Opinion
2d Civ. No. B296292
08-05-2020
L.S., et al., Plaintiffs and Respondents, v. U.P., Defendant and Appellant.
Law Office of Amira Hasenbush, Amira Hasenbush; Chazan Family Law, Alana Chazan, for Defendant and Appellant. David L. Ingram, for Plaintiff and Respondent J.C. No appearance for Plaintiff and Respondent L.S.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. D373133)
(Ventura County)
J.C. and L.S. are same-sex registered domestic partners. After deciding to have children, the couple entered into a sperm donorship agreement with U.P. L.S. was artificially inseminated with U.P.'s sperm and gave birth to one child. She later had a second child pursuant to the same agreement.
One of the children has a developmental disorder which L.S. believes was caused by a genetic condition U.P. failed to disclose. L.S. filed a petition seeking child support and medical insurance from U.P. to help pay for the child's special needs.
J.C. was not a party to the petition. U.P. sought and obtained an order joining her as a "claimant" pursuant to rule 5.24(e)(1)(A) of the California Rules of Court, which requires "that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership or to any minor child of the relationship."
J.C. did not file any prejudgment pleadings or documents in this case. Nor did she seek any relief on her own behalf. J.C. did appear at a deposition noticed by U.P. and also testified at trial in response to a notice to appear served by U.P. under Code of Civil Procedure section 1987.
Prior to trial, U.P. filed a request for attorney fees as to L.S. based on the fees clause in the sperm donorship agreement. Following the three-day trial, the court entered judgment in U.P.'s favor. It further determined U.P. is the "prevailing party" and, as such, is entitled to an award of attorney fees and costs under the terms of the sperm donorship agreement. (See Civ. Code, § 1717.) All issues regarding those fees and costs were reserved for further hearing.
U.P. filed a post-trial motion seeking $90,125 in attorney fees against both L.S. and J.C. The trial court awarded U.P. $40,000 in attorney fees, to be paid by L.S. It rejected appellant's argument that L.S. and J.C. should be jointly liable for those fees. The court found: "[J.C.] raised no new issues or defenses and took no independent position in the litigation. Simply stated, all of the issues in the case involved [L.S.] and [U.P.]; [J.C.'s] presence in the action was affirmatively sought by [U.P.] and aided only him."
U.P. appealed that "order after judgment." (See Code Civ. Proc., § 904.1, subd. (a)(2).) Issues regarding the trial court's joinder order and judgment are not before us. The only issue is whether the trial court erred by declining to hold J.C. jointly liable for the fee award. As we shall explain, U.P. has failed to provide an adequate record to permit review of that decision. We therefore affirm.
J.C. is the only respondent who is appearing in this appeal. L.S. has taken no position on the issues raised by U.P.
DISCUSSION
We have omitted a recitation of the underlying facts. Not only are they irrelevant to this appeal, but most of the records in this case are deemed confidential under the Uniform Parentage Act. (See Fam. Code, § 7643, subd. (a).) --------
Standard of Review
"Orders denying or granting an award of attorney fees are . . . generally reviewed using an abuse of discretion standard of review. [Citation.] But a 'determination of whether the criteria for an award of attorney fees and costs have been met is a question of law.' [Citation.]" (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) We decide questions of law de novo. (See Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780.)
The Record is Inadequate for Meaningful Review
U.P. urges us to apply the de novo standard, but it is irrelevant which standard we apply. Most of the "evidence" he relies upon to establish J.C.'s co-liability for the attorney fees award is not before us.
The principal issue is whether J.C.'s prejudgment involvement in L.S.'s petition is sufficient to subject her to attorney fees as a losing party. The trial court granted U.P.'s motion to join J.C. as a mandatory claimant. (See Cal. Rules of Ct., rule 5.24(e)(1)(A).) As the court explained, J.C. is a presumed parent of the children under Family Code section 7611, subdivision (a) and, as such, must be joined since the petition "requested legal and physical custody of the minor children of the domestic partnership, placing this matter at issue." Other than providing involuntary trial and deposition testimony, J.C. had no prejudgment involvement.
At the hearing on U.P.'s request for attorney fees, his counsel represented to the trial court that when J.C. was asked "under oath" if she "'happen[ed] to know whose idea it was to bring this lawsuit,'" J.C. responded: "'[L.S.'s] and mine.'" Although counsel stated this was a direct quote, it is unclear whether it came from J.C.'s trial testimony or deposition testimony, both of which would have been made "under oath."
