Opinion
B324152
11-28-2023
LIDA BEHNAM, Plaintiff and Appellant, v. JUNG PARK, Defendant and Respondent.
Lida Behnam, in pro. per., for Plaintiff and Appellant. Galperin & Hensley and Yury Galperin, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21IWRO00626 Patricia Titus, Judge. Affirmed.
Lida Behnam, in pro. per., for Plaintiff and Appellant.
Galperin & Hensley and Yury Galperin, for Defendant and Respondent.
ADAMS, J.
The trial court denied plaintiff and appellant Lida Behnam's request for a civil harassment restraining order against Jung Park. The court subsequently granted Park's motion seeking attorney fees. On appeal, Behnam contends the trial court erred in awarding Park attorney fees because his motion was untimely filed and served, and Park failed to follow other procedural requirements. We find no error and affirm the trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2021, Behnam filed a petition for a civil harassment restraining order against Park, her neighbor. Following an evidentiary hearing, the trial issued an oral ruling denying Behnam's petition on November 22, 2021.
Although the record does not include minute orders from the proceedings prior to the litigation of Park's motion for attorney fees, the trial court docket indicates a minute order was generated on November 22, 2021.
Using a judicial council form intended for family law proceedings, Park subsequently submitted a "request for order," and an accompanying written motion seeking $30,030 in attorney fees. According to an electronic stamp at the top of the request for order and notice of hearing, the court received the motion on May 17, 2022. The motion bears a file stamp of May 24, 2022. The trial court docket similarly indicates the motion was filed on May 24, 2022, with a notation that it was received on May 17, 2022.
Behnam opposed the attorney fee motion. She argued the trial court should exercise its discretion not to award attorney fees given the underlying facts of the case, as well as her personal circumstances and the financial difficulties she was experiencing. Behnam further argued the amount of attorney fees Park was requesting was unreasonable based on Park's counsel's hourly rate and the number of hours billed. Behnam did not assert the motion was untimely filed or served. Behnam's only reference to the timing of the motion's filing was to argue: "The imposition of attorney's fees in this case, nearly six months after the hearing concluded, serves no legitimate end and can only further a conflict between neighbors that the parties and the court is attempting to cool."
Behnam's memorandum in opposition to the attorney fee motion indicated she was attaching an income and expense declaration to show the court the difficulty she was having making ends meet. The declaration is not included in the record on appeal.
At the hearing on the motion, the court indicated it did not find "that six months is an unreasonable amount of time to request attorney's fees." The court found an award of attorney fees was appropriate, then heard argument as to the reasonableness of the fees requested. After taking the matter under submission, the trial court awarded Park $13,500 in attorney fees. Behnam timely appealed.
DISCUSSION
I. Park's Attorney Fee Motion Was Timely and Procedurally Sufficient
A. Timeliness
On appeal, Behnam argues the trial court erred in granting Park's attorney fee motion because it was untimely, Park did not submit an income and expense declaration, and the trial court did not consider Park's ability to pay his own attorney fees. We find no error.
As an initial matter, Behnam has forfeited her timeliness argument by failing to object in the trial court." 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method.'" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn.1.) However, even were we to consider the substance of Behnam's claims we would conclude there is no basis for reversal.
When an issue on appeal "involves the application of law to undisputed facts, we review the matter de novo." (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
Code of Civil Procedure section 527.6, subdivision (s), authorizes the trial court to award attorney fees to the prevailing party in a civil harassment restraining order action. As the parties acknowledge, pursuant to California Rules of Court, rule 3.1702(b)(1) and 8.104(a), the motion must be filed 180 days after entry of judgment, if, as in this case, there is no "notice of entry" of the court's order. Under California Rules of Court, rule 8.104(c)(2), "[t]he entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed .... [¶] (3) The entry date of an appealable order that is not entered in the minutes is the date the signed order is filed."
While the record does not include the minute order from November 22, 2021, the parties agree that November 22, 2021 was the date of "entry." 180 days after November 22, 2021 was May 21, 2022, a Saturday, which extended the date to Monday, May 23, 2022. (Code Civ. Proc., §§ 10, 12, 12a, 12b.) Behnam contends Park's motion was therefore one day late as it was not entered as "filed" or file-stamped until May 24, 2022. Yet, Park filed the motion electronically, and the court received it on May 17, 2022. Under Code of Civil Procedure section 1010.6, subdivision (e)(3), "[a]ny document received electronically by the court between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed filed on that court day." (See Cal. Rules of Court, rule 2.253(b)(6) [the effective date of filing any document received electronically is prescribed by Code of Civil Procedure section 1010.6]; Super. Ct. L.A. County, Local Rules, rule 3.4(c) [any document received electronically before midnight on a court day is deemed to have been filed on that court day if accepted for filing].)
The record reveals no explanation for the delay between the trial court's receipt of the attorney fee motion and the date of filing as it appears in the court docket or the file stamp date. Yet, it is a fundamental rule of appellate review that an appealed judgment or order is presumed correct, and error must be affirmatively shown. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In light of the rules regarding electronic filing, Behnam has not established the trial court erred in accepting Park's motion as timely filed.
We further note that even if Park's motion was not deemed filed on May 17, 2022, pursuant to Code of Civil Procedure section 1010.6, subdivision (e)(3), the Rules of Court and local rules, under California Rules of Court, rule 3.1702(d), the trial court had the discretion to extend the time for filing the motion for good cause. Courts have held the trial court may extend the time "even if the motion is not filed until after the deadline for filing an attorney's fees motion under rule 3.1702." (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 326.) Under the circumstances of this case, we would have no basis to conclude the trial court abused its discretion in impliedly extending the time for filing or service by one day. (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1304 [court has broad discretion to allow relief from late filing where there is no showing of prejudice to opposing party].)
B. Other Claimed Defects
Behnam additionally contends Park's motion was defective because he failed to submit an income and expense declaration. Behnam references a judicial council form that is used in family law proceedings. However, Behnam's petition for a restraining order was not a family law matter. Although Park submitted a "request for order" on a judicial council family law form in connection with the attorney fee motion, the incorrect use of the form did not change the character of the proceedings or render them subject to law or procedures that are specific to family law cases. Code of Civil Procedure section 527.6, subdivision (s), authorizes an award of attorney fees to the prevailing party in a civil harassment restraining order proceeding, but does not indicate the trial court must consider either party's ability to pay fees when making the order.
Moreover, despite the absence of a statutory requirement that it do so, the trial court considered Behnam's ability to pay fees. Behnam has cited no legal authority to support the argument that Park was required to support his request for attorney fees with information about his ability to pay fees, such as an income and expense declaration." '[O]n appeal "the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]" [Citation.]'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) Accordingly, "[w]hen 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 forfeited." (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075.) These "same rules apply to a party appearing in propria persona as to any other party." (Flores v. Department of Corrections &Rehabilitation (2014) 224 Cal.App.4th 199, 205.) "It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Delta Stewardship Council Cases, at p. 1075.) Behnam has not stated any basis for reversal of the trial court's order awarding attorney fees.
DISPOSITION
The trial court order is affirmed. Respondent to recover his costs on appeal.
We concur: EDMON, P. J., LAVIN, J.