Opinion
A165471
03-29-2023
MICHELE URIARTE, Plaintiff and Respondent, v. GYORGY MATRAI, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 1902312)
We resolve this case by a memorandum opinion pursuant to the California Standards of Judicial Administration, section 8.1.
GOLDMAN, J.
Gyorgy Matrai, acting without counsel, challenges two trial court orders entered on June 13, 2022, in a marital dissolution action with his former spouse, Michele Uriarte. The first order "dropped" Matrai's requests for custody and/or visitation orders because he failed to appear at the hearing, and awarded Uriarte attorneys' fees she incurred to prepare for it. The second order denied Uriarte's request to expedite a hearing on her motion to compel Matrai's responses to interrogatories and set a later hearing date for the motion.
Uriarte did not file a respondent's brief or any other documents on appeal, so we decide the appeal based on Matrai's opening brief and the record he supplied. (Cal. Rules of Court, rule 8.220(a)(2).) We conclude that Matrai has failed to establish any error in the order awarding fees, and that the order setting a hearing on Uriarte's motion to compel is not appealable. We therefore affirm the fee award and otherwise dismiss the appeal.
DISCUSSION
While Matrai has furnished only the barest record on appeal, it appears that on February 15 and 16, 2022, he filed two requests for orders pertaining to custody or visitation. (Those requests for orders are not in the record.) The trial court held a hearing on those requests on June 13, 2022, but Matrai did not appear, so the court entered an order the same day stating that the matters were "dropped for failure to appear" and also awarded Uriarte $1,572.50 under subdivision (b)(1) of Family Code section 2031 for legal fees she incurred to prepare for the hearing. The court also checked the box indicating that the fees were "due in full, on or before," and wrote in "6/13/2022," the date of the court's order. The record on appeal does not include a reporter's transcript or any other information about what transpired at the hearing.
All further undesignated statutory references are to the Family Code.
Assuming this order is appealable (see In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824), Matrai has not established any error. He contends that the order was "facially invalid" because the "enforcement deadline . . . predate[d]" the court's order. But as set forth in the foregoing paragraph, this contention is incorrect. The court made the fee award due and payable as of the date the order was entered, and Matrai offers no argument or authority to show that the court could not permissibly do so.
Matrai also challenges the order because "[t]here are no supporting documents attached to justify the fees ordered," but again offers no argument or authority to establish that such documents must be attached to the order. The trial court awarded fees under section 2031, which generally requires a motion on notice or an order to show cause (§ 2031, subd. (a)), but also provides that an order "may be made without notice by an oral motion in open court . . . [a]t the time of the hearing of the cause on the merits" (id., subd. (b)(1)). The trial court cited subdivision (b)(1) in its order. And California Rules of Court, rule 5.427(b)(1) specifically excludes oral fee requests under section 2031, subdivision (b) from the requirement to file any documentation otherwise required for a fee request.
We recognize that a trial court must consider certain factors before making such an award, and an order will be reversed for abuse of discretion where the record fails to reflect that it did so. (§ 2032; In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133-134.) But Matrai has not provided a transcript of the hearing or any other information about what transpired, and we cannot find error in the absence of an adequate record to evaluate his claim. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court's determination."]; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [where appellant fails to provide a reporter's transcript, the court will "presume that what occurred at that hearing supports the judgment"].)
Finally, Matrai asserts that he did not receive notice of the June 13 hearing because the court changed hearing dates "without appropriate notice and serving of the final date of the subject hearing." Here, too, the record he submitted contains nothing to support that assertion, such as the trial court's register of actions. Because" 'all intendments and presumptions not contradicted by or inconsistent with the record are in favor of the regularity of the proceedings'" (People v. Wissenfeld (1951) 36 Cal.2d 758, 767), we must presume that the court properly notified the parties of any changes in the scheduled hearing, and Uriarte's appearance at the hearing suggests that she received notice of the date and time.
Matrai next challenges the trial court's order denying Uriarte's request to expedite a hearing on her motion to compel discovery responses, although his objection to the order is that it set the motion for hearing at all. However, an order setting a hearing date is not appealable." '[A]n order is not appealable unless declared to be so by the Constitution or by statute.'" (Brekke v. People (1965) 233 Cal.App.2d 196, 199.) Interim orders not disposing of all causes of action in a case generally are not appealable. (Code of Civ. Proc., § 904.1, subd. (a)(1); Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 384.) Code of Civil Procedure section 904.1, subdivision (a) makes certain interim orders appealable, but none apply here. Indeed, procedural orders merely setting case dates are not appealable. (Governale v. Bethlehem Pacific Coast Steel Corporation (1965) 235 Cal.App.2d 837, 843.)
Because appealability is a jurisdictional question, "[w]hen, as here, the order is not appealable, we must dismiss the appeal." (Reddish v. Westamerica Bank (2021) 68 Cal.App.5th 275, 277; see Mart v. Severson (2002) 95 Cal.App.4th 521, 530, fn. 5 [dismissing portion of appeal addressed to non-appealable order].)
Matrai filed a request that we take judicial notice of a document referred to as "Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration, and Schedule of Assets and Debts." The referenced declaration was apparently filed in the trial court, but Matrai neither included it in the appendix nor attached it to the request for judicial notice. We therefore deny the request for failure to provide us with a copy of the document. (See Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1167, fn. 1.) Moreover, based on the document's title and its citation in the opening brief, it apparently pertains to Matrai's challenge to the court's order setting a discovery hearing. We therefore also deny the request as irrelevant to the dispositive issue on appeal. (See City and County of San Francisco v. Uber Technologies, Inc. (2019) 36 Cal.App.5th 66, 77, fn. 4.)
DISPOSITION
The order awarding fees is affirmed. The portion of the appeal addressed to the order setting a hearing date is dismissed. Uriarte is entitled to recover costs, if any.
WE CONCUR: BROWN, Acting P. J., WHITMAN, J.[*]
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.