Class action plaintiff (borrower) sued defendant federal savings and loan association (lender) in the Contra Costa County Superior Court, California. The borrower’s causes of action under Cal. Civ. Code § 2943(c)(6) and Cal. Bus. & Prof. Code § 17200 were dismissed on grounds of preemption and summary judgment was granted the lender on the remaining causes of action for breach of contract, fraud, and unjust enrichment. The borrower appealed.
The borrower alleged that by charging a $ 10 fax fee for the transmission of a payoff demand statement by fax, in addition to a $ 60 fee for the statement as provided by the deed of trust and Cal. Civ. Code § 2943(e)(6) (1997), the lender violated both § 2943 and the terms of the deed of trust, and thereby engaged in an unfair, deceptive and unlawful business practice in violation of the Unfair Competition Act (UCA), Cal. Bus. & Prof. Code § 17200. On appeal the borrower argued that 12 C.F.R. pt. 560.2. should not be read to preempt state law with respect to a practice as to which the Office of Thrift Supervision (OTS) had not issued its own regulation and over which there was no other federal control, such as imposing charges for providing payoff demand statements. The appellate court held that 12 C.F.R. pt. 560.2 was intended to preempt state restrictions on loan-servicing fees, such as payoff demand fees charged by federally chartered savings associations, and that Cal. Civ. Code § 2943 (1997), insofar as it applied to such associations, was preempted by the federal regulation, together with any cause of action under the UCA predicated on a violation of § 2943.
The appellate court affirmed the judgment of the superior court, holding that federal law preempted the borrower’s state statutory claims, and that the borrower’s remaining causes of action were properly rejected. The California business law lawyers were sought as expert witnesses during trial.
Appellant general contractor sought review of a postjudgment order from the Superior Court of Alpine County (California), which denied the contractor’s request for litigation expenses from respondent property owner. A subcontractor also appealed from the order, contending that it contained two clerical errors.
The parties entered into an agreement for the construction of improvements at a condominium complex. Both parties brought suit, alleging that the other breached the agreement. The property owner sought attorney fees “as provided under the contract.” The jury found in favor of the contractor. Because the jury’s special verdict did not contain a finding that the contract permitted an award of litigation expenses, the trial court did not award attorney fees to the contractor. The court observed that the contract contained an indemnity provision, not an attorney fees provision. The court found no merit in the contractor’s argument that the property owner, having sought attorney fees under the contract, should be judicially estopped from denying the existence of an attorney fees provision. The court declined to follow International Billing Services, Inc. v. Emigh, 84 Cal.App.4th 1175 (2000) to the extent that it suggested estoppel could be applied against a losing party who sought attorney fees under circumstances where that party would not have been entitled to such fees had it prevailed. The court concluded that such a rule was not consistent with Cal. Civ. Code § 1717.
The court reversed in part and remanded.