Three Grounds for Recovery Did Not Support Request.
Property owner in Marchi-Friel v. Rago, Case No. A130125 (1st Dist., Div. 4 May 31, 2012) (unpublished) did obtain cancellation of a fraudulent grant deed, with the trial court also cancelling related promissory notes out of an abundance of caution. She then sought recovery of attorney’s fees under three grounds, all of which were denied and sustained on appeal.
The initial request was grounded in the good faith improver statute of Code of Civil Procedure section 871.5. The defect here was that a crucial prerequisite to fees under 871.5 was not met--the filing of a good faith improver action or cross-action, something not done by appellant.
The second ground for fees was based on Civil Code section 1717 given the existence of attorney’s fees clauses in the note provisions. The problem here was that the cancellation of the promissory notes was only tangential to the grant deed cancellation, a theory of the case appellant herself espoused such that the fee recovery was not “on the contract” for 1717 purposes.
The third basis was “costs of proof” sanctions for denying requests for admissions under Code of Civil Procedure section 2033.420. No abuse of discretion under the circumstances once the reasons for the denials were explored through the appellate record.