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De La Carriere v. Greene

California Court of Appeals, Second District, Eighth Division

August 28, 2019

KAREN DE LA CARRIERE, Plaintiff, Cross-Defendant and Respondent,
WILLIAM N. GREENE et al., Defendants, Cross-Complainants and Appellants.

          APPEAL 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.

          Wright Kim Douglas, J. Andrew Douglas and Max Yueh for Plaintiff, Cross-Defendant, and Respondent.

          BIGELOW, P. J.

         Appellants William Greene, California Consulting Group (CCG), and R & R Trust[1] 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 order.


         Greene 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.

         In 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.

         On 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.

         The 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.

         The 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] §1717(b)(1).”

         Carriere 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.

         While 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.

         Around 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 ...

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