LAUREL BEELER, Magistrate Judge.
This was the second action filed by plaintiff Mary Miller regarding the mortgage on her home (referred to in the complaint as the "Subject Property"). Ms. Miller previously filed a state court action in 2012 requesting a court order cancelling her mortgage debt and obligations, enjoining foreclosure, and awarding her full title to the Subject Property. Following four years of litigation, Ms. Miller's first action was dismissed in its entirety. Ms. Miller then brought this second action against many of the same defendants (plus several new ones), once again seeking a court order cancelling her mortgage debt and obligations, enjoining foreclosure, and awarding her full title to the Subject Property. On January 5, 2018, the court issued an order dismissing Ms. Miller's complaint as barred by res judicata
Ms. Miller moves to have the court alter or amend its January 5 order dismissing her complaint.
Ms. Miller brings her motion for the court to alter or amend its January 5 order under Federal Rule of Civil Procedure 59(e).
As a threshold matter, the court has jurisdiction to hear Ms. Miller's motion. Prior to filing her motion, Ms. Miller filed a notice of appeal to the Ninth Circuit,
A district court can "reconsider" final judgments under Rules 59(e). See Balla v. Idaho Bd. of Corr., 869 F.2d 461, 466-67 (9th Cir. 1989). Reconsideration is appropriate when (1) the court is presented with newly discovered evidence, (2) the underlying decision was in clear error or manifestly unjust, or (3) there is an intervening change in controlling law. See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). "There may also be other, highly unusual, circumstances warranting reconsideration." Id.
Under this District's Civil Local Rules, a party seeking reconsideration must first request permission from the court before filing a motion for reconsideration. N.D. Cal. Civil L.R. 7-9; see, e.g., Thomas v. County of Sonoma, No. 17-cv-00245-LB, 2017 WL 2500886, at *2 (N.D. Cal. June 9, 2017) (Local Rule 7-9 applies to motions for reconsideration under Rule 59(e)). In seeking permission, the party must show that (1) at the time of the motion, a material difference in fact or law exists that was not previously presented to the court, (2) there has been an emergence of new material facts or a change in law since the court issued the order, or (3) there was a "manifest failure by the Court to consider material facts or dispositive legal arguments" that were presented. N.D. Cal. Civ. L.R. 7-9(b). "No motion for leave to file a motion for reconsideration may repeat any oral or written argument made by the applying party in support of or in opposition to the interlocutory order which the party now seeks to have reconsidered." N.D. Cal. Civ. L.R. 7-9(c).
Here, Mr. Miller has not satisfied this standard. She has not shown a material difference in law or fact that was not previously presented to the court, an emergence of new facts or a change in the law since the court's order, or that the court's dismissal was in clear error, manifestly unjust, or unresponsive to dispositive legal arguments.
First, Ms. Miller's argument with respect to her 2017 notice of default and the California Homeowner Bill of Rights ("HBOR") provision in California Civil Code § 2923.55 fails. Ms. Miller alleges that her 2017 notice of default did not provide her with written notice of her right to demand a copy of her promissory note and evidence of Nationstar's alleged right to collect on the debt, which she claims is required by Section 2923.55.
Second, Ms. Miller's argument for reconsideration with respect to her "concealment" theory fares no better. Far from citing any new evidence or showing any clear legal error in the court's original order, Ms. Miller ignores the original order altogether,
Ms. Miller's motion to alter or amend the January 5 order is denied.
The Moving Defendants assert that they have a contractual right to reasonable attorney's fees under the terms of Ms. Miller's promissory note ("Note") and deed of trust ("Deed of Trust").
The Ninth Circuit recently affirmed an award of reasonable attorney's fees to prevailing defendants in a similar mortgage case involving word-for-word-identical contractual fee provisions. Ng v. U.S. Bank, NA, __ F. App'x __, No. 16-16949, 2018 WL 914501 (9th Cir. Feb. 16, 2018) (Ng II) ("As the prevailing parties, [defendants] are entitled to reasonable attorney's fees pursuant to the terms of [plaintiff]'s promissory note."), aff'g No. 15-cv-04998-KAW, 2016 WL 6995884 (N.D. Cal. Nov. 30, 2016) (Ng I). Following Ng, the court finds that the Moving Defendants here are likewise entitled to an award of reasonable attorney's fees.
