Melgar v. Deutsche Bank Nat. Trust Co.

Filed 1/4/16 Melgar v. Deutsche Bank National Trust CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
SONI MELGAR,
Plaintiff and Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY et al.,
Defendants and Respondents.
G051225
(Super. Ct. No. 30-2012-00587001)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Geoffrey T. Glass, Judge. Affirmed.
Soni Melgar, in pro. per., for Plaintiff and Appellant.
Wright, Finlay & Zak, T. Robert Finlay and Lukasz I. Wozniak for
Defendants and Respondents.

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Soni Melgar, in propria persona,1 brought an action against her lender and
other financial institutions arising from her 2010 default on a loan of her residence. In a
different appeal, we considered Melgar’s argument the trial court erred in sustaining
without leave to amend a demurrer to her third amended complaint (TAC) and summary
judgment on the remaining causes of action. (Melgar v. Deutsche Bank National Trust
Company et al. (January 4, 2015, G050257) [nonpub. opn.] (hereafter Melgar I).) We
affirmed the judgment. (Ibid.) In this appeal, we consider Melgar’s contention the trial
court erred in awarding the prevailing party attorney fees and costs. We conclude
Melgar’s arguments lack merit, and we affirm the trial court’s postjudgment order.
I
We incorporate by reference the detailed factual summary contained in
Melgar I. Relevant to this appeal is that in 2005 Melgar executed an adjustable rate note
(Note) secured by a deed of trust (DOT), which was recorded against real property
located in Costa Mesa. The Note was secured in favor of New Century Mortgage
Corporation (New Century). In June 2005, the beneficial interest under the Note and the
DOT was transferred to Deutsche Bank National Trust Company (Deutsche), as indenture
trustee, and in July 2007, the servicing rights to Melgar’s loan were transferred to
Carrington Mortgage Services, LLC (CMS). Four years later, in July 2011, Melgar
defaulted on the loan and CMS foreclosed on the property. Deutsche filed an unlawful
detainer action against Melgar.
1 Although a self-represented litigant is not excused from complying with the
rules governing appropriate pleading practice (see Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984 [“mere self-representation is not a ground for exceptionally lenient
treatment”]), whenever possible, we do not strictly apply technical rules of procedure in a
manner that deprives litigants of a hearing. (Cf. Alshafie v. Lallande (2009)
171 Cal.App.4th 421, 432 [“we carefully examine a trial court order finally resolving a
lawsuit without permitting the case to proceed to a trial on the merits”].)

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Melgar filed a lawsuit to unwind the foreclosure sale. The TAC alleged the
following causes of action: (1) wrongful foreclosure; (2) fraud; (3) promissory estoppel;
(4) violations of California Rosenthal Fair Debt Collection Practices Act (RFDCPA);
(5) violations of the Fair Employment and Housing Act (FEHA); (6) unfair and deceptive
business practices UCL (UBP); (7) negligence; (8) slander of title; (9) intentional
infliction of emotional distress (IIED); (10) quiet title; (11) declaratory relief; and
(12) breach of oral executed agreement.
CMS and Deutsche demurred to the TAC. The court sustained the
demurrer without leave to amend as to all claims except fraud, promissory estoppel, UBP,
negligence, IIED, and breach of oral executed contract. Next, CMS and Deutsche filed
motions for summary judgment, or in the alternative, for summary adjudication of issues.
The court granted the summary judgment on the ground it was undisputed Melgar did not
make any attempt to tender the amounts due on the loan. In 2014, the trial court entered a
judgment in favor of CMS and Deutsche. We found meritless Melgar’s appeal from the
judgment in Melgar I.
CMS and Deutsche filed a motion for attorney fees. After considering
Melgar’s opposition, the court granted the motion and awarded $76,890. Melgar
appealed from this postjudgment order.
II
In Melgar I, we determined Melgar’s challenge to the ruling on demurrer
was forfeited because Melgar failed to discuss anywhere in her briefing why the court got
it wrong. She failed to demonstrate her pleadings stated facts sufficient to constitute a
cause of action. Melgar’s challenge to the trial court’s ruling on attorney fees fails for the
same reason—Melgar’s briefing does not challenge the merits of the trial court’s
decision.
Except as provided for by statute, compensation for attorney fees is left to
the agreement of the parties. (Code Civ. Proc., § 1021.) Civil Code section 1717

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provides that reasonable attorney fees authorized by contract shall be awarded to the
prevailing party as “fixed by the court.” The trial court has broad discretion to determine
the amount of a reasonable fee, and the award of such fees is governed by equitable
principles. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095.)
“On review of an award of attorney fees after trial, the normal standard of
review is abuse of discretion. However, de novo review of such a trial court order is
warranted where the determination of whether the criteria for an award of attorney fees
and costs in this context have been satisfied amounts to statutory construction and a
question of law. [Citations.] [¶] Stated another way, to determine whether an award of
attorney fees is warranted under a contractual attorney fees provision, the reviewing court
will examine the applicable statutes and provisions of the contract. Where extrinsic
evidence has not been offered to interpret the [contract], and the facts are not in dispute,
such review is conducted de novo. [Citation.] Thus, it is a discretionary trial court
decision on the propriety or amount of statutory attorney fees to be awarded, but a
determination of the legal basis for an attorney fee award is a question of law to be
reviewed de novo. [Citation.]” (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th
132, 142.)
In light of the above, there are basically three relevant factors needed to
challenge an attorney fee award. However, on appeal Melgar does not dispute (1) the
contract at issue permitted recovery of attorney fees, (2) she was not the prevailing party,
or (3) the fees awarded were reasonable. Simply stated, if Melgar does not dispute the
contract permitted fees, there is no need to conduct a de novo review of this issue.
Similarly, if she does not dispute the amount awarded, there is no basis to question
whether the court abused its discretion in its calculations. A trial court’s ruling is
presumed to be correct, and the burden of demonstrating error rests squarely on the
appellant. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624,
631-632.) Even when our standard of review is de novo, the scope of review is limited to

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issues that have been adequately raised and are supported by analysis. (Reyes v. Kosha
(1998) 65 Cal.App.4th 451, 466, fn. 6.)
Melgar devotes the majority of her briefing on appeal to rearguing the
merits of the underlying case. These same issues were raised and addressed in Melgar I,
and we need not reconsider them in the context of the review of an attorney fee award.
As explained, review of an attorney fee award is limited to the basis for that ruling alone
and does not require reexamination of the underlying case’s merits.
We recognize Melgar believes the Home Affordable Mortgage Program’s
(HAMP) regulations, legislative intent, and public policy are all reasons to prohibit an
attorney fee award in her case. We found no case law, and Melgar cites to none,
supporting these theories. Similarly, Melgar’s argument attorney fees should not be
awarded due to her inability to pay lacks legal support. We deem these arguments
waived. When an appellant raises an issue “but fails to support it with reasoned argument
and citations to authority, we treat the point as waived.” (Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785.)
III
The postjudgment order is affirmed. Respondent shall recover their costs
on appeal.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.

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