutory scheme, in many cases the best a plaintiff can hope to
achieve is a preliminary injunction. ‘In deciding whether to issue a preliminary
injunction, a trial court weighs two interrelated factors: the likelihood the moving party
ultimately will prevail on the merits, and the relative interim harm to the parties from the
issuance or nonissuance of the injunction.’ [Citation.] Where the trial court has found
the plaintiff is likely to prevail on the claim of a ‘material violation’ of one of the
provisions enumerated in subdivision (a)(1) of section 2924.12, and accordingly has
issued a preliminary injunction, the ‘mortgage servicer, mortgagee, trustee, beneficiary,
or authorized agent’ can expeditiously correct and remedy the violation giving rise to the
action for injunctive relief and then move to dissolve the preliminary injunction pursuant
to subdivision (a)(2) of section 2924.12. This compliance with the statutory scheme
8
would consequently moot the borrower’s request for a permanent injunction. But, given
that the borrower has effectively prevailed in the action by obtaining a preliminary
injunction forcing compliance with the statute, the Legislature must have intended to
authorize an award of attorney fees and costs when a trial court issues a preliminary
injunction pursuant to [former] subdivision (i) of section 2924.12.
“As an example, in this case the respondent court found petitioners’ showing to be
undisputed that real parties in interest ‘dual tracked’ petitioners in violation of section
2923.6 by recording a notice of trustee’s sale while petitioners’ first lien loan
modification application was pending. Rather than wait for trial on petitioners’ claim for
a permanent injunction, real parties in interest could simply comply with the statutory
scheme and then, if necessary, move to dissolve the preliminary injunction in order to
record a new notice of trustee’s sale. That is, real parties in interest could provide
petitioners with a written determination regarding the loan modification application (§
2923.6, subd. (c)), and if a loan modification is granted, wait 14 days for petitioners to
decide whether to accept it (§ 2923.6, subd. (c)(2)). If loan modification is denied, real
parties in interest would wait 31 days to determine if petitioners appealed, and if they did,
wait another 15 days if the appeal was denied. (§ 2923.6, subds. (d) & (e).) The short
time periods set out in the statutory scheme suggest the Legislature’s understanding that a
prevailing borrower’s preliminary injunctive victory may often be short-lived and subject
to dissolution upon compliance with the statutory scheme’s procedural requirements.
“Our interpretation of the statute as authorizing attorney fees and costs when a
borrower obtains a preliminary injunction is further supported by the purpose of the
statutory scheme, set out in section 2923.4, subdivision (a): ‘The purpose of the act that
added this section is to ensure that, as part of the nonjudicial foreclosure process,
borrowers are considered for, and have a meaningful opportunity to obtain, available loss
mitigation options, if any, offered by or through the borrower’s mortgage servicer, such
as loan modifications or other alternatives to foreclosure. Nothing in the act that added
9
this section, however, shall be interpreted to require a particular result of that process.’ In
enacting the statutory scheme, the Legislature mandated a process for fair consideration
of options other than foreclosure. As we have explained, when a lender fails to comply
with that process, the borrower prevails by obtaining a preliminary injunction requiring
the lender to comply with the process. After correcting the error, the lender may move to
dissolve the preliminary injunction, and in such cases, there will be no need for a trial
regarding a permanent injunction. The Legislature’s purpose is fulfilled by providing
attorney fees and costs to a borrower who successfully forces the lender to comply with
the statutory process by obtaining a preliminary injunction.
“Finally, the legislative history demonstrates unequivocally that the Legislature
intended to authorize an award of attorney fees and costs when a trial court grants a
preliminary injunction as a result of a lender’s violation of sections 2923.55, 2923.6,
2923.7, 2924.9, 2924.10, 2924.11, or 2924.17. As explained in the July 2, 2012 Senate
Rules Committee’s ‘Conference Report No. 1’ regarding Senate Bill No. 900 (2011-2012
Reg. Sess.), as amended June 27, 2012, page 29: ‘Importantly, no action for money
damages would be allowed until the date the trustee’s deed is recorded after a foreclosure
sale. At all times until then, the only legal remedy a homeowner may seek is an action to
enjoin a substantial violation of the specified sections, along with any trustee’s sale.
