Opinion
E064876
01-10-2018
PARKSIDE MINSHENG CORP., Plaintiff and Appellant, v. MISSION OAKS NATIONAL BANK, Defendant and Respondent.
Consumer Action Law Group, Sage Stone, Lauren Rode and Yelena A. Gurevich for Plaintiff and Appellant. Lambert & Rogers and Michael D. Rogers for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. MCC1301652) OPINION APPEAL from the Superior Court of Riverside County. Raquel A. Marquez, Judge. Affirmed. Consumer Action Law Group, Sage Stone, Lauren Rode and Yelena A. Gurevich for Plaintiff and Appellant. Lambert & Rogers and Michael D. Rogers for Defendant and Respondent.
Parkside Minsheng Corp. (Parkside), a California corporation, sued Mission Oaks National Bank (the Bank), a federally chartered bank, for (1) declaratory relief; (2) injunctive relief; (3) breach of contract; and (4) breach of the implied covenant of good faith and fair dealing. After a bench trial, the trial court entered judgment in favor of the Bank.
Parkside raises three issues on appeal. First, Parkside asserts the trial court erred by finding Parkside failed to prove damages with reasonable certainty. Second, Parkside contends the trial court erred in ruling that the due on sale clause provided a basis for the foreclosure. Third, Parkside contends the trial court erred in awarding attorneys' fees. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. LOAN
Minsheng Zhang (Zhang) owned Ming Sheng LLC. Ming Sheng LLC sought to purchase real property (the property), in Hemet, for the purpose of establishing an assisted living facility and senior recreational center. The Bank owned the property. In January 2011, Ming Sheng LLC and the Bank entered into a purchase contract for the property at a price of $2,800,000. The terms of the purchase contract provided that the property would be operated as an assisted living facility, and Ming Sheng LLC would create a new corporation to operate the facility.
In the record, the company's name is spelled as Ming Sheng LLC and as MinSheng LLC.
In January or February 2011, Zhang created Parkside for the purpose of purchasing the property. In March 2011, Parkside obtained a loan from the Bank for $1,400,000. The loan was secured by a deed of trust on the property. Under the terms of the loan, Parkside was required to pay (1) 60 monthly payments at five percent interest beginning April 18, 2011; (2) 60 monthly payments at six percent interest beginning April 18, 2016; (3) 59 monthly payments at 6.5 percent interest beginning April 18, 2021; and (4) one payment of $1,021,381.20 on March 18, 2026. Bank's deed of trust for the property was recorded on March 23, 2011.
The deed of trust included a due on sale clause. The clause provides, "[The Bank] may, at [the Bank's] option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A 'sale or transfer' means [a] leasehold interest with a term greater than three (3) years[.]"
In the deed of trust, Parkside promised to "promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitations, the Americans With Disabilities Act." Also in the deed of trust, Parkside promised to "pay when due (and in all events at least ten (10) days prior to delinquency) all taxes . . . levied against or on account of the Property."
The deed of trust describes different events that would qualify as defaults, such as (1) failure to comply with any term or covenant in the deed of trust or in any related document, and (2) the occurrence of a "material adverse change . . . in [Parkside's] financial condition" or the Bank's belief that "the prospect of payment or performance of the indebtedness is impaired."
The deed of trust set forth Parkside's right to cure defaults as follows: "If any default, other than a default in payment is curable, and if [Parkside] has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding twelve (12) months, it may be cured if [Parkside], after [the Bank] sends written notice to [Parkside] demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which [the Bank] deems in [the Bank's] sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical."
Parkside and the Bank executed a loan agreement (the agreement) in connection with the promissory note and deed of trust. In the agreement, Parkside promised that, as long as the agreement is in place, Parkside would "[p]romptly inform [the Bank] in writing of (1) all material adverse changes in [Parkside's] financial condition, and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions effecting [Parkside] which could materially affect the financial condition of [Parkside]."
