California Court of Appeals, Second District, Eighth Division
KAREN DE LA CARRIERE, Plaintiff, Cross-Defendant and Respondent,
WILLIAM N. GREENE et al., Defendants, Cross-Complainants and Appellants.
from an order of the Superior Court of Los Angeles County No.
BC493393 Michael Johnson, Judge. Reversed.
Berokim & Duel, Kousha Berokim for Defendants,
Cross-Complainants, and Appellants.
Kim Douglas, J. Andrew Douglas and Max Yueh for Plaintiff,
Cross-Defendant, and Respondent.
BIGELOW, P. J.
William Greene, California Consulting Group (CCG), and R
& R Trust obtained a judgment in their favor and
against respondent Karen de la Carriere (Carriere). The trial
court declared Greene the prevailing party and awarded him
attorney fees pursuant to a contractual attorney fees
provision. Greene nonetheless appealed, contending the trial
court erred in calculating his damages. After we questioned
whether Greene waived his right to appeal by accepting
payment on the judgment and executing an acknowledgment of
satisfaction of judgment, Greene voluntarily dismissed his
appeal. Carriere then moved for an award of attorney fees
incurred on appeal, which the trial court granted. In this
appeal, Greene contends the trial court erred in awarding
Carriere her attorney fees given he is the prevailing party
in the action. We agree and reverse the trial court's
AND PROCEDURAL BACKGROUND
and Carriere were close friends for many years. In 1997,
Greene agreed to loan Carriere $175, 000 to help her purchase
a home. As part of the agreement, Carriere executed a
promissory note (Note) and deed of trust (Trust Deed), which
named Greene's retirement trust-R & R Trust-as
beneficiary, and his consulting business-CCG-as trustee. The
interest rate on the loan was 14.5 percent, and the loan came
due in 2008.
2012, the parties' relationship soured, and Greene
demanded payment on the loan. By that time, Carriere had made
only a few payments, all of which went to interest. Greene
threatened to foreclose Carriere's property if she did
not pay the full amount due.
October 5, 2012, Carriere filed a complaint against Greene,
seeking to void the Note and Trust Deed. Greene, in turn,
filed a cross-complaint against Carriere, asserting a claim
for breach of the Note.
trial court conducted a four-day bench trial in April 2015,
after which it found Carriere's claims meritless and
entered judgment of dismissal against her. On Greene's
cross-complaint, the court found Carriere breached the Note,
but agreed with her that the interest rate was usurious.
After subtracting the usurious interest payments from the
outstanding principal, the court entered judgment against
Carriere and in favor of Greene for $150, 329.21.
court additionally awarded Greene $123, 975 in attorney fees
pursuant to a provision in the Note stating “[i]f any
action is instituted on this note, the undersigned promise(s)
to pay such sum as the Court may fix as attorney's
fees.” The court explained the basis for its decision:
“Carriere commenced this action with a complaint that
asserted incendiary claims such as forgery, self-dealing and
breach of professional responsibilities. The Defendants have
defeated those claims, and CCG has recovered affirmative
relief on its cross-complaint. Under these circumstances, the
Court rules that Greene, R & R Trust and CCG are the
prevailing parties within the meaning of [Civil Code]
and Greene filed cross notices of appeal. (Case No. B267781.)
In his opening brief on appeal, Greene argued the trial court
erred in subtracting interest payments from the principal
owed under the Note.
the appeals were pending, Carriere paid Greene the full
amount owed under the judgment and as attorney fees. Greene,
in turn, executed an acknowledgement of full satisfaction of
judgment (acknowledgment of satisfaction), which Carriere
filed in the trial court. According to Carriere, Greene also
agreed to reconvey the Trust Deed and return the Note and
Trust Deed, but failed to do so. As a result, Carriere filed
in the trial court a motion to expunge lis pendens and compel
reconveyance of encumbrances, which the court apparently
denied for lack of jurisdiction while the appeal was pending.
the same time, Carriere filed a motion in this court to
dismiss Greene's appeal as moot. We issued an order to
show cause (OSC) inviting Greene to address why the appeal
should not be dismissed. We noted the general rule that a
party cannot accept the benefits of a judgment while
challenging it on appeal, but noted there are exceptions to
this rule. Rather than respond to the OSC, Greene requested
dismissal of his appeal, which we granted. The remittitur