Mendez v. Steele

Filed 3/5/07 Mendez v. Steele CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In this action under the Domestic Violence Prevention Act (DVPA) (Fam. Code, 6200 et seq.^[1]Eduardo Flores Mendez appeals from an order awarding attorney fees of $72,472 to Jessica Steele, respondent. Appellant contends that the trial court acted in excess of its jurisdiction because (1) in her initial pleading, respondent failed to indicate that she wanted appellant to pay her attorney fees; (2) respondent failed to present evidence concerning factors that must be considered in determining whether to award attorney fees under the DVPA; (3) a hearing was never conducted on respondent's request for a temporary restraining order (TRO) and respondent "was never found to be the prevailing party." In addition, appellant contends that the trial court erroneously failed to require respondent to prove the amount of time that her attorney had spent on the DVPA action as opposed to a related parentage action. We affirm and impose sanctions for filing a frivolous appeal.

Factual and Procedural Background

On March 30, 2005, respondent filed a pleading (Form DV-100) in which she sought protection from appellant under the DVPA. Respondent stated that the parties were engaged to be married and were the parents of two children aged six months and three years. Respondent requested that she be awarded legal and physical custody of the children, and that appellant have "[n]o visitation until the hearing." Respondent did not check a box on the pleading form requesting attorney fees and costs. On March 30, 2005, an ex parte TRO and notice of hearing (Form DV-110) were issued.

On June 28, 2005, the trial court appointed a child custody evaluator to conduct a child custody evaluation. On April 17, 2006, copies of the evaluation were transmitted to counsel. On May 5, 2006, respondent filed a notice of motion for attorney fees and costs.

On May 15 and 24, 2006, the trial court conducted a hearing. The court heard testimony from both parties, the child custody evaluator, and other witnesses. Following the hearing, the court ordered that respondent have sole legal and physical custody of the children, subject to supervised visitation by appellant. In addition, it ordered that the TRO issued on March 30, 2005, "shall remain in force and effect, except for [appellant's] visitation with the children as set forth herein."

The trial court ordered a bifurcated hearing on respondent's request for attorney fees and costs. On June 5, 2006, respondent filed a memorandum of costs totaling $82,500, including attorney fees of $72,472 and the child custody evaluator's fees of $9,000. On June 14, 2006, appellant filed a motion to tax costs.

On July 18, 2006, the trial court conducted the bifurcated hearing on attorney fees and costs. No testimony was presented at the hearing. The court awarded respondent attorney fees and costs of $73,500: the requested amount of $82,500, less the evaluator's fee of $9,000. The court's minute order refers to its tentative ruling issued prior to the hearing, in which the court stated: "The attorney fees of $72,472 are reasonable and necessary. I will not require [appellant] to pay [respondent's] share of the evaluator's fees. . . . []  Analysis: I agree with [respondent] that in this case she has steadfastly resisted, over a period of 16 months, during which there has been lengthy litigation. She has been the prevailing party at each motion that she either brought or defended. She ultimately obtained the implementation of the court-ordered evaluation recommendations, after trial, to which [appellant] objected."

Appellant filed an appeal from the trial court's order of July 18, 2006. Appellant later filed a notice stating that he was electing "to proceed without a reporter's transcript."

Respondent's Failure to Check the

Attorney Fees Box in Her Initial Pleading

In her initial pleading (Form DV-100), respondent failed to check a box on the form requesting attorney fees and costs. Appellant contends that this omission deprived the trial court of jurisdiction to award her attorney fees. Appellant relies on In re Marriage of Lippel (1990) 51 Cal.3d 1160.

In Lippel our Supreme Court held that "it is a denial of due process as embodied in Code of Civil Procedure section 580 (section 580), to enter a default judgment ordering a husband to pay child support, where the wife's petition for marital dissolution, which was served on the husband, did not request child support and no notice of any such request was ever served on the husband." (In re Marriage of Lippel, supra, 51 Cal.3d at p. 1163.) At the time of the Lippel decision, section 580 provided: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the Court may grant him any relief consistent with the case made by the complaint and embraced within the issue."^[2] The Supreme Court declared that "[t]he 'primary purpose of the section is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them.' [Citations.]" (Id., at p. 1166.)

The Supreme Court noted that the Judicial Council had "established a mandatory standard form dissolution petition" that "requires a petitioner to set forth certain statistical information in spaces provided, and to check boxes, from a series provided, which indicate the remedy or relief requested (e.g., legal separation, dissolution, or nullity of the marriage) and the specific relief being sought (e.g., property division, spousal support, child custody, child support or attorney fees). []  Coupled with the requirement that the respondent be served with a copy of the petition . . . , the manner in which these boxes are checked, or not checked, informs and puts the respondent on notice of what specific relief the petitioner is, or is not, seeking." (In re Marriage of Lippel, supra, 51 Cal.3d at p. 1169-1170.) Thus, if a box is not checked, the respondent is put on notice that the petitioner is not seeking the relief applicable to that box. "To hold otherwise," the court reasoned, "would render a petitioner's decision whether to check or not to check a particular box to no effect. For example, the Judicial Council could not have intended to permit a party to leave the box requesting attorney fees and costs blank and then be able to obtain an order for attorney fees under the general request for 'other orders.' Such a result would put the respondent at risk and would subvert the purpose of section 580 to assure a defaulting party of the maximum judgment that will be entered against him or her." (Id., at p. 1170, italics added.)

Lippel is of no assistance to appellant because it applies only when a default judgment is entered. (In re Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429 [wife's reliance on Lippel "is misplaced" because "[t]he instant case does not involve a default"]; see also Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1675 ["[i]f plaintiff believed it was entitled by statute to attorney fees, it had to allege that fact in its complaint and demand the fees in the prayer to obtain such relief against any defaulting defendants"].)

