Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and orders of the Superior Court of Orange County, Super. Ct. Nos. DP009217, DP009218 Gregory W. Jones, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Linda M. Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Michael A. Haubert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MOORE, J.
Appellant Belinda Z., the mother of minors Justin H. and Markus H., appeals the juvenile court’s judgment which states she must reimburse the Orange County Probation Department (the County), acting as financial officer for court-appointed legal services rendered during her children’s dependency case.
I
FACTS
This seventh appellate review sought by Belinda Z. was filed on September 14, 2006. Her previous filings were decided in: In re Justin H. (Nov. 12, 2004, G033723) [nonpub. opn.]; In re Justin H. (June 13, 2005, G034569) [nonpub. opn.]; In re Justin H. (Sept. 6, 2005, G035008) [nonpub. opn.]; In re Justin H. (Jan. 23, 2006, G035573) [nonpub. opn.]; In re Justin H. (Feb. 22, 2006, G035871) [nonpub. opn.]; and, In re Justin H. (Sept. 25, 2006, G036666) was dismissed after counsel for appellant filed a letter stating no arguable issues could be found and appellant Belinda Z. failed to file a supplemental brief.
Welfare and Institutions Code section 903.1 states a parent shall be liable for legal services rendered to minor children by the public defender or other public attorney pursuant to an order of the juvenile court. Section 903.45 states the juvenile court shall order any person liable for the cost of legal services under section 903.1 to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs.
“The father, mother, spouse, or other person liable for the support of a minor . . . shall . . . be liable for any cost to the county of legal services rendered directly to the father, mother, or spouse of the minor or any other person liable for the support of the minor, in a dependency proceeding by the public defender or other public attorney appointed pursuant to an order of the juvenile court, or by an attorney in private practice appointed pursuant to order of the juvenile court.” (Welf. & Inst. Code, § 903.1, subd. (a).)
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
A financial hearing was conducted on August 25, 2006 before Commissioner Jones. At the hearing, Belinda Z.’s counsel stated: “As the court is aware I had stipulated on behalf of my client last time we were here. I was made aware this morning by e-mail that she wishes to withdraw that stipulation.” At the previous hearing on August 15, 2006, the parties had stipulated that Commissioner Jones could hear the same matter. County counsel argued the request was untimely and the court ruled that it was. The court further ruled Belinda Z. is liable to reimburse the county in the total amount of $15,380. 51.
As to Justin,“I am going to enter judgment in favor of petitioner County of Orange against Belinda [Z.] in the aggregate amount of $7,689.75. [¶] . . . [¶] [I] am going to enter judgment in favor of petitioner County of Orange against Belinda [Z.] as to Markos matter as to $7,691.75.” Since the August 25, 2006 reporter’s transcript reports the juvenile judge stating judgment would be entered in these amounts, and since Belinda [Z.] appeals from the judgment made on August 25, 2006, we presume judgment was entered, even though there is no judgment in the appellate record.
II
The County filed a request for judicial notice in this court. Counsel’s declaration states: “For some unknown reason, [these] documents were not included in the appellate record.” Because the documents are exhibits from the financial hearing in juvenile court, the request is denied as moot.
Substantial evidence
Belinda Z. argues the judgment is not supported by substantial evidence. She points out: “The problem is that there was no way for Belinda or the trial court to determine that the fees charged by counsel were reasonable or that the amount charged to Belinda represented the actual cost of the fees to the county. [N]one of the documentation provided to Belinda or the trial court gave a [breakdown] of the fees charged, such as the number of hours the attorney worked, the hourly [rate] applied, or the tasks performed by the attorney. Nor is there any way to verify whether the attorney charged for other costs besides their fees. Furthermore, the petitions contained charges for service of process fees, which is a cost that is not authorized for reimbursement under section 903.1.” She also complains the statements of costs are not signed by any of the attorneys who performed legal services.
“‘When findings of fact are challenged in a civil appeal, we are bound by the familiar principle that “the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below.’ [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.]” (Robertson v. Fleetwood Travel Trailers of California Inc. (2006) 144 Cal.App.4th 785, 798.)
Belinda Z. complains now, but she did not complain at her hearing. It is clear in the reporter’s transcript that her counsel did not object to the admission of the County’s financial exhibits. Nor did Belinda Z. present any evidence of her own. During argument, Belinda Z.’s counsel acknowledged the amount of the legal bills. The orderly and efficient administration of the law and judicial economy requires a timely objection to the admission of evidence. A failure to timely object constitutes a waiver of the right to complain about the evidence on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469.) “Dependency matters are not exempt from this rule.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Accordingly, we find Belinda Z. waived her right to object to the foundation of the County’s financial exhibits.
