Rohde v. Clark CA5

Filed 1/30/14 Rohde v. Clark CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

KATHY ROHDE, F064642 Plaintiff and Appellant, (Super. Ct. No. VCU235217) v. RICHARD CLARK, OPINION Defendant and Respondent.

APPEAL from an order of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Donna M. Standard for Plaintiff and Appellant. Horswill, Medero & Soares, Joseph F. Soares and Brandon M. Ormonde for Defendant and Respondent. -ooOoo- Plaintiff appeals from a postjudgment order awarding defendant1 his attorney fees based on provisions found in the contract between the parties. Plaintiff contends the award was inequitable because defendant breached the contract. Defendant prevailed in

1 The term defendant, as used herein, refers to respondent. Although there was a codefendant at trial, he is not a party to this appeal.

the trial court by establishing plaintiff’s claim on the promissory note and second deed of trust was barred by the antideficiency statutes. We conclude the trial court properly awarded attorney fees to the prevailing defendant, even though he prevailed by establishing the contract was unenforceable. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff and defendant jointly purchased a residence. When their relationship ended, defendant agreed to pay plaintiff $165,000 for her interest in the property. He paid her $135,000 by check and gave her a promissory note secured by a second deed of trust for the remaining $30,000. Defendant refinanced the first trust deed on the property, which enabled him to pay plaintiff the $135,000. After four years, defendant defaulted on both the first deed of trust and plaintiff’s second deed of trust. The holder of the first deed of trust gave notice, then held a trustee’s sale at which it purchased the property for an amount insufficient to satisfy plaintiff’s note. Plaintiff demanded payment from defendant, then filed suit for breach of contract when defendant failed to cure the default. Defendant moved for summary judgment in plaintiff’s action against him, asserting plaintiff’s second deed of trust was a purchase money mortgage and her action was barred by the antideficiency statute (Code of Civil Procedure, section 580b2). The trial court denied the motion, then permitted plaintiff to amend her complaint to allege fraud and other tort causes of action against defendant and the loan broker who assisted with the loan transaction. The matter proceeded to court trial, after which the court ruled in favor of defendants and against plaintiff, on the ground fraud and other torts had not been proven and the antideficiency statute barred the claim on the contract. Judgment was entered and defendant moved for an award of attorney’s fees based on provisions for such fees in the promissory note and deed of trust. The trial court granted the motion and