39 Cal.App.5th 369
Cal. Ct. App.2019Background
- Bustos sought ex parte temporary restraining order (TRO) on March 20, 2017 to stop a trustee’s sale, alleging Wells Fargo engaged in HBOR violations (notably dual tracking) while her loan modification application was pending.
- Trial court granted the TRO, later vacated it when it denied a preliminary injunction; nevertheless, the court awarded Bustos $4,260 in attorney fees and costs under Civil Code §2924.12(h) (formerly (i)).
- Wells Fargo appealed the fee award, arguing §2924.12(h) does not authorize fees for relief limited to a TRO and that awarding fees here was an abuse of discretion.
- The TRO remained in place for months by stipulation; Wells Fargo received notice of the ex parte application but did not appear at the TRO hearing.
- The appellate court reviewed statutory construction de novo and discretionary fee determinations for abuse of discretion, and affirmed the trial court’s fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2924.12(h) authorizes attorney fees when borrower obtains a TRO | TRO is a form of "injunctive relief" under §2924.12(h); thus Bustos qualified as a "prevailing borrower" and may recover fees | statute should be read to permit fees only after a preliminary or permanent injunction (or other final relief); TRO alone insufficient | TRO constitutes "injunctive relief" under the statute; trial courts may award fees for TROs in their discretion (affirmed) |
| Whether awarding fees based on a TRO (including ex parte TRO) violates due process or is per se inequitable | Fees are discretionary; the court may consider notice, ex parte nature, and equities; no per se due process bar | Ex parte TROs are issued with limited notice and may unfairly deprive defendants, so fees based solely on TROs are improper | No per se due process violation; discretion allows denial where inequitable; here notice was given and Wells Fargo could oppose the fee motion (affirmed) |
| Whether the trial court abused its discretion in awarding fees though Bustos did not obtain compliance or a permanent injunction | A borrower may "prevail" by obtaining interim injunctive relief that forces compliance or provides meaningful relief; courts weigh factors | Award was arbitrary because Bustos did not force compliance, failed to obtain preliminary or permanent injunction, and TRO was temporary | No abuse of discretion: court considered relevant factors (notice, merits, duration, opportunity to oppose) and did not act irrationally (affirmed) |
| Proper scope of appellate review for fee award under §2924.12(h) | Statutory interpretation de novo; discretionary aspects reviewed for abuse of discretion | — | Court applied de novo review to statutory question and abuse-of-discretion review to the trial court’s exercise of discretion |
Key Cases Cited
- Monterossa v. Superior Court, 237 Cal.App.4th 747 (Cal. Ct. App.) (preliminary injunctions qualify as "injunctive relief" under §2924.12 and may support fee awards)
- Hardie v. Nationstar Mortgage LLC, 32 Cal.App.5th 714 (Cal. Ct. App.) (TROs are a form of injunctive relief under §2924.12(h); trial courts may consider TRO-specific factors before awarding fees)
- De La Torre v. CashCall, Inc., 5 Cal.5th 966 (Cal.) (courts must follow statutory text and defer to legislative policy choices when construing fee statutes)