Jovaag v. Ott CA6 ( 2013 )

Filed 6/27/13 Jovaag v. Ott CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JORY A. JOVAAG, H038810
(Santa Clara County
Cross-Complainant and Appellant, Super. Ct. No. CV210782)
v.
DONALD OTT et al.,
Cross-Defendants and Respondents.
This appeal is one in a series of appeals brought by Jory Jovaag related to the
termination of her 29-year purported common-law marriage to Donald Ott, and
Ms. Jovaag’s action against Mr. Ott over the division of the couple’s jointly held
property.1
The present appeal is of the trial court’s order granting Daniel Jensen’s motion for
mandatory fees and costs pursuant to Code of Civil Procedure section 425.16 following
his successful special motion to strike (“anti-SLAPP” motion) against Ms. Jovaag.
Ms. Jovaag, who is proceeding in propria persona, asserts on appeal that the trial court
erred in awarding Mr. Jensen fees and costs associated with its anti-SLAPP motion.
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Jovaag v. Ott, Santa Clara County Superior Court No. CV119884.
STATEMENT OF THE CASE
The underlying action for division of Ms. Jovaag and Mr. Ott’s jointly held
property was tried in May 2011. The court ruled in favor of Mr. Ott, and issued an
injunction freezing all of Ms. Jovaag’s accounts. Ms. Jovaag and Mr. Ott appeared for
further hearing on the matter on May 16, 2011, and entered into a global settlement of all
issues.
On June 16, 2011, Ms. Jovaag and Mr. Ott entered into a stipulation and order for
the immediate transfer of Ms. Jovaag’s $370,000 in securities held in the Janus Services
LLC (Janus) account to Mr. Ott to partially fulfill the terms of the settlement agreement.
On June 30, 2011, the court entered judgment against Ms. Jovaag, and ordered her
to pay Mr. Ott $967,800, with post-judgment interest in the amount of 10 percent per
year. Ms. Jovaag did not transfer the funds as required under the settlement agreement.
On July 26, 2011, a writ of execution and notice of levy were forwarded to Janus,
along with other investment account providers in the amount of $895,034.41.
In August 2011, the court denied Ms. Jovaag’s claim of exemptions. Ms. Jovaag
promptly filed a notice of appeal of the judgment with this court. On December 6, 2011,
this court granted Mr. Ott’s motion to dismiss Ms. Jovaag’a appeal. On January 4, 2012,
this court denied Ms. Jovaag’s motion to set-aside the dismissal of the appeal. The
California Supreme Court denied Ms. Jovaag’s petition for review on February 15, 2012,
and this court issued the remittitur.
In October 2011, Janus filed a complaint for interpleader against Ms. Jovaag and
Mr. Ott in superior court case No. CV-210782. Janus liquidated funds in Ms. Jovaag and
Mr. Ott’s account and deposited them with the clerk of the court.
On December 2, 2011, Ms. Jovaag responded to the interpleader complaint by
filing a cross-complaint against Janus, Mr. Ott and Daniel Jensen, Mr. Ott’s attorney.
The cross-complaint alleged a number of different causes of action, including breach of
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contract, negligence, fraud, intentional infliction of emotional distress, and
misrepresentation.
Mr. Jensen filed an anti-SLAPP motion pursuant to Code of Civil Procedure
section 425.16,2 which the court granted on May 15, 2012, dismissing Ms. Jovaag’s
cross-complaint against him.
On June 1, 2012, Janus filed a motion for mandatory fees and costs pursuant to
section 425.16. Ms. Jovaag opposed the motion. The court heard the motion on
September 25, 2012, and ordered $12,256.35 in fees and costs to Mr. Jensen for his
successful litigation of the anti-SLAPP motion against Ms. Jovaag.
DISCUSSION
On appeal, Ms. Jovaag asserts the court erred when it awarded Mr. Jensen attorney
fees for its successful anti-SLAPP motion. Specifically, Ms. Jovaag argues the court
abused its discretion in awarding fees to Mr. Jensen, because it did not consider her
“substantial evidence” in making the fee award.
