Opinion
A143423
04-28-2017
JOHN HARTFORD, Plaintiff and Respondent, v. ELIZABETH KARNAZES, Defendant and Appellant; DAVID MELCHNER, Plaintiff.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV 458258)
The genesis of this dispute, and the background for this appeal, is explained in our previous opinion:
"At all relevant times, Elizabeth Karnazes and John Hartford were attorneys, and for a considerable number of years appear to have practiced together. Their parting of the ways was in no sense amicable. The courts became their battleground, and the judges of San Mateo County the most unwilling observers of their repeated campaigns of scorched earth litigation tactics . . . . [¶] After it granted Hartford's special motion to strike Karnazes's cross-complaint, the trial court granted his motion for the award of costs and attorney fees guaranteed him by the SLAPP statute. ([Code Civ. Proc.,] § 425.16, subd. (c).) The amount of the award was $21,143.37, and the order was filed on September 28, 2009."
As required by the California Rules of Court, Karnazes, the appellant here, included the register of actions in the record on appeal. Bound as a separate volume, the register has 145 pages.
Statutory references are to the Code of Civil Procedure.
"In the ensuing 31 months, that party [i.e., Hartford] claims to have incurred almost 15 times that amount—more than $300,000—in attorney fees attempting to enforce the judgment. The issue presented is whether sections 685.040 and 685.070 . . . authorize that party to claim these additional fees simply by filing a supplementary memorandum of costs with the clerk of the court, or can the court require the party to file a noticed motion in order that the court can review the validity and amount of the fees claimed. We agree with the trial court that a noticed motion is required. Indeed, to accede to the judgment creditors: construction of sections 685.040 and 685.070 would create the unique anomaly of a judgment debtor being liable, at least in theory, for unlimited amounts of attorney fees that are never required to undergo judicial inspection to determine if the fees are both reasonable and necessarily incurred in enforcing the judgment. This would be an absurd consequence we cannot believe was contemplated, much less intended, by the Legislature." (Karnazes v. Hartford (Feb. 10, 2014, A136400) [nonpub. opn.] , at *1, fn. omitted.)
This was the same conclusion that had been reached by the trial court when it in effect granted Karnazes's motion to tax Hartford's claimed costs, almost all of which were attorney fees claimed under section 685.040, for attempting to execute on the judgment from September 2009 up to April 2012. We further agreed with this statement by the trial court: " '[T]he Court is not convinced that the attorney's fees claimed in Mr. Hartford's April 30, 2012 Memorandum of Costs should be automatically added to and incorporated into the judgment by mandatory operation of law, as he argues. If Mr. Hartford seeks to recover those fees, the Court requests that a noticed motion be filed pursuant to . . . § 685.080.' " (Karnazes v. Hartford, supra, 2014 WL 511089, at *1-3.) Accordingly, we affirmed the two orders from which Hartford had appealed. (Id. at *7.)
This appeal by Karnazes is from three ensuing orders.
DISCUSSION
There are several preliminary matters. First, we must make clear the limited scope of our review. In her opening brief (she filed no reply brief), Karnazes makes numerous and extended references to the circumstances that led to entry of the original fee order in September 2009. She acknowledges that her attempted appeal from that order was dismissed in September 2011. As we advised Karnazes in a subsequent order in 2012, that dismissal "is now final." (See Karnazes v. Hartford (Feb. 27, 2012, A128486) [nonpub. opn.] , at *1.) It is even more final five years later. As this court held long ago: "An appealable order once final cannot be collaterally attacked where not void on its face." (Estate of Lee (1981) 124 Cal.App.3d 687, 692; accord, Machado v. Superior Court (2007) 148 Cal.App.4th 875, 886.) More recently, our Supreme Court has stated flatly: "If an order is appealable, however, and no timely appeal is taken therefrom, the issues determined by the order are res judicata." (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Karnazes cannot—indeed, does not try to—demonstrate that the order is void on its face, but she does excoriate it as "frivolous," "excessive" in amount, a "windfall" to Hartford, and the product of his fraud and the connivance of Albert Lee, who represents him. All of these references will be disregarded. The same is true for all other orders that could have been appealed, but were not.
Karnazes does not confine her personal attacks to members of the State Bar. She accuses one clerk of lying to the trial court, others of improper filing practices, and all of unspecified "malfeasance." And we are singularly unimpressed with her attacks on the competence and integrity of members of the San Mateo County Superior Court.