“In regards to Justine [H.], Mr. Haubert, just so I am — and Mr. Bruggeman, so I am sure that we are on the same page here: I have, first of all, as to Justin a petition for order of payment of costs, which is supported by four exhibits. Exhibit 4 is actually a proof of service that was completed back on January 10th of 2005. The request on that petition for order of payment of costs against Belinda [Z.] on behalf of Justin is $1,102.50. Are you asking that that be admitted into evidence also? [¶] Mr. Haubert: Yes, your Honor. [¶] The court: Mr Bruggeman [Belinda Z.’s lawyer], any objection to that? [¶] Mr. Bruggeman: No, your Honor. [¶] The court: Second packet in regards to Justin is a petition for order of payment of costs, it is actually file stamped July 28th ’06, and it consists of six exhibits, which I have received. Also there is a proof of service. The request on this packet is for reimbursement in the amount of $6,587.25. [¶] Mr Bruggeman, any objection to the court considering that packet? [¶] Mr Bruggeman: No, your Honor. [¶] The court: As to those two packets then in the Justin [H.] matter I have read and reviewed and considered the contents of those two packets and will admit those two into evidence. [¶] Moving over to Markos [H.], I have a petition and order for payment of costs supported by three exhibits file stamped July 28th. One of the exhibits is a proof of service. And this packet of documents is requesting that the court make a judgment or issue a judgment order against Miss [Z.] in the amount of $5,831.25. Mr. Haubert, are you moving that into evidence as well? [¶] Mr. Haubert: Yes, your Honor. [¶] The court: Mr. Bruggeman. [¶] Mr. Bruggeman: No objection, your Honor. [¶] The court: That will be admitted into evidence. I have read and reviewed and considered that packet. [¶] There is a second packet as to Markos [H.]. It consists of a petition for order of payment and costs. It is supported by seven exhibits. And the request for order on this packet is requesting that a judgment be issued in the amount of $1,860.50 against Miss [Z.]. [¶] Are you moving that into evidence as well? [¶] Mr. Haubert: Yes, your Honor. [¶] The court: Mr. Bruggeman. [¶] Mr. Bruggeman: No objection. [¶] The court: I have read and reviewed and considered this packet of documents. We’ll admit it into evidence as well.”
“The court: Mr. Bruggeman, anything you would like to present? [¶] Mr. Bruggeman: No. I guess I will go second in terms of argument. [¶] The court: All right. But are you resting? [¶] Mr. Bruggeman: Yes.”
“[W]e are looking at about $15,000, maybe $15,300 — $400.”
The exhibits list attorney charges invoice-style with the names of the attorneys and minors on the documents. The amounts on the lists total the amount the county proved it paid for representation for the minors as well as the amount awarded to the County by the juvenile court. We find this evidence substantial and sufficient to support the court’s judgment.
Equal protection
Belinda Z. next argues the juvenile court erred and denied her equal protection when it denied her the right to prove legal malpractice as an offset to the County’s claim for reimbursement. She says: “Among other things, . . . appointed attorneys did not present a defense, did not properly investigate the case, and did not submit any documentary evidence or witness testimony which favored Belinda.”
She cites In re Sade C. (1996) 13 Cal.4th 952, 982, for the proposition that dependency cases are civil in nature. From there, she points out that “where an attorney sues a client to collect attorney fees that are owed by the client, the client can file a cross-complaint against the attorney if he or she has a claim for malpractice; the practice is relatively common.” She goes on to explain her view that the case of James v. Strange (1972) 407 U.S. 128, 135, holds that “reimbursement statutes do not violate equal protection as long as the indigent defendant is generally granted the same rights as civil litigants with respect to fixing liability for attorney’s fees and collecting those fees.”
Belinda Z. concedes the California statutes involved here, sections 903.1 and 903.45, “do not in and of themselves create any impermissible classification.” But she says we must examine how statutes are applied. Here, Belinda says that “[i]ndigent parents are required to reimburse the county on a sort of strict liability basis under section 903.1, without regard the reasonableness of the fees charged, and without regard to whether the parent has a claim against the attorney for ineffective representation. On the other hand, a parent who retained counsel and is hauled into . . . court because they have allegedly not paid their attorney, can claim the attorney committed malpractice and this entitles the parent to use the damages due them from the malpractice, as an offset against any fees owed.”