Appellant was not a defaulting party. He was put on notice that respondent was requesting attorney fees, and he defended against that request. His attorney was present at a hearing on the matter. Appellant never complained in the trial court of respondent's failure to check the attorney fees box in the initial pleading. "Due process, the concern in the Lippel case," was satisfied under these circumstances. (In re Marriage of Liss, supra, 10 Cal.App.4th at p. 1429.) Therefore, respondent's failure to check the attorney fees box did not deprive the trial court of jurisdiction to award attorney fees.

Respondent's Alleged Failure to Present Evidence

Appellant contends that the trial court also acted in excess of its jurisdiction because respondent failed to present evidence "on the multiple factors that [the court] must consider under the statutory basis for granting attorney fees under the [DVPA]." Appellant relies on section 6344, subdivision (b), which provides: "In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay."

Appellant overlooks section 6344, subdivision (a), which provides an alternative discretionary basis for awarding attorney fees: "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party." Unlike subdivision (b), subdivision (a) does not set forth any factors that the trial court must consider in determining whether and in what amount to award attorney fees. We assume that the trial court proceeded under subdivision (a) rather than subdivision (b). " '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.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

A Hearing Was Conducted on Respondent's Request for a TRO,

and Respondent Was Found to be the Prevailing Party

Appellant contends that the award of attorney fees was jurisdictionally defective because a hearing was never conducted on respondent's request for a TRO and respondent "was never found to be the prevailing party." But hearings were conducted on May 15 and 24, 2006. Following the hearings, the court ordered that respondent have sole legal and physical custody of the children, subject to supervised visitation by appellant. The court also ordered that the TRO issued on March 30, 2005, "shall remain in force and effect, except for [appellant's] visitation with the children as set forth herein." In view of these rulings, as well as rulings on prior motions, the trial court did find that respondent was the prevailing party. In its tentative ruling on the request for attorney fees, the court declared: "[Respondent] has been the prevailing party at each motion that she either brought or defended. She ultimately obtained the implementation of the court-ordered evaluation recommendations, after trial, to which [appellant] objected."

Related Parentage Action

On May 5, 2005, appellant filed a petition to establish a parental relationship under the Uniform Parentage Act ( 7600 et seq.). (Santa Barbara Superior Court, case number 1167128). (Request for Jud. Notice, p. 13) In a one-sentence argument, appellant contends: "[I]n the unlawful manner in which attorney fees were addressed in this case, never did the trial court require [respondent] to prove exactly what attorney time was spent on the domestic violence aspect of the case." Appellant appears to be arguing that respondent was seeking attorney fees for both the DVPA action and the parentage action, and the trial court abused its discretion by failing to require respondent to prove the amount of time spent by her attorney on the DVPA action.

Appellant makes no effort to develop this point, nor does he refer to the record. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) " 'It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.' [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

In addition, by not providing a reporter's transcript of the hearing on respondent's request for attorney fees, appellant has failed to present a record sufficient to show that the trial court abused its discretion.^[3] Without a reporter's transcript, the record is silent as to arguments by counsel and findings or statements by the court at the hearing. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 ["[b]ecause they failed to furnish an adequate record of the attorney fee proceedings, defendants' claim [of error in calculating the amount of attorney fees] must be resolved against them"]; Vo v. Los Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 ["[t]he absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion"].)

Finally, appellant has not even shown that his counsel raised the parentage issue in the trial court. A failure to raise the issue would constitute a waiver. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal. [Citations.]" (In re Marriage of King (2000) 80 Cal.App.4th 92, 117.)

Appellant, therefore, cannot prevail on his claim of abuse of discretion.

Frivolous Appeal

Respondent has filed a motion requesting that we sanction appellant for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(e); Code Civ. Proc., 907.) "[T]he power to punish attorneysfor prosecuting frivolous appeals . . . should be used most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.) Therefore, "an appeal should be held to be frivolous only when it is prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment - or when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [] However, any definition [of "frivolous"] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals." (Id., at p. 650.)

Any reasonable attorney would agree that this appeal is totally and completely without merit. It indisputably has no merit and it is reasonable to infer that the appeal was filed solely to delay the enforcement of the order awarding attorney fees. Accordingly, sanctions should be imposed for filing and maintaining a frivolous appeal.

The amount of sanctions "may include the costs and attorney fees incurred by the respondent in defending against the appeal and the expense incurred by the appellate court in processing, reviewing, and deciding the appeal." (People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1081.) "We may order a litigant, his attorney, or both to pay sanctions on appeal. [Citation.]" (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 36.)

Respondent's counsel has declared under penalty of perjury that, in defending against the appeal, her client incurred attorney fees of $8,352.50. We find sanctions in this amount to be reasonable. We decline to impose sanctions for the expenses incurred by this court in processing the appeal.

This opinion constitutes the written statement of reasons required by In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654.

Disposition

The order awarding attorney fees to respondent is affirmed. As sanctions for this frivolous appeal, appellant and his attorneys, Gary R. Ricks, Brigham J. Ricks, and Ricks & Associates, are jointly and severally liable to pay $8,352.50 to respondent. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), the clerk of this court is directed to forward a copy of this opinion to The State Bar of California.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Thomas P. Anderle, Judge

Superior Court County of Santa Barbara

______________________________

Gary R. Ricks and Brigham J. Ricks; Ricks & Associates, for Appellant.

Diane M. Matsinger and Daniel A. Murphy, for Respondent.

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^[1]All statutory references are to the Family Code unless otherwise stated.

^[2]Current Code of Civil Procedure section 580, subdivision (a), provides: "The relief granted to the plaintiff, if there is no answer, cannot exceed that which he or she shall have demanded in his or her complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles."

^[3]The court's minutes for the hearing show that a reporter was present. (AA 154)