Opinion
A146906
10-03-2018
RANDALL WHITNEY et al., Plaintiffs and Appellants, v. OLIVE M. BROTHERS, as Trustee, etc., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG 14727567)
Randall and Leslie Whitney (the Whitneys) filed the underlying action to prevent Olive M. Brothers (Brothers) from proceeding with a nonjudicial foreclosure proceeding against the Whitneys' home. Following a bench trial, judgment was entered in favor of Brothers. In this appeal from the judgment, the Whitneys fail to present any theory of error. Instead, they seek review of a postjudgment attorney fee order that was not appealed. Under these circumstances, we dismiss the Whitneys' appeal.
Throughout this action, the Whitneys have represented themselves in propria persona. "Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. [Citations.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
I. BACKGROUND
A. Proceedings in the Lower Court
On June 3, 2014, the Whitneys filed a complaint alleging the following general facts: The Whitneys own a home in Oakland with an estimated value of $1,793,903 (the property). In May 2005, the Whitneys "executed a five year promissory note in the amount of $250,000 to Brothers at 7 percent interest." They also executed a deed of trust for the property, "listing Brothers as beneficiary, purporting to secure the $250,000 promissory note." In February 2014, Brothers's attorney (and codefendant) issued an amended notice of default. A trustee's sale of the property was scheduled for June 5, 2014.
In their complaint, the Whitneys stated or attempted to state causes of action against Brothers for (1) enforcement of the terms of the promissory note; (2) production of tax forms pertaining to mortgage loan payments; (3) an accounting; (4) cancellation of the notice of default and notice of trustee's sale; and (5) injunctive relief to prevent nonjudicial foreclosure.
In June 2015, the court held a bench trial. On the second day of trial, the court granted a defense motion for judgment (Code Civ. Proc., § 631.8) as to all the Whitneys' claims except for their cause of action for an accounting. The court also found that the parties were "in basic agreement as to the final accounting" and, therefore, the cause of action for an accounting was "rendered moot."
On September 22, 2015, the trial court signed a "JUDGMENT," that was filed that same day. The judgment summarized the court's findings at the bench trial and then stated: "Judgment is hereby rendered in favor of Defendants . . . and against Plaintiffs, Randall Whitney and Leslie Whitney, husband and wife. The Court retains jurisdiction to rule on a motion to determine prevailing party and award of costs and fees, if any."
On November 3, 2015, the trial court signed an "AMENDED JUDGMENT" that was filed the same day. The amended judgment stated that the judgment was amended to provide that Brothers shall have a judgment against the Whitneys, in the amount of $23,907.40. This monetary award consisted of $20,000 in attorney fees, $1,907.40 in costs, and a $2,000 sanction, which was imposed previously on the Whitneys but had not been paid.
B. The Present Appeal
On November 19, 2015, the Whitneys filed a notice of appeal from the judgment, specifying September 22, 2015, as the date of entry of judgment, and attaching a copy of the judgment that was filed that day. In their "Notice Designating Record on Appeal," the Whitneys elected to use a Clerk's Transcript, specifying again that they were appealing from the September 2015 judgment. The Whitneys also elected to use a settled statement under rule 8.137 of the California Rules of Court (rule 8.137) as the record of oral proceedings in the superior court.
On September 21, 2016, the record on appeal was filed in this court. That record consists of a one volume Clerk's Transcript and a document captioned as a "Settled Statement." Aside from the amended judgment summarized above, the Clerk's Transcript does not contain any documents that refer to an award of attorney fees to Brothers or the basis thereof. The Settled Statement, which appears to have been drafted by the Whitneys, pertains solely to the bench trial and does not contain any information about the post-judgment award of fees, costs and sanctions to Brothers.
Although the Settled Statement was certified by the clerk of the superior court, its accuracy has not been verified by either the trial court judge or Brothers. (See Cal. Rules of Court, rule 8.137(h).) Nor does it contain a "statement of the points the appellant is raising on appeal," which is required by rule 8.137(d)(1).
In April 2017, the Whitneys filed an Appellant's Opening Brief, which states (erroneously) that they appealed from an amended judgment awarding attorney fees to Brothers. The only claim of error asserted in that brief is that the trial court erred by awarding Brothers fees as the prevailing party on the contract. In a January 2018 "Respondent's Reply Brief," Brothers argues (1) the Whitneys failed to provide this court with an adequate record to review the attorney fees order, and (2) Brothers was the prevailing party on the contract.
In March 2018, the Whitneys filed a motion to augment the record on appeal with 14 documents pertaining to the attorney fee matter. In April 2018, while their motion to augment was still pending, the Whitneys filed another motion to augment the record with only a single document, a November 3, 2015 order granting Brothers's motion for attorney fees (the November 2015 attorney fee order). In their Appellant's Reply Brief, which was filed a few days later, the Whitneys appear to concede that this court cannot review the attorney fee award unless the attorney fee order is in the appellate record.
