Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CP070286
NEEDHAM, J.
Sharon Wolff (Wolff) appeals from the denial of her motion to set aside an amended judgment, which had awarded attorney fees to respondent as the prevailing party on Wolff’s request for an order to stop harassment. (Code Civ. Proc., § 527.6, subd. (i).) We will affirm the challenged order.
I. FACTS AND PROCEDURAL HISTORY
Wolff filed a request for an order to stop harassment, pursuant to Code of Civil Procedure section 527.6, against respondent Kathleen Kemp (Kemp). Kemp filed an answer and amended answer, opposing the request and seeking $2,000 for her attorney fees. In seeking recovery of these fees, Kemp checked a box next to item 13 on a Judicial Council form, which alleged that attorney fees and expenses were sought because a temporary restraining order (TRO) had been issued without sufficient supporting facts.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
Wolff’s request for an anti-harassment order was heard by the Honorable Harold E. Neville Jr. (Retired) on August 24, 2007. At the conclusion of Wolff’s presentation of evidence, Judge Neville granted Kemp’s motion for a nonsuit. In addition, the minute order states, “Defendant [Kemp] [was] informed that if they [sic] want attorney fees as prevailing party, they will need to file a Motion for Attorney Fees.”
On August 29, 2007, Kemp submitted a proposed Judgment Denying Request for Orders to Stop Harassment, which referred to an award of attorney fees. In pertinent part, the proposed judgment stated: “IT IS SO ORDERED that Petitioner Sharon L. Wolff’s request for orders to stop harassment be denied, and that Respondent be awarded attorney fees in the amount of $2,000.” Although Kemp had not filed a noticed motion for attorney fees, Kemp submitted a declaration by her attorney, setting forth the work he performed on the case, the time he spent, his hourly rate, and his request for $2,000. The declaration concluded in part: “In my answer and amended answer, I requested attorney fees in the amount of $2,000.00. Therefore, $2,000.00 is the amount of attorney fees . . . for which Petitioner was on notice for.”
The Honorable Marilyn B. Miles crossed out the language in the proposed judgment that stated “Respondent be awarded attorney fees in the amount of $2,000,” and signed the judgment. The record does not contain any contemporaneous discussion of the reason Judge Miles struck the language. A copy of the judgment was sent to Wolff on August 29, 2007, although Wolff contends the zip code portion of the address was incorrect and she did not receive the signed judgment.
Wolff filed a “Response to Judgment Denying Request for Orders to Stop Harassment” on September 4, 2007, apparently responding to the proposed judgment submitted by Kemp. Wolff noted that Kemp had requested attorney fees under item 13 in her answer, which pertained to a circumstance in which a TRO had issued without sufficient facts. Because no TRO had ever issued, Wolff urged, attorney fees could not be awarded. Judge Neville denied Wolff’s “motion for reconsideration” on September 8, 2007.
On September 17, 2007, Kemp filed a formal motion for attorney fees. Accompanying the motion was the same attorney declaration Kemp had previously filed, indicating counsel’s work, time, and hourly rate.
Wolff filed an opposition to Kemp’s motion for attorney fees on October 2, 2007. Wolff again argued that attorney fees could not be awarded because no TRO had issued. She also indicated her (erroneous) understanding that the court had not signed the proposed judgment previously submitted by Kemp.
Kemp’s motion for attorney fees was heard the next day by the Honorable J. Michael Brown. By written order filed on October 5, 2007, Judge Brown granted Kemp the requested attorney fees as the prevailing party in the anti-harassment matter. The court acknowledged Wolff’s contention that fees may be recovered under section 527.6, subdivision (i) only if a TRO had issued, but stated: “California Code of Civil Procedure section 527.6(i) provides in pertinent part: ‘The prevailing party in any action brought under this section may be awarded court costs and attorney fees, if any.’ [¶] Here, the hearing on the merits was heard by Judge Neville, and he granted a nonsuit at the close of petitioner’s case. This certainly places respondent as the prevailing party. The attorney fees requested appear to be reasonable for the time spent in defending the Request for Orders to Stop Harassment. [¶] Respondent is found to be the prevailing party, and attorney fees are awarded in the sum of $2,000.00.”
On October 29, 2007, Kemp submitted an Amended Judgment Denying Request for Orders to Stop Harassment, including the