Opinion
C095900
07-25-2023
ROGER MYERS, Plaintiff and Respondent, v. JERRY LARSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. SCV0046565)
HORST, J. [*]
This court previously issued an order dismissing two attempts by appellant Roger Myers to appeal the trial court's decision to deny his petition for a civil harassment restraining order against his neighbor Jerry Larson. Only Myers's appeal from the court's order awarding attorney's fees and costs to Larson remains. In this appeal, Myers has failed to provide an adequate record and presents no authority or analysis pertinent to the issues raised by this appeal. We, therefore, rely on the presumption of correctness and affirm the order granting attorney's fees and costs.
BACKGROUND
On April 19, 2021, Myers petitioned for a civil harassment restraining order against Larson. Temporary orders were granted. The matter was tried for three days. Myers contended that numerous instances of conduct occurring from 2018 through 2021 warranted a permanent restraining order. The parties presented testimony, as well as photographic and documentary exhibits, and filed written closing arguments.
On November 8, 2021, the trial court issued a written ruling concluding that Myers failed to establish by clear and convincing evidence (Code Civ. Proc., § 527.6, subd. (i)) that a permanent order should issue.
On November 29, 2021, Larson filed a notice of entry of the November 8, 2021, order.
On January 21, 2022, the trial court ruled on Larson's motion for attorney's fees and costs. (Code Civ. Proc., § 527.6, subd. (s).) Larson requested attorney's fees in the total amount of $18,543 based on an hourly rate of $350 for counsel and $110 for paralegal staff. The court awarded Larson $15,000 in fees and $81 in costs.
On January 25, 2022, Larson filed a notice of entry of the January 21, 2022, order.
On February 7, 2022, Myers filed a "[Proposed] JUDGMENT" combining the trial court's rulings on Myers's petition for a permanent civil harassment restraining order and Larson's motion for attorney's fees and costs. In a signed, handwritten note at the end of the document, the court declined to issue a proposed judgment and referred the parties to the November 8, 2021, and January 21, 2022, orders.
On February 24, 2022, Myers filed a notice of entry of the orders entered on February 7, 2022, November 8, 2021, and January 21, 2022.
On March 7, 2022, Myers filed a notice of appeal from a judgment after court trial entered on February 7, 2022. The notice of appeal attached the February 7, 2022, "[Proposed] JUDGMENT" that the trial court declined to issue, which in turn attached the court's orders issued on November 8, 2021, and January 21, 2022.
On March 14, 2022, Myers filed an amended notice of appeal from an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3)-(13) entered on February 7, 2022, attaching the same documents.
On November 4, 2022, Myers filed "Ex Parte Application to Quash/Dismiss Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial." (Capitalization omitted.) On November 18, 2022, this court issued an order treating Myers's application as a request for a temporary stay pending appeal, which we granted in part and denied in part. Pending resolution of the appeal or further order of this court, we stayed the January 21, 2022, order awarding attorney's fees and costs to Larson, including the examination and production scheduled for December 6, 2022 (Code Civ. Proc., §§ 916, subd. (a), 917.1, subd. (d), 1033.5(a)(10)(B), (c)(5)(A); Quiles v. Parent (2017) 10 Cal.App.5th 130). We denied the request in all other respects.
On December 16, 2022, this court sent a letter to Myers stating that we were considering (1) dismissing the appeal from the" '[Proposed] Judgment,'" filed February 7, 2022, as an appeal of a non-appealable order (Code Civ. Proc., § 904.1), and (2) the appeal of the November 8, 2021, order denying defendant's request for a civil restraining order as untimely. We requested that Myers serve and file a response explaining why these appeals should not be dismissed. We noted that our request did not implicate the appeal of the January 21, 2022, order granting Larson's request for attorney's fees and costs. In so doing we deemed Myers's notices of appeal to include an appeal from the January 21, 2022, order.
On December 27, 2022, Myers filed a response to the court's letter.
On January 19, 2023, we ordered Myers's appeal of (1) the" '[Proposed] Judgment,'" filed February 7, 2022, dismissed as an appeal from a non-appealable order (Code Civ. Proc., § 904.1), and (2) the November 8, 2021, order denying Myers's request for a civil harassment restraining order and dissolving a temporary restraining order dismissed as untimely (Code Civ. Proc., § 904.1, subd. (a)(6); Cal. Rules of Court, rule 8.104). We reiterated that our order did not affect the appeal of the January 21, 2022, order granting Larson's request for attorney's fees and costs, which remained pending in this court.
Our order also addressed the multiple motions to augment the record and requests for judicial notice Myers filed. We denied the motions to augment the record with the exception of item 7, titled "Petitioner's Opposition to Jerry Larson's Motion for Attorney's Fees and Costs." (Capitalization omitted.) We denied Myers's requests for judicial notice in their entirety.