Further, Parkside promised to "permit [the Bank] to examine and audit [Parkside's] books and records at all reasonable times." Parkside promised to furnish the Bank with Parkside's annual statements, interim statements, and tax returns. Parkside also promised to pay all taxes imposed upon Parkside and its property prior to the date upon which penalties would attach.
Additionally, Parkside promised to "[c]omply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the conduct of [Parkside's] properties, businesses and operations, and to the use or occupancy of the [property], including without limitation, the Americans With Disabilities Act."
In regard to curing defaults, the agreement provides, "If any default, other than a default on indebtedness, is curable and if [Parkside] has not been given a notice of similar default within the preceding twelve (12) months, it may be cured if [Parkside], after [the Bank] sends written notice to [Parkside] demanding cure of such default: (1) cure[s] the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiate steps which [the Bank] deems in [the Bank's] sole discretion to be sufficient to cure the default and thereafter continue and complete all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical."
B. LEASE AND LICENSE
On June 6, 2011, Parkside leased the property to Parkside Gardens, LLC (Tenant) for a period of 10 years, commencing on July 1, 2011. Zhang is the Chief Executive Officer of Tenant. Zhang's son owns Tenant. Parkside did not obtain the Bank's consent for the lease.
The State of California issued a temporary suspension of the assisted living facility's license on May 24, 2013. The State closed all but 10 beds in the 102-bed facility and relocated the occupants.
C. NOTICE OF DEFAULT
On June 19, 2013, the Bank sent Parkside a notice of acceleration and demand for payoff. In the notice, the Bank explained there were four events of default: (1) failure to pay property taxes; (2) suspension of a Department of Health Care Services (DHCS) license on May 24, 2013; (3) "[t]ermination of business on May 28, 2013"; and (4) failure to provide the Bank with requested financial information. The notice provided that the property tax default had to be cured immediately, and the three other defaults had to be cured no later than July 5, 2013. If the defaults were not cured by July 5, then the maturity of loan accelerated and the full amount owed on the loan became due in full.
The Bank explained that Parkside could (1) cure all four defaults by July 5, or (2) pay $1,343,303.30 to the Bank by July 8, 2013. If Parkside did neither, then the Bank would foreclose its interest in the property.
D. FORECLOSURE
On July 11, 2013, Riverside County recorded the Bank's notice of default and election to sell against the property. The notice of default reflected $1,343,303.30 was due as of July 8, 2013. In the notice of default, the Bank alleged Parkside breached the deed of trust by (1) not providing requested financial information; (2) losing the state license for the assisted living facility; (3) failing to notify the Bank of the suspended license; (4) terminating operations of the assisted living facility; (5) failing to notify the Bank of the terminated operations; (6) failing to pay the demanded balance of the loan; and (7) failing to pay property taxes. In the notice of default, the Bank declared that "all sums secured by the deed of trust [are] immediately due and payable."
E. CURING THE ALLEGED DEFAULTS
In regard to property taxes, the Bank had inaccurate information concerning the nonpayment of the 2012 taxes. Parkside had paid its property tax bill. In regard to the financial documents requested by the Bank, Parkside met with the Bank on July 1, 2013. During that meeting, Parkside provided Bank with the requested documents.
The temporary suspension of the license was appealed by Tenant and Zhang. On July 15, 2013, an administrative law judge (ALJ) issued a proposed decision. The ALJ recommended the "outright revocation" of Tenant's license and that Zhang be excluded from employment and/or board membership at all licensed facilities. The California Department of Social Services adopted the ALJ's recommendation. The California Department of Social Services denied Tenant's and Zhang's petition for reconsideration.
On August 21, 2013, Parkside sent a letter to the Bank reflecting Parkside "may find another tenant." On October 16, 2013, the Bank sent a letter to Parkside reflecting that the Bank was returning Parkside's monthly loan payment. The Bank explained it would no longer accept payments on the loan due to the defaulted status of the loan.
