Filed 1/8/18 Hetman v. Harm CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


WAYNE T. HETMAN,

Cross-complainant and Appellant,

v.

JAMES MICHAEL HARM et al.,

Cross-defendants and Respondents.


G052288

(Super. Ct. No. 30-2009-00325635)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. Motion to augment the record denied.
Wayne T. Hetman, in pro. per., for Cross-complainant and Appellant.
Law Offices of Richard A. Jones, Richard A. Jones and Jarrick S. Goldhamer, for Cross-defendants and Respondents.
* * *


This dispute has visited our court many times. In this latest iteration, Wayne T. Hetman appeals from a posttrial order entered after he obtained a judgment against his neighbors, James Michael Harm (James) and Soraya Maria Harm (collectively, the Harms), in the second lawsuit between them. The Harms prevailed against Hetman in the first lawsuit.
Hetman contends the trial court erred by: (1) denying his motion for attorney fees; (2) refusing his proposed jury instruction to inform the jury about his right to an award of punitive damages under Civil Code section 1798.53 (section 1798.53) (providing for an automatic award of $2,500 on a cause of action for illegal disclosure of personal information), and then denying his posttrial motion to add that sum to the judgment; (3) refusing to terminate a judgment lien in favor of the Harms; and (4) refusing to grant his request for a permanent injunction against them.
However, Hetman’s notice of appeal identifies only a single order he is appealing from, dated May 20, 2015. And while that order disposes of several discrete motions, it includes only two of the ones addressed in this appeal: Hetman’s motion for an award of attorney fees and his motion to add statutory punitive damages to the judgment. The other errors he claims do not arise out of that order. Because the notice of appeal defines our jurisdiction, we have no power to redress alleged errors that fall outside the scope of the order or judgment appealed from. Consequently, we consider only the propriety of the court’s rejection of Hetman’s claim for attorney fees and its refusal to add statutory punitive damages to the judgment.
And we find no error in either ruling. Hetman’s claim for attorney fees appears to be grounded on the assertion he prevailed on a claim for “invasion of privacy” under section 1798.53, which allows for the recovery of attorney fees. However, the single cause of action Hetman pleaded against the Harms, which he called “deceitful dealings,” encompassed a variety of alleged bad acts, including some that were clearly outside the scope of that statute. And because the jury returned only a general verdict in his favor, Hetman cannot establish the jury found in his favor on that specific aspect of the alleged wrongdoing. Consequently, we cannot conclude the court erred by denying his claim for attorney fees.
Hetman’s contention that the court erred in denying his motion to add punitive damages to the judgment fails for the same reason. His punitive damages claim is likewise based on section 1798.53, and even if we assume his broader cause of action for “deceitful dealings” would qualify as an “action brought under that section” (section 1798.53), the jury’s general verdict does not establish he actually succeeded on that aspect of his claim. Consequently, we cannot conclude it was error to deny his motion to add statutory punitive damages to his judgment.
I
FACTS
Hetman and the Harms were once neighbors. As we noted in an earlier opinion, they clashed from the start: “The first day [the Harms] were there, Mr. Hetman came over to introduce himself and lay the ground rules. According to Mrs. Harm, Mr. Hetman ‘said he didn’t want the neighborhood turning into a teenage hangout, wasn’t going to tolerate cars parking in front of his house or ours.’ He also told her that ‘[h]e wasn’t going to tolerate any dog barking.’ The following week, Mr. Hetman came over and told Mrs. Harm that ‘he didn’t appreciate all that trash on our side yard he first saw when he came out of his front door’ Mrs. Harm testified that the trash was not visible from the street and would only have been visible if someone were looking over their wall into their backyard. Thereafter, Mr. Hetman complained to Mrs. Harm almost daily about the trash. [¶] Matters only degenerated from that point.” (Harm et al. v. Hetman (June 25, 2009, G039955) [nonpub. opn.] (Harm 1).)
“Finally, the Harms decided to put up a wall on their side of the property. When the workmen began work, Mr. Hetman insisted that he owned the property they were working on and called the police, with the result that the contractor ceased work and the Harms were unable to erect a wall between themselves and their disruptive neighbor. [¶] The Harms filed a suit against Mr. Hetman for quiet title, slander of title,
nuisance, negligence, intentional infliction of emotional distress, declaratory relief and
injunctive relief. Mr. Hetman cross complained against the Harms for quiet title,
injunctive relief, negligence, and slander.” (Harm 1, supra, G039955.)
In that first lawsuit, the judgment quieted title to a disputed four-inch strip of land in favor of Hetman, but awarded the Harms both a “keep away” injunction and over $400,000 in compensatory and punitive damages against him. (Harm 1, supra, G039955.)
Thereafter, the Harms began efforts to collect their judgment against Hetman, apparently utilizing an array of tactics both acceptable and unacceptable. Additionally, Hetman began experiencing acts of vandalism and malicious mischief, which he attributed to the Harms.
In December 2009, Hetman’s insurer, California Capital Insurance Company (CCIC), filed a declaratory relief action against both Hetman and the Harms, to determine its coverage obligations in connection with the judgment. Hetman responded by filing a cross-complaint against both CCIC and the Harms.
Hetman’s cross-complaint alleged causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief against CCIC, and a cause of action for “deceitful dealings” against the Harms.
According to the cross-complaint, the Harms’ deceitful dealings were plenary, and include invading Hetman’s privacy “by illegally or improperly obtaining a copy of Hetman’s Confidential Application for a Fee Waiver . . . , and then proceed[ing] on multiple occasions to make this Confidential document a matter of public record by attaching it as an exhibit to numerous motions.”
The cause of action also alleges the Harms engaged in acts which could be described as identity theft, including that “James Harm with malicious intent, pretended to be . . . Hetman, using Hetman’s social security number as an identifier, and acted to obtain information and benefits improperly and illegally by such identity theft and fraud. Specifically, James Harm called Hetman’s telephone provider, AT&T, and fraudulently used Hetman’s identity and impersonated Hetman. He . . . acted to change Hetman’s phone service, adding new lines, making complaints about existing service, and causing over $250 in additional charges to Hetman’s account . . . .” Hetman also alleged the Harms “[used his] information fraudulently in other cases to obtain financial benefits or information not due them,” and “[i]mproperly access[ed his] credit card information,” and that James “used his employment contacts with Verizon to invade Hetman’s privacy by checking his cell phone usage and whereabouts.”