On April 18, 2018, this court denied the two motions to augment, without prejudice (April 2018 order). Our order included the following directive: "Within 10 days from the filing of this order, appellant may file a consolidated renewed motion for augmentation supported by a sworn declaration. Any such motion must (1) address whether the motion is timely filed and, if it is timely, whether it is supported by good cause (see Rule 7(b) of the Local Rules of the First District Court of Appeal), and (2) attach copies of all documents or transcripts of which augmentation is requested, in the proper form and format required for such documents or transcripts (see Rule 8.155(a)(2) of the California Rules of Court)."
More than four months later, on August 13, 2018, the Whitneys filed a third motion to augment the appellate record. In this most recent motion, the Whitneys request that the record on appeal be augmented with the November 2015 attorney fee order. They acknowledge their motion is not timely, but contend there is good cause to grant it for reasons set forth in an attached declaration by Randall Whitney (Randall).
In his declaration, Randall stated that the November 2015 attorney fee order is critical to understand the basis for the trial court's determination that Brothers is the prevailing party in this case. Randall also stated that he filed an "initial" motion to augment the record in April 2018, at the same time he filed his Appellant's Reply Brief and realized that the record on appeal was not "inclusive" of documents pertaining to the attorney fee award. Although Randall acknowledged that this court denied the Whitneys' "initial" motion to augment, he stated that the Whitneys did not receive this court's April 2018 order "due to interruptions related to the U.S. Postal Service(USPS)." Randall also opined that if their motion to augment is granted, there will be no further delays or resulting prejudice.
II. DISCUSSION
We deny the Whitneys' motion to augment the appellate record with the November 2015 attorney fee order. Rule 7(b) of the Local Rules of the Court of Appeal First Appellate District states that an appellant's motion to augment the record should be made within 30 days of the filing of the record on appeal and that a motion that is not made within that filing period "will only be entertained upon a showing of good cause." Here we are presented with a motion to augment that was filed almost two years after the record on appeal was filed. The Whitneys do not provide good reason for this delay.
Randall's declaration begins with the false premise that the Whitneys' first motion to augment was filed in April 2018, ignoring the March 2018 motion altogether. Then he claims that he did not realize that documents pertaining to the attorney fee award were not in the appellate record until he prepared his reply brief. This claim is not credible under the facts presented, including that: the Whitneys designated what documents to include in the Clerk's Transcript; the Whitneys drafted the so-called Settled Statement; and the Appellant's Opening Brief drafted by the Whitneys contains citations to the record when discussing all factual and procedural matters except when they discuss the attorney fee motion and award. Furthermore, Randall's declaration focuses on a different timeliness problem, i.e., the Whitneys' failure to refile their motion within 10 days of our April 2018 order. And even as to that collateral matter, Randall concedes that the reason he was not previously aware of this court's order was because of a problem with his own postal service.
Even if the Whitneys could show good cause for their late filing, we would deny their motion to augment because they did not file an appeal from the November 2015 attorney fee order, and the time to appeal that ruling has long passed.
"An order awarding attorneys' fees, if made after judgment, is separately appealable. [Citations.] '[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.' [Citation.]" (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) In this case, the notice of appeal explicitly stated that the Whitneys were appealing from the September 2015 judgment. The September 2015 judgment was entered against the Whitneys and in favor of Brothers, but that judgment did not award Brothers attorney fees. Those fees, along with costs and sanctions, were awarded in the November 2015 attorney fee order and amended judgment that was separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(2); DeZerega, at p. 43; Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171-1172.) However, the Whitneys did not file a separate appeal from the November 2015 attorney fee order or the amended judgment.
Importantly, the September 2015 judgment does not contain an award of attorney fees, which leaves the amount to be determined in the future. "[A]n appeal from a final judgment encompasses a subsequent order fixing the amount of attorney fees, if the judgment adjudicated entitlement to attorney fees, but left the amount of those fees for later insertion by the court clerk." (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691-692 (Silver); see also Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.) In this case, however, the judgment clearly stated that a prevailing party and fee award, "if any," would be decided at a later date.
Accordingly, the November 2015 attorney fee award is a collateral matter that is not encompassed within the judgment itself and we do not have jurisdiction to review it as part of the Whitneys' appeal from the September 2015 judgment. (Silver, supra, 190 Cal.App.4th at p. 693 [and cases].) By the same token, the failure to file a timely separate appeal from the attorney fee order and/or judgment "deprives this court of jurisdiction over [the] purported appeal from that order, and mandates dismissal of that portion of [the] appeal." (Id. at p. 694.)
Finally, the Whitneys' appeal is timely as to the September 2015 judgment itself. However, they do not identify a single claim of error relating to that judgment. Instead, as discussed above, their sole claim is that the trial court erred by awarding attorney fees to Brothers. When an appellant's briefs fail "to make any arguments to support any theory of error," but there is not a basis to conclude the appeal is frivolous, the appeal is deemed abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120.) "In this circumstance, dismissal of the appeal, with no consideration on the merits as to the correctness of the judgment or order from which the appeal is taken, is the proper disposition." (Ibid.)
III. DISPOSITION
The appeal is dismissed. Costs are awarded to the respondent.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, 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. --------