Second, "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [citing what is now Cal. Rules of Court, rule 8.204(a)(1)(C)]; accord, Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1.) Karnazes seldom discharges this duty in her brief, particularly with regard to the seven volumes of the clerk's transcript. There are some instances where there is a reference to the reporter's transcript, or the register of actions, or a reference to a lengthy document. There are many instances where Karnazes simply makes naked assertions, often to utterly extraneous events, with absolutely no citation to the record. Far more common are references to a document alone. This practice is aggravated by Karnazes simply putting "Id." after a number of paragraphs. Occasionally there is a mixture or hybrid citation. There is even the implicit suggestion that this court conduct its own investigation of matters of no relevance to the resolution of this appeal. This is an awful lot of material that must be either disregarded or severely discounted.
Karnazes also extends this practice to the register in other actions.
Third, we cannot agree with Karnazes that our review should be de novo. The correct standards are clearly established abuse of discretion for the order striking Karnazes's cost bill (e.g., Costerisan v. Melendy (1967) 255 Cal.App.2d 57, 61; Brueckner v. Ferrara (1961) 196 Cal.App.2d 398, 403), and for the fee awards made under the SLAPP statute. (E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138, 1141; 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.)
Most emphatically do we reject Karnazes's solicitation that we undertake judicial fact-finding in the first instance and provide "an order vacating and setting aside with prejudice all orders and judgments against Appellant following the voluntary dismissal [of her cross-complaint] . . . on May 27, 2009. Respondents [sic] have unclean hands, and the Doctrine of Laches, among others, apply." (Italics added.)
Finally, Karnazes badly misreads our prior opinion. It, like the trial court's decision, involved solely a point of procedure—the correct mechanism for Hartford to seek an award of attorney fees and costs. Neither the trial court, nor this one, expressed an opinion on the merits of an award made according to the correct procedure. Karnazes is therefore in error in stating that the fee awards constituted an improper attempt "to obtain . . . attorney's fees and costs that were denied by this Court" (italics added). And there is no basis for Karnazes to believe that by renewing his applications for fees and costs, Hartford was "flatly ignoring the warning they were issued" by this court on the previous appeal.
THE FIRST ORDER
In the first of the orders that figure on this appeal, which was filed on August 22, 2014, the trial court granted Hartford's motion to strike the "Memorandum of Costs on Appeal" submitted by Karnazes on the ground that it was untimely. The trial court gave its reasoning as follows:
"Hartford's Motion to Strike Memorandum of Costs on Appeal is GRANTED. A memorandum of costs on appeal must be filed and served within 40 days to claim the costs. [California Rules of Court] Rule 8.276(c)(1).
"The Remittitur in this case was issued on April 14, 2014, and the clerk of the court notified the parties on that date in writing. Not counting the first day and including the final day, the 40th day fell on May 25, 2014. Although [Karnazes's] Proof of Service states that the Memorandum was mailed to the court on May 22, 2014, it was not filed by the court clerk until May 28, 2014. She has not demonstrated sufficient mistake, inadvertence, surprise or excusable neglect under CCP § 473(b) to warrant relief from the filing requirements under [California Rules of Court] Rule 8.276(c)(1)."
Karnazes included in the clerk's transcript nothing, absolutely nothing, relevant to what led up to this order. She did provide the reporter's transcript of the hearing held on Hartford's motion to strike her memorandum of costs, but not one page of the underlying documents. At Hartford's motion, and over Karnazes's objection, we deemed the record augmented to include Hartford's papers in support of his "Motion to Strike Memorandum of Costs on Appeal"—which included the memorandum for $1425.21—the order granting that motion, and Karnazes's notice of appeal.
Karnazes makes two attacks on this order.
First, she disputes the accuracy of the trial court conclusion that her request for appellate costs was not timely by arguing that her process server mailed it to the court within the 15-day period specified by the Rule of Court cited in the trial court's order. She makes reference to documents that will supposedly substantiate this claim, but none of them is in the record she designated. The issue did figure at the hearing conducted on Hartford's motion, at which the court indicated it was "familiar with your arguments." The court declined to hear testimony from Karnazes and the process server, and was obviously more impressed with the date stamp on the envelope received by attorney Lee with a copy of the cost bill. Lee also made reference to Karnazes's "hearsay statements" as the only support for her claim that the clerk received the memorandum for costs a day before the date stamp on the letter received by Lee.
Although it did "tak[e] into account the proffer of . . . Mr. Novak's testimony." We interpret this as the court accepting Karnazes's statements as to what the process server would recount if allowed to testify as an offer of proof.
The issue of whether Karnazes's memorandum was timely filed thus turns upon which side's version of service is believed, which is a question of fact. (E.g., Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 441-446; Dickinson v. Zubiate Mining Co. (1909) 11 Cal.App. 656, 662.) Clearly, the trial court resolved that issue against Karnazes, based on Lee's envelope and the same-day file stamp of Karnazes's memorandum by the clerk's office. Because that decision is supported by substantial evidence, it must be upheld.