However, Hetman also alleges the Harms engaged in other deceitful dealings that are unrelated to either an invasion of privacy or identity theft, including “[a]ttempting a break in at Hetman’s home,” “filing a false report to police . . . that Hetman’s vehicle was involved in a drug deal,” “[s]tealing a religious statue from Hetman’s front yard,” and “[t]hrowing eggs on Hetman’s vehicle.”
In September 2014, following a trial on Hetman’s cross-complaint, the jury returned a general verdict in his favor, and against each of the Harms on the claim for deceitful dealings. The jury awarded Hetman $100,000 in compensatory damages, but although the jury also concluded that both of the Harms had acted with “malice oppression or fraud,” it awarded Hetman no punitive damages. Judgment on that verdict was entered on December 8, 2014.
Hetman did not file any appeal from that judgment. However, both he and the Harms pursued posttrial motions. Shortly after the judgment was entered, the Harms moved for a new trial, and for a judgment notwithstanding the verdict. The trial court denied both motions, concluding there was substantial evidence to support the jury’s verdict. In its ruling, the trial court specifically highlighted evidence that the Harms “engaged in deceitful and fraudulent conduct by impersonating . . . Hetman to AT&T to alter [Hetman’s] account with AT&T” and that Hetman “sustained general damages and special damages as a result of the wrongful conduct to support the amount of damages awarded.”
The Harms also filed a motion to offset Hetman’s judgment against the earlier judgment they had obtained against him, as well as a motion to tax his claimed costs.
In February 2015, Hetman moved for an award of attorney fees, and also moved for an order adding $2,500 in punitive damages to the judgment, citing section 1798.53 and arguing the jury’s failure to award punitive damages was “not in keeping with the law.” And Hetman also filed a motion to terminate the judgment lien the Harms had filed earlier in the case.
In its order dated May 20, 2015, the trial court denied Hetman’s motion for attorney fees, and denied his motion to add punitive damages to the judgment.
In that same May 20 order, the court also made various rulings in connection with the Harms’ motion to tax costs, and it continued the Harms’ motion to offset the judgment, so it would be heard in conjunction with Hetman’s motion to terminate their judgment lien, scheduled for a week hence.
On July 20, 2015, Hetman filed his notice of appeal, specifying he was appealing from the order entered on “5/20/15, ect.”
II
DISCUSSION
1. Limited Scope of Appeal
California Rules of Court, rule 8.100(a)(2) states “[t]he notice [of appeal from a trial court order or judgment] is sufficient if it identifies the particular judgment or order being appealed.” Moreover, because our jurisdiction to address trial court error is “‘limited in scope to . . . the judgment or order appealed from.’” (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) We have no power to address alleged errors that are separate from the judgment or order identified in the notice of appeal.
And while we are aware of our obligation to “liberally construe[]” a notice of appeal (Cal. Rules of Court, rule 8.100(a)(2)), when a notice unambiguously refers to a specific document and fails to mention another, it is inadequate to allow review of the second, unspecified, document. (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 [“Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed”].)
In this case, Hetman’s notice of appeal identified a specific order he was appealing from – dated May 20, 2015. While the Harms assume the “ect.” which follows that date on the notice represents “etcetera,” our joining in that assumption would do nothing to broaden the scope of Hetman’s appeal. Stated simply, “etcetera” does not identify any specific additional order covered by the notice of appeal. And if an appellant could rely on that reference as a placeholder for whatever additional orders or judgment might later be challenged in the appellant’s brief, it would obviate the requirement that a notice of appeal actually identify the particular judgment or order(s) being appealed from.
We consequently conclude Hetman’s appeal lies only from the May 20, 2015, order specifically identified in his notice of appeal. And that conclusion prohibits us from addressing some of the issues raised by Hetman in his opening brief.
Specifically, the court’s order refusing to terminate the Harms’ judgment lien was made on July 8, 2015, not on May 20. Moreover, the matter was never before the trial court on May 20. The only connection between the May 20 order appealed from and the order refusing to terminate the lien is that on May 20 the court continued the Harms’ motion to offset the judgments to May 27, 2015, so it would “be heard concurrently with [Hetman’s] Motion for Termination of Lien and Claim of Exemption . . . .” On the latter date, the court took both matters under submission, and then ultimately issued its ruling on July 8.
Because Hetman’s motion to terminate the lien was not before the trial court on May 20, and no ruling on the motion was made that date, we conclude it falls outside the scope of the order Hetman has appealed from.
Hetman’s assertions that the trial court erred by refusing a proposed jury instruction relating to section 1798.53, and by failing to issue a permanent injunction against the Harms, likewise fall outside the scope of this appeal. Both of those alleged errors occurred prior to the entry of judgment, and thus were required to be reviewed, if at all, as part of an appeal from that judgment. “[U]nder the one final judgment rule, interlocutory or interim orders are not appealable, but are only ‘reviewable on appeal’ from the final judgment.” (Rao v. Campo (1991) 233 Cal.App.3d 1557, 1565; see Code Civ. Proc., § 904.1.) Hetman’s notice of appeal did not include any challenge to the judgment itself, and had it purported to do so, it would have been untimely and thus ineffective. (Cal. Rules of Court., rule 8.104(a)(1)(C) [a notice of appeal cannot be filed more than 180 days after entry of judgment].) Thus, we cannot address any alleged errors that were committed prior to entry of that judgment.
In light of the foregoing, our review is limited to Hetman’s contentions that the trial court erred by (1) denying his motion for attorney fees, and (2) denying his motion for an order adding an award of punitive damages to this judgment. Both of those rulings are contained in the May 20, 2015, order Hetman appealed from.

