Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PS010284, Alice C. Hill, Judge.
Law Offices of David L. Hoffman and David L. Hoffman for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KRIEGLER, J.
Appellant James A. Martin appeals from an order fixing attorney fees in favor of respondent Raquel Cruz in the amount of $3,100, following the issuance of a restraining order in Cruz’s favor. Martin contends the trial court erred in granting attorney fees because the motion was not properly served, the motion failed to document the time worked on the case, and if attorney fees were appropriate, the award was excessive.
Cruz did not file a brief on appeal.
The trial court orally awarded attorney fees in the amount of $3,500. The minute order fixing attorney fees sets the amount at $3,100. As Cruz did not appeal or appear in this court, we have no occasion to consider whether the minute order is correct.
PROCEDURAL HISTORY
Cruz filed a request for a restraining order against Martin on November 21, 2007. The trial court issued the restraining order following a hearing on December 10, 2007. Cruz moved for an award of $3,500 in attorney fees as the prevailing party in the action.
Martin filed an opposition to the motion for attorney fees, arguing no motion had been filed according to court records, the motion did not support an award of attorney fees because it contained no supporting documentation, the amount sought was excessive for the action, and the motion had not been properly served. In her reply, Cruz attached a conformed copy of the motion for attorney fees bearing a filing stamp from the superior court, counsel’s billing statements to Cruz, copies of her checks to counsel, and receipts for her payments.
The trial court ruled that service was properly effectuated and awarded attorney fees of $3,100. Martin filed a timely notice of appeal.
DISCUSSION
I
SERVICE BY MAIL
Martin argues the trial court erred in awarding attorney fees because the service by mail was defective. Specifically, Martin contends the motion was not sent through the mail, as indicated in the proof of service, but instead was merely placed in his mailbox. Because the motion was not served by mail, service did not comport with Code of Civil Procedure sections 1012, 1013, and 1013a. Martin further argues that if the motion was not properly served by mail, it was not served within 60 days of notice of the judgment under California Rules of Court, rule 3.1702(b)(1).
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
Standard of Review
The issue of whether the notice of motion was properly served by mail is a factual question to be resolved by the trial court. (Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011.) Where the issue presented is based upon conflicting evidence, “[i]t was for the trial court to resolve the factual issue as to whether proper service had been effected.” (Big Bear Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919, 928; see Crea v. Busby (1996) 48 Cal.App.4th 509, 513 [trial court’s determination of personal jurisdiction based on conflicting declarations will not be disturbed on appeal if supported by substantial evidence].)
Service by Mail
Service by mail is authorized by section 1012. Section 1013, subdivision (a), describes the approved mailing procedures. The requirements of proof of service are found in section 1013a. To be effective, service by mail requires strict compliance with the statutes. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279; Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.)
Under section 1013a, subdivision (1), proof of service by mail may be made by “An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.”
Where the proof of service of a motion is in strict compliance with sections 1012, 1013 and 1013a, there is a presumption that the trial court had jurisdiction to hear the merits of the motion. (See Forslund v. Forslund (1964) 225 Cal.App.2d 476, 486.)
Martin’s Opposition in the Trial Court
Martin and his wife, Raeann, filed declarations in support of the opposition to the motion for attorney fees. According to Raeann’s declaration, she went to her home mailbox on December 21, 2007, and removed all the mail from that day. One day earlier, she had picked up all the mail that had been delivered on December 20. There was no mail from counsel for Cruz. Later on December 21, Martin returned home and told her he found a large envelope in their mailbox. Raeann was surprised by this, as she had removed all the mail earlier and only one delivery is made each day.
Martin’s declaration stated he found a large envelope in his mailbox on the evening of December 21. The envelope had postage stamps on it, but no postmark of any type. The envelope contained the motion for attorney fees.
Martin argued these circumstances proved that service had not been made by mail in accordance with the Code of Civil Procedure.
