Opinion
E059515
02-27-2015
JOE MOODY, Cross-complainant and Appellant, v. LANAK & HANNA, P.C., Cross-defendant and Respondent.
Joe Moody, in pro. per., and for Cross-complainant and Appellant. Lewis Brisbois Bisgaard & Smith LLP, Raul L. Martinez, and Mark A. Oertel for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Super.Ct.No. RIC1216310)
OPINION
APPEAL from the Superior Court of Riverside County. Phillip J. Argento, Judge. Affirmed. Joe Moody, in pro. per., and for Cross-complainant and Appellant. Lewis Brisbois Bisgaard & Smith LLP, Raul L. Martinez, and Mark A. Oertel for Cross-defendant and Respondent.
Cross-complainant and Appellant Joe Moody filed a notice of appeal from an order filed in the Riverside County Superior Court on August 6, 2013, and entered on August 14, 2013, granting attorney's fees and costs to Lanak & Hanna, P.C. (Lanak), the attorneys that represented Plaintiff and Cross-defendant American Contractors Indemnity Company (ACIC). The attorney's fees and costs were awarded to Lanak for the fees associated with its special motion to strike Moody's cross-complaint filed against them (SLAPP motion) pursuant to Code of Civil Procedure section 425.16. The SLAPP motion was granted on March 8, 2013. Lanak then sought and was awarded its attorney's fees and costs associated with filing the SLAPP motion.
Moody has filed another appeal from the grant of a summary judgment motion in favor of ACIC in case Number E060477. We will consider that appeal separately from the instant appeal.
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Moody's opening brief is indecipherable. It does appear that he is arguing that the SLAPP motion was erroneously granted despite the fact that the time for appealing the grant of the SLAPP motion has passed and he already filed and abandoned a prior appeal in this court from the grant of the SLAPP motion. Additionally, he has provided an inadequate record to this court in order to support any claim he may be making that the attorney's fees and costs were improperly granted. For all of these reasons, we consider Moody to have abandoned all of his appellate issues, and based on the record before this court, we must presume that the trial court properly awarded Lanak its attorney's fees and costs.
I
FACTUAL AND PROCEDURAL BACKGROUND
The procedural background and facts are drawn from what we can discern from the few records that Moody has provided and the dockets from the trial court and this court.
ACIC, who was represented by Lanak, filed a complaint against Moody on May 23, 2012. It alleged two causes of action for breach of contract and common counts. ACIC stated that it was a surety company. ACIC alleged that on September 6, 2007, Moody executed a Lost Note/Deed Application (application) and Indemnity Agreement (agreement) in favor of ACIC for a deed that was lost for property owned by Moody. The agreement stated that in consideration of the issuance of the bond, Moody was to indemnify ACIC and hold it harmless against all loss, liability, costs and expenses of whatever kind or nature. In accordance with this agreement, ACIC issued a bond for the lost deed.
On February 6, 2009, a lawsuit was filed against Moody in connection with a foreclosure involving the lost deed. ACIC, as the surety, was required to comply with its obligations under the bond to defend Moody against active litigation. ACIC prevailed in the lawsuit on June 15, 2010, but Moody owed them $59,528.72 for representing him as set forth in the language of the agreement. Moody refused to pay the fees and the complaint was filed. ACIC sought $59,528.72 in damages plus interest, attorneys' fees and costs.
On December 10, 2012, Moody filed a cross-complaint, which was later amended on May 31, 2013, against ACIC. Moody additionally named Lanak based on its representation of ACIC in the litigation. On May 2, 2013, Lanak filed a SLAPP motion to dismiss the cross-complaint filed against it.
Only four pages of the SLAPP motion have been provided to this court but there are clearly additional pages that have not been made part of the record.
On March 8, 2013, the trial court, after a hearing on the matter, granted Lanak's SLAPP motion. No other record of the entry of judgment is included in the record. According to the docket sheet, the notice of ruling on the SLAPP motion was filed on March 15, 2013. On April 9, 2013, the trial court received notification that Moody had filed a notice of appeal. A prior appeal filed in this court in case Number E058505 was dismissed on April 30, 2013, pursuant to California Rules of Court, rule 8.100(c).
On June 14, 2013, Moody filed opposition to what he termed Lanak's "Motion for Attorneys' Fees and Costs Pursuant to Code of Civil Procedure section 425.16 [Anti-SLAPPS]." The motion filed by Lanak has not been included in the record, but according to the trial court docket, it was filed on May 10, 2013. The hearing on the attorney's fees and costs owed to Lanak was held on June 27, 2013, but the hearing transcript has not been made part of the record on appeal. The trial court issued a written ruling explaining its finding on the fees which is part of the docket but no minute order has been provided.