The anti-SLAPP statute requires an award of attorney fees to a prevailing
defendant: “[I]n any action subject to subdivision (b), a prevailing defendant on a special
motion to strike shall be entitled to recover his or her attorney’s fees and costs.”
(§ 425.16, subd. (c)(1); see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131
[attorney’s fees award to prevailing defendant on granting of anti-SLAPP motion is
mandatory].) An appellate court reviews the amount of mandatory attorney fees awarded
by the trial court to a defendant who successfully brings an anti-SLAPP motion for abuse
of discretion. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.)
We review the trial court’s determination of the appropriate fee for an abuse of
discretion. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1130, 1134, 1138.) “ ‘[T]he
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
2
All unspecified statutory references are to the Code of Civil Procedure.
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reason.’ [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777, 785.) We also recognize that “[t]he ‘experienced trial judge is the best
judge of the value of professional services rendered in his [or her] court, and while his [or
her] judgment is of course subject to review, it will not be disturbed unless the appellate
court is convinced that it is clearly wrong.’ [Citations.]” (Serrano v. Priest (1977) 20
Cal.3d 25, 49 (Serrano).)
One of the fundamental rules of appellate review is that an appealed judgment is
presumed to be 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.) The appellant has the burden of
overcoming the presumption of correctness. “To demonstrate error, appellant must
present meaningful legal analysis supported by citations to authority and citations to facts
in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396,
408.) These requirements apply with equal force to parties, like Ms. Jovaag, who
represent themselves. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) “When a
litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater,
consideration than other litigants and attorneys. [Citations.] Further, the in propria
persona litigant is held to the same restrictive rules of procedure as an attorney
[citation].” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638, fn. omitted.)
Here, Ms. Jovaag has elected to proceed with this appeal on a limited clerk’s
transcript; there is no reporter’s transcript provided for the September 17, 2012 hearing
during which the court ordered the fees. As a result, we must consider this appeal to be
on the judgment roll. “In a judgment roll appeal based on a clerk’s transcript, every
presumption is in favor of the validity of the judgment and all facts consistent with its
validity will be presumed to have existed. The sufficiency of the evidence is not open to
review. The trial court’s findings of fact and conclusions of law are presumed to be
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supported by substantial evidence and are binding on the appellate court, unless
reversible error appears on the record.” (Bond v. Pulsar Video Productions (1996) 50
Cal.App.4th 918, 924.)
Ms. Jovaag’s arguments on appeal center on her belief that the court erred by
failing to consider additional evidence, such as her disabled and indigent status as
compared to Mr. Jensen and Mr. Ott, at the hearing on the motion to for fees and costs.
We cannot consider these arguments, because there is no record of the hearing to review
to determine if such error occurred. Because error has not been affirmatively shown, the
order is presumed correct, and will be affirmed. (Denham v. Superior Court, supra, 2
Cal.3d at p. 564.)
Moreover, to the extent Ms. Jovaag argues the court erred in ordering any fees in
this case, she is incorrect. An award of fees and costs to a prevailing defendant such as
Mr. Jensen following a successful anti-SLAPP motion is mandatory. (Ketchum v. Moses,
supra, 24 Cal.4th at p. 1130.) The court was required to order fees following the
successful anti-SLAPP motion in this case, regardless of the comparative resources of the
parties as Ms. Jovaag asserts the court should have considered.
The only question in this appeal is whether the court abused its discretion in the
amount of the fees and costs awarded to Mr. Jensen. Ms. Jovaag asserts the fee award
was too high, and should be reduced by at least 30 percent because the documentation of
the attorney billing was inadequate, and Mr. Jensen merely presented “off the shelf”
pleadings. Ms. Jovaag presents only her opinion that counsel for Mr. Jensen overcharged
for the work done. We defer to the trial judge in this case, who is best able to determine
“the value of professional services rendered in his [or her] court,” and while his [or her]
judgment is of course subject to review, it will not be disturbed unless the appellate court
is convinced that it is clearly wrong.’ [Citations.]” (Serrano, supra, 20 Cal.3d at p. 49.)
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Since Ms. Jovaag has failed to establish that the attorney fees order was “ ‘clearly
wrong,’ ” we will affirm the order. (Ibid.)
DISPOSITION
The order appealed from is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
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