DISCUSSION
Myers challenges the trial court's award of attorney's fees and costs to Larson. However, the record Myers provided on appeal is incomplete, consisting of only the trial court's order granting Larson's motion for attorney's fees and costs and Myers's opposition to the motion. Moreover, Myers's opening brief contains no discussion on the subject other than a request in the conclusion that we reverse the order and issue an order requiring Larson to pay Myers's attorney's fees and costs. Myers's reply brief presents only an argument rehashing his complaints regarding the court's denial of his petition for a civil harassment restraining order. We conclude that Myers forfeited any claims on appeal by filing an inadequate record and briefs.
"' "A judgment or order of the [trial] court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . ." . . . [Citation.]' [Citation.] It is appellant's affirmative duty to show error by an adequate record." (Osgoodv. Landon (2005) 127 Cal.App.4th 425, 435.)"' "A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."' " (Jameson v. Desta (2018) 5 Cal.5th 594, 609; see also Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 557 [" 'Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]' "]; Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [where appellant provided only the trial court's order granting an attorney's fee award and not the moving and opposing papers, "the proper course is to uphold the award"].)
These rules apply equally to Myers who was represented by counsel in the trial court but is in propria persona on appeal. The law gives litigants representing themselves" 'the same, but no greater consideration than other litigants and attorneys.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1288.)
Here the record is plainly inadequate for review of the trial court's ruling on Larson's motion for attorney's fees. Myers directed the trial court clerk to place only the court's ruling on Larson's motion for attorney's fees and costs in the clerk's transcript. The sole item related to that ruling included in Myers's voluminous requests for judicial notice and motions to augment the record is his opposition to Larson's motion. The record does not contain Larson's moving papers, including his attorney's supporting declaration and exhibits, which typically set forth counsel's reasonable hourly rate, the number of hours worked, and the tasks performed. (Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237-238.) In its ruling on the motion, the trial court indicated it had reviewed the declaration of Larson's attorney. The record also does not include Larson's reply, if any, to Myers's opposition.
Also missing is the reporter's transcript of the hearing on the motion, which Myers explains in his designation of the record as follows: "Reporter did not show up." In Maria P. v. Riles (1987) 43 Cal.3d 1281, our Supreme Court addressed the failure of a party challenging an attorney's fees award to provide a reporter's transcript: "It is the burden of the party challenging the [attorney's] fee award on appeal to provide an adequate record to assess error. [Citations.] Here, defendants should have augmented the record with a settled statement of the proceeding. [Citations.] Because they failed to furnish an adequate record of the attorney fee proceedings, defendants' claim must be resolved against them." (Id. at pp. 1295-1296.) Thus, in the absence of a reporter's transcript, Myers had a duty to provide an agreed or settled statement pursuant to California Rules of Court, rules 8.130(h), 8.134, and 8.137. Myers provided neither a transcript nor an agreed or settled statement.
Accordingly, we must affirm the trial court's order granting Larson attorney's fees and costs based on the inadequacy of the record alone.
Myers's briefing is also woefully deficient. Myers offers no argument and cites no authority pertinent to the trial court's award of attorney's fees and costs. Instead, in his reply brief, Myers argues "there is evidence of an abuse of discretion by the Trail [sic] Court in awarding fees by not admonishing and considering [Larson's] credibility after it was proven [he] committed perjury." However, Larson's credibility is irrelevant to the issues on this appeal, which implicate rather the credibility of Larson's counsel who submitted a declaration in support of the motion for attorney's fees and costs. As to the credibility of counsel attesting in a declaration to the attorney's fees Larson incurred, it is well established that "[w]e may not reweigh on appeal a trial court's assessment of an attorney's declaration. [Citation.] 'The trial court, with declarations and supporting affidavits, [is] able to assess credibility and resolve any conflicts in the evidence. Its findings . . . are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations. [Fn. omitted.]'" (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323.)
We note that Myers does not repeat on appeal the arguments raised in his opposition to Larson's motion for attorney's fees and costs, i.e., that Larson was not the prevailing party; he refused Myers's request to informally resolve the matter; and he failed to file a memorandum of costs. We express no view on the merits of these arguments.
It is equally well-established that the burden to affirmatively show error requires more than an assertion that the judgment is wrong. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [" 'An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument' "].)" '[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' [Citation.] 'We are not obliged to make . . . arguments for [appellant] [citation], nor are we obliged to speculate about which issues counsel intend to raise.' [Citations.] We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; see also Gerlach v. K. Hovnanian's Four Seasons at Beaumont, LLC (2022) 82 Cal.App.5th 303, 311-312.)"' "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." '" (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956; see also Bayramoglu v. Nationstar Mortgage, LLC (2020) 51 Cal.App.5th 726, 738; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [matters not properly raised or that lack adequate legal discussion will be deemed forfeited].)
The inadequacies of the appellate record and the deficiencies in Myers's briefing compel us to conclude that Myers has forfeited any contentions he was attempting to raise on appeal.
DISPOSITION
The trial court's order awarding Larson attorney's fees and costs is affirmed. The temporary stay imposed by this court on November 18, 2022, shall remain in place pending finality of this opinion (Quiles v. Parent, supra, 10 Cal.App.5th at p. 148). Larson shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur: RENNER, Acting P. J. BOULWARE EURIE, J.
[*] Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.