When a court considers a request for injunctive relief it must determine whether there is
convincing evidence of harm if the injunction is not granted. The court will also consider
if the borrower has a likelihood of prevailing on the merits. As part of that consideration,
no legal action would be permissible if brought in bad faith or intended merely for the
purpose of unnecessary delay, and no injunctive relief could be awarded unless the
homeowner could show a likelihood of prevailing on the merits in relation to the balance
of harms. Any such injunction is to be dissolved if the moving party shows that the
violation has been redressed. No special pre-litigation procedures or particular
allegations are required by the amendments, whether or not the sale is pending.
10
Conversely, the servicer or other covered entity may avoid legal action by curing the
violation any time prior to recordation of a trustee’s deed. This right to cure is not
unprecedented in comparable circumstances where the parties are known to each other
and have an established relationship of ongoing communication. Equivalent provisions
may be found in . . . Section 910 et seq. and Labor Code Section 2698 et seq. If it is
necessary to order injunctive relief, a party who obtains an injunction is among those
who is recognized as a prevailing party for the purposes of attorney’s fees and costs. As
with the vindication of other important statutory rights, an award of attorney’s fees and
costs is to be decided by the court. (See, e.g., Code of Civil Procedure Section 1021.5;
Government Code Section 12965; . . . Section 52.1.)’ (Italics added.) Thus, the
Legislature understood that the intent of the statutory scheme was to permit a trial court
to award attorney fees and costs to a borrower who prevails in obtaining a preliminary
injunction.” (Monterossa, supra, 237 Cal.App.4th at pp. 754-756, fn. omitted.)
We conclude that a borrower who obtains a TRO enjoining the trustee’s sale of his
or her home is a “prevailing borrower” within the meaning of section 2924.12,
subdivision (h), and therefore may recover attorney fees and costs. The text of the statute
refers to “injunctive relief,” which plainly includes a TRO. The statute makes no
exception for temporary injunctions. Thus, under the plain language of the statute, a trial
court is authorized, in its discretion, to award attorney fees and costs to such a borrower.
(See Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 718, 720, 723
(Hardie).)
Wells Fargo does not argue that the statutory language of section 2924.12,
subdivision (h) is ambiguous. Nor has it pointed to any language in the statutory scheme
or its legislative history demonstrating that the Legislature did not intend to authorize an
award of attorney fees and costs when a borrower obtains a TRO but does not obtain a
preliminary or permanent injunction. Indeed, our reasoning in Monterossa regarding the
statutory scheme and its purpose, which we found supported the conclusion that
11
injunctive relief under the HBOR includes preliminary injunctions, applies equally to
temporary injunctions. As we explained in Monterossa, interim injunctive relief is often
“the best a plaintiff can hope to achieve” under the HBOR. (Monterossa, supra, 237
Cal.App.4th at p. 754.) Like a preliminary injunction, a TRO affords the “ ‘mortgage
servicer, mortgagee, trustee, beneficiary, or authorized agent’ ” an opportunity to
“expeditiously correct and remedy the violation giving rise to the action for injunctive
relief,” and thereby may moot the need for further injunctive relief. (Ibid.) This is
particularly true where, as here, the TRO remains in place for several months by
stipulation of the parties. “Under such circumstances, the borrower may successfully
force compliance with the required statutory processes without obtaining a preliminary or
permanent injunction. It would be contrary to the HBOR’s purpose and the Legislature’s
intent to conclude a borrower who obtained such relief had not prevailed within the
meaning of section 2924.12.” (Hardie, supra, 32 Cal.App.5th at p. 724.)
Wells Fargo acknowledges that the trial court relied on a federal district court case
in determining that a borrower who obtains a TRO enjoining the trustee’s sale of his or
her home is a “prevailing borrower” within the meaning of section 2924.12, Lac v.
Nationstar Mortgage LLC (E.D. Cal., July 26, 2016, No. 2:15-cv-00523-KJM-AC
(temp)) 2016 U.S.Dist. Lexis 98250 (Lac), but makes no effort to explain why the
legislative history discussed in that case does not support the conclusion that “injunctive
relief” under section 2924.12 includes a TRO. (See Lac, supra, at pp. *7-12 [citing
Legislative history indicating that the Legislature considered whether section 2924.12
should cover “any injunction” or whether it should narrow coverage by specifying one or
two types of injunctive relief, and that the statute was meant to authorize an award of
attorney fees and costs to borrower who obtained a temporary or preliminary injunction].)
