Second District, Division 4 So Holds in Family Law Judgment Enforcement Case.
Although deciding that a debt owed under an expired note and unenforceable trust deed still survives for enforcement under Family Code section 291, the litigants in each side of this case actually got both good news and bad news. Plaintiff succeeded in extinguishing the note and trust deed, but defendant retained the right to enforce her judgment in another way despite losing her security for the remaining balance on the family law judgment.
In a cross-appeal, plaintiff challenged the lower court’s denial of fee recovery to him in Schelb v. Stein, Case No. B213929 (2d Dist., Div. 4 Dec. 17, 2010) (certified for partial publication, fee discussion unpublished). The appellate court found no error in the lower court’s conclusion. Because neither party prevailed, the contract clause containing that language was not triggered. (Topanga and Victory Partners v. Toghia, 103 Cal.App.4th 775, 780 (2002.) Also, even under other fee shifting bases, there was no prevailing party because the result was “good news and bad news as to each of the parties.” (Roden v. AmerisourceBergen Corp., 186 Cal.App.4th 620, 64 (2010).)