Taylor Concrete Plumbing v. Zippy's Currency X-Change CA2/3

Filed 12/15/15 Taylor Concrete Plumbing v. Zippy’s Currency X-Change CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
TAYLOR CONCRETE PUMPING CORP. B258831
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC438252)
v.
ZIPPY’S CURRENCY X-CHANGE, INC.,
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Mark A. Borenstein, Judge. Affirmed.
Lozoya & Lozoya, Frank J. Lozoya IV; Gary V. Hickson, in pro. per., for
Plaintiffs and Appellants.
Ryan Gordon; Lewis & Ham, Yoon Ham and Michael Lewis for Defendants and
Respondents.
_____________________
INTRODUCTION
Gary Hixon, as assignee of the original judgment creditors, Taylor Concrete
Pumping Corp. and Taylor Transportation, Inc. (collectively, Taylor), appeals an order
awarding attorney fees to judgment debtors Zippy’s Currency X-Change, Inc., Mark J.
Zippert and Carol Zippert (collectively, the Zipperts) in connection with the Zipperts’
successful motion to compel acknowledgement of satisfaction of judgment. (Code Civ.
Proc., §§ 724.050, 724.080.)1 In a prior appeal involving the same parties and largely the
same trial court proceedings, we affirmed the order compelling Hixon to file the
acknowledgment of satisfaction of judgment. (Taylor Concrete Pumping Corp. v.
Zippy’s Currency X-Change, Inc. (Jul. 30, 2015, B256900) [nonpub. opn.] (Taylor
Concrete).)
Section 724.080 mandates that “the court shall award reasonable attorney’s fees to
the prevailing party” in a proceeding maintained to compel a judgment creditor to file an
acknowledgement of satisfaction of judgment. (Italics added.) The trial court followed
that directive and awarded the Zipperts their reasonable attorney fees in connection with
the order we affirmed in the prior appeal. Hixon’s claims of error—each premised on the
dubious contention that the trial court did not order an award of attorney fees when it
granted the Zipperts’ motion to compel—are directly refuted by the record below and
section 724.080’s mandate. We affirm.
FACTS AND PROCEDURAL BACKGROUND
The facts concerning the underlying dispute between the Zipperts and Taylor, their
stipulation for entry of judgment against the Zipperts and the terms for satisfaction of said
judgment, Taylor’s assignment of the judgment to Hixon, Hixon’s collection efforts, and
the other events preceding the Zipperts’ motion to compel an acknowledgment of
satisfaction of judgment are summarized in our prior opinion (Taylor Concrete, supra,
B256900) and in a companion opinion filed concurrently therewith (Hixon v. Zippy’s
1
All further statutory references are to the Code of Civil Procedure unless otherwise
specified.
2
Currency X-Change, Inc. (Jul. 30, 2015, B256439) [nonpub. opn.]). We will not repeat
those facts here. Suffice it to say, in our prior opinion we affirmed the trial court’s order
compelling Hixon to file an acknowledgment of satisfaction of judgment. (See Taylor
Concrete, supra, B256900.)
As part of their motion to compel an acknowledgment of satisfaction of judgment,
the Zipperts requested an award of attorney fees pursuant to section 724.080. In their
motion, the Zipperts argued Hixon refused to file an acknowledgment of satisfaction
within 15 days after they made a proper demand under section 724.050, thereby entitling
them to an award of attorney fees, as the prevailing party, upon a finding that the
judgment had been satisfied. In support of the motion and fee request, the Zipperts’
counsel offered a declaration stating that he spent a total of 17.2 hours working on the
motion, at a rate of $250 per hour. Hixon opposed the motion with respect to whether the
judgment was satisfied, but did not challenge the amount of attorney fees requested or the
Zipperts’ entitlement to fees in the event the court ruled in their favor.
On June 2, 2014, the trial court held a hearing on the Zipperts’ motion. The court
noted the motion included a request for attorney fees pursuant to section 724.080, but the
hearing otherwise focused exclusively on whether the Zipperts satisfied the judgment.
After nearly a full day of argument, the court continued the hearing to June 6, 2014.
On June 6, 2014, the court orally announced its decision to grant the Zipperts’
motion; however, a court reporter was not present and the court’s oral ruling was not
recorded. Later the same day, the court issued a written minute order stating the “Motion
is granted.” The minute order directed Hixon to execute a full acknowledgment of
satisfaction of judgment by June 13, 2014. However, notwithstanding the Zipperts’
request and section 724.080’s mandate, the order made no mention of the courts’ ruling
on the attorney fee request.
