Opinion
E050971 Super.Ct.No. RFLRS046551
10-21-2011
In re the Marriage of MICHELE and JAIME BULCAO. HENRY JAMES KOEHLER, Appellant, v. COUNTY OF SAN BERNARDINO, Respondent.
Henry James Koehler, in pro. per., for Appellant. No appearance by Respondent. 1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael J. Gassner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Henry James Koehler, in pro. per., for Appellant.
We have received a letter from the County of San Bernardino advising the court that it is not a party to this appeal, as it had not been a party to the original action. However, we direct the County to Penal Code section 987.2.
I. INTRODUCTION
This appeal is from an order given in an action that is still continuing in the lower court. Michele (Mother) and Jaime (Father) Bulcao obtained a dissolution of their marriage on November 9, 2006. Appellant Henry James Koehler represented Father for a portion of those proceedings. During and after his work on behalf of Father, Koehler requested attorney fees from the San Bernardino County Public Defender's Office. The court denied the request. Koehler appeals the order dated February 4, 2010, the denial of his motion for a "retrial of the trial" of February 4, 2010, and vacation of the "judgment" of February 4. He claims the trial court erred in holding he was not a party to the action. He also contends the public defender's office should be liable for his fees on behalf of Father.
Though Koehler characterized the hearing on February 4, 2010, as a "trial," it was, in fact, a hearing. It resulted in an order, not a judgment. Thus, Koehler should have filed a motion for reconsideration (Code Civ. Proc., § 1008), not a motion for new trial and vacation of judgment. However, unless otherwise noted, we will use the terms "trial" and "judgment" in our opinion, as this is the language used in the record.
II. FACTS AND PROCEDURAL BACKGROUND
On August 9, 2005, Mother filed for dissolution of her marriage to Father. Two years later, on August 17, 2007, Mother filed an order to show cause for contempt because Father was behind on his child support payments. Father was arraigned in a hearing on November 19, 2007, at which he appeared in propria persona. "By happenstance," Koehler was present during a contempt hearing on January 28, 2008, and became Father's counsel for the contempt matter only. On February 11, 2008, Koehler filed his first accounting of attorney fees, and by August 13, 2009, he had filed 10 supplemental accountings. These accountings requested payment variously from Mother, the Department of Child Support Services, and the public defender's office under a variety of theories of liability.
How Koehler became Father's counsel is unclear from the limited record before the court. Koehler insists he was appointed, but other parties assert he volunteered.
Mother eventually dropped the contempt charges in a stipulated agreement filed on July 17, 2008. According to the records of the State Bar of California, on August 13, 2009, Koehler was suspended from practicing law in California and subsequently disbarred. (<http://members.calbar.ca.gov/fal/Member/Detail/52539> [as of July 18, 2010].) That same day, he filed several briefs, including his last accounting and a substitution of attorney form.
Father was substituted in and appeared in propria persona for the remainder of the record.
We take judicial notice that Koehler filed these briefs after his suspension. There is some indication in the record that Koehler continued to advise and appear on behalf of Father after his suspension.
On August 26, 2009, Koehler filed a request for attorney fees as a claimant in the case, asked for judicial notice of his 11 accountings, and listed Mother, the public defender, and the Superior Court of San Bernardino County as the three possible sources of payment. Koehler argued, and continues to argue, that the public defender's office was liable because of its responsibility to provide representation for indigents. Though he was suspended from practice, Koehler was listed as appearing as previous counsel on behalf of Father at a December 10, 2009, hearing. During that hearing, it was indicated that both parties (Mother and Father) intended to seek fees and costs. The hearing was continued to June 2010.
This is not part of the trial court's record. Rather, these exhibits were submitted with Koehler's letter brief drafted in response to this court's direction. As respondent has not appeared in this appeal and there is no objection, we will consider the exhibits to be part of the record on appeal.
Nowhere in the record is there any evidence that Father was indigent or was found indigent by the court. These are Koehler's representations only. Rather, in the public defender's motion to bifurcate, it is noted that "Commissioner Gassner on December 10, 2009, [noted that] Commissioner Crawley had made a previous finding that [Father] was not indigent . . . ."