Moreover, Wells Fargo does not cite any Legislative history supporting a different result.
We reject Wells Fargo’s contention that allowing an award of fees when the
plaintiff obtains an ex parte TRO deprives a defendant of property without due process of
12
law. Section 2924.12, subdivision (h) merely authorizes a trial court to award attorney
fees and costs to a prevailing borrower. Such an award is discretionary, not mandatory.
Wells Fargo concedes that Bustos’s “fee motion . . . was statutorily noticed” but argues
that “this mattered not, since the sole basis for the fee award—the prior grant of an ex
parte TRO—came into being without the meaningful opportunity afforded by statutory
notice for [it] to be heard.” We disagree. In opposing Bustos’s motion for attorney fees
and costs, Wells Fargo had the opportunity to make the same arguments it now raises on
appeal.5 “By permitting, rather than requiring a court to award attorney’s fees, section
2924.12 allows courts to avoid awards that would be inequitable or unconstitutional. The
ex parte nature of the proceedings, the relative merits of the TRO application, and a
party’s ultimate ability to obtain statutory compliance through imposition of an injunction
are relevant factors the court may consider in determining whether to award fees.”
(Hardie, supra, 32 Cal.App.5th at pp. 724-725, fn. omitted.)
The rule proposed by Wells Fargo, which would prohibit an award of attorney fees
and costs under the HBOR unless a borrower forces compliance with the statute, is a
policy decision reserved to the Legislature. Section 2924.12, subdivision (h) imposes no
such requirement, and we do not have authority to question the Legislature’s policy
choices or contravene its directives. (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966,
992, citing Max Factor & Co. v. Kunsman (1936) 5 Cal.2d 446, 455 [“it is no part of the
duty of this court to determine whether the policy embodied in the statute is wise or
unwise”].) The Legislature chose to allow a trial court, in its discretion, to decide
whether an award of attorney fees and costs is warranted when a borrower obtains
5 As we noted above, the trial court’s tentative ruling on Bustos’s motion rejected Wells
Fargo’s contention that it did not receive sufficient notice of the ex parte application for
TRO to afford it a fair opportunity to oppose the request for a TRO. At the hearing on
the motion, Wells Fargo conceded that it was provided notice of the application in
“compliance with the rules,” i.e., the California Rules of Court.
13
injunctive relief under the HBOR, including a TRO or preliminary injunction. As we
noted above, among the relevant factors a trial court may consider in making this
determination are the type of injunctive relief obtained by the borrower and whether the
borrower forced compliance with the HBOR. (Hardie, supra, 32 Cal.App.5th at p. 725.)
In declining to adopt Wells Fargo’s proposed rule, we recognize that TROs differ
from preliminary injunctions in significant respects. A TRO may be issued ex parte with
little notice and does not require a full evidentiary hearing giving each party the
opportunity to present arguments and evidence. Further, the issuance of a TRO does not
necessarily involve an evaluation of the merits of the underlying dispute, does not require
the plaintiff to post a bond pending final resolution of the case, and is generally of short
duration. (Hardie, supra, 32 Cal.App.5th at p. 724; see 6 Witkin, Cal. Procedure (5th ed.
2008) Provisional Remedies, § 284, p. 225.) However, section 2924.12, subdivision (h)
refers to injunctive relief broadly without making any distinction whether the relief is
temporary, preliminary, or permanent. While the differences between a TRO and a
preliminary injunction may provide “sound policy reasons for prohibiting attorney’s fees
on a TRO application, such determinations are reserved to the Legislature.” (Hardie,
supra, at p. 724; see id. at p. 724, fn. 5 [finding that same reasoning applies to argument
claiming that allowing fee recovery for successful TRO applications encourages meritless
filings brought solely for the purpose of delay; explaining that it is for the Legislature to
determine whether this risk overrides other reasoned policy considerations].)
Finally, we note that Wells Fargo cites various state and federal cases in support of
its contention that obtaining a TRO without forcing compliance with the HBOR is
insufficient to confer “prevailing borrower” status under section 2924.12, subdivision (h).
