Honchariw v. FJM Private Mortgage Fund CA1/3

Filed 12/20/24 Honchariw v. FJM Private Mortgage Fund CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

NICHOLAS HONCHARIW et al., Plaintiffs and Appellants, A169447 v. FJM PRIVATE MORTGAGE FUND, (Sonoma County Super. Ct. LLC et al., No. SCV-267331)

Defendants and Respondents.

Nicholas and Sharon Honchariw appeal a postjudgment order denying their request for attorney fees and costs.1 The trial court determined that Nicholas, an attorney representing himself, is not entitled to fees under Civil Code section 1717 or Code of Civil Procedure section 1293.2 (undesignated statutory references are to the latter code). It also concluded they are not entitled to fees under the private attorney general doctrine because they failed to demonstrate that the financial burden in bringing their lawsuit was disproportionate to the burden of private enforcement. We affirm.

1 For clarity, and intending no disrespect, we use first names when

referring to the Honchariws individually. 1

BACKGROUND A detailed summary of the underlying facts is presented in our prior opinion, Honchariw v. FJM Private Mortgage Fund, LLC (2022) 83 Cal.App.5th 893 (Honchariw). The Honchariws obtained a $5.6 million loan with an 8.5 percent interest rate from FJM Private Mortgage Fund, LLC (FJM), secured by a deed of trust on real property. (Id. at p. 898.) They missed a $39,667 payment, and FJM imposed a default interest rate surcharge of nearly 10 percent against the total unpaid balance of the loan and “a one-time 10 percent fee assessed against the overdue payment ($3,967).” (Ibid.) Representing himself and his wife, Nicholas filed a demand for arbitration, primarily arguing the late fees were a penalty that violated Civil Code section 1671. (Honchariw, supra, 83 Cal.App.5th at p. 898.) Among other things, they sought to recover unlawful late charges ($105,138, or three times the amount of the prohibited amount of the late charges imposed by FJM), $5 million in punitive damages, and reasonable attorney fees. An arbitrator disagreed and denied the claim. The Honchariws petitioned to vacate the arbitration award, which the trial court denied. (Id., at pp. 898– 899.) This court subsequently reversed, concluding “liquidated damages in the form of a penalty assessed during the lifetime of a partially matured note against the entire outstanding loan amount are unlawful penalties.” (Id. at p. 905.) After this court issued a remittitur, the trial court granted the Honchariws’ petition to vacate the arbitration award and awarded costs. They also sought nearly $600,000 in attorney fees — the lodestar based on approximately 200 arbitration hours and more than 300 postarbitration hours Nicholas spent working on the case — and more than $12,000 in costs