F. LAWSUIT
Parkside filed its original complaint on November 5, 2013. Parkside's First Amended Complaint (FAC) was filed on May 2, 2014. In the FAC, Parkside alleged it always made timely loan payments to the Bank. As to the property taxes, Parkside asserted it had paid the taxes. In regard to the state license suspension and termination of business, Parkside alleged it leased the property to Tenant for a period of 10 years.
Tenant then subleased the property to Parkside Mansion, LLC (Subtenant) for a period of five years. Subtenant obtained a business license from the City of Hemet, and in October 2013, had applied for a license from the California Department of Social Services. In regard to the financial documents, Parkside alleged it had sent the requested information to the Bank.
In Parkside's first cause of action, it asserted it had 15 days to cure any default, or more than 15 days if it acted as soon as reasonably practical. Parkside alleged it had acted as soon as reasonably practical. Parkside sought a declaration that the foreclosure was improper and that the loan was not accelerated. In the second cause of action, Parkside sought an injunction restraining the foreclosure sale.
In Parkside's third cause of action, it alleged the Bank breached its agreement with Parkside by accelerating the loan without giving Parkside the contractually agreed upon amount of time to cure the defaults, e.g. 15 days or a reasonably practical period of time. In the fourth cause of action, Parkside alleged that Bank breached the implied covenant of good faith and fair dealing in the agreement by issuing the notice of default and notice of sale. Parkside sought the declaratory and injunctive relief described ante, as well as damages to be proven at trial.
G. REFINANCING
In this subsection, we present Zhang's portrayal of Parkside's refinancing of the property. In its tentative decision, the trial court found this evidence was not credible; a statement of decision was not requested. We present Zhang's portrayal of the refinancing for the sake of providing context for our discussion post.
In September or October 2014, Parkside sought to refinance the property. Because the property was in foreclosure, traditional lenders would not refinance it. Parkside obtained a hard money loan in an initial amount of $1,400,000. That money was to be used to pay the approximately $1,300,000 owed to the Bank; however, the Bank said it was owed approximately $1,400,000. Ultimately, Parkside borrowed $1,500,000 from the hard money lender. The hard money loan was a one-year loan with an interest rate of 11 percent and a processing fee of five percent.
Parkside refinanced the property a second time, obtaining a "normal loan," after the foreclosure process had ended. The "normal loan" had a seven percent interest rate and three percent processing fee. The loan was scheduled to be paid off in approximately 15 years. The principal on the new loan was $1,800,000. Approximately $1,500,000 went to the hard money lender. A portion of the money was to be used for remodeling and operation costs.
H. JUDGMENT
At the beginning of the trial, the court asked if the declaratory and injunctive relief causes of action were moot. Parkside conceded the injunction cause of action was moot but still wanted the "Court to declare that the notice of default was indeed invalid."
At the end of the trial, the trial court read its tentative decision into the record. In the tentative ruling, the trial court found (1) Parkside cured the property tax default; (2) the Bank suffered no impairment from the delay in receiving Parkside's financial documents; (3) the loan agreement did not require Parkside to obtain a state license for an assisted living facility; and (4) the loss of the state license was not a materially adverse change in Parkside's financial condition because the business continued to operate with another tenant and the property had sufficient value to support the loan. Thus, the Bank's reasons for foreclosing were improper.
Nevertheless, the trial court concluded that the due on sale clause provided for acceleration of the loan if the property were leased for a period greater than three years without the Bank's prior written consent. The trial court found Parkside leased the property to Tenant for 20 years and Parkside failed to obtain Bank's consent for the lease. The trial court concluded that, as a result of the lease, the Bank "was justified in foreclosing."
The written lease reflects it was for 10 years. Zhang testified the lease was for 20 years.
