Kachlon v. Markowitz

In Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, the plaintiff homeowners sued the defendant beneficiaries under a deed of trust for wrongful foreclosure based on the latter's initiation of nonjudicial foreclosure proceedings (which were later dismissed). A jury found that, as alleged by the plaintiffs, the promissory note secured by the trust deed had been paid in full. A judgment was entered in the plaintiffs' favor, with an award of money damages and attorney's fees under section 1717. (Id. at pp. 329-332.) The defendants challenged the fee award, contending that section 1717 did not apply because the plaintiffs' claims "for declaratory and injunctive relief and quiet title were equitable in nature, and not arising out of contract." (Kachlon, supra, 168 Cal.App.4th at p. 346.) On appeal, Division Four of this District affirmed the award of fees. Said the court: "In determining whether an action is 'on the contract' under section 1717, the proper focus is not on the nature of the remedy, but on the basis of the cause of action. Here, although the remedy sought in the relevant causes of action was equitable, the claims were still actions 'on the contract,' i.e., the note and deed of trust." (Id. at p. 347.) The Markowitzes alleged three equitable claims against the defendants: (1) declaratory relief to cancel a promissory note and reconvey a deed of trust; (2) injunctive relief to preclude foreclosure proceedings; and (3) quiet title to the property at issue. (Id. at p. 345). The trial court granted the Markowitzes the equitable relief they sought: rescission of the foreclosure; reconveyance of the deed of trust; an injunction precluding foreclosure; and quiet title in the Markowitzes' favor. The Court of Appeal rejected the trustee-defendant's argument that the Markowitzes were not prevailing parties under section 1717 as to the trustee because the trustee remained neutral throughout the litigation. The Court of Appeal determined that the record supported the trial court's "pragmatic determination" that the trustee "consistently allied itself" with the defendants and against the Markowitzes on the Markowitzes' claims. (Id. at pp. 349-350.) The Court of Appeal reaffirmed the trial court's obligation to base its attorney fee decision under section 1717 on the "'"extent to which each party has realized its litigation objectives, whether by judgment, settlement, or otherwise. "' " (Id. at p. 349.)