The Trial Court’s Ruling is Supported by Substantial Evidence
Based upon conflicting evidence, the trial court was presented with a factual issue regarding whether service had been made by mail, as set forth in the proof of service, or whether the envelope containing the motion was merely left in Martin’s mailbox. The record contains substantial evidence to support either proposition. Specifically, the proof of service attached to the motion indicated the motion was placed in a sealed envelope and placed in the United States mail, addressed to Martin, giving rise to a presumption of mailing. The proof of service comports with the requirements of section 1013a, and Martin does not argue otherwise. It was for the trial court to determine whether the lack of a postmark and other circumstances indicated the motion was not mailed. We have no basis to overturn the trial court’s determination of this factual issue.
II
SUFFICIENCY OF THE MOTION
Martin next argues the motion for attorney fees was defective in two respects. First, he argues the failure to include detailed billing records with the moving papers precluded an award of attorney fees. Second, Martin contends the award was excessive and should be reduced to no more than $825, based on the nature and complexity of the case.
Standard of Review
The determination of the value of attorney fees is best resolved by the trial judge, whose determination will not be disturbed unless it is clearly wrong so as to constitute an abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
Failure to Attach Billing Records to the Motion
Cruz’s motion for attorney fees did not include billing statements from counsel. However, the motion was supported by a declaration from Cruz’s counsel establishing the following: his hourly billing rate is $350; he filed a successful motion to consolidate Cruz’s petition for a restraining order with a related petition filed by Martin; the trial court dissolved a temporary restraining order granted to Martin; after lengthy testimony, an injunction was granted in favor of Cruz on her petition; counsel has been in practice since 1982 and holds an AV rating from Martindale-Hubbell; Cruz was billed at counsel’s customary rate; and Cruz paid for all services billed.
Martin’s opposition to the motion for attorney fees raised the issue of the sufficiency of the showing to support the motion. In response to the opposition, Cruz’s counsel filed a declaration indicating the case warranted the hours billed in that it “involved particularly reprehensible conduct” by Martin, who has a history of filing lawsuits against a homeowner’s association where the parties reside “as an intimidation tactic.” The hours spent by counsel were necessary to represent Cruz’s interests. Counsel attached his billing records on the case, copies of checks from Cruz, and receipts issued to her.
Relying on language in Crespin v. Shewry (2004) 125 Cal.App.4th 259, 271 (“fee motions must be based on detailed time records, not on the memories of the attorneys involved”), Martin argues the trial court was powerless to award attorney fees since the billing records were not attached to the original motion. We disagree.
Contrary to Martin’s argument, “there is no legal requirement that an attorney supply billing statements to support a claim for attorney fees. As this court has held, ‘An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.’ (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293; see also Martino v. Denevi (1986) 182 Cal.App.3d 553, 559 (Martino)....)” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.)
The record does not support Martin’s argument that he lacked notice of the basis for the attorney fee award because the billing records were not filed with the trial court with the original motion. The motion was supported by a declaration from Cruz’s counsel, who set forth substantial detail about his work on the case. When Martin questioned the extent of the amount sought, Cruz replied with detailed records that substantiated the attorney fee request. Based upon all these documents, Martin’s claim of a lack of notice is without merit.
Martin’s further argument that if attorney fees were appropriate, they should have been limited to $825 is also without merit. First, the billing records and the declarations of Cruz’s counsel amply support the award. Second, without a reporter’s transcript or suitable substitute record of the trial proceedings, we have no basis to conclude the trial court abused its discretion in fixing fees at $3,100. “An appealed judgment is presumed to be correct. We will indulge all intendments and presumptions to support the judgment on matters as to which the record is silent and prejudicial error must be affirmatively shown.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.)
DISPOSITION
The judgment is affirmed. Parties shall bear their own costs on appeal.
I concur: TURNER, P. J., MOSK, J., Concurring.
Defendant forfeited any contention regarding defective service by appearing at the hearing and arguing on the merits. (See Lacey v. Bertone (1949) 33 Cal.2d 649, 651-652; Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.)