On August 14, 2013, a notice of entry of order was filed regarding the attorney's fees and costs. Attached was an order signed by the trial court on August 5, 2013, and filed on August 6, 2013, awarding Lanak $8,623.50 in attorneys' fees and costs.
On August 20, 2013, Moody filed a notice of appeal from the "8-14-13" order.
II
DISMISSAL OF APPEAL
The instant appeal lacks merit because (1) any claims pertaining to the grant of Lanak's SLAPP motion are not properly before this court in this appeal; (2) the arguments in Moody's brief are incoherent and he does not cite to proper legal authority; and (3) he has abandoned any claims he may be raising regarding the award of attorney's fees or the denial of the SLAPP motion by providing an inadequate record.
Initially, although the brief filed by Moody is incomprehensible, it does appear that he is raising some sort of claims related to the grant of Lanak's SLAPP motion. The entry of judgment on the grant of Lanak's SLAPP motion was on March 15, 2013. Defendant filed an appeal. However, that appeal was dismissed on April 30, 2013. Moody never attempted to perfect that appeal. Hence, he cannot now raise issues in this court regarding the denial of the SLAPP motion as he did not properly appeal from the order granting the SLAPP motion.
Even if somehow Moody could contest the above-mentioned order, his incoherent arguments and failure to cite to proper legal authority makes it impossible for this court to determine whether the SLAPP motion was improperly granted, and further, we cannot resolve any issues pertaining to the order from which defendant did appeal: the August 14, 2013 award of attorney's fees and costs to Lanak.
" [F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal." (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) In this case, we cannot discern what arguments defendant is raising on appeal. Moody refers to seeking relief by asking this court to find that the SLAPP was improperly granted, but provides no intelligible argument or grounds for such a reversal. He provides almost no facts or argument as to the attorney's fees and costs that were awarded. "Consequently, it is appropriate for this court to deem the appeal abandoned and to dismiss it." (Berger, supra, at p. 1120.)
The fact that Moody is representing himself in this appeal does not excuse the inadequacy of his brief. Although defendant is proceeding in propria persona, he must "'be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' . . . Indeed, "'the in propria persona litigant is held to the same restrictive rules of procedure as an attorney."' [Citation.]" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)
Moreover, appealed judgments are presumed correct and an appellant has the burden of overcoming this presumption by affirmatively showing error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) "The absence of a record concerning what actually occurred at [a] hearing precludes a determination that the court abused its discretion." (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259; see also Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 [record was inadequate on appeal thwarting the appellate court's ability to determine if the attorney fee award was an abuse of the trial court's discretion].) In In re Valerie A. (2007) 152 Cal.App.4th 987, the court considered the appellant's claim abandoned because he failed to provide a reporter's transcript of the relevant proceeding. (Id. at pp. 1002-1003.)
Here, Moody sought to proceed with a clerk's transcript and partial reporter's transcript. However, in designating the record to be included, he omitted several crucial documents. He did not request that the motion for attorney's fees and costs filed by Lanak in the trial court be included in the record. The transcript for the hearing on the attorney's fees motion filed by Lanak is not part of the record. Without these pertinent documents, we cannot determine whether the trial court abused its discretion by awarding attorney's fees and costs to Lanak. (Wagner v. Wagner, supra, 162 Cal.App.4th at p. 259.) Moreover, it would be inappropriate for this court to augment the record at this time when Moody voluntarily chose not to include these records in the appellate record and this would be unfair to Lanak. (Russi v. Bank of America National Trust & Savings Association (1945) 69 Cal.App.2d 100, 101.)
Finally, the record that is before this court supports that Lanak is entitled to attorney's fees. "Section 425.16, subdivision (c) provides that a prevailing defendant is entitled to recover attorney fees and costs . . . " (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, overruled on other grounds as stated in Equilon Enterprises v. Consumer Cause, Inc., supra, (2002) 29 Cal.4th 53, 68, fn. 5.) We must presume that the judgment was correct. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141.) Lanak was entitled to its attorney fees and costs incurred prosecuting the SLAPP motion.
Section 425.16, subdivision (c) provides in pertinent part "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."
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III
DISPOSITION
The order appealed from is affirmed. Lanak, as the prevailing party on appeal, is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur: KING
J.
MILLER
J.