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In re Marriage of Sakov

California Court of Appeals, First District, First Division
Jul 21, 2008
No. A118784 (Cal. Ct. App. Jul. 21, 2008)

Opinion


In re the Marriage of JOSHUA SAKOV and ESTER ADUT. JOSHUA SAKOV, Respondent, v. ESTER ADUT, Appellant. A118784 California Court of Appeal, First District, First Division July 21, 2008

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. FAM071155

Swager, J.

Appellant Ester Adut appeals from an order granting Joshua Sakov $500 in attorney fees. Appellant has failed to include in the record a copy of the motion that precipitated the order she now contests. Given the state of the record, we are unable to conclude that the trial court erred in awarding the attorney fees. Accordingly, we affirm.

No respondent’s brief has been filed. Rule 8.220(a)(2) of the California Rules of Court provides that in such circumstances, “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.”

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Our recitation of the facts is constrained by the paucity of the record submitted in conjunction with this appeal. The underlying case is a marital dissolution proceeding. It appears that sometime prior to May 15, 2007, appellant filed a motion to set aside certain orders made by the trial court following a hearing held on January 5, 2007.

On May 15, 2007, Sakov filed a responsive declaration alleging that appellant’s motion to set aside was frivolous. The declaration includes a request for attorney fees. The accompanying proof of service states that Sakov’s declaration was served on appellant on May 15, 2007, by leaving a copy on her front doorstep.

At the hearing on May 23, 2007, the court denied appellant’s motion to set aside, stating: “The court has completely responded in the past to the request for a further statement of decision and objections to the statement of decision on the issue as to whether [appellant’s] request for spousal support was heard and ruled on. It was based on the testimony presented and the pleading. The court will order $500 in fees to Mr. Sakov on this motion.”

On June 20, 2007, the court issued its formal order denying appellant’s motion and awarding the attorney fees in favor of Sakov. The order contains the notation “Signed after review of [appellant’s] objection.” This appeal followed.

DISCUSSION

We first summarize the basic principles of appellate review. An appealed judgment or order is presumed to be correct, and “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant has the burden of overcoming this presumption by an affirmative showing of error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141.) “Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)

Furthermore, error alone does not warrant reversal. “It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.” (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1439.) “ ‘The burden is on the appellant, not alone to show error, but to show injury from the error.’ ” (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740, citation omitted.) “Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.” (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) “Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114.) A miscarriage of justice is not found “unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.” (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1841.)

The record in this case is sparse, consisting primarily of the register of actions, which takes up 110 pages out of the 123-page clerk’s transcript. The record also includes the reporter’s transcript of the May 23, 2007 hearing. In addition, we have granted appellant’s motion to augment the record to include Sakov’s responsive declaration filed on May 15, 2007. The record does not include appellant’s motion to set aside.

We also note that appellant’s brief cites to portions of the clerk’s transcript that do not exist. The transcript included in the record contains a single volume and ends at page 123. Yet appellant’s opening brief at points cites to pages numbered as high as page 210.

Based on Sakov’s declaration, it appears that the request for fees and the trial court’s award were premised on the provisions of Family Code section 271. “Subdivision (a) of Family Code section 271 permits a trial court to award attorney fees and costs as a sanction based on ‘the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.’ The party requesting an attorney fees award under section 271 is not required to demonstrate financial need for the award. [Citation.] ‘[S]ection 271 sanctions have been upheld for “obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase . . . .” ’ [Citation.]” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1081–1082.)

Appellant raises numerous procedural challenges to the attorney fee award. For example, she claims Sakov’s response should have been stricken because it was not signed by his attorney. She also claims the court improperly failed to consider the parties’ income and expense declarations, and that Sakov’s declaration was not properly served and was filed after the time specified by Code of Civil Procedure section 1005, subdivision (b). She does not challenge the substantive basis for the court’s ruling.

We first observe that decisions of the California and federal courts hold that “a signature defect is a mere technical irregularity.” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1172; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768–769; Covington v. Cole (5th Cir. 1976) 528 F.2d 1365, 1369–1370; Hadlock v. Baechler (W.D.Ark. 1991) 136 F.R.D. 157, 159.) Thus, there is no need to dwell on the absence of Sakov’s attorney’s signature.

Appellant argues that the trial court failed to comply with California Rules of Court, rule 5.128, which requires the parties to serve and file current income and expense declarations whenever a financial matter is at issue. We note that she referenced the parties’ most recent income and expense declarations without objection at the May 23, 2007 hearing. In any event, even if the court erred, this error does not require reversal. (See In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524 [although “Rule of Court phrased in mandatory language is generally . . . binding on the courts[,] departure from [the rule] is not reversible error unless prejudice is shown”].)

Appellant also claims that she received insufficient notice that Sakov was seeking sanctions because his response was filed only six court days before the hearing, as opposed to the nine days required by Code of Civil Procedure section 1005, subdivision (b). She has not cited to any portion of the record showing that she objected to or claimed prejudice from deficient notice. As long as the deficient notice is not a jurisdictional defect, a party’s appearance and failure to object or assert prejudice generally constitutes a waiver of the notice issue. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697–698; M. E. Gray Co. v. Gray (1985) 163 Cal.App.3d 1025, 1034; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 779.)

Alternatively, the record shows appellant had adequate notice and an opportunity to be heard on the sanctions request so as to render any procedural deficiency harmless. (See In re Albert B. (1989) 215 Cal.App.3d 361, 380–381.) She had over a week to prepare a response to a specific, relatively small, attorney fee request. Because there has been no showing of surprise or prejudice to appellant, any procedural deficiency does not require reversal. Sakov’s responsive declaration was sufficient to put her on notice that he would seek sanctions well in advance of the May 23, 2007 hearing.

Finally, appellant claims she was prejudiced by the order “because it requires her to pay $500.” This is not the correct standard for determining prejudice. Regardless of whether an appellant’s claims of error have merit, we will not find an error to be prejudicial “unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.” (Khan v. Medical Board, supra, 12 Cal.App.4th 1834, 1841.) Without knowing the content of appellant’s motion below, we simply cannot resolve whether the trial court abused its discretion in making the fee award.

DISPOSITION

The order is affirmed.

We concur: Marchiano, P. J. Margulies, J.


Summaries of

In re Marriage of Sakov

California Court of Appeals, First District, First Division
Jul 21, 2008
No. A118784 (Cal. Ct. App. Jul. 21, 2008)
Case details for

In re Marriage of Sakov

Case Details

Full title:JOSHUA SAKOV, Respondent, v. ESTER ADUT, Appellant.

Court:California Court of Appeals, First District, First Division

Date published: Jul 21, 2008

Citations

No. A118784 (Cal. Ct. App. Jul. 21, 2008)