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On December 21, 2009, the public defender filed a motion for bifurcation of and opposition to liability for attorney fees. The public defender's office argued that, because Father had never requested representation, it was not appointed to represent him, and Koehler had volunteered to do so, it was not liable for Koehler's attorney fees. Koehler was hospitalized from January 24, 2010, to February 3, 2010, and was then released to recuperate at home. He was not present at the February 4, 2010, hearing on the public defender's motion. Father requested a continuance as Koehler was not present. The court stated that Koehler was not a party to the action and therefore denied continuance, but it offered Father a continuance to file a response to the public defender's motion. Both Father and Mother declared for the record they were not seeking fees from the public defender's office. As a result, the court granted the public defender's motion and denied Koehler's earlier petition for fees. Koehler filed a motion on March 11, 2010, for a "re-trial" of the February 4 hearing; a vacation of the "judgment" of February 4; and a dismissal of the public defender's motion as moot. On March 22, 2010, Koehler filed a supplement to his motion. He claimed there had been irregularity of the proceedings because hospitalization of a party is cause for a continuance. He also claimed that "'ordinary prudence'" could not have "'guarded against'" the situation and alleged the public defender's office had violated Father's civil rights when it refused to represent him. Included in the supplement was an affidavit from Father supporting Koehler's motion. At a hearing on April 28, 2010, the trial court denied the motion for new trial. Koehler filed his appeal from the denial on May 27, 2010. On its own motion, this court ordered Koehler to deliver points and authorities establishing his standing to appeal. Koehler filed his brief on July 19, 2010, with exhibits. On July 21, Koehler was granted tentative standing without prejudice to later findings and directed to address the appealability of the order appealed and his standing to appeal.
III. DISCUSSION
There are three issues before this court: the appealability of the orders appealed, Koehler's standing to appeal those orders, and the correctness of the trial court's ruling on those orders.
A. Appealability of Order Appealed
In our July 21, 2010, order, this court specifically instructed Koehler to address the appealability of the order appealed. Koehler has failed to do so. Though he quotes the court's instructions, nowhere in his brief is there any discussion of appealability. The court considers issues not addressed by the party as waived. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522 (McComber).) Even if we consider the order appealable for the sake of argument, there are further reasons as discussed below to deny the appeal.
B. Standing to Appeal
"The right to appeal is liberally construed. [Citations.]" (United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304-1305 (United Investors).) Standing in the Court of Appeal is distinct from standing in a trial court. "Courts of Appeal have refused to dismiss appeals on the ground the appellate court might ultimately determine the appellant did not have standing to assert its claims in the trial court. [Citations.]" (Id. at p. 1305.) Code of Civil Procedure section 902 states that "[a]ny party aggrieved may appeal . . . ." An aggrieved party is one "'whose rights or interests are injuriously affected by the judgment. [Citations.]'" (United Investors, supra, at p. 1304.) Koehler offers three grounds by which he should be considered an aggrieved party. We address each in turn.
First, Koehler contends he is an aggrieved party because he has not been paid for his legal work and, without an appeal, he loses all chance of remuneration from the public defender. We agree. "'Appellant[']s interest "'must be immediate, pecuniary, and substantial . . . .'" [Citations.]" (United Investors, supra, 125 Cal.App.4th at p. 1304.) Given that Koehler has entered accountings worth over $100,000, losing the chance to receive that amount is certainly to his detriment.
Second, Koehler contends that if he is found to lack standing in this appeal, he will not have standing to defend himself against the request for sanctions Mother has filed against him in the lower court. The question at hand is Koehler's standing to appeal, not standing for some hypothetical proceeding below. Even if Mother's action were at issue, Koehler's argument is patently incorrect. The idea of a defendant not having standing to defend himself is an anathema to American jurisprudence.
Third, Koehler contends he is entitled to fees for conferring a public benefit under the Private Attorney General's Act (Code Civ. Proc., § 1021.5). Specifically, he claims he has conferred a public benefit by "bringing to the attention of the courts the fact that they have not been supplying free counsel to indigents facing contempt-of-court charges in family law cases." We disagree. There is no public benefit in this case, and we summarily reject this claim. (Schmier v. Supreme Court (2002) 96 Cal.App.4th 873, 877-878 [public benefit is assessed by examining the condition the fee claimant sought to change and whether the action resulted in the enforcement (or vindication) of an important right that affects the public interest].)
C. Denial of Motion for Retrial and Vacation of Judgment
Koehler appeals "from orders of the trial court ruling that [he] has no standing to ask the Superior Court of San Bernardino to pay him for the work he did at their request defending Jaime Bulcao from contempt of court charges." As appellant, Koehler bears the burden of demonstrating the trial court's error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) He is responsible for providing the court with an adequate record (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132) and supporting his contentions with citations to that record (McComber, supra, 72 Cal.App.4th at p. 522). Unfortunately, Koehler has provided the court with a very truncated record that does not include the relevant reporter's transcripts. When the record is silent, "'"all intendments and presumptions are indulged to support [the judgment]."'" (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) When no reporter's transcript is provided on appeal, the trial court's judgment is conclusively presumed to be supported by the evidence. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Moreover, issues not addressed by the appellant are considered waived. (McComber, supra, 72 Cal.App.4th at p. 522.) Mr. Koehler has not provided this court with an adequate record, nor has he addressed the significant issues of this appeal. We are bound to find the trial court ruled correctly.
IV. DISPOSITION
The orders appealed from are affirmed. The parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
CODRINGTON
J.