The record on appeal contains a document, respondent’s objections to paying for legal counsel, filed by the public defender in the juvenile court on June 12, 2006. It contains 10 pages of lofty concepts regarding the American justice system and fairness, as well as criticisms about the Orange County Social Services Agency. But there are no points and authorities setting forth any right to avoid reimbursement by someone in Belinda Z.’s position. No evidence or offers of proof are attached to the motion. In opposition, the County points out that Belinda Z. offers no statutory or case authority or evidence to support her position. The County also argues Belinda Z. “lacks standing to raise any issues as to the legal representation of the minors, Justin and Markos [H.].”
Yet at the financial hearing, Belinda Z. offered nothing to combat the County’s accusations regarding lack of statutory support, case authority, evidence or standing to support her position. Though it is unclear it was even admitted into evidence, the only item that might be considered even remotely close to evidence is a declaration from Belinda Z. Her counsel explained to the court: “[H]er position would be she is being estopped from being here because allegedly there are warrants for her arrest arising from a criminal matter and that is barring her entry into the State of California.” Counsel requested the court consider the faxed declaration from Belinda Z. The court said it was inclined to consider it if there was no objection. There was none. The declaration contains conclusory accusations against the County and appointed counsel.
The declaration states in part: “3. The record of the underlying dependency action evinces the County of Orange’s Social Services Agency, ‘the County,’ withheld relevant material exculpatory/impeachment documentary evidence which incontrovertibly evinces the County’s dependency action was entirely fraudulent, based on lies and intentionally malicious mi[s]characterization, misstatement or misrepresentation of the fact there was no abuse by my husband, John [Z.], the beatings with sticks which left discernible bruises on the boys, from which I failed to protect my sons, the 10/02/2003 intake medical exam reports by Dr. F. Abootorab, ‘the Abootorab reports.’ [¶] 4. The record of the underlying dependency action evinces no documentary evidence, witness testimony or pleading submitted by an attorney appointed by the Juvenile Court to represent me was ever submitted in my defense in 26 months of dependency litigation. [¶] 5. The record of the underlying dependency action evinces any and all documentary evidence, [witness] testimony or pleadings in my defense were submitted by me in pro se, and any and all witnesses that testified on my behalf were called to the stand only at my insistent demands the Juvenile Court allow my witnesses to testify in my defense. [¶] . . . [¶] 7. The single pleading prepared by one of my appointed counsel, Sharon Grier, Esq., W&IC § 388 motion in April 2005 that Grier was expressly ordered to produce by the Juvenile Court which expressed it was tired of receiving my pro se pleadings alleging Grier was incompetent, was executed and submitted by me in pro se, was declared by the Juvenile Court as failing to require a hearing, and summarily dismissed. [¶] 8. The fact none of the attorneys appointed to represent my sons or me during the 26 months of dependency litigation in any way complied with the minimum standards of representation required of all attorneys appearing in dependency proceedings enumerated in Local Rule 907(D) is incontrovertibly evinced by the fact all the attorneys in question failed in 26 months of litigation to find and submit the Abootorab reports into evidence to immediately terminate with extreme prejudice the County’s dependency action against me and the unlawful detention of my sons in County custody by showing the only objective evidence incontrovertibly impeached the County’s case by giving lie to the physical abuse allegations against John described by the County in its papers. [¶] 9. It is a fact an attorney that bills a client for hours not worked commits a fraud, so the County suing me for the money it paid in fraudulent attorney bills from the boys’ and my appointed counsel despite my having repeatedly and vehemently complained orally and in writing about my appointed counsel failing or refusing to provide any legal counsel besides urging me to accept the findings against me and comply with the case plan is nothing less than the County conspiring with said attorneys to violate my sons’ and my Federal constitutional right to the assistance of counsel. [¶] 10. The dependency action was nothing less than a malicious prosecution and terminated on the day the County mailed me copies of the Abootorab reports, exculpatory evidence the County suppressed for 26 months in violation of my Federal constitutional due process rights to a fair hearing.”
Nothing else was offered as evidence by Belinda Z. at the financial hearing to support her position. There were no offers of proof from, for example, any legal experts in dependency cases regarding any standards for attorneys appointed in dependency cases. Nor were there any requests the court permit any witnesses to be called.
