Filed 11/19/18 Ieng v. EMC Mortgage LLC CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
|
MARGARET IENG,
Plaintiff and Appellant,
v.
EMC MORTGAGE LLC,
Defendant and Respondent.
|
E066693
(Super.Ct.No. CIVDS1104528)
OPINION |
APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.
Margaret Ieng, Plaintiff and Appellant in pro. per.
Bryan Cave Leighton Paisner LLP, Glenn J. Plattner, Deborah P. Heald, Aileen M. Hunter, and Kristin S. Webb for Defendant and Respondent.
In this action, Margaret Ieng seeks damages arising out of the 2007 foreclosure on her house in Colton. Initially, the only named defendant was EMC Mortgage Corporation (EMC); later, Ieng added other defendants. Eventually, the trial court dismissed the action, solely as against EMC, based on failure to bring it to trial within five years. It then granted EMC’s motion for contractual attorney fees.
Ieng appeals from the order awarding attorney fees. We find no error. Hence, we will affirm.
I
PROCEDURAL BACKGROUND
Ieng filed this action in 2011. In the original complaint, she asserted causes of action solely against EMC. In 2013, she filed an amended complaint, adding JPMorgan Chase Bank, N.A. (Chase) and others as defendants. In August 2013, EMC and Chase filed an answer.
In 2016, EMC filed a motion to dismiss based on the five-year rule. (Code Civ. Proc., § 583.310.) The trial court granted the motion and entered a judgment of dismissal with respect to EMC. However, the action remained pending as against Chase.
EMC then filed a motion for $151,606.48 in contractual attorney fees. The trial court granted the motion. Ieng filed a timely notice of appeal from the order awarding attorney fees.
II
DISMISSAL FOR LACK OF PROSECUTION
Ieng takes the position that the trial court erred by dismissing her complaint for lack of prosecution. Ieng did appeal from the judgment of dismissal, but we dismissed that appeal based on failure to respond to our orders. Hence, we cannot review the merits of the dismissal. All determinations made in the judgment are now final and binding. (In re Matthew C. (1993) 6 Cal.4th 386, 393.)[1]
Ieng tries to challenge the judgment by the back door, arguing that, because it was erroneous, EMC is not the prevailing party for purposes of attorney fees. The short answer is that EMC did prevail — rightly or wrongly. A defendant who obtains a dismissal for failure to prosecute is, by definition, a prevailing party. (Elms v. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671, 673-675.)
III
THE TIMELINESS OF THE MEMORANDUM OF COSTS
Ieng contends that EMC’s memorandum of costs was untimely.
After entry of judgment, EMC filed a memorandum of costs. Ieng filed a motion to strike costs, on several grounds, including that the memorandum of costs was untimely. EMC responded by withdrawing its memorandum of costs.
Assuming the memorandum of costs was, in fact, untimely, Ieng was not prejudiced. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) The trial court did not award any costs; it did award attorney fees, but it could do so even in the absence of a memorandum of costs. (Cal. Rules of Court, rule 3.1702; Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 8-10.)
IV
THE AWARD OF ATTORNEY FEES
Ieng contends that the trial court erred by awarding attorney fees to EMC, raising two arguments.
A. Failure to Provide Requested Information.
Ieng argues that EMC did not comply with the trial court’s request for additional evidence.
At the initial hearing on the motion, the trial court asked EMC to submit (1) the note, the deed of trust, and the forbearance agreement; (2) evidence that EMC was a corporation in good standing; (3) a breakdown of the fees incurred on behalf of EMC (as opposed to Chase); and (4) a summary of the total hours spent by each attorney or paralegal and his or her hourly rate. It continued the hearing for this purpose.
In response, EMC filed supplemental declarations along with a request for judicial notice. At the continued hearing, Ieng’s counsel did not object to the adequacy of the supplemental material.
Preliminarily, Ieng forfeited her present contention by failing to raise it below. “It is axiomatic that arguments not raised in the trial court are forfeited on appeal. [Citations.]” (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) “[A]ny other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citation.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
Even if not forfeited, the contention would lack merit, for two reasons. First, we know of no rule that, if a trial court asks you for evidence of something and you fail to provide it, the court must automatically rule against you; certainly Ieng cites no authority for this proposition. The court may decide that it does not need the evidence after all. Ieng does not argue that the fee award was not supported by sufficient evidence, and we deem any such argument forfeited.
And second, EMC did, in fact, provide the material that the trial court had requested: (1) the note and the deed of trust;[2] (2) evidence that EMC was a corporation in good standing; (3) a declaration that all of the fees were incurred in the joint defense of both EMC and Chase; and (4) a summary of the total hours spent by each attorney or paralegal and his or her hourly rate.
Ieng claims this was inadequate because some of the billing records were “redacted.” However, she does not cite any portion of the record in support of this claim. There were no redactions. The trial court never asked EMC for its complete billing records. It asked EMC to provide a “summary” of the “total” hours spent by each attorney; EMC did so. It also asked EMC to “affirmatively indicate in a declaration” which fees were incurred on behalf of EMC. EMC filed a declaration stating that all of the fees were incurred in its joint defense. No itemization was necessary.
Ieng also claims that the reporter’s transcript of the continued hearing proves that EMC failed to provide the material. This misstates the record. Actually, at the continued hearing, the trial court simply could not find the relevant documents in the file. It said, “I don’t doubt that you filed it . . . , but for some reason it’s not getting to me.” The judicial assistant added, “It was filed but in the clerk’s office. I’m not sure where the documents are.” Finally, the trial court said it would take the matter under submission, “dig them up,” consider them, and then rule. Evidently that is exactly what it did.
B. Presentation of a Joint Defense by Related Parties.
Ieng also argues that EMC and Chase were related parties that presented a joint defense, and therefore the trial court could not find that EMC was a prevailing party unless and until Chase also prevailed.
Once again, we know of no law supporting this proposition, and Ieng does not cite any. EMC and Chase were separate legal entities (as Ieng herself alleged in her complaint). Although they presented a joint defense, EMC was entitled to recover all of the fees (Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192, 1197-1198); this would make Chase ineligible to obtain a double recovery later.
V
DISPOSITION
The order appealed from is affirmed. EMC is awarded costs on appeal against Ieng.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
SLOUGH
J.
[1] In her brief in lieu of oral argument, Ieng claims that her attorney at the time of our dismissal order did not tell her about it, and she remained unaware of it until she read our tentative opinion. This asserted fact is not shown by the record. Moreover, it is hard to credit, in light of her opening brief, which never attacks the dismissal directly.
In any event, Ieng cites no authority for the proposition that her former attorney’s alleged dereliction would allow us to ignore the finality of the dismissal.
[2] Counsel for EMC advised the court that it was not submitting the forbearance agreement because it was not relevant. Ieng does not disagree.