2. Alleged Insufficiency of the Record
The Harms contend that Hetman waived his challenge to the denial of his motion for attorney fees on the basis Hetman failed to preserve an adequate record on appeal. The contention lacks merit.
The Harms’ argument focuses on the lack of a reporter’s transcript, documenting what was said during the hearing on Hetman’s motion for a new trial – the order he appealed from. They rely on California Rules of Court, rule 8.120(b), which states: “If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings . . . .” But the Harms make no effort to explain how Hetman’s appeal of the order denying his motion for a new trial would require our consideration of what was said at the hearing. Instead, they simply claim (without citation to the record) that “[Hetman] admits that the transcript of the oral proceedings is a necessary part of this record and included it in his designation of the record, despite knowing that no court reporter was present for the July 1, 2015 motion date.” That conclusory assertion establishes nothing.
The general rule is that a record of oral arguments is necessary only when a party claims that some relevant misconduct or error occurred during that argument. (See Worthington Corp. v. El Chicote Ranch Properties, Ltd. (1967) 255 Cal.App.2d 316, 320 [“‘If counsel desire to urge error in the oral argument it is essential that he order the argument included in the transcript. In the absence of such a record it must conclusively be presumed that no error in the argument occurred’”].) Hetman has made no such claim of error in this case. Nor does either side assert the trial court took evidence on any disputed issue during the hearing on Hetman’s motion for new trial. We consequently reject the Harms’ assertion that the resolution of this appeal requires our consideration of what was said during that hearing. It does not.

