Ash v. Hoag Property Management

Filed 4/14/06 Ash v. Hoag Property Management CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

C. Robert Simpson, Judge. Affirmed.

Hiram Ash, in propria persona, for Plaintiff and Appellant.

Howard, Strickroth & Parker, LLP, and Michael J. Strickroth for Defendants and Respondents

_______________

Hiram Ash appeals from a trial court order on a post-appeal costs bill. We affirm, as we explain:

In April 2000, Ash sued respondents Hoag Property Management Co., Arlyne Beattie Revocable Trust, and Roland Connors. The complaint brought numerous causes of action, all of them arising out of appellant's and respondents' relationship of tenant and landlord. Trial was to the court, and judgment was for respondents. Ash appealed. We affirmed, and awarded respondents costs on appeal.

The case was remitted to the trial court, where respondents moved for costs, including attorney's fees, based on a fees provision in the lease. The trial court awarded $15,050 in fees and $3,691 in other costs. Ash has again appealed, raising numerous grounds.

We begin our analysis with Ash's contention that the fee award should be reversed because there was no judgment awarding fees after trial. This argument is apparently based on the fact that while there is a minute order finding respondents prevailing parties and awarding fees, the order also says that respondents should give notice -- and they did not. We find the contention puzzling. On appeal of the judgment after trial, we considered Ash's challenge to the fees award, and affirmed the award of those fees. Further, even if respondents' failure to serve notice violated California Rules of Court, rule 391, as Ash argues, we do not see that the violation has the consequence Ash asserts.

Nor do we see that an award of fees after trial is a pre-requisite for an award of fees after appeal. Ash cites Moore v. Liu (1999) 69 Cal.App.4th 745 and Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882. Moore concerns motions under Code of Civil Procedure section 425.16, and holds that a defendant who is voluntarily dismissed after filing a motion to strike under that statute is entitled to have the merits of the motion heard as a predicate to a determination of the defendant's motion for attorney's fees and costs under of that section. (Moore, supra, 69 Cal.App.4th at p. 751.) Lindenstadt reversed an order confirming an arbitration award, and noted that the question of attorney fees on appeal "must necessarily await the outcome of the proceedings on remand since, at this point, there is no 'prevailing party' in the case." (Lindenstadt, supra, 55 Cal.App.4th at p. 894, fn. 9.) Neither case hold that an award of fees on appeal depends on an order (or the form of an order) awarding fees after trial. We see no grounds for reversal in this argument.

Ash next contends that the fees award must be reversed because he, not respondents, was the prevailing party at trial. He argues that he filed the lawsuit to prevent eviction, that the 30-day notice was withdrawn after the lawsuit was filed, and thus that he prevailed. The argument is identical to the one Ash raised in his appeal of the underlying judgment. We found no abuse of discretion in the trial court's finding that respondents prevailed, noting that Ash "sued on numerous legal theories and prevailed on none of them." We cannot change that ruling now. More to the point, Ash was surely not the prevailing party on appeal, and that is the relevant proceeding.

Nor are we persuaded by Ash's renewal of two other arguments which he raised on appeal of the judgment, that fees could not be awarded because respondents were not signatories to any contract which included a fee provision and because he sued in tort, not contract. In our first opinion in this matter, on these arguments, we wrote that "respondents' motion for an award of fees and costs quotes the lease, discusses the evidence on the status of the parties, and includes extensive legal analysis of the issues regarding an award of fees in this case," and again found no error. Ash has presented nothing on this appeal which would allow us to reach a different conclusion.

We now turn to Ash's contention concerning his attempts to disqualify Judge Robert Simpson, who presided over the trial and the post trial proceedings.

These are the facts. Respondents' costs motion was argued and decided on May 18, 2004. On June 1, Ash moved under Code of Civil Procedure section 170.3, subdivision (c) to disqualify Judge Simpson. Under "facts giving rise to disqualification," he cited numerous alleged errors Judge Simpson made in pre-trial and trial rulings in this case and in other litigation between the parties. Only a few paragraphs refer to the May 18 proceeding. In those paragraphs, Ash contended that Judge Simpson erroneously relied on his earlier decision that respondents were prevailing parties, despite the fact that Ash pointed out that there was no "formal order" to that effect, and that Judge Simpson was unprepared for the argument, although he claimed to have read the moving and opposing papers. Ash concluded "After the May 18, 2004 hearing, it was clear that the unorthodox rulings were not isolated, but formed a pattern, culminating with the May 18, 2004 rulings, sufficient to show an appearance of a pattern of disqualification . . . ."