Due to the absence of a court reporter at the June 6, 2014 hearing, the court issued
a second minute order on June 9, 2014 to provide a “brief explanation of the order issued
in open court.” The minute order specified the court’s basis for granting the Zipperts’
motion, while focusing principally on the court’s rationale for rejecting Hixon’s various
3
arguments in opposition to the motion. Apart from stating again that the Zipperts’
“motion is granted,” the June 9, 2014 minute order made no reference to the relief sought
by the motion and, again, said nothing of the court’s ruling on the Zipperts’ request for
attorney fees.
Nevertheless, in a declaration filed with this court under a motion to consider
additional evidence on appeal pursuant to section 909, the Zipperts’ counsel, Ryan
Gordon, testifies that he, as well as Hixon’s counsel and Hixon, were present at the June
6, 2014 hearing, at which the trial court expressly granted both the motion to compel
acknowledgment and the request for attorney fees in its oral ruling.2 According to
Gordon, in granting the attorney fees request, the court instructed counsel to file a
supplemental declaration by June 13, 2014 setting forth the additional fees incurred up to
2
Section 909 provides, “The reviewing court may for the purpose of making the
factual determinations or for any other purpose in the interests of justice, take additional
evidence of or concerning facts occurring at any time prior to the decision of the appeal,
and may give or direct the entry of any judgment or order and may make any further or
other order as the case may require.” Section 909’s principal purpose is to allow the
appellate court to make factual findings that will result in affirmance of the judgment or
order so as to terminate the litigation without the need for remand to the trial court to
supply the missing findings. (See J.J. v. County of San Diego (2014) 223 Cal. App. 4th
1214, 1227, fn. 4; see also Kerr Land & Timber Co. v. Emmerson (1969) 268 Cal. App. 2d
628, 635-636 [discussing appellate fact finding pursuant to former Code Civ. Proc.,
§ 956a].) An unreported hearing is not the same as an omitted factual finding, and, as
such, section 909 typically is not the accepted procedural vehicle for supplying the
missing record; the proper vehicle is a settled statement pursuant to California Rules of
Court, rule 8.137. Be that as it may, the facts supplied by counsel’s declaration serve
only to corroborate and clarify subsequent court filings and orders that are part of the
record, thereby filling a gap that would otherwise be filled by our presumption of
correctness. (See, e.g., Estate of Fain (1999) 75 Cal. App. 4th 973, 992 [where appellant
fails to provide a reporter’s transcript or settled statement, “it is presumed that the
unreported trial testimony would demonstrate the absence of error”].) Accordingly, in
the interests of justice and for purposes of assessing a complete record of the proceedings
pertaining to the order on appeal, we grant the Zipperts’ unopposed motion to take
additional evidence. (See, e.g., Rialto Citizens for Responsible Growth v. City of Rialto
(2012) 208 Cal. App. 4th 899, 915, fn. 5.)
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and including the June 6, 2014 hearing. The court further specified that Hixon would
have 10 days from receipt of the declaration to respond or object.
On June 12, 2014, Hixon filed a notice of appeal from the order compelling him to
file an acknowledgment of satisfaction of judgment. (See Taylor Concrete, supra,
B256900.)
On June 13, 2014, the Zipperts served Hixon with their counsel’s supplemental
declaration, captioned as “SUPPLEMENTAL DECLARATION OF RYAN GORDON
REGARDING ATTORNEY’S FEES AWARDED ON JUNE 6, 2014, IN
CONJUNCTION WITH GRANTING OF DEFENDANTS MOTION TO COMPEL
SATISFACTION OF JUDGMENT.”3 The declaration stated that Gordon had spent an
additional 42.2 hours preparing the Zipperts’ reply brief and attending hearings on the
motion to compel acknowledgment of satisfaction of judgment. Coupled with the 17.2
hours incurred in connection with the moving papers, and at a rate of $250 per hour, the
declaration stated the Zipperts incurred attorney fees totaling $14,850 in connection with
the motion. Hixon did not respond or object to the supplemental declaration.
On July 23, 2014, the court entered an order awarding the Zipperts attorney fees in
the amount of $14,850. The order reads in pertinent part: “Having been fully briefed and
argued, based upon the motion, the opposition, the reply, all documents filed in
connection therewith, and the argument presented at the hearing and for good cause
appearing, on June 6, 2014, it was ordered that Defendant MOVANTS were entitled to
attorneys fees as the prevailing party on their motion pursuant to CCP § 724.010, et seq.