3. Denial of Attorney Fees
The trial court’s order denying Hetman’s claim for attorney fees stated several reasons for the ruling: “First, a pro per litigant cannot recover attorney fees as a pro per; further, attorney fees are recoverable only by contract, statute and law – the lawsuit filed by Hetman does not give rise to attorney fees; There was no finding of a violation of any statute to now argue entitlement to attorney fees; Finally, Attorney fees were not pled in the prayer of the Cross-Complaint.”
Hetman contends that each of the trial court’s reasons was flawed, and thus the ruling must be reversed. We agree with some of his contentions. He first points out that the court’s reliance on his self-represented status at trial was misplaced because he supported his motion with evidence demonstrating he was represented by an attorney of record at earlier points in the litigation, and was assisted by counsel during trial. He claims he would still be entitled to recover the attorney fees he incurred for those services, even though he had no attorney of record representing him at trial. The Harms do not dispute that point, and we agree it is correct. “If an attorney is in fact retained by the pro se litigant and renders legal services assisting in the lawsuit, the attorney need not be an attorney of record in order for the reasonable fees of the attorney to be awarded to a prevailing party.” (Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324.)
Second, Hetman argues he was not required to plead or prove his right to the attorney fees he is seeking on account of his status as prevailing party in the litigation. Again, he is correct. The requirement of pleading and proof applies only to attorney fees that are part of the damages suffered as a result of wrongful conduct – e.g., fees incurred to ameliorate the harm caused by the defendant’s wrongdoing – rather than those incurred in litigating the cause of action. (See Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [distinguishing between an insured’s recovery of “attorney’s fees that are an economic loss – damages – proximately caused by the tort” from “recovery of attorney’s fees qua attorney’s fees, such as those attributable to the bringing of the bad faith action itself”].)
Thus, as explained in Mabee v. Nurseryland Garden Centers, Inc. (1979) 88 Cal.App.3d 420, 425, superseded by statute on other grounds in Santisas v. Goodin (1998) 17 Cal.4th 599, 630 (dis. opn. of Baxter, J.), “where attorney fees are incurred in a prior action, or sought in a proceeding as damages—is for example in false imprisonment or malicious prosecution suits—or where recovery is sought in an action by an attorney against his client for an agreed or a reasonable fee, then the claim for attorney fees is part of the damage sought in the principal action. Only in such circumstance would the attorney fee be required to be pleaded and proven—as any other item of damages—at trial. No similar procedural and evidentiary base is required where ‘the attorney fee was not the cause of action but an incident to it.’” (See Faton v. Ahmedo (2015) 236 Cal.App.4th 1160, 1169 [“statutory attorney fees need not be pleaded and proved at trial and may properly be awarded after entry of judgment]”; see also Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 194 [“It is now well settled that attorney fees, whether authorized by contract or statute, are recoverable under section 1033.5, subdivision (a)(10) as an element of costs, and rather than claim attorney fees as an element of damages, the proper method to recover attorney fees is as an item of costs awarded upon noticed motion”], disapproved on other grounds in DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158.)
However, the trial court also reasoned that Hetman’s cross-complaint against the Harm’s “did not give rise to attorney fees” because the jury made no finding “of a violation of any statute” that would support an award of attorney fees. We conclude this was a proper basis for denying Hetman an award of fees.
As we have already noted, Hetman’s claim for attorney fees is based on the assertion he proved a violation of section 1798.53, which prohibits the intentional disclosure of private information which a person knows or reasonably should know, was obtained from governmental records. That statute does provide for the recovery of attorney fees by the complainant “[i]n any successful action brought under this section.” (§ 1798.53.) Moreover, as Hetman points out, his cross-complaint alleged at least one course of conduct – the Harms’ alleged public disclosure of his application for a fee waiver – which might qualify as a violation of that statute.
But as the Harms point out, the jury’s issuance of a general verdict in Hetman’s favor, rather than a special verdict, makes it impossible for Hetman to affirmatively establish that the jury concluded the Harms committed that particular wrong. And Hetman is required to do that in order to demonstrate the trial court’s denial of his attorney fees motion constitutes reversible error. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Had the jury instead returned a special verdict, it would have identified which of the wrongful acts alleged by Hetman were committed by the Harms, and in the case of the Harms’ alleged disclosure of his application for a fee waiver, whether they had done so intentionally. We could then apply those findings to the statute, to determine whether a violation had been proved. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325; Code Civ. Proc., § 624 [a “special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law”].) As it stands, however, we can only conclude the Harms committed one or more of the bad acts alleged by Hetman, but not which one(s).
We acknowledge, as Hetman points out, that the trial court “made a specific finding in its Minute Order of February 4, 2015 . . . that there was substantial evidence that the Harms committed an unlawful act of identity fraud.” There are two reasons why this finding does not assist Hetman. First, section 1798.53 does not prohibit “identity theft,” it prohibits the disclosure of certain private information.
And second, the mere fact the jury was presented with substantial evidence to support a particular finding does not necessarily establish the jury actually made that finding. Significantly, the jury is free to reject even undisputed evidence in support of a fact: “As a general rule, ‘[provided] the trier of fact does not act arbitrarily, [it] may reject in toto the testimony of a witness, even though the witness is uncontradicted.’” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) And when it rejects evidence favoring the party with the burden of proof, that party’s claim may fail – even in the absence of any contrary evidence.
In these circumstances, we cannot infer the jury made the specific findings necessary to establish Hetman succeeded on a claim brought pursuant to section 1798.53. And absent such findings, we cannot say the trial court erred in denying Hetman’s motion for attorney fees. Consequently, we affirm that order.