U.P. argues that this testimonial admission and counsel's joint representation of L.S. and J.C. at trial under a conflict waiver agreement support his contention that "[b]y aligning with the losing opposing party, J.C. took on the same liability as L.S. for attorney fees under the contract that all three parties signed and are bound by." U.P. also claims the trial "court's clear language throughout the judgment indicates the jointly held positions of L.S. and J.C." These statements include: "Ms. S[ ] and Ms. C[ ] seek financial assistance"; "Ms. S[ ] and Ms. C[ ] argue that Family Code §7613(b)(2)(A) is not retroactive"; and "[t]he court believes Ms. S[ ] and Ms. C[ ]'s position to be that it would be beneficial for the children to have the financial support of Mr. P[ ]."
First and foremost, unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11; In re Heather H. (1988) 200 Cal.App.3d 91, 95 ["[U]nsworn testimony does not constitute 'evidence' within the meaning of the Evidence Code"].) Nothing in the record confirms U.P.'s assertion that J.C. testified at trial that the decision to bring the action was "[L.S.'s] and mine." The trial transcript was not provided, and it is unclear whether the statement, to the extent it occurred, was made at trial or during J.C.'s deposition.
The trial court's characterization of certain arguments as being jointly made by L.S. and J.C. also is not dispositive. These statements are not findings. The court found that U.P. "is not the natural parent of [the children] and that the Petitioner, [L.S.], and the Joined Party/Claimant, [J.C.] are the two parents of these two children. [L.S.'s] Petition to Establish Parental Relationship is denied in its entirety, as are her requests that [U.P.] provide financial support for the children." (Italics added.) Moreover, the court specifically noted in its judgment that U.P. "has not sought a prevailing party award against [J.C.], who he joined in the action."
Nor are we persuaded by U.P.'s argument that J.C. is liable for his attorney fees because she and L.S. were represented by the same counsel at trial. J.C. did not appear on her own accord. The record confirms she was directed to appear by U.P. Without a reporter's transcript of the trial proceedings, we cannot assess whether J.C.'s testimony or any other evidence adduced at trial contradict the trial court's post-judgment findings that she "raised no new issues or defenses and took no independent position in the litigation" and that her "presence in the action was affirmatively sought by [U.P] and aided only him." It is possible the transcript would support, rather than undermine, the court's decision. We have no basis, therefore, for making our own independent determination regarding the extent of J.C.'s involvement or to assess whether the court committed an abuse of discretion.
Accordingly, we agree with J.C. that U.P.'s failure to designate an adequate record is fatal to his appeal. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant must affirmatively establish error by an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson); Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust); Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) In the absence of a proper record on appeal, the appealable judgment or order is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.).)
U.P. states in his reply that the "rule on appeal is almost absolute: 'if it is not in the record, it did not happen,'" but applies that rule only to J.C. He explains: "The trial transcripts were not included as a cost-saving measure for Appellant and because the vast majority of trial testimony was irrelevant to the issue of attorney fees. The one relevant statement in J.C.'s trial testimony was directly quoted in the attorney fees hearing after trial, and therefore, the full transcripts from trial were excluded to reduce the volume of the appellate record to only what was substantively related to the issue on appeal."
U.P. further contends J.C. waived the right to complain about the sufficiency of the record because she did not seek to augment it. He also includes this footnote: "To not increase the burden on the court, Appellant is not making a motion to augment the record with the documents that Respondent made reference to. However, if the Court has any concerns, Appellant invites the court to augment the record sua sponte in order to clear up any doubts."
Neither the respondent nor the appellate court has a duty to augment an inadequate record. It is the appellant's burden to provide an adequate record. (Jameson, supra, 5 Cal.5th at p. 609; Foust, supra, 198 Cal.App.4th at p. 187.) In the absence of one, we must presume the trial court's determination that J.C. is not jointly liable for U.P.'s attorney fees is correct. (Maria P., supra, 43 Cal.3d at pp. 1295-1296.)
DISPOSITION
The post-judgment order awarding attorney fees to U.P. is affirmed in its entirety. J.C. shall recover her costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
John R. Smiley, Judge
Superior Court County of Ventura
Law Office of Amira Hasenbush, Amira Hasenbush; Chazan Family Law, Alana Chazan, for Defendant and Appellant.
David L. Ingram, for Plaintiff and Respondent J.C.
No appearance for Plaintiff and Respondent L.S.