Wells Fargo’s reliance on these cases is misplaced. None of the cases interpret the
meaning of “prevailing borrower” for purposes of an award of attorney fees and costs
under section 2924.12, subdivision (h). Moreover, none of the cases involve statutory
language specifically authorizing attorney fees and costs to a party who obtains
14
“injunctive relief.” (See, e.g., Pasadena Police Officers Assn. v. City of Pasadena (2018)
22 Cal.App.5th 147, 167-171 [interpreting the meaning of “prevailing party” for purposes
of a fee award under the Public Records Act, Government Code section 6259]; Higher
Taste v. City of Tacoma (9th Cir. 2013) 717 F.3d 712, 715-718 [interpreting the meaning
of “prevailing party” for purposes of a fee award under 42 U.S.C. § 1988]; Bouvia v.
County of Los Angeles (1987) 195 Cal.App.3d 1075, 1082-1086 [interpreting the
meaning of “successful party” for purposes of a fee award under California’s private
attorney general statute, Code of Civil Procedure § 1021.5].)
2.0 The Trial Court Did Not Abuse Its Discretion
Wells Fargo alternatively contends that the trial court abused its discretion in
awarding Bustos attorney fees and costs because it failed to correctly weigh the
significance of Bustos’s failure to successfully force compliance with any provision of
the HBOR. We disagree.
“ ‘ “While the concept ‘abuse of discretion’ is not easily susceptible to precise
definition, the appropriate test has been enunciated in terms of whether or not the trial
court exceeded ‘ “the bounds of reason, all of the circumstances before it being
considered. . . .” ’ [Citations.]” [Citation.] “A decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’
[Citations.] In the absence of a clear showing that its decision was arbitrary or irrational,
a trial court should be presumed to have acted to achieve legitimate objectives and,
accordingly, its discretionary determinations ought not be set aside on review.”
[Citation.]’ [Citation.] Accordingly, an abuse of discretion transpires if ‘ “the trial court
exceeded the bounds of reason” ’ in making its award of attorney fees. [Citation.]”
(Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1250.)
In its written opposition to Bustos’s motion for attorney fees and costs, Wells
Fargo did not argue that granting the motion would constitute an abuse of discretion
15
under the circumstances of this case. However, at the hearing on the motion, Wells Fargo
complained that the tentative ruling provided “no discussion . . . as to whether or not the
exercise of discretion to award fees was warranted in this particular case.” In response,
the trial court stated that Wells Fargo had not shown that it “couldn’t have mounted an
opposition to the TRO.” The court noted that Wells Fargo was provided notice of
Bustos’s ex parte application for a TRO, and “could have come in [to court] and said, no,
let’s continue this for a few days, let’s see what we have before we allow this to go
forward.” The court further noted that if Wells Fargo had appeared at the hearing and
indicated it had evidence supporting the denial of injunctive relief, such conduct would
have affected and informed its discretion regarding the award of attorney fees and costs.
After admitting that Bustos had provided proper notice of her ex parte application for a
TRO, Wells Fargo argued that awarding attorney fees and costs would be an inequitable
result and amount to a “penalty” or “sanction” because no violation of the HBOR had
occurred. Wells Fargo, however, conceded that it could have postponed the foreclosure
sale until after a decision was made on Bustos’s loan modification application, and did
not dispute Bustos’s contention that it refused her request to postpone the foreclosure sale
prior to the filing of the ex parte application for a TRO. At the conclusion of the hearing,
the trial court indicated that it had exercised its discretion in granting Bustos’s motion but
stated that it would take the matter under submission and review the entire case to
address Wells Fargo’s concern about whether it had exercised its discretion. In doing so,
the court acknowledged that attorney fees are not “automatically given” under the
HBOR, and that an award of attorney fees may be denied even if injunctive relief is
granted. The court subsequently issued a written order adopting the tentative ruling as
the final ruling of the court.