As to the amount of attorney’s fees subject to that order, it is hereby ordered, adjudged
and decreed that MOVANTS shall be awarded reasonable attorney fees incurred in
3
Hixon filed a request to take judicial notice and augment the record with certain
trial court records, including the supplemental declaration of Ryan Gordon. The request
is hereby granted.
5
bringing the motion, which amount to $14,850.00, based on the supplemental declaration
of Ryan Gordon.”4
On September 11, 2014, Hixon filed a notice of appeal from the July 23, 2014
order. On July 30, 2015, we filed our opinion affirming the order compelling Hixon to
file an acknowledgment of satisfaction of judgment. (Taylor Concrete, supra, B256900.)
DISCUSSION
1. The Premise for Hixon’s Appeal Is Refuted by the Record
Hixon asserts two claims of error with respect to the order awarding attorney fees
pursuant to section 724.080.5 First, Hixon contends the trial court was divested of
jurisdiction to enter the attorney fee award upon Hixon’s filing of his notice of appeal
from the order compelling him to file an acknowledgment of satisfaction of judgment.
Second, Hixon argues the court entered the order sua sponte, without a noticed motion
and based solely on the supplemental declaration of the Zipperts’ counsel, in violation of
Hixon’s due process right. Both contentions are premised on Hixon’s assertion that the
trial court did not grant the Zipperts’ request for attorney fees on June 6, 2014 when the
court issued its oral ruling granting their motion to compel acknowledgment of
satisfaction of judgment. That assertion is flatly contradicted by the record and our
presumption of correctness.
4
A minute order entered by the court the same date reads: “The Court having
previously granted Defendants’ motion to compel acknowledgement of satisfaction of
judgment, and determined that Defendants are the prevailing parties under Civil
Procedure Code section 724.080, and after reviewing the Supplemental Declaration of
Ryan Gordon, filed on June 13, 2014, now orders that Defendants shall recover from
Judgment Creditor Assignee Gary Hixon reasonable attorneys’ fees in the amount of
$14,850. The Court has signed the proposed order submitted on June 13, 2014.”
5
Hixon’s opening brief, filed before we issued our opinion in the prior appeal, also
argued that should this court reverse the order compelling him to file an acknowledgment
of satisfaction of judgment in that appeal, we also must reverse the concomitant attorney
fee award in this appeal. Hixon appropriately abandoned that argument in his appellant’s
reply brief, filed three months after we filed our opinion affirming the order to compel
acknowledgment of satisfaction of judgment.
6
Hixon rests his assertion on the court’s written minute orders issued on June 6,
2014 and June 9, 2014, both of which state that the Zipperts’ “motion is granted,” but
neither of which expressly provides a ruling on the attorney fee request that the Zipperts
included in their motion. Further, in an apparent attempt to exploit the fact that a court
reporter was not present to record the court’s oral ruling at the June 6, 2014 hearing,
Hixon castigates the Zipperts for “try[ing] to make a record, where none exists” by filing
a declaration from counsel describing the court’s oral ruling rather than obtaining a
settled statement as prescribed by the California Rules of Court. To be sure, the better
practice would have been to obtain a settled statement (see fn. 2, ante); however, Hixon’s
argument has the allocation of burdens reversed.
It is perhaps the most fundamental principle of appellate review that a trial court
order is presumed correct, all inferences are indulged in its favor, and all ambiguities are
resolved to support affirmance. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564;
Winograd v. American Broadcasting Co. (1998) 68 Cal. App. 4th 624, 631.) Contrary to
Hixon’s attempt to rest his case on a gap in the record, it is his burden as the appellant to
overcome this presumption by presenting a record that affirmatively demonstrates error.
“Failure to provide an adequate record on an issue requires that the issue be resolved
against [the appellant].” (Hernandez v. California Hospital Medical Center (2000)
78 Cal. App. 4th 498, 502.) Thus, for instance, where the appellant fails to provide a
reporter’s transcript or settled statement, “it is presumed that the unreported trial
testimony would demonstrate the absence of error.” (Estate of Fain, supra,
75 Cal.App.4th at p. 992; see also Foust v. San Jose Construction Co., Inc. (2011)
198 Cal. App. 4th 181, 186-187 [affirming judgment where appellant included only
selected excerpts from clerk’s transcript and failed to include reporter’s transcript or
exhibits, preventing meaningful review].) We have that situation here, and more.
