Chan v. Lo CA2/5

Filed 7/9/13 Chan v. Lo CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHU PING CHAN, B239783

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. KC057437) v.

SHANG JEN LO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Affirmed. Shu Ping Chan, in pro. per., for Plaintiff and Appellant. David L. Prince and Andrea A. Selkregg for Defendant and Respondent.

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Plaintiff and appellant Shu Ping Chan appeals from the trial court‟s order after trial denying attorney fees in her declaratory relief action against defendant and respondent Shang Jen Lo. Chan contends she was the prevailing party in an action based on a contract and therefore entitled to attorney fees under Civil Code section 1717. We affirm.

BACKGROUND

Chan‟s operative third amended complaint for damages alleged causes of action for breach of implied contract, breach of oral contract, and declaratory relief against Lo and defendant Oliver Law.1 Chan alleged that she owned property in Temple City, and in 2005, Law held himself out as a real estate broker who could obtain a $100,000 loan for Chan. The next month, Law said his brother Lo would make the loan, and Law would charge a six percent commission for his efforts. The agreement called for Chan to be loaned $100,000 to be disbursed over time, with interest at 11 percent per annum on the full amount of the loan, whether or not it was fully disbursed. Chan executed a promissory note and trust deed. Chan began making monthly interest payments of $911. Chan realized that Law was the beneficial owner of the note and trust deed, rather than his brother. After Chan received $75,000, disbursements on the loan ceased. Demands to disburse the balance of the funds have failed. In 2009, Chan began facing financial problems and desired a reverse mortgage, but the existence of the existing loan made that impossible. Chan and defendants orally agreed to temporarily remove the deed of trust so Chan could obtain a reverse mortgage, from which she would pay defendants $30,000 out of escrow. Thereafter, Chan would execute another deed of trust in the amount of $100,000 in favor of Lo, and defendants would disburse the $25,000 remaining on the original loan.