During his final argument, Belinda Z.’s counsel stated: “She has also put forth a declaration that the court is going to consider regarding that sham counsel. It is her position that had certain medical documents been made aware—well, if those had been made available to social services and/or the court the children would have been released earlier. That is her argument and I will submit on that.” When the court ruled, the judge stated: “Her contention that the representation was not competent is not relevant. There is no factual support for her position, even if it was relevant. So I am going to find that the services were provided.”
In her appellate brief, Belinda Z. states: “Denying Belinda the right to prove her malpractice claim to offset the claim for reimbursement was a denial of equal protection.” She also states: “If given the proper opportunity, Belinda could have proved trial counsel was ineffective.” As noted above, several weeks prior to the hearing, Belinda Z. did object to paying any reimbursement for “sham legal representation.” But she does not provide any record references to demonstrate she ever requested the juvenile court to permit her to somehow present a malpractice claim, file some sort of pleading regarding a malpractice claim or present evidence of an offset. Under these circumstances, we must find the offset/equal protection argument is waived. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
Stipulation to the Commissioner
Belinda Z.’s last argument is: “The judgment is void because the record affirmatively showed Belinda did not consent to having Commissioner Jones hear her case.” She says that at the hearing her attorney told the court he had received a faxed document from her requesting the matter be heard by a judge, not a commissioner. She claims her attorney did not have the authority to stipulate to have a commissioner hear her case.
“The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.” (Cal. Const., art. VI, § 22.) “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” (Cal. Const., art. VI, § 21.) “Subject to the supervision of the court, every court commissioner shall have power to do all of the following: [¶] . . . [¶] (b) Take proof and make and report findings thereon as to any matter of fact upon which information is required by the court. [¶] . . . [¶] (e) Hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters including motions or petitions for the custody and support of children, the allowance of temporary spousal support, costs and attorneys’ fees, and issues of fact in contempt proceedings in proceedings for support, dissolution of marriage, nullity of marriage, or legal separation.” (Code of Civ. Proc. § 259.)
“The authority . . . conferred upon an attorney is in part apparent authority . . . to do that which attorneys are normally authorized to do in the course of litigation . . . and in part actual authority . . .” either express or implied. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404.) “Considerations of procedural efficiency require, for example, that in the course of a trial there be but one captain per ship.” (Ibid.) “[I]n view of our constitutional provision for trial by temporary judge by stipulation, and in view of counsel’s traditional authority to act for the client in the procedural aspects of the case, we are confident that counsel can enter a stipulation to a temporary judge even though the court has not secured an express waiver from the litigant.” (In re Horton (1991) 54 Cal.3d 82, 97-98.)
Here, Belinda Z.’s counsel and county counsel signed a “stipulation for court commissioner to act as temporary judge for all purposes” dated August 15, 2006. (Capitalization omitted.) The body of the stipulation states: “Commissioner Gregory W. Jones is a judicial officer of the Orange County Superior Court and may act as a Temporary Judge if all the parties agree in writing. (California Constitution, Article 6 §§ 21, 22, Code of Civil Procedure § 259(e)) [¶] Your signature below means you agree the above-named Court Commissioner shall act as a Temporary Judge for all purposes in this matter until the final determination of the case, including post-trial matters.”
It is clear from the record that Belinda Z. did not instruct her attorney not to stipulate to have Commissioner Jones hear the matter until eight or nine days after the stipulation had been signed. And Belinda Z. was certainly familiar with the process. On July 28, 2006, the matter was called before Commissioner Gary G. Bischoff. On that occasion, Belinda Z.’s attorney informed the court she did not wish to have the matter heard by the commissioner. Commissioner Bischoff concluded no stipulation had been filed and removed himself from the matter. Had Belinda Z. not wanted her attorney to stipulate to a different commissioner, she certainly could have given him such instructions between July 28 and August 15 when her attorney stipulated to Commissioner Jones.
Once the stipulation was signed, the parties could show disqualification of the commissioner by peremptory disqualification or by disqualification for cause. (See Schorr v. Superior Court (1980) 105 Cal.App.3d 568, 570.) Here, there was no attempt to disqualify Commissioner Jones after the court ruled Belinda Z.’s attempt to withdraw the stipulation was untimely. Because she stipulated to have Commissioner Jones hear the matter and thereafter did not move to disqualify him, she cannot prevail on this argument either.
III
DISPOSITION
The judgment and orders of the court are affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.