Bolgar v. Glen Donald Apartments CA2/1 ( 2013 )

Filed 2/26/13 Bolgar v. Glen Donald Apartments CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
PETER BOLGAR, B241636
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC372736)
v.
GLEN DONALD APARTMENTS, INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County.
Mary Ann Murphy, Judge. Affirmed.
______
Peter Bolgar, in pro. per., for Plaintiff and Appellant.
Hatton, Petrie & Stackler, Arthur R. Petrie II, and John A. McMahon for
Defendant and Respondent.
______
Peter Bolgar appeals from an order fixing the amount of an award of attorney fees
and costs in favor of Glen Donald Apartments, Inc. (Glen Donald). We affirm.
BACKGROUND
Our opinion in a previous appeal in this litigation summarized the proceedings as
follows: “Bolgar owns a one-bedroom unit in Glen Donald Apartments, a 94-unit
common interest development in Los Angeles. His suit against Glen Donald and various
other defendants was originally dismissed after the superior court sustained defendants‟
demurrers without leave to amend. Bolgar appealed, and we reversed in part, concluding
that Bolgar had adequately alleged a claim that Glen Donald had overcharged him for
certain assessments. As we explained, „[u]nless the governing documents provide
otherwise, monthly assessments and special assessments must be imposed equally on a
per unit basis.‟ (Bolgar v. Harris Properties, Inc. (June 2, 2009, B208257) [nonpub.
opn.].) We affirmed the dismissal of the complaint as to all other claims and defendants.
“On remand, Glen Donald moved for summary judgment. Glen Donald
introduced evidence showing that the common interest development‟s governing
documents provide that certain assessments are calculated in proportion to each unit‟s
share of the total value of the development, while other assessments are imposed equally
on a per unit basis. Glen Donald also introduced evidence showing that the assessments
imposed on Bolgar were either proportional to his unit‟s share of the total value of the
development or equal to the other units‟ assessments, in compliance with the governing
documents and the law as stated in our prior opinion.
“The summary judgment motion was originally heard on June 4, 2010, but the
court continued the hearing to July 7, 2010, in order to give Bolgar an opportunity to file
a properly sworn declaration in opposition. At the continued hearing on July 7, the court
granted the motion. The court entered judgment on July 27, 2010, and Bolgar timely
appealed.” (Bolgar v. Glen Donald Apartments, Inc. (Sept. 22, 2011, B226583 [nonpub.
opn.].) We affirmed the judgment in favor of Glen Donald. (Ibid.)
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The trial court‟s docket reflects that on remand Glen Donald moved to fix the
amount of attorney fees they should be awarded and also filed a memorandum of costs.1
Bolgar opposed the motion. The court initially heard the motion on March 13, 2012, but
continued the hearing. At the continued hearing on May 16, 2012, the court granted the
motion.
On May 31, 2012, Bolgar filed a notice of appeal from “[a]n order after judgment
under Code of Civil Procedure section 904.1(a)(2)” and from “[a]n order or judgment
under Code of Civil Procedure section 904.1(a)(3)-(13).” The notice of appeal did not
state the date of the order or judgment from which Bolgar appealed. As far as we can
determine from the docket, the only order that had been entered since receipt of the
remittitur in the preceding appeal was the May 16, 2012, order fixing the amount of
attorney fees and costs.
On June 25, 2012, the trial court entered an amended judgment, awarding attorney
fees and costs to Glen Donald in the amount of $71,934.65.
DISCUSSION
On appeal, an order of the superior court is presumed to be correct. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) “„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.‟ [Citations.]” (Ibid.)
Accordingly, in order to prevail on appeal, the appellant must present sufficient argument
and legal authority (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368) and a sufficient
record (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362) to demonstrate
prejudicial error. We review the trial court‟s determination of the amount of an award of
1
The trial court‟s docket reflects that while Bolgar‟s appeal from the summary
judgment in favor of Glen Donald was pending, Glen Donald filed a motion “to
determine prevailing party.” Bolgar opposed this “motion for attorney fees.” The court
granted the motion on November 19, 2010. Bolgar never appealed from the order
granting the motion. His designation of the record for the present appeal did not include
the motion, his opposition, or the order granting the motion.
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costs and attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1095; El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc.
(2007) 150 Cal.App.4th 612, 617.)
Bolgar‟s briefs on appeal contain no arguments for the conclusion that the trial
court abused its discretion when it determined the amount of the award of costs and
attorney fees. Bolgar‟s designation of the record on appeal did not call for the clerk‟s
transcript to include Glen Donald‟s motion to fix the amount of the award; it also did not
call for the clerk‟s transcript to include any of the other documents Glen Donald filed in
support of the motion. The clerk‟s transcript consequently contains none of those
documents, and we must presume that the motion and other supporting documents
contain adequate support for the trial court‟s ruling. (Denham v. Superior Court, supra,
2 Cal.3d at p. 564.)
For all of the foregoing reasons, we must affirm the trial court‟s order fixing the
amount of the award of costs and attorney fees.
DISPOSITION
The order is affirmed. Respondent shall recover its costs of appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J. CHANEY, J.
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