Even setting aside the Zipperts’ additional evidence, every indication from the
record and reason supports our presumption that the trial court correctly granted the
request for attorney fees at the June 6, 2014 hearing in connection with ruling in favor of
the Zipperts on their motion to compel. First, we have section 724.080’s mandate, which
7
directs that “the court shall award reasonable attorney’s fees to the prevailing party” on a
motion to compel an acknowledgement of satisfaction of judgment. (Italics added.)
Neither minute order relied upon by Hixon states that the court denied the mandatory
award of fees—a ruling that, if made, would have been error. Accordingly, our
presumption of correctness dictates that we presume the court granted both the Zipperts’
motion and the mandatory award of attorney fees requested therein.
Next, we have the supplemental declaration regarding attorney fees filed by the
Zipperts’ counsel within a week of the June 6, 2014 hearing. Hixon’s assertion posits
that this declaration was completely unsolicited, counsel filed the declaration without any
indication from the trial court that the court would accept or consider it, and the court not
only accepted the unsolicited declaration, but credited it in granting the exact amount of
fees requested without giving Hixon an opportunity to respond or object to the request.
This would be an extraordinary chain of events, and, as such, it requires extraordinary
proof to substantiate it. Hixon provides none. We must therefore presume that the court
and counsel did not act so capriciously, and that the court in fact directed counsel to file
the supplemental declaration in its oral ruling at the June 6, 2014 hearing.
Last we have the language of the order challenged on appeal, which plainly states,
“on June 6, 2014, it was ordered that Defendant MOVANTS were entitled to attorneys
fees as the prevailing party on their motion pursuant to CCP § 724.010, et seq.” (Italics
added; see also fn. 4, ante.) Hixon makes no attempt to reconcile his assertion that the
trial court did not order attorney fees at the June 6, 2014 hearing with what amounts to
the opposite statement by the court in the very order from which he appeals. Enough
said. Notwithstanding the absence of an express ruling on the attorney fee request in the
court’s June 6, 2014 and June 9, 2014 minute orders, it is absolutely clear on this record
that the court correctly ordered the mandatory award of attorney fees on June 6, 2014,
while reserving on the amount of fees until the Zipperts had an opportunity to file a
supplemental declaration setting forth the total fees incurred in connection with the
motion, reply and hearings.
8
Because the court ordered the award of attorney fees at the June 6, 2014 hearing,
neither of Hixon’s claims has merit. Contrary to Hixon’s first contention, it is well
established that the trial court retains jurisdiction to award or tax costs after an appeal is
taken, including to award attorney fees as costs. (See Bankes v. Lucas (1992)
9 Cal. App. 4th 365, 368 [jurisdiction to award Civ. Code, § 1717 attorney fees as costs];
Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 360 [jurisdiction to rule on motion
for statutory attorney fees as costs]; Carpenter v. Jack in the Box Corp. (2007)
151 Cal. App. 4th 454, 461 [same].) As for the contention that the court sua sponte
awarded attorney fees in violation of Hixon’s due process rights after the Zipperts’
counsel filed a purportedly unsolicited supplemental declaration, we have already
addressed this extraordinary claim. Hixon has not supplied anything close to an adequate
record to substantiate the charge. The order is affirmed.
2. The Zipperts’ Request for Sanctions Is Denied
In their respondent’s brief, the Zipperts request an award of sanctions against
Hixon and his attorney pursuant to section 128.5, subdivision (a). That code section does
not authorize an award of appellate court sanctions. (See § 128.5, subd. (a) [“A trial
court may order a party, the party’s attorney, or both to pay the reasonable expenses,
including attorney’s fees, incurred by another party as a result of bad-faith actions or
tactics that are frivolous or solely intended to cause unnecessary delay,” italics added].)
Further, while section 907 does authorize appellate court sanctions, California Rules of
Court, rule 8.276 prescribes specific procedures for requesting such sanctions, which the
Zipperts have failed to follow here. (See, e.g., Cal. Rules of Court, rule 8.276(b)(1) [a
party’s motion for sanctions “must include a declaration supporting the amount of any
monetary sanction sought and must be served and filed before any order dismissing the
appeal but no later than 10 days after the appellant’s reply brief is due”].) Accordingly,
the request for sanctions is denied.
9
DISPOSITION
The order is affirmed. Defendants and respondents Zippy’s Currency X-Change,
Inc., Mark J. Zippert and Carol Zippert are entitled to their costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JONES, J. *
We concur:
EDMON, P. J.
LAVIN, J
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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