In regard to damages, the trial court remarked that, in a breach of contract case, the amount of damages cannot "be determined later." The trial court found Parkside failed to provide documentary evidence of refinancing. The trial court found Zhang's testimony about refinancing and obtaining a subsequent loan was vague, unsubstantiated, and not credible. The trial court found no evidence of the costs incurred as a result of the refinancing or of the attorneys' fees. The trial court remarked that Zhang did not want to disclose financial records at trial. The court commented that the little evidence that was submitted on damages was "contradictory with differing dates, approximations, and different amounts of the loan that included unknown additional financing for repairs and financing to keep the facility operational. There simply [were] no specifics." The trial court noted that Parkside filed a declaration one month after trial addressing damages, but the trial court would not consider the declaration. The court found Parkside failed to prove damages.
A statement of decision was not requested. The trial court entered judgment in favor of the Bank. The trial court awarded the Bank attorneys' fees in the amount of $46,278.75.
DISCUSSION
A. DAMAGES
Parkside contends the trial court erred by concluding that Parkside failed to prove the amount of damages with reasonable certainty. Parkside asserts the court erred because Parkside was not required to prove the particular amount of damages with certainty. For example, Parkside asserts it sufficiently proved that it refinanced into a more expensive high-interest loan, which proves damages occurred—it did not need to establish the exact amount of that damage with certainty.
At the outset, we clarify the record. In the trial court's tentative ruling it said, "The Court finds that plaintiff failed to establish that it incurred damages resulting from a breach by defendants." The trial court found Zhang's testimony "was not credible." Thus, the trial court found damages, in general, were not proven. Accordingly, we construe Parkside's contention as asserting the trial court erred by concluding Parkside failed to prove damages—not a certain amount of damages, but damages in general. We note that we are discussing the findings given in the trial court's tentative ruling; nevertheless, we proceed with the discussion for the sake of resolving the issue presented on appeal. (See generally Nellie Gail Ranch Owners Association v. McMullin (2016) 4 Cal.App.5th 982, 996 [discussing the consequences of failing to request a statement of decision].)
We apply the substantial evidence standard in determining whether the trial court erred in making its findings. Under this standard, we view the record in the light most favorable to the judgment. We make all reasonable inferences and resolve all evidentiary conflicts in favor of the judgment. We do not reweigh the evidence or reevaluate the credibility of witnesses, rather, we defer to the trial court's credibility findings. (Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1451.)
Damages are an element of a breach of contract claim. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.) In order to recover damages for a breach of contract, the damages must be "clearly ascertainable in both their nature and origin." (Civ. Code, § 3301.) "Where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citations.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation." (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873.)
Zhang testified about refinancing into a high-interest loan, and then refinancing a second time into a "normal loan." The trial court found Zhang's testimony regarding damages "was not credible." We defer to the trial court's credibility determination. While testifying, Zhang said he did not have the refinancing documents with him in court. Because Zhang was not credible, and the refinancing documents were not presented in court, there was not reasonable and credible evidence of damages. As a result, there was no means of determining if Parkside paid more for the refinanced loans. Therefore, we conclude the trial court did not err by finding damages were unproven.
Parkside contends the trial court erred because the fact that damages occurred was conceded by the Bank. Parkside cites to (1) the testimony of an employee of the Bank, and (2) the Bank's trial brief. The following exchange occurred during the Bank employee's cross-examination:
"[Attorney]: Do you think there's a big difference between having a loan at five percent for five years on a 15-year loan versus an 11 percent interest-only loan for a year that has to be repaid immediately?
"[Bank Employee]: They're different loans.
"[Attorney]: If plaintiff had to pay $13,000—that's about $5,000 more than the loan to [the Bank]—for the hard money loan at an interest-only rate, how much more did plaintiff have to pay each month?
"[Bank Employee]: I'm not good at algebra. I'm sorry. I can't do the math in my head.
"[Attorney]: Would you confirm that it is more than what he would have to pay to [the Bank]?
"[Bank Employee]: With that change of interest rate, okay. You know, that loan apparently wasn't amortizing so it's hard to tell off the top of my head if the payments were higher or not. The interest rate itself was higher.
"[Attorney]: I have no further questions, your Honor."
The testimony cited by Parkside proves (1) Parkside had a different loan, (2) the Bank employee was not good at algebra, and (3) the refinanced loan had a higher interest rate than the loan from the Bank, but the payments may not have been higher. The testimony does not reflect a concession that Parkside suffered damages.
