2013-00151461-CU-OR

Upendra Singh vs. Wells Fargo Bank, N.A.

Nature of Proceeding: Motion for Attorney Fees

Filed By: Bolanos, Aldon L.

Plaintiff Upendra Singh’s motion for attorneys’ fees is denied.

Defendant Wells Fargo Bank, N.A.’s request for judicial notice of other orders of this
Court denying interim requests for attorneys’ fees pursuant to the Homeowner’s Bill of
Rights (“HOBR”) is granted.

Plaintiff seeks attorneys’ fees based on the fact that the Court granted his request for a
preliminary injunction prohibiting a non-judicial foreclosure sale pending trial based on
a showing that he was likely to prevail on his claims for violations of the HOBR.

The Court, as it has ruled before in other cases (as seen from Defendant’s request for
judicial notice), denies Plaintiff’s request for an interim award of fees.

Civil Code § 2924.12 permits a court to award attorney’s fees to a prevailing borrower
in connection with a motion for an injunction pursuant to this section. It provides, at
subdivision (i): “A court may award a prevailing borrower reasonable attorney’s fees
and costs in an action brought pursuant to this section. A borrower shall be deemed to
have prevailed for purposes of this subdivision if the borrower obtained injunctive relief
or was awarded damages pursuant to this section.”

Defendant argues that Plaintiff is not entitled to an interim award of fees and in any
event that Plaintiff provides no factual support for his request of $10,000.

Code of Civil Procedure section 1021 provides that “Except as attorney’s fees are
specifically provided for by statute, the measure and mode of compensation of
attorneys and counselors at law is left to the agreement, express or implied, of the
parties . . . .” (Italics added.) In Bell v. Farmers Ins. Exchange (2001) 87 Cal. App. 4th
805, 833, the court held that the propriety of the interim award of attorney fees
depends on whether it was “specifically provided for by statute.”

It is the duty of the courts within the framework of the statutes passed by the
Legislature, to interpret the statutes so as to make them workable and reasonable.
Bell, supra, at 832.

Here in Civil Code, sec. 2924.12, the statutory language must be examined to
determine whether an interim award of attorneys’ fees is contemplated. The Court
finds no express language in the statute reflects any Legislative intent to award
attorneys’ fees for a preliminary, as opposed to a permanent, injunction. To so
determine would potentially lead to absurd consequences. The rules governing statutory construction are well settled. The Court begins with the
fundamental premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. (People v. Trevino (2001) 26 Cal.4th 237, 240; People v.
Gardeley (1996) 14 Cal.4th 605, 621.) To determine legislative intent, the Court turns
first to the words of the statute, giving them their usual and ordinary meaning. ( Trevino,
at p. 241; Trope v. Katz (1995) 11 Cal.4th 274, 280.) When the language of a statute is
clear, the Court need go no further.” (Nolan v. City of Anaheim (2004) 33 Cal. 4th 335,
340; People v. Beaver (2010) 186 Cal.App.4th 107, 117.) If the words of the statute
are ambiguous, a court may resort to “extrinsic sources, including the ostensible
objects to be achieved and the legislative history.” (People v. Coronado (1995) 12
Cal.4th 145, 151.) Applying these rules of statutory interpretation, a court must select
the construction that comports most closely with the apparent intent of the Legislature,
with a view to promoting rather than defeating the general purpose of the statute, and
to avoid an interpretation that would lead to absurd consequences. Townzen v. County
of El Dorado (1998) 64 Cal.App.4th 1350, 1356.

Provisional relief includes temporary restraining orders and preliminary injunctions [see
Code Civ. Proc. § 527(a)-(f)]. Thus, a preliminary injunction is a provisional remedy
and temporary in character. It assumes a pending litigation in which all questions are
to be settled by a judgment and, therefore, operates only until the judgment is
rendered. The preliminary injunction automatically terminates at the time the court
renders a judgment either granting or denying a permanent injunction. Shahen v.
Superior Court (1941) 46 Cal. App. 2d 187, 188. A preliminary injunction is the mere
maintenance of the status quo, until a final determination on the merits can be had.
The court, balancing the respective equities of the parties, has reached an interim
conclusion that, pending a trial on the merits, the defendant should be restrained from
exercising the right claimed by him. SB Liberty, LLC v. Isla Verde Assn., Inc. (2013)
217 Cal. App. 4th 272, 280.

At the preliminary stage, the burden under the statute remains on the plaintiff to show
that there is a “material” violation that must be cured, not a mere likelihood of
prevailing on the merits. The “enjoined entity may move to dissolve an injunction
based on a showing that the material violation has been corrected and remedied.” Civ.
Code, sec. 2924.12 (a)(2)

Thus, as noted, a preliminary injunction is merely a provisional or auxiliary remedy to
preserve the status quo until final judgment. (See Kendall v. Foulks (1919) 180 Cal.
171, 173.) The order granting preliminary injunction is not a determination of the
ultimate right to a permanent injunction; it is, as noted, based on a showing that it is
desirable to maintain the status quo pending a determination of the merits. (See
Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; State Bd. of Barber
Examiners v. Star (1970) 8 Cal. App.3d 736, 739, 740, [trial judge’s purported ruling on
constitutional question at hearing on preliminary injunction was not binding on court at
trial]).

At the end of the day, the ultimate interpretation of a statute is an exercise of the
judicial power conferred upon the courts by the Constitution and, in the absence of a
constitutional provision, cannot be exercised by any other body. Yamaha Corp. of Am.
v.. State Bd Of Equalization (1998) 19 Cal. 4th 1, 7.

As pointed out by defendant Wells Fargo, as the lender retains the absolute right to
cure, it is not reasonable to construe Civil Code, sec. 2924.12(i) as authorizing an
interim award of attorneys’ fees in the absence of a clear expression of legislative
intent. Generally, “There is only one final judgment, the last or ultimate judgment which
determines the rights of the parties.” (7 Witkin, Cal. Procedure (4th ed. 1997)
Judgment, § 7, p. 544.)

As the Court concurs that the plaintiff is not entitled to an interim award of attorneys’
fees, it need not address the defendant’s remaining contentions.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.