Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 075333
Siggins, J.
Giacomo Russo appeals an order awarding attorney fees and costs to his former spouse, Carol Smith. Because Russo received proper notice of the motion, and agreed in a stipulated judgment of dissolution that he would pay the full amount of fees Smith owed her attorney in this matter, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Russo and Smith, both practicing attorneys, were married for over nine years when they separated in May 2003. In July 2005, they reached agreement on the division of community and separate property in a Marital Settlement Agreement (MSA) authored by Russo. A judgment of dissolution, incorporating the MSA, was entered December 30, 2005. Attorney John E. Miller served as Smith’s counsel throughout the dissolution proceedings.
Under the heading of “Attorneys Fees,” the MSA provides: “Husband will bear his own attorneys fees and costs incurred in this matter. Husband will pay the full amount owed to John E. Miller by Wife and Wife’s retainer check will be returned to her by Mr. Miller.” The MSA also provides under the heading “Mediation and Arbitration” that “All disputes and disagreements arising under this agreement will be solved by confidential mediation. If mediation fails, the parties agree to submit all such disputes to confidential, binding arbitration before a neutral arbitrator jointly selected by the parties.”
The parties twice clarified provisions of the MSA in an amendment and addendum, but the attorney fees and the mediation and arbitration provisions were unchanged.
On November 6, 2008, Smith filed a motion to collect Miller’s attorney fees and costs owing under the MSA, and to have certain matters referred to arbitration. After a hearing, the court ordered disputed matters to arbitration and ordered Russo to pay Smith’s attorney fees and costs owed to Miller in the amount of $11,845.07. Russo filed this timely appeal as to the order requiring him to pay Miller’s attorney fees and costs, and alleges he did not receive proper notice of Smith’s motion. He makes no claim that the issue of attorney fees should have been referred to arbitration along with the parties’ other disputes.
DISCUSSION
I. Proper Notice
Russo first argues that the notice of motion Smith served on him was defective because it failed to state relief sought and the legal grounds and facts upon which the motion was made.
Code of Civil Procedure section 1010 requires that, “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” Notice is sufficient even if the grounds are not specified in the notice itself, where they appear in documents that are referred to by the notice and attached to it or included in the record. (Shields v. Shields (1942) 55 Cal.App.2d 579, 583.) Notice will be deemed adequate to meet the code requirements if it fairly advises opposing counsel of the issues to be raised. (Estate of Parks (1962) 206 Cal.App.2d 623, 630.)
All further statutory references are to the Code of Civil Procedure.
Here, Smith’s notice of motion stated when and where the motion was to be made. Her “Application for Order and Supporting Declaration” stated that the facts in support of the motion were contained in her attached declaration.
The motion was brought because the judgment awarding Smith attorney fees and costs incurred for Miller’s services remained unsatisfied and there were other outstanding issues to be referred to arbitration. Smith’s declaration and attached exhibits quoted the provisions of the MSA relevant to the payment of Miller’s fees and the requirement for timely mediation and/or arbitration by the parties. The notice was adequate because it fulfilled the purpose and requirements of the Code of Civil Procedure to ensure that the procedure utilized actually affords reasonable notice to the opposing party. (Girch v. Cal-Union Stores, Inc. (1968) 268 Cal.App.2d 541, 548; Hecq v. Conner (1928) 203 Cal. 504, 506.)
Russo next contends that the motion did not comply with the time for notice required by section 1005. Section 1005, subdivision (b) provides that, “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.... However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days....”
Russo’s argument that Smith’s notice of motion did not comply with section 1005 is without merit. The notice and motion for attorney fees and to compel mediation/arbitration were served by mail on November 3, 2008. The hearing was set and held on December 9, 2008. Russo was thus provided notice of the motion that exceeded the 16 court days plus five days for mailing that was required by section 1005, subdivision (b).
II. Due Process
Russo further asserts that his rights to procedural due process under both the United States Constitution and the California Constitution were violated because he had no reasonable notice or opportunity to be heard. In order to satisfy the requirements of due process, notice must be real and reasonable. (Matter of Lambert (1901) 134 Cal. 626, 633; Estate of Hampton (1942) 55 Cal.App.2d 543, 559.) Notice is sufficient if it is reasonably probable that the party proceeded against will be apprised of the proceeding with sufficient information to afford the party an opportunity to respond. (People v. Broad (1932) 216 Cal. 1, 9; Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 529.) Due process requires only that notice be fair. (Cradduck v. Financial Indem. Co. (1966) 242 Cal.App.2d 850, 861.)
In Jones v. Otero (1984) 156 Cal.App.3d 754, the appellate court reversed a judgment dismissing an action because defendants gave no advance notice of their motion to dismiss. (Id. at p. 757.) “The failure to give plaintiffs notice of defendants’ motion for dismissal... violated not only statutory requirements but fundamental principles of due process as well.” (Ibid.)
Here, Russo received notice of the motion for attorney fees and to compel mediation/arbitration 19 court days before the hearing. The notice and supporting papers stated the relief sought and the grounds upon which the motion was made. Russo’s constitutional rights to procedural due process were not violated.
Since notice was adequate, we will not address whether Russo waived certain arguments or whether Smith had compelling reasons for any failure to adhere to the requirements for properly noticed motions.
III. Even if Notice Was Defective the Error is not Reversible
Even if we were to conclude that notice was improper, we would not reverse the order awarding fees. Reversal may only be granted if the error was prejudicial.
“[W]e must not only determine whether the trial court committed error, but whether the error resulted in a ‘miscarriage of justice.’ ” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1094.) “Where the judgment is ‘ “the only proper one in the state of the record,” ’ even substantial error is not reversible.” (County of Monterey v. W. W. Leasing Unlimited (1980) 109 Cal.App.3d 636, 642.)
Here, it is undisputed that the MSA provides: “Husband will bear his own attorneys fees and costs incurred in this matter. Husband will pay the full amount owed to John E. Miller by Wife and Wife’s retainer check will be returned to her by Mr. Miller.” The MSA does not say that Russo agrees to pay some of the amount owed to Miller by Smith. Nor does it say that Russo agrees to pay a reasonable amount owed to Miller by Smith. The MSA clearly states that Russo agrees to pay “the full amount [Smith] owed to John E. Miller.” Thus, the order issued by the trial court awarding Smith all fees owed to Miller was the only proper one and any error was harmless.
DISPOSITION
The order awarding attorney fees and costs is affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.