Next, we look at the portion of the Bank's trial brief cited by Parkside. In the Bank's trial brief, it wrote, "Plaintiff refinanced its loan and paid off the Bank." This sentence does not reflect damages were suffered by Parkside. From this sentence one can speculate that Parkside obtained more favorable loan terms when it refinanced. The sentence is not a concession that damages occurred.
The next sentence cited by Parkside is, "Plaintiff apparently could only refinance through a hard money lender. This fact alone speaks volumes as to whether the plaintiff's financial condition had suffered a material adverse change or whether the prospect of payment or performance of the loan had been impaired." Assuming this sentence is a concession that Parkside had to refinance through a hard money lender, it does not establish that Parkside suffered damages. It does not reflect that Parkside had to spend more money than it did under the original loan from the Bank. Accordingly, we are not persuaded that the Bank conceded the issue of damages.
Parkside contends the trial court's discrediting of Zhang's testimony can be attributed to the interpreter used when Zhang testified. Parkside points to the trial court's comments that Zhang's testimony was "vague," to support its argument that it was the interpreter's fault Zhang's testimony appeared not credible.
The trial court explained, "Mr. Zhang's brief testimony at trial related to damages provided vague and unsubstantiated assertions about a hard money loan, followed by a subsequent loan, but it's not clear when. Also, there was a vague reference to attorney's fees by defense attorney in one of his questions, but plaintiff never ratified defense counsel's question or provided any evidence in support thereof. It was simply a question by [defense counsel] that included the amount of $60,000, but plaintiff discussed something else and never agreed with it or disagreed, and obviously the questions of counsel are not evidence.
"Further, the Court finds that any testimony provided by Mr. Zhang related to subsequent loans and damages was vague and evasive. In fact, plaintiff's counsel had indicated that he didn't want to provide financial records or disclose financial records, and that was his choice, but he didn't provide those at trial. It was also contradictory with differing dates, approximations, and different amounts of the loan that included unknown additional financing for repairs and financing to keep the facility operational. There simply [were] no specifics. Plaintiff's testimony on damages was insufficient, vague, unsupported by evidence, and it was not credible, in the Court's view."
The trial court's finding that Zhang's testimony was vague was not due to linguistic challenges. Rather, the trial court explained that the testimony was vague because it lacked specific information related to the refinancing and attorneys' fees. Thus, we are not persuaded that the trial court's credibility finding was due to linguistic issues attributable to the interpreter.
B. DUE ON SALE CLAUSE
Parkside contends the trial court erred in concluding the due on sale clause provided justification for the foreclosure proceedings. Parkside asserts the trial court erred because the Bank provided no notice to Parkside that it was accelerating the loan due to the long-term lease.
We have concluded ante that the trial court did not err in its finding that Parkside failed to prove damages. Because damages were not proven, the breach of contract cause of action necessarily fails. (See Rutherford Holdings, LLC v. Plaza Del Rey, supra, 223 Cal.App.4th at p. 228 [damages are an element of breach of contract].) The breach of implied covenant cause of action also fails due to the failure to prove damages. (See Wolkowitz v. Redland Ins. Co. (2003) 112 Cal.App.4th 154, 162 [damages are an element of breach of implied covenant].)
At trial, Parkside conceded its injunctive relief cause of action was moot. Parkside sought a declaration "by the court that [the] sale of the property to enforce the deed of trust is improper in that after reinstatement[] the loan will be de-accelerated." At the time of trial, Parkside had twice refinanced the property. A declaration by the court for the purpose of deaccelerating the loan would have no effect because the loan no longer existed because Parkside had refinanced. (Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 46 [an issue is moot when a ruling can have no practical effect or cannot provide parties with effective relief].)