California law governs the right to recover attorney's fees pursuant to an underlying contract. See Berkla v. Corel Corp., 302 F.3d 909, 919 (9th Cir. 2002) (applying California Civil Procedure Code § 1021, which requires courts to follow contractual fee-shifting provisions). California Civil Code § 1717(a), which governs the recovery of attorney's fees pursuant to an underlying contract, states:
The Moving Defendants claim a contractual right to attorney's fees under, among other things, Section 7(E) of the Note and Section 22 of the Deed of Trust. The Note states, in relevant part:
Similarly, the Deed of Trust states, in relevant part:
These provisions are word-for-word identical to the provisions in Ng. See Ng I, 2016 WL 6995884, at *4.
Ms. Miller raises several arguments in response, but none changes the outcome. First, Ms. Miller argues that the contractual fee provisions do not apply because her lawsuit was supposedly a tort action, not an action to "enforce the contract." But courts have held in mortgage cases that prevailing defendants may recover attorney's fees where, as here, a borrower asserts claims that directly relate to the defendants' rights to enforce the mortgage contract, even if the plaintiff herself is not seeking to enforce the contract. See Ng I, 2016 WL 6995884, at *5 (awarding fees to prevailing defendants, as "while Plaintiff in the instant case did not seek to enforce the contract through her claims, her claims directly impacted Defendants' ability to enforce the contract") (citing Thomas v. Wells Fargo Bank, N.A., No. C 13-02065 JSW, 2014 WL 1245034, at *4 (N.D. Cal. Mar. 25, 2014)); see also id. at *6 (where "Plaintiff sought an injunction to prevent foreclosure, to rescind the loan contracts, and to cancel or reform the loan contracts, without tethering these contract-related remedies to a particular claim, . . . all of Plaintiff's claims are inextricably intertwined with the contract claims and fees need not be apportioned claim by claim.") (citations and internal quotation marks and brackets omitted).
Second, Ms. Miller argues that several of the Moving Defendants are not parties to the Deed of Trust. But the Moving Defendants are agents or successors-in-interest of the signatories and, moreover, were sued by Ms. Miller "as if they were parties to the loan contracts, with [Ms. Miller] seeking the remedy of rescinding or reforming those loan contracts. Thus, Defendants `stand in the shoes' of a party to the contract, even if Defendants did not themselves sign the loan documents, and may recover attorney's fees per Civil Code § 1717." Cf. Ng I, 2016 WL 6995884, at *5; Ng II, __ F. App'x __, 2018 WL 6995884, at *2 (citing Cargill, Inc. v. Souza, 201 Cal.App.4th 962, 966 (2011)).
Third, Ms. Miller argues that Section 9 of the Deed of Trust permits attorney's fees only in the event of proceedings "in the nature of [] bankruptcy proceedings, probate, liens and condemnation actions." The court need not address whether Section 9 is limited thusly because Section 7(E) of the Note and Section 22 of the Deed of Trust grant the Moving Defendants a right to attorney's fees, regardless of the scope of Section 9 of the Deed of Trust. Cf. Ng I, 2016 WL 6995884, at *4 (relying on the identical Section 7(E) in its note and the identical Section 22 in its deed of trust in awarding attorney's fees).
Finally, Ms. Miller argues that Section 22 of the Deed of Trust does not address awards of attorney's fees where the borrower's claims arise under HBOR. But courts have held that prevailing defendants are entitled to contractual attorney's fees even where a borrower brings claims solely under HBOR. See, e.g., Mitchell, 2014 WL 1320295, at *1, 3 (awarding prevailing defendant contractual attorney's fees even where the borrower brought only HBOR claims).
The Moving Defendants seek $17,247.50 in attorney's fees and costs. As discussed above, both the Note and the Deed of Trust provide for the recovery of reasonable attorney's fees, and the court finds that the Moving Defendants are entitled to recover as the prevailing parties.
When calculating reasonable attorney's fees, the court must consider both the reasonableness of the hourly billing rate and the number of hours required. See Larfage Conseils Et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1341-42 (9th Cir. 1986) (citations omitted).
To determine the appropriate lodestar amount, the reasonableness of the hourly billing rate must be assessed. Credit Managers Ass'n of S. Cal. v. Kennesaw Life & Accident Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). In doing so, the court must look to the prevailing market rates in the relevant community for similar work by attorneys of comparable skill, experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). Generally, the relevant community is the forum where the district court sits. Id.
Here, the Moving Defendants claim an hourly rate of $215 an hour for all of the lawyers who worked on this matter (a fifth-year associate and an equity partner, who billed the same rate as the associate for this matter).
The Moving Defendants have submitted billing time entries for 66.3 hours of attorney time and 15.2 hours of paralegal time.
For the foregoing reasons, (1) Ms. Miller's motion to alter or amend the court's January 5, 2018 order is denied and (2) the Moving Defendants' motion for attorney's fees is granted in part in the amount of $16,154.50.
