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Jabbar v. Loy

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Nov 8, 2019
D075200 (Cal. Ct. App. Nov. 8, 2019)

Opinion

D075200

11-08-2019

MEERAS JABBAR, Plaintiff and Appellant, v. PATRICIA LOY, Defendant and Respondent.

Meeras Jabbar, in pro. per., for Plaintiff and Appellant. Christina A. Ciceron, APC, and Keith S. Ciceron for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00034348-CU-PT-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. Meeras Jabbar, in pro. per., for Plaintiff and Appellant. Christina A. Ciceron, APC, and Keith S. Ciceron for Defendant and Respondent.

Meeras Jabbar appeals an order awarding $5,000 in attorney fees to Patricia Loy as the prevailing party in a proceeding Jabbar initiated to obtain an elder abuse restraining order. (Welf. & Inst. Code, § 15657.03.) Jabbar's sole appellate challenge is that Loy cited the wrong statute in her moving papers—that is, she cited the statute that governs general civil harassment restraining orders (Code Civ. Proc., § 527.6), whereas Jabbar's petition was based on the statute that governs elder abuse restraining orders. However, because the elder abuse restraining order statute contains an attorney fee provision (§ 15657.03, subd. (t)) virtually identical to the one Loy cited, and because Jabbar has not explained how Loy's citation error has prejudiced him, we affirm the trial court's order.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2018, Jabbar filed a petition seeking an elder abuse restraining order against Loy. Jabbar based his request on section 15657.03, which authorizes "[a]n elder . . . who has suffered abuse . . . [to] seek [a] protective order[]." (§ 15657.03, subd. (a)(1).)

The nature of the underlying dispute is not relevant to the procedural issue before us.

According to the trial court's August 3, 2018 minute order for the noticed hearing on Jabbar's petition, Jabbar "ma[de] a request to dismiss" the action. The trial court granted the request and "order[ed] the entire action dismissed with prejudice." The order indicates this hearing was not reported by a court reporter.

Jabbar did not include this order in the appellate record. On our own motion, we augment the record to include it. (Cal. Rules of Court, rule 8.155(a)(1) ["At any time, on . . . its own motion, the reviewing court may order the record augmented to include: [¶] . . . [a]ny document filed or lodged in the case in superior court."]; State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1529, fn. 1 (WallDesign) ["We have frequently used our discretionary authority under California Rules of Court, rule 8.155 to augment the appellate record with documents contained in the trial court record that were omitted by the parties, through mistake or neglect, in order to assist us in reviewing appeals on their merits. But we are by no means required to do so."].)

Loy then moved to recover her attorney fees as the prevailing party on Jabbar's petition. Loy's notice and motion stated it was "based on . . . [¶] . . . [¶] . . . Code of Civil Procedure Section 527.6(i)[, which] provides for an award of attorneys' fees and related expenses to the prevailing party in a lawsuit such as the present one . . . ." Loy's supporting memorandum of points and authorities also cited this provision, as well as "Civil Code § 527.6(h)," which she asserted "specifically provides for [attorney fees], in the Court's discretion, to a prevailing party."

Jabbar did not include Loy's moving papers in the appellate record. Accordingly, on our own motion, we augment the record to include Loy's "notice of motion and motion for award of attorney fees to respondent" (capitalization and bolding omitted) and "memorandum of points and authorities in support of motion for award of attorney fees to respondent" (capitalization and bolding omitted), both of which were filed with the trial court on August 7, 2018. (Cal. Rules of Court, rule 8.155(a)(1); WallDesign, supra, 199 Cal.App.4th at p. 1529, fn. 1.)

In fact, when Loy filed her motion, neither statutory provision she cited authorized an award of attorney fees. Code of Civil Procedure section 527.6, subdivision (i) addressed the procedure for the restraining order hearing, and Civil Code section 527.6 did not exist. However, subdivision (s) of Code of Civil Procedure section 527.6 did (and still does) authorize an award of attorney fees to the prevailing party. (Code Civ. Proc., § 527.6, subd. (s) ["The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney's fees, if any."].)

Code of Civil Procedure section 527.6, subdivision (i) states: "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment."
An earlier version of Code of Civil Procedure section 527.6 included an attorney fee provision in subdivision (i) (see Stats. 1998, ch. 581 (A.B. 2801), § 2), but the provision was moved to subdivision (r) in 2012 (see Stats. 2010, ch. 572 (A.B. 1596), § 1, operative Jan. 1, 2012), and to subdivision (s) in 2016 (see Stats. 2015, ch. 411 (A.B. 1081), § 1.5, eff. Jan. 1, 2016).