4. Denial of Motion to Add Punitive Damages to Judgment
Hetman also contends the trial court erred by denying his motion to add an award of punitive damages to his judgment, again basing that contention on the provisions of section 1798.53. That statute provides that in addition to an award of attorney fees, “the complainant [in a successful action brought under the section], in addition to any special or general damages awarded, shall be awarded a minimum of two thousand five hundred dollars ($2,500) in exemplary damages.” (§ 1798.53, italics added.) Hetman’s motion was grounded on the assertion that the jury’s verdict – which awarded him $0 in punitive damages – was inconsistent with the mandate of section 1798.53.
Although the trial court denied that motion on the basis it qualified as a motion for new trial under Code of Civil Procedure section 657, which the court lacked jurisdiction to grant (see Code Civ. Proc., § 659, requiring a motion for new trial to be brought within specified time frames), we need not address that point.
Instead, we conclude Hetman’s motion to add an award of punitive damages to the judgment necessarily fails for the same reason his motion for attorney fees failed – i.e., the jury’s general verdict was insufficient to establish it actually made findings in his favor on the specific facts necessary to establish the Harms violated section 1798.53. In the absence of such findings, Hetman cannot affirmatively demonstrate he was entitled to an award of punitive damages pursuant to that statute. We consequently affirm the trial court’s denial of that motion.
III
DISPOSITION
The trial court’s May 20, 2015, order is affirmed. Hetman’s motion to augment the record is denied. The Harms are entitled to recover their costs on appeal.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.