2 Cal. App. 5th 710
Cal. Ct. App.2016Background
- In 2013 Sese sued Wells Fargo under the California Homeowner Bill of Rights alleging dual tracking after Wells Fargo recorded a trustee’s sale while a loan modification was pending.
- Sese obtained a temporary restraining order and a preliminary injunction enjoining the scheduled trustee’s sale.
- After the preliminary injunction, Sese moved for interim attorney fees under Civil Code § 2924.12 subdivision (i), seeking $100,865 as the prevailing borrower.
- The trial court denied the motion for interim fees, expressing concern about awarding fees before final resolution and potential need for fee recoupment if the injunction proved improvident.
- Sese appealed the denial of interim fees before final judgment; Wells Fargo argued the order was nonappealable as interlocutory.
- The Court of Appeal concluded the order denying interim attorney fees was not an appealable order and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order denying interim attorney fees under Civ. Code § 2924.12(i) is immediately appealable | Sese: § 2924.12(i) deems a borrower who obtained injunctive relief a prevailing party entitled to fees—fees should be awardable immediately after the preliminary injunction | Wells Fargo: The order is interlocutory; the one final judgment rule bars immediate appeal because the case remains pending and the fee denial is not within statutory appeal categories | Court: The denial of interim fees is not an appealable order; appeal dismissed |
Key Cases Cited
- Kurwa v. Kislinger, 57 Cal.4th 1097 (Cal. 2013) (explaining California’s one final judgment rule)
- Marsh v. Mountain Zephyr, Inc., 43 Cal.App.4th 289 (Cal. Ct. App. 1996) (sets out collateral-order test for interlocutory appealability)
- Monterossa v. Superior Court, 237 Cal.App.4th 747 (Cal. Ct. App. 2015) (held a borrower obtaining a preliminary injunction may be a prevailing party under § 2924.12; declined to decide appealability of fee orders)
- Doe v. Luster, 145 Cal.App.4th 139 (Cal. Ct. App. 2006) (refused to treat Moore as authority that an interim fee order is immediately appealable)
- Moore v. Shaw, 116 Cal.App.4th 182 (Cal. Ct. App. 2004) (considered on the merits a fee-related cross-appeal but did not address interlocutory appealability of fees)