In context, it is clear Loy intended to refer to section 527.6 of the Code of Civil Procedure , not the Civil Code. Even still, Loy's intended reference would have been erroneous, as subdivision (h) addresses the procedure for responding to a restraining order petition, not attorney fees. (Code Civ. Proc., § 527.6, subd. (h) ["The respondent may file a response that explains, excuses, justifies, or denies the alleged harassment, or may file a cross-petition under this section."].)
However, in an earlier version of Code of Civil Procedure section 527.6, the attorney fee provision was contained in subdivision (h). (See Stats. 1987, ch. 1493, § 1.)

Jabbar opposed Loy's attorney fee motion. As relevant here, he noted Loy cited to "Civil Code section 527.6(h) WRONGFULLY."

The hearing on Loy's attorney fee motion was not reported. The substance of the court's minute order states: "The Court having fully considered the arguments of all parties, both written and oral[,] now rules as follows: [¶] Respondent is awarded attorney fees in the amount of $5,000.00." In its order after hearing, the court found that "Loy is the prevailing party and that an award of attorneys' fees and related expenses in the amount of $5,000 is reasonable . . . ."

Jabbar appeals.

DISCUSSION

I. Appellate Principles

"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." ' [Citation.] ' "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." ' [Citation.] 'Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' " (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) These appellate principles apply with equal force to an appellant who is not represented by counsel on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

Jabbar did not include in the appellate record several documents necessary to provide us with the relevant context in which to evaluate his claims. As noted (see fns. 3-4, ante), we augmented the record on our own motion so that we could evaluate his claim on the merits.

II. The Trial Court Did Not Err By Awarding Attorney Fees to Loy

Jabbar's sole appellate contention is that the trial court erred in awarding attorney fees to Loy because "Civil Code 527.6(h) referred to by [Loy] [¶] . . . [¶] does not refer to [a]ttorney [f]ees at all," and "[t]his fact was brought to the attention of the Court by [Jabbar]." Jabbar has not met his burden as the appellant to show reversible error.

Jabbar does not contend the trial court erred in finding Loy was the prevailing party. This contention would fail, in any event, because Jabbar's voluntary dismissal of his petition with prejudice constituted a determination on the merits for purposes of awarding prevailing-party attorney fees. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777.) Nor does Loy challenge the reasonableness of the amount of the attorney fee award.

It is clear that Loy moved for attorney fees under the wrong statute. Jabbar sought a restraining order under the elder abuse restraining order statute (§ 15657.03), yet Loy moved for attorney fees under the general civil harassment restraining order statute (Code Civ. Proc., 527.6). And even if Loy had cited the correct statute, she cited the wrong subdivisions. (See fns. 5-6, ante.) Yet, Jabbar has not explained how these errors prejudiced him. We conclude they did not.

To begin with, we presume the trial court's order is correct. (Jameson, supra, 5 Cal.5th at pp. 608-609.) And, although Loy cited the wrong statute, the trial court nonetheless had the authority under the correct statute to award attorney fees to Loy as the prevailing party. (§ 15657.03, subd. (t) ["The prevailing party in an action brought under this section may be awarded court costs and attorney's fees, if any."].)

Jabbar does not claim that Loy's citation to the wrong statute deprived him of adequate notice to oppose the attorney fees motion. Nor could he persuasively do so because the attorney fees language in the elder abuse and civil harassment restraining order statutes is virtually identical.

The only difference is that section 15657.03, subdivision (t) uses "brought under" (italics added), whereas Code of Civil Procedure section 527.6, subdivision (s) uses "brought pursuant to" (italics added). --------

Finally, the trial court's order granting Loy's motion states the court's ruling was based on "the arguments of all parties, both written and oral." (Italics added.) But the hearing was unreported and, thus, we have no transcript to facilitate our review. Without a transcript, we must presume Loy's citation error was brought to the trial court's attention—as Jabbar acknowledges occurred—and that the trial court satisfactorily resolved the issue. (See Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [absent a reporter's transcript, "[w]e must . . . presume that what occurred at that hearing supports the judgment"]; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 ["in the absence of a required reporter's transcript and other documents, we presume the judgment is correct"].)

In sum, Jabbar has not met his burden of showing that the trial court erred by awarding Loy $5,000 in attorney fees.

DISPOSITION

The order is affirmed. Loy is entitled to her costs on appeal.

HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.


Summaries of

Jabbar v. Loy

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Nov 8, 2019
D075200 (Cal. Ct. App. Nov. 8, 2019)
Case details for

Jabbar v. Loy

Case Details

Full title:MEERAS JABBAR, Plaintiff and Appellant, v. PATRICIA LOY, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Nov 8, 2019

Citations

D075200 (Cal. Ct. App. Nov. 8, 2019)