Judge Simpson struck the statement of disqualification as untimely, and also found that even if the statement were timely, it set forth no legal grounds for disqualification. (Code Civ. Proc., § 170.4, subd. (b).) Ash did not timely seek writ review, but filed a motion for reconsideration and a new motion to disqualify, this one based in part on Judge Simpson's order striking the first statement of disqualification. On June 25, Judge Simpson denied reconsideration and struck the second motion.

On July 12, 2004, Ash sought writ review of Judge Simpson's rulings on both motions to disqualify. The writ was denied, as were his petitions to the California and United States Supreme Courts.

Ash now contends that the statements of disqualification were timely, that Judge Simpson created a forbidden adversarial relationship by employing county counsel to assist him in responding to the motions,[1] and that Judge Simpson's finding that the motions did not state grounds for disqualification mooted the findings on timeliness and constituted an abuse of discretion and an act outside his jurisdiction, so that another judge must adjudicate the merits.

Under Code of Civil Procedure section 170.3, subdivision (d), "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding."[2]

The Supreme Court has "repeatedly held, the statute means what it says: Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory." (People v. Panah (2005) 35 Cal.4th 395, 444.)

Moreover, under Code of Civil Procedure section 170.4, subdivision (b), it was perfectly permissible for Judge Simpson to rule on the timeliness of the motions, and his ruling was obviously correct. A statement of disqualification "shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (Code Civ. Proc., § 170.3, subd. (c)(1).) "The matter of disqualification should be raised when the facts constituting the grounds for disqualification are first discovered." (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424.) Ash's motions rely on rulings Judge Simpson made from the inception of the litigation, and the pleadings make it clear that he had long believed that Judge Simpson was biased and incompetent and had been throughout the litigation.

We now consider Ash's contentions about the costs section of the award. The first is that the costs bill was procedurally defective. This argument has its genesis in the fact that there was a clerical error in the costs bill: the amount entered in line one, for filing fees, should have been entered in line two, for preparation of the record, and the amount entered in line two should have been entered in line three. As the trial court noted when Ash raised this argument, the actual nature of respondents' request was fully explained in the accompanying motion and documentation, so that Ash could not have been confused. The mistake was trivial, and did not cause any injustice.

Ash also challenges the amounts awarded for preparation of the record and for printing costs. As to the record, he asserts that the award of $3,467 was too high, in that "many" of the transcripts were already in respondents' possession, that respondents designated too many documents in their counter-designation of the clerk's record, including documents from other appeals which were already in this Court's records and which could have been incorporated into the record. This argument is simply not specific enough, and not sufficiently supported by citations to the record, to allow us to find trial court error.

Respondents sought and were awarded $244 in printing cost, explaining that the costs were incurred in connection with a motion to dismiss the appeal, a reply to Ash's opposition to that motion, and in connection with the respondents' brief. All of this was documented. Ash contends that only the cost of printing the brief was recoverable, under California Rules of Court, rule 27, subdivision (c)(1)(D.) That rule allows costs recovery of "the cost to print and reproduce any brief, including any petition for rehearing or review, answer or reply; . . ." We do not see the limitation Ash suggests, and thus see no error.

Finally, Ash contends that the entire case has been characterized by "a general absence of due process, neutrality, competence and adherence to established law," and that "the trial judge was rendered incompetent by age, and, unable to understand the law or reach independent decisions, relied solely on defense counsel." He argues that all of Judge Simpson's ruling were "suspect," and asks us to conduct a de novo review of all rulings in the case, presumably of the entire case from its inception. We may not do so. On this appeal, we are limited to consideration of the issues surrounding the order appealed from. Having thoroughly reviewed the entire record on this appeal, and all of Ash's arguments, we find no due process violation in these proceedings.

Disposition

The judgment is affirmed. Respondents to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] This apparently refers to facts outside the record. In his brief and at oral argument, Ash identified the lawyer in question as Frederick Bennett. We take judicial notice of the fact that Bennett works for the Superior Court, not the County Counsel.

[2] Respondents read Ash's opening brief as one contending that Judge Simpson's rulings on the disqualification motions are reviewable by appeal, because the rulings implicate his due process rights under People v. Brown (1993) 6 Cal.4th 322, 335. Ash's briefs are extremely difficult to understand, but we do not believe that that is his argument. He writes that "The question of Judge-Simpson's [sic] bias and competence and general lack of Constitutional due process is an issue addressed elsewhere, and per the Calif. Supreme Court in People v. Brown, supra, must be addressed on appeal, especially where a writ petition was filed and denied. [¶] But that is not the issue in this section." (Emphasis added.) At any rate, Brown holds that Code of Civil Procedure section 170.3 forecloses appeal of a denial of a statutory motion for disqualification such as this one, "even when the statutory basis for the motion appears to codify due process grounds for challenging the impartiality of a judge." (People v. Brown, supra, at p. 334;

Roth v. Parker (1997) 57 Cal.App.4th 542, 548.)