On this record, we find no abuse of discretion. The record discloses that the trial
court was aware of its discretion to award attorney fees and costs. The record further
discloses that the court’s exercise of discretion was informed by the fact that Wells Fargo
16
could have postponed the foreclosure sale until after a decision was made on Bustos’s
loan modification application, Wells Fargo received proper notice of the ex parte
application for a TRO but did not appear at the TRO hearing and assert that it had
evidence establishing the HBOR claims lacked merit, the TRO remained in place for
several months due to stipulated continuances, Bustos’s request for a preliminary
injunction was denied, and Bustos did not force compliance with any provision of the
HBOR. Wells Fargo has not met its burden to show that the trial court’s decision to
award Bustos attorney fees and costs exceeded the bounds of reason. There has been no
clear showing that the decision was arbitrary or irrational.
In a supplemental letter brief, Wells Fargo argues that the trial court abused its
discretion because it failed to consider the relevant factors identified by Hardie in
awarding Bustos attorney fees and costs.6 We disagree. As an initial matter, we note that
Hardie was decided after the trial court’s ruling and does not set forth a list of mandatory
factors a trial court must consider in determining whether a fee award is appropriate
under section 2924.12, subdivision (h). Rather, the Hardie court identified three
“relevant factors” a court may consider in making such a determination when a borrower
prevails in obtaining a TRO. (See Hardie, supra, 32 Cal.App.5th at pp. 724-725.) In any
event, the record reflects that the trial court did in fact consider the factors identified by
Hardie, including the ex parte nature of the proceedings, the relative merits of Bustos’s
TRO application, and Bustos’s ultimate inability to obtain statutory compliance with the
HBOR through imposition of an injunction. (See ibid.)
We reject Wells Fargo’s contention that Hardie holds or even suggests that a fee
award under section 2924.12, subdivision (h) is an abuse of discretion as a matter of law
where a borrower obtains a TRO on an ex parte basis but fails to (1) “force compliance
6 Because Hardie was decided after appellate briefing in this case was completed, we
granted Wells Fargo’s request to file a supplemental letter brief to address the new
decisional authority.
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with the statutory process through the ex parte TRO,” (2) obtain a preliminary injunction
due to their inability to establish a reasonable probability of prevailing on the merits, or
(3) prevail on their HBOR claim at trial. Hardie does not clarify, as Wells Fargo
contends, that a fee award based solely on a successful ex parte application for a TRO
constitutes an abuse of discretion. Instead, Hardie holds that, because a TRO is
“indisputably” a form of injunctive relief, the plain language of section 2924.12,
subdivision (h) authorizes a trial court, in its discretion, to award attorney fees and costs
to a borrower who prevails in obtaining such relief.7 (Hardie, supra, 32 Cal.App.5th at
pp. 723-725.) In so holding, the Hardie court recognized that TROs are temporary in
nature and differ from preliminary injunctions in “significant respects” (id. at p. 724) but
explained that the discretionary nature of a fee award under the statute “allows courts to
avoid awards that would be inequitable or unconstitutional” (id. at pp. 724-725). As
noted above, the court went on to identify three relevant factors a court may consider in
determining whether a fee award is appropriate when a borrower prevails in obtaining a
TRO. (Ibid.) Nothing in Hardie convinces us that the trial court abused its discretion
under the circumstances of this case.
7 We note that Wells Fargo does not argue that Hardie was wrongly decided. At the
outset of oral argument, Wells Fargo’s counsel—“for purposes of this argument”—
conceded that a TRO is a form of injunctive relief pursuant to the statute, as held in
Hardie.
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DISPOSITION
The trial court’s order awarding attorney fees and costs to Bustos is affirmed.
Because Bustos did not file a brief or otherwise make an appearance, no costs are
awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/S/
BUTZ, Acting P. J.
I concur:
/S/
DUARTE, J.
19
Renner, J., Concurrence.
I concur in the disposition, but write separately to emphasize that Monterossa v.
Superior Court (2015) 237 Cal.App.4th 747 (Monterrosa) dealt with a preliminary
injunction, rather than a temporary restraining order. Our reliance on the reasoning in
Monterrosa should not obscure the significant procedural and substantive differences
between these two distinct forms of injunctive relief. The majority opinion is, however,
correct that the language of Civil Code section 2924.12 is fairly read to include
temporary restraining orders as a form of injunctive relief. (Maj. opn. ante, at p. 14.)
And I agree the record does not support a finding that the trial court abused its discretion
in awarding attorney’s fees to the homeowner in this case. (Maj. opn. ante, at pp. 17-18.)
/S/
RENNER, J.
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