Case Number: KC069376 Hearing Date: June 27, 2018 Dept: J

Re: David Ladewig, et al. v. Bank of America, N.A., etc., et al. (KC069376)

MOTION FOR ATTORNEYS’ FEES AND COSTS

Moving Parties: D Plaintiffs David Ladewig and Angela Ladewig

Respondents: Defendants Specialized Loan Servicing, LLC and The Bank of New York Mellon fka The Bank of New York as Trustee for the Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2006-26

POS: Moving OK; Opposing OK; Reply untimely served and filed (due 6/20/18)

Plaintiffs allege that defendants failed to properly apply a 2008 payment to their home loan, which led to foreclosure proceedings. The complaint was filed 6/12/17. The First Amended Complaint, filed 9/14/17, asserts causes of action against Defendants Bank of America, N.A., Bank of America, N.A., as successor to Countrywide Home Loans, Inc., Specialized Loan Servicing, LLC, The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWABS Inc., asset-backed Certificates, Series 2006-26 and Does 1-20 for:

1. Breach of Contract

2. Breach of Implied Covenant of Good Faith and Fair Dealing

3. Violation of Business & Professions Code § 17200 et seq.

4. Negligence

5. Violation of Homeowner Bill of Rights

6. Slander of Title

7. Cancellation of Instruments

8. Violation of 12 C.F.R. § 1026.41

9. Accounting

On 9/26/17 Defendant’s “Special Anti-SLAPP Motion to Strike Plaintiff’s Complaint was denied.

A court trial is set for 3/25/19.

Plaintiffs David Ladewig and Angela Ladewig (collectively, “plaintiffs”) move the court, per CCP § 425.16, for an award of attorney’s fees and costs in the amount of $10,000.50 against Defendants Specialized Loan Servicing, LLC and The Bank of New York Mellon fka The Bank of New York as Trustee for the Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2006-26 (collectively, “defendants”), on the basis that they prevailed on their opposition to defendants’ anti-SLAPP motion and that the fees and costs requested are reasonably and full recoverable.

TIMELINESS:

At the outset, defendants claim that the motion must be denied because it was filed more than 180 days after the court issued its ruling on the anti-SLAPP motion. Not so. In Carpenter v. Jack in the Box (2007) 151 Cal.App.4th 454, defendants filed an anti-SLAPP motion, which was denied by the trial court and affirmed on appeal. Following issuance of the remittitur, plaintiff filed a motion for statutory attorney fees and expenses, which the trial court awarded. Defendants appealed the order awarding fees and costs, arguing, inter alia, that the motion was untimely under California Rules of Court Rules 3.1702 and 8.104. The Second District Court of Appeal, Division Two, in affirming the trial court’s order, determined that “the time limits imposed by rules 3.1702 and 8.104 for filing a motion for attorney fees under section 425.16, subdivision (c) do not commence to run until entry of judgment at the conclusion of the litigation.” Id. at 468 (emphasis theirs).

In doing so, the court noted, “[i]t is evident from the history of rule 3.1702 that neither the drafters of the rule nor the parties commenting on the proposed rule contemplated that entry of a prejudgment appealable order might trigger the deadlines for claiming prejudgment attorney fees. The drafters noted that the proposed rule ‘does not prevent attorneys from claiming such fees quite promptly; rather, it sets an outside time within which claims must be made.’ (Jud. Council of Cal., Admin. Off. of Cts. Memorandum from Members of Civil and Small Claims Comm., Time to Claim Attorney Fees, Rule 870.2 (1993).) The history of rule 3.1702 indicates that the ‘outside’ time limit for claiming prejudgment statutory attorney fees was intended to be entry of a final judgment—not entry of a prejudgment appealable order.” Id. The court further determined that “[t]his interpretation of rule 3.1702 is consistent not only with the rule’s history and underlying policy, but also with existing law and practice. As noted, there are three ways in which a party may seek an award of attorney fees and costs in connection with a special motion to strike under section 425.16. The party filing such a motion may seek attorney fees in its moving papers, or the party prevailing on the motion may bring a separate, subsequently filed motion for fees and costs. (Doe v. Luster [(2006)] 145 Cal.App.4th [139,] at p. 144; American Humane Assn. [v. Los Angeles Times Communications (2001)] 92 Cal.App.4th [1095,] at p. 1103). ‘The party prevailing on the special motion to strike can also seek its attorney fees as part of a cost memorandum at the conclusion of the litigation. [Citations.]’ (Doe v. Luster, at p. 144, fn. 4, italics added.) In this case, had plaintiff not elected to bring a motion for attorney fees under section 425.16, subdivision (c), he could still have sought such fees as part of a cost memorandum at the conclusion of the lawsuit. (Ibid.) Plaintiff’s motion for attorney fees, filed before entry of judgment, was not untimely under rule 3.1702.” Id.

Nevertheless, the motion is denied. CCP § 425.16(c) provides, in relevant part, that “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Section 128.5, in turn, states in pertinent part that “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay…”

“The ‘reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive standards of section 128.5 in deciding whether to award attorney fees under the anti-SLAPP statute.’ (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392).” Moore v. Shaw (2004) 116 Cal.App.4th 182, 199. “Sanctions [under 128.5] are warranted only if the moving party meets its burden of proving that the opposing party’s action or tactic was (1) totally and completely without merit, measured by the objective, “reasonable attorney” standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. (See § 128.5; Evid. Code, § 500; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649).” Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236. “Frivolous in this context means that any reasonable attorney would agree the motion was totally devoid of merit.” Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450. “When a motion has partial merit, it is not ‘totally and completely’ without merit, nor can it be said that its ‘sole’ purpose is to harass.” Id.

“To determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit, section 425.16 establishes a two-part test. Under the first part, the party bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a cause of action in the lawsuit, arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965). Once the defendant has met its burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the lawsuit or on the cause of action. (Ibid.) Only a cause of action that satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 142.

Plaintiffs contend that “[b]y failing to even meet just the first prong of the test under Code of Civil Procedure Section 425.16(b)(1), the Defendants’ filing of their motion was clearly frivolous or was solely intended to cause unnecessary delay to the Plaintiffs.” (Motion, 7:4-6). Not so.

Defendants asserted in their anti-SLAPP motion that “every claim in the complaint is based, in part on Defendants’ ‘fil[ing] [of] a Notice of Motion and Motion for Relief From the Automatic Stay (‘Motion for Relief’ in [Plaintiff’s]Bankruptcy Case alleging ‘post-petition mortgage payments due on the note secured by a deed of trust on the Property have not been made to ‘BNYM.’” Comp. ¶ 44.” (Motion, 5:1-5). The court, in denying defendants’ motion, determined that defendants “oversimplifie[d] plaintiffs’ allegations” and that the causes of action were based on purportedly wrongful conduct that occurred throughout the life of the loan, including before, during, and after the bankruptcy. In doing so, the court acknowledged that actions and petitions filed by defendants in bankruptcy were, in fact, protected conduct (“Although defendants’ acts during the course of the Bankruptcy Action comprised some of the alleged breaches of duty in this cause of action, it is evident that the protected activity is only incidental, and that the cause of action is primarily based on nonprotected activity”).

Accordingly, the court determines that defendants’ anti-SLAPP motion was not “totally devoid of merit.” Plaintiffs, moreover, have not included any evidence showing that the anti-SLAPP motion was “motivated solely by an intention to harass or cause unnecessary delay caused by a subjective standard.”

The motion, then, is denied.