Namvar v. DB Private Wealth Mortg., Ltd.
| Decision Date | 16 October 2013 |
| Docket Number | B241788 |
| Parties | EZRI NAMVAR et al., Plaintiffs and Appellants, v. DB PRIVATE WEALTH MORTGAGE, LTD. et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Gregory Wilson Alarcon, Judge. Affirmed.
Corporate Legal Services and Mark J. Leonardo for Plaintiffs and Appellants.
Bingham McCutchen, Stacy W. Harrison and Patrick Allen for Defendants and Respondents.
The defendants in this case filed a motion for summary judgment. In opposition to the motion, the plaintiffs filed some papers on time, some papers late, and some papers very late. We conclude that the trial court did not abuse its discretion by deciding to consider the timely and late opposition papers but not the very late ones. We also conclude that the trial court did not abuse its discretion in calculating the amount of contractual attorneys' fees awarded to the defendants as the prevailing parties. Therefore, we affirm the judgment and the order awarding attorneys' fees.
In September 2008 plaintiffs Ezri and Ilana Namvar, through a family trust, bought a house in the Brentwood Park area of Los Angeles by borrowing $7.5 million from defendant DB Private Wealth Mortgage Ltd. (DB), secured by a deed of trust on the property. It was a bad time to borrow that much money, both in the United States generally and for the Namvars personally. The Namvars made only two payments before Ezri Namvar's creditors forced him into involuntary bankruptcy on December 22, 2008.
In September 2009 the Chapter 11 bankruptcy trustee and the Namvars stipulated that the Namvars and their children could continue to live in the residence while the trustee tried to sell it and that, in lieu of paying rent, the Namvars would maintain the property "in a clean and orderly manner and in good upkeep and repair, suitable for showing to prospective purchasers." The Namvars also agreed to pay for insurance and to make "mortgage payments . . . on a going forward basis,"1 cooperate with court-appointed real estate brokers working to sell the property, and vacate the property on 30 days notice from the trustee
The trustee was unsuccessful in his efforts to sell the property and decided it was not worth it to keep trying. The trustee gave notice of his intent to abandon the bankruptcy estate's interest in the property as of May 5, 2010. The trustee reported that "[d]espite aggressive marketing efforts by the Trustee and his brokers, the Trustee has been unable to sell the Property at a price that would generate any return to the Debtor's estate," and that "[u]nless abandoned, the sale of the Property will generate substantial capital gains consequences" for the estate.
DB, which had not received any payments from the Namvars since December 2008, then gave notice of default and election to sell the property. The Namvars did not cure. DB substituted Old Republic Title Company as trustee under the deed of trust and assigned the note to defendant Kelsey Street, LLC. On October 7, 2010 Kelsey Street purchased the property at the trustee's sale for $6 million.2
The Namvars did not leave voluntarily. On October 8, 2010 Kelsey Street served the Namvars with a three-day notice to quit and on October 15 filed an unlawful detainer action. In their answer, the Namvars asserted that the unlawful detainer action violated the automatic stay of the bankruptcy court and was barred by the terms of the September 2009 stipulation. Kelsey Street then sought and obtained from the bankruptcy court on February 21, 2011 an order retroactively annulling the automatic stay with respect to the foreclosure sale and the unlawful detainer action. The bankruptcy court also ordered thatthe September 2009 stipulation "was and is no longer in force or effect, as of the date of the Property's abandonment on May 5, 2010."3
On May 11, 2011 the trial court in the unlawful detainer action granted Kelsey Street's motion for summary judgment, denied the Namvars' request for a stay or continuance, and entered judgment in favor of Kelsey Street. On February 1, 2012 the appellate division of the Superior Court affirmed.