Karnazes's second point is that by contesting the merits, Hartford waived any objections to any defects of notice. She cites Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, wherein one encounters the following: " 'It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.' "
There can be no quarrel with this excerpt as stating the fundamental principle of appellate review that a reviewing court will ordinarily not consider argument not first presented to the trial court. But Hartford is not the appellant, nor is he affirmatively seeking relief, extraordinary or otherwise. He is not arguing the merits of the costs Karnazes tried to claim. And we do not think the quoted excerpt is reasonably extended to prevent the respondent on an appeal from defending an order or judgment on the same procedural ground heard and accepted by the trial court.
THE SECOND AND THIRD ORDERS
The second order, which was filed on September 8, 2014, was the first to award attorney fees. The court granted Hartford's "Motion for Attorneys' Fees and Costs Incurred from May 1, 2012 to December 31, 2013" in the amounts of $66,958.50 and $1,203.25, respectively. The court gave the authority for this ruling as "§§ 425.16(c), 685.040 and 685.080 as well as Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131."
The third order was filed on September 30, 2014. By it, the court granted Hartford's "Motion for Supplemental Attorneys' Fees and Costs Incurred from September 29, 2009 Up Through April 30, 2010" in the amounts of $85,000.00 and $1,369.00, respectively. The court reiterated that its authority was "§§ 425.16(c), 685.040 and 685.080 as well as Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131." The court added: "The Court has reviewed the records for the billing period of September 29, 2009 through April 30, 2010. While it appears that Mr. Lee [counsel for Hartford] was quite busy responding to numerous motions filed by Ms. Karnazes and handling several ex parte applications, as well as a debtor's examination and post-judgment discovery disputes, many of those motions and oppositions were repetitive of the same arguments advanced by [Hartford] earlier. As explained in the previous hearing on attorneys' fees, this is the reason why the Court is reducing the fee award to a more reasonable amount. The Court has reduced the number of attorney hours from 274.60 to 200 hours to come up with the sum of $85,000.00 in attorneys' fees."
As indicated above, our standard of review is abuse of discretion. Karnazes demonstrates none. And there was none, as a review of the record clearly shows.
At both hearings leading to the orders, the court heard extensive argument, 40 pages on the second order, and 30 pages on the third. The trial court noted that it had reviewed the entire file, and was familiar with it, and the history of the dispute between the parties. Moreover, the court on several occasions indicated its concern about the reasonableness of expending so much time and effort in pursuit of what began as a $21,000 judgment—the same question we ourselves have been concerned about in the matter. Finally, the trial court did not award Hartford all he sought, but reduced both requests significantly, cognizant that the issue was whether the amounts were "reasonable and necessary costs of enforcing a judgment." (§ 685.040.)
Karnazes contends that both of Hartford's motions for attorney fees and costs should have been denied because the fees and costs claimed "were windfall, exorbitant, unreasonable, and unnecessary." However, apart from repeatedly denouncing their immorality, Karnazes makes no genuine attempt to demonstrate that either of the awards evidences an abuse of the trial court's discretion. She does not address the unreasonableness of either the number of hours or hourly rate used by the trial court. " 'In challenging attorney fees as excessive . . . , it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' " (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) In her opposition to both fee requests, Karnazes argued that Hartford "has not remotely satisfied the requirements of proving his attorney's fees and costs are reasonable and were necessarily incurred in this matter," and therefore each request should be denied "in its entirety." As indicated above, the trial court addressed this issue head-on.
Indeed, with respect to the $425 hourly rate proposed by Hartford and accepted by the trial court, Hartford made a point of advising this was "the rate that was agreed upon by Mr. Hartford and his counsel five years ago," and was still less than Karnazes's billing rate "nine years ago."
In opposition to the first fee request, Karnazes submitted two declarations, the caption of each proclaiming that it included "specific objections to billing of Attorney Albert Lee." However, in neither declaration did Karnazes concede that Hartford should receive a single dollar in fees or costs. And in each Karnazes declared under penalty of perjury that "Attorneys HARTFORD and LEE have failed to satisfy to [sic] burden of proof that they have incurred reasonable and necessary attorneys' fees and costs for the sole purpose of enforcing the underlying Judgment, and they are making an untimely claim for unconscionable, windfall, unreasonable, and unnecessary attorneys' fees and costs, which they should not be awarded."
Karnazes also submitted two declarations in opposition to Hartford's second fee motion in which she incorporated by reference "my previous Declarations filed in this action in support of my position that Attorneys HARTFORD and . . . LEE should not be awarded fees and/or costs in this case."
Recalling the considerable deference extended to trial courts in determining attorney fee awards, cognizant that the attorney fees awarded are approximately half the size seen on the prior appeal, and satisfied that Hartford employed noticed motions as we directed on the prior appeal, we conclude no abuse is shown. (See Cabral v. Martins (2009) 177 Cal.App.4th 471, 491-492.)
The orders are affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.