Nuti v. The Law Offices of Les Zieve CA3

Filed 2/10/16 Nuti v. The Law Offices of Les Zieve CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

MICHAEL NUTI et al., C076334

Plaintiffs and Appellants, (Super. Ct. No. TCU135398)

v.

THE LAW OFFICES OF LES ZIEVE et al.,

Defendants and Respondents.

After losing their case against the lenders in the trial court and on appeal, plaintiff borrowers’ next lawsuit against the trustee that foreclosed on their property was dismissed. They failed to appeal a second time, and the trustee was awarded attorney fees as the prevailing party. Plaintiffs Michael, Jill, and Linda Nuti and Casey DeCarlo appeal the award of attorney fees but attempt to relitigate many of the issues resolved by the first appeal. As to the narrow issue before us, we affirm the trial court’s ruling that the trustee is entitled to fees pursuant to the attorney fees provisions of the contract, which include the promissory note and the deed of trust. (Civ. Code, § 1717.) FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs obtained a construction loan for $1,540,000 from American Home Mortgage to construct a “spec-home” in Truckee. The note was secured by a deed of trust naming plaintiffs as “Borrower,” American Home Mortgage as “Lender,” Alliance

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Title as “Trustee,” and Mortgage Electronic Registration Systems, Inc., as beneficiary and as nominee for the Lender or its successors. Plaintiffs defaulted on the loan in 2008 and filed a complaint against the lenders, among others, in 2010. (Nuti v. The Royal Bank of Scotland (Nov. 25, 2014, C074194) [nonpub. opn.] (Nuti).) In the midst of the litigation, the Royal Bank of Scotland substituted the Law Offices of Les Zieve as Trustee and recorded the substitution. Zieve recorded a notice of default in December 2012. Plaintiffs filed a complaint against the Trustee to stop the nonjudicial foreclosure, but the court denied the request for an injunction. The Trustee completed the sale of the property in June 2013. That same month the court granted the Royal Bank of Scotland’s motion for summary judgment and imposed sanctions against plaintiffs’ attorney. We affirmed. (Nuti, supra, C074194.) Plaintiffs’ first amended complaint alleges 10 causes of action, all involving the note and the deed of trust. The amendments do not cure the defects the court found in sustaining the initial demurrer. In October 2013 the trial court sustained the Trustee’s demurrer without leave to amend and the court entered a judgment of dismissal. Plaintiffs did not appeal the judgment. The Trustee filed a memorandum of costs and a postjudgment motion for attorney fees of $191,780.50. Plaintiffs did not move to tax costs. The trial court granted the motion for fees but exercised its discretion to award only $84,000 in fees. Plaintiffs appeal the attorney fees award. DISCUSSION Civil Code section 1717 provides, in relevant part: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” The Trustee obtained a dismissal of the