In sum, the breach of contract cause of action and the breach of implied covenant cause of action fail due to Parkside's failure to prove damages. The injunction and declaratory relief causes of action are moot. Therefore, the issue of whether the trial court erred by relying on the due on sale clause to justify the foreclosure is also moot. This court cannot provide Parkside with any effective relief by deciding the issue. Accordingly, we will not address the substance of the contention. (Corrales v. Bradstreet, supra, 153 Cal.App.4th at p. 46 [an issue is moot when a ruling can have no practical effect or cannot provide parties with effective relief].)
C. ATTORNEYS' FEES
1. FACTS
The deed of trust provides, in relevant part, "If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal."
The loan agreement provides, in relevant part, "Borrower agrees to pay upon demand all of [the Bank's] costs and expenses, including [the Bank's] attorneys' fees and [the Bank's] legal expenses, incurred in connection with the enforcement of this Agreement."
In Parkside's FAC, it made the following allegations: (A) the Bank "is the trustee and beneficiary of the Deed of Trust"; (B) "[t]he Deed of Trust Right to Cure provision has a clause providing for reinstatement of a non-monetary default which provides that if the non-monetary default is curable and if Trustor has not been given a notice of a breach of the same provision of this Deed of Trust . . . it may be cured"; (C) "[o]n March 18, 2013, [Parkside] and the Bank entered into and executed the Loan Agreement as a written contract"; (D) "[t]he Bank has breached the written contract in that, even though [Parkside] was reinstated its default to de-accelerate [sic], the Bank issued (1) the Notice of Default[,] and (2) the Notice of Sale"; (E) "[a]s a result of the Bank's breach of the written contract, [Parkside] has been damaged in an amount to be determined at trial"; and (F) "[t]he Bank had a duty of good faith and fair dealing under the contract to do everything that the contract presupposes that each party will do to accomplish its purpose."
Also in the FAC, Parkside sought "[a]ttorney's fees pursuant to the written contract."
2. ANALYSIS
Parkside contends the trial court erred by awarding attorneys' fees to the Bank.
Because we are primarily determining if the criteria for an award of attorneys' fees has been met, we apply the de novo standard of review. (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 905.) "As a general rule, each party to litigation must bear its own attorney fees, unless otherwise provided by statute or contract. (Code Civ. Proc., § 1021.)" (Hyduke's Valley Motors v. Lobel Financial Corp. (2010) 189 Cal.App.4th 430, 434.)
Parkside sued the Bank for breaching the agreement. As set forth ante, Parkside alleged (1) "[t]he Bank has breached the written contract"; (2) "[a]s a result of the Bank's breach of the written contract"; and (3) "[t]he Bank had a duty of good faith and fair dealing under the contract."
The attorney's fee provision in the agreement provides, "Borrower agrees to pay upon demand all of [the Bank's] costs and expenses, including [the Bank's] attorneys' fees and [the Bank's] legal expenses, incurred in connection with the enforcement of this Agreement."
In Parkside's lawsuit it sought to enforce the agreement by stopping the Bank's alleged breach of the agreement. Parkside wanted the Bank to stop its foreclosure and deaccelerate the loan, i.e., return the loan to its original terms, and it wanted damages due to breach of the agreement. Thus, Parkside sued to enforce the agreement. As a result, the Bank incurred legal expenses in connection with Parkside's enforcement of the agreement. Therefore, the trial court did not err by awarding attorneys' fees to the Bank.
Parkside asserts the attorney fee provision provides for an award of fees to the Bank if the Bank seeks to enforce its rights; because Parkside sought to enforce Parkside's rights, the Bank is not entitled to attorneys' fees. As set forth ante, the agreement provides, "Borrower agrees to pay upon demand all of [the Bank's] costs and expenses, including [the Bank's] attorneys' fees and [the Bank's] legal expenses, incurred in connection with the enforcement of this Agreement." The agreement does not indicate who must seek enforcement of the agreement. It does not identify the Bank as the enforcer, e.g., in connection with the Bank's enforcement. As a result, we are not persuaded that the Bank must be the party seeking enforcement of the agreement in order for attorneys' fees to be awarded.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.