Meanwhile, on March 7, 2011 the Namvars filed this action to set aside the foreclosure, to quiet title, and for declaratory relief, an accounting, and damages. The Namvars named DB, Kelsey Street, and Old Republic as defendants.4 The Namvars alleged that the notice of default was defective and violated the bankruptcy stay, that the substitution of trustee was invalid, and that the foreclosure sale was defective. The Namvars also alleged that "DB's agents . . . falsely told Ezri Namvar that he should not seek to redeem the Property from the foreclosure, but rather that [the Namvars] should cooperate with DB so as to allow the foreclosure to proceed purportedly so that agents for DB could purchase the property from DB for their personal residence and they would pay a substantial sum, to be determined, directly to Ezri Namvar and allow additional time for Ezri Namvar and his family to continue to reside in and peacefully possess the Property if Ezri Namvar would not seek to redeem his property and not seek to stop or challenge theforeclosure process or the results in any respect." The Namvars also recorded a lis pendens on the property.5
On December 21, 2011 DB and Kelsey Street filed a motion for summary judgment in this action, the procedural chronology of which forms the basis of much of this appeal. Kelsey Street noticed the hearing on the motion for March 5, 2012. Pursuant to Code of Civil Procedure section 437c, subdivision (b)(2),6 the Namvars' opposition papers were due Friday, February 17, 2012. The Namvars' opposition papers would have been due Monday, February 20, 2012, but that Monday was President's Day, a court holiday. (See § 12a; Steele v. Bartlett (1941) 18 Cal.2d 573, 574; Tran v. Fountain Valley Community Hospital (1997) 51 Cal.App.4th 1464, 1466.) Kelsey Street's reply papers were due February 29, 2012.
The Namvars, through their attorney, filed some but not all of their opposition papers by the due date of February 17, 2012. On that date the Namvars filed their memorandum of points and authorities in opposition to the motion for summary judgment, a declaration of their counsel of record, James D. White, and a compendium of (essentially unauthenticated) exhibits. Although the face page of the memorandum of points and authorities contained the words "CONTINUANCE REQUESTED [Pursuant to CCP § 437c(h); See Declaration Requesting Continuance Submitted Herewith]," neither the memorandum of points and authorities nor White's supporting declaration contained a request for, or made any mention of, a continuance of the hearing on themotion. The memorandum of points and authorities asked only that the court deny the motion.
The Namvars did not file anything on the next court day, Tuesday, February 21, 2012. On Wednesday, February 22, 2012 the Namvars filed a separate statement in opposition to the motion.
On Thursday, February 23, 2012 the Namvars filed another declaration by White, this one stating it was "in support of request for order allowing filing of late opposition or, in the alternative, a short continuance to allow full time for reply." White stated that he was submitting this declaration to request that his "late filed papers be considered as if timely filed and served," and also "under CCP §473 as an 'Attorney Declaration of Fault.'" (Bold omitted.) White explained that DB and Kelsey Street had waited to file their motion for summary judgment until after Ezri Namvar had been convicted of federal crimes and sentenced to prison7 and that Ezri Namvar's incarceration had made communication more difficult. After counsel for DB and Kelsey Street had concluded a session of Ezri Namvar's deposition on February 16, 2012 at the Taft Correctional Institution near Bakersfield, California, White overheard the court reporter comment that Monday, February 20, 2012 was a court holiday. White stated in his declaration: White described how and when he filed what papers he could when he could, including his efforts over the weekend and during his drive back to Idaho, where White stated he resided. White did not in his declaration request a continuance pursuant to section 437c, subdivision (h), to takediscovery or obtain further declarations in support of the Namvars' opposition to the motion for summary judgment.8
The Namvars did not file any papers on Friday, February 24, Monday, February 27, Tuesday, February 28, or Wednesday, February 29. DB and Kelsey Street timely filed their reply papers on February 29. DB and Kelsey Street also filed an opposition to the Namvars' request to allow the Namvars to file late opposition papers. DB and Kelsey Street argued that the Namvars had not provided any explanation for "why they waited two months before beginning to draft their opposition and supporting papers," nor for why White decided to drive to Idaho...
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