Painter v. Francis Realty, Inc. CA3

Filed 10/6/15 Painter v. Francis Realty, Inc. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

BRENT A. PAINTER et al., C078106

Plaintiffs and Appellants, (Super. Ct. No. 174301)

v.

FRANCIS REALTY, INC., PROFIT SHARING PLAN et al.,

Defendants and Respondents.

Once again, plaintiffs Brent Painter and his mother Betty Painter (Betty)1 appeal from an award of attorney fees to defendants Francis Realty, Inc., Profit Sharing Plan (Francis Realty) and Placer Foreclosure, Inc. pursuant to Civil Code section 1717.2 This court reversed the previous order for attorney fees and remanded for the trial court to

1 Because plaintiffs share a surname, we refer to Betty Painter by her first name. 2 Further undesignated statutory references are to the Civil Code.

1

exercise its discretion to apportion the fee award between the tort and contract claims. (Painter v. Francis Realty Inc. (June 23, 2014, C073864) [nonpub. opn.] (Painter I).)3 The trial court determined that plaintiffs’ claims “are so interrelated and so inextricably intertwined it would be impossible to separate them” and again awarded defendants $41,350 in attorney fees. On appeal, plaintiffs contend the trial court failed to follow the directive of Painter I, the evidence did not support an award of attorney fees, and it was an abuse of discretion to award the full amount of attorney fees. We find no abuse of discretion and affirm. BACKGROUND The Underlying Action and First Award of Attorney Fees We take the facts of the underlying action and the first award of attorney fees from our opinion in Painter I. “In August 2009, . . . Betty . . . borrowed $550,000 from Francis Realty. The loan was memorialized by a promissory note and secured by a deed of trust against real property in an unincorporated part of Shasta County. “The promissory note contained an attorney fee clause by which Betty ‘promise[d] to pay such sum as the court may fix as attorney’s fees’ if an ‘action be instituted on this Note.’ The accompanying deed of trust (entitled ‘First Deed of Trust with Assignment of Rents’) contains no attorney fee provision. “Betty defaulted on the note by failing to make the monthly payments it required and Francis Realty recorded a notice of default and election to sell, and notice of trustee's sale.