Chan v. Lo
Filed 7/9/13
Chan v. Lo CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Appellant,
v.
SHANG JEN LO,
Defendant and Respondent.
B239783
(Los Angeles County Super. Ct.
No. KC057437)
APPEAL from
a judgment of the Superior Court of
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.
___________________________
Plaintiff and appellant Shu Ping Chan appeals from the
trial court’s order after trial denying attorney fees in her
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.
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.
In October
2009, defendants reneged on the oral promise.
It was too late for Chan to sell her property, and she was far behind in
her payments. Chan filed for bankruptcy.
Chan
alleged defendants had breached the original loan agreement by failing to
disburse the entire $100,000 and by failing and refusing to assist her in
obtaining a reverse mortgage. For these
breaches, Chan sought the remaining $25,000 on the original loan and the $6,000
commission paid to Law. On the
declaratory relief cause of action, Chan asked for a declaration that her debt
to defendants is less than $25,000 and the amount of $100,000 on the deed of trust
is inaccurate. She sought a “judicial
determination of each and every one of the issues alleged herein.â€
The trial
court conducted a bench trial on the
declaratory relief cause of action. The
court ruled that Chan had received $70,500 on the loan, and she had agreed to
pay $5,500 as a commission, for a principal amount disbursed of $76,000. Interest had been paid by Chan in the amount
of $22,964.44, and the balance of accrued interest owed by Chan was $21,452.35.
MOTION FOR ATTORNEY FEES
Chan filed
a motion for attorney fees pursuant to Civil Code section 1717 and Code of
Civil Procedure section 1033.5. She
argued she was the prevailing party in an action on a contract containing an
attorney fees provision because she prevailed on her claim that she had only
received $76,000, while defendants contended the entire $100,000 had been
disbursed.
The trial
court denied the motion for attorney fees, finding there was no prevailing
party in the action. “While the court
did find that plaintiff owes defendants less than the $100,000 face amount of
the promissory note, the court also found that plaintiff owes the defendants
principal and accrued interest to date of $97,452.35, which is secured by the
deed of trust on plaintiff’s property.
At best, this constitutes a mixed result regardless of who might prevail
on the remaining causes of action for breach of an
are not recoverable.â€
Chan argues the trial court abused its discretion in
ruling there was no prevailing party at trial, which resulted in a denial of
Chan’s motion for attorney fees. After
our initial review of the record, we advised the parties that the record
appeared to be incomplete, in that it lacked various documents including
demurrers, the answer to the operative complaint, and the opposition to the
motion for attorney fees. Chan filed a
letter response, not seeking to augment the record but instead arguing the
record was sufficient for appellate review.
The
prevailing party determination for the purpose of attorney fees under Civil
Code section 1717 and Code of Civil Procedure section 1033.5 is left to the
sound discretion of the trial court. (
209 Cal.App.4th 431, 439; Ajaxo Inc. v.
E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 58.) Given this deferential standard of review, it
is imperative that the reviewing court is presented with a complete record in
order to determine if the ruling of the trial court is within the bounds of
reason.
“On appeal,
a judgment of the trial court is
v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, if a judgment is
regardless of the trial court’s
reasoning. (Estate of Beard
(1999) 71 Cal.App.4th 753, 776-777; D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 18-19.)†(
194 Cal.App.4th 939, 956.) “‘A necessary
corollary to this rule is that if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court should be
affirmed.’ (Mountain Lion Coalition
v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; accord, Estrada
v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)†(Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412,
1416.)
Chan has
proceeded on appeal with an appellant’s appendix pursuant to rule 8.124 of the
California Rules of Court. As noted, the
appendix does not include Lo’s answer to the third amended complaint or his
opposition to the motion for attorney fees.
Without Lo’s answer to the third amended complaint and opposition to the
motion for attorney fees, “we cannot review the basis of the [trial] court’s
decision.†(Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 502 [failure to include opposition to motion to strike
precludes appellate review of the issue].)
“Failure to provide an adequate record on an issue requires that the
issue be resolved against plaintiff.†(Ibid.) The reasoning of Hernandez applies here, as we do not know what issues were raised
by Lo in his answer or in opposition to the motion for attorney fees. The inadequate record precludes relief to
Chan on appeal.
Even
without the defect in the record, the trial court’s ruling is not an abuse of
discretion. The trial court heard the
entirety of the trial, granted some relief to Chan, but tempered that relief
with a sizeable award of interest due to Lo.
Chan’s original complaint sought to cancel the deed of trust, but she
did not prevail on this claim. The trial
court could reasonably conclude that, under these circumstances, the
declaratory judgment was not a “simple, unqualified win†for Chan within the
meaning of Hsu v. Abbara (1995) 9
Cal.4th 863, 876.
DISPOSITION
The
judgment is affirmed. Costs on appeal
are awarded to Shang Jen Lo.
KRIEGLER,
J.
We concur:
TURNER,
P. J. MOSK,
J.
name="_ftn1" title="">[1] Law
was not named in Chan’s notice of appeal and is not a party to this appeal.
