Bidasha v. Novastar CA2/5

Filed 10/26/20 Bidasha v. Novastar CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAN BIDASHA, B290634

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC558394) v.

NOVASTAR LLC et al.,

Defendant and Respondent

APPEAL from an order of the Superior Court of Los Angeles County, Stephanie M. Bowick, Judge. Reversed.

Neil C. Evans for Plaintiff and Appellant.

Krane & Smith, Marc Smith and Georgia Skoumbis for Defendant and Respondent.

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After defaulting on a loan secured on her residence, Jan Bidasha sued the lender, Novastar LLC, for rescission or cancellation of the subject deed of trust. Novastar successfully defended the action, and then moved for attorney fees based on provision in the deed of trust dealing with attorney’s fees. The trial court awarded Novastar $60,337.83 in fees. Bidasha appeals the fee order, and argues the court erred in finding the deed of trust authorized an award of attorney fees as part of the judgment. We agree and reverse. FACTUAL AND PROCEDURAL BACKGROUND In 2014, Bidasha obtained a loan from Novastar secured by a deed of trust on her residence. After she defaulted on her loan payments, Bidasha sued Novastar and other defendants alleging predatory loan practices and related wrongdoing. As against Novastar, she asserted causes of action for fraud, constructive fraud, rescission and cancellation of the deed of trust, violation of Business and Professions Code section 17200, and negligence. Novastar moved for judgment on the pleadings, which the trial court granted. Novastar then moved for attorney fees under paragraph 7 of the deed of trust. The deed of trust identifies Novastar as the “Lender” and Bidasha as “Borrower.” Paragraph 7 provides, “If Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects Lender’s interest in the Property, the Lender, at Lender’s option, upon notice to Borrower, may make such appearances, disburse such sums, including reasonable attorneys’ fees, and take such action as is necessary to protect Lender’s interest. . . . Any amounts disbursed by Lender pursuant