The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING MOTION FOR ATTORNEYS' FEES
Defendant Wachovia Mortgage ("Wachovia")*fn1 moves for "an award of $13,771.50 in attorneys' fees as the prevailing party[,]" following an order filed on April 13, 2011 that granted Wachovia's dismissal motion; which included dismissal of Plaintiff's First Amended Complaint ("FAC") with prejudice. (Wachovia's Mot. for Att'y Fees ("Mot.") 1:7-8.) Wachovia seeks attorneys' fees under Section 1717 of the California Civil Code ("Section 1717"). This statute "authorizes reasonable attorney's fees 'in any action on a contract, where [a] contract specifically provides that attorney's fees and costs, which are incurred to enforce the contract, . . . be awarded either to one of the parties or to the prevailing party.'" Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1216 (9th Cir. 2009) (quoting CAL. CIV. CODE § 717(a)).
Wachovia argues Plaintiff's Adjustable Rate Mortgage Note and Deed of Trust provide for attorneys' fees to the prevailing party in an action to enforce the contracts involved in this lawsuit, and it seeks to include these documents in its motion. See CAL. CIV. PROC. CODE § 1021
("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 . . . ."). Plaintiff failed to file an opposition or statement of non-opposition to Wachovia's motion as required by Local Rule 230(c).
I. REQUEST FOR CONSIDERATION OF CERTAIN DOCUMENTS CONCERNING MOTION
Wachovia requests that the Adjustable Rate Mortgage Note (the "Note"), signed by Plaintiff on April 6, 2007, be considered under the incorporation by reference doctrine. (Wachovia's Req. for Judicial Notice ("RJN") 2:12-13, 19-27, Ex. C.) This "doctrine [applies] to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion . . . , and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The Note is referenced in the FAC, is central to Plaintiff's claims, and its authenticity is uncontroverted. Since this document is incorporated into the FAC by reference, it will be considered under the incorporation by reference doctrine.
Wachovia also requests that the Deed of Trust dated April 6, 2007, and recorded with the Office of the Solano County Recorder on April 16, 2007, be judicially noticed, since it is a publicly recorded document. (RJN 2:14-16, 3:1-10, Ex. D.) A matter may be judicially noticed if it is either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Since the Deed of Trust is a publicly recorded document, it is judicially noticed. See W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F. Supp. 790, 792 (N.D. Cal. 1992) (taking judicial notice of documents in a county's public record, including deeds of trust).
A. Wachovia is entitled to reasonable attorneys' fees
Wachovia argues its right to recover attorneys' fees is in the following Note language:
Payment of Lender's Costs and Expenses:
The Lender will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses may include, for example, reasonable attorneys' fees and court costs.
(Mot. 3:11-17; RJN Ex. C ¶ 7(E) (emphasis added).)
Wachovia also relies on the following Deed of Trust language: Lender's Right to Protect its Rights in the Property: If . . . someone, including me, begins a legal proceeding that may significantly affect Lender's rights in the Property, (including but not limited to any manner of legal proceeding in bankruptcy, in probate, for condemnation or to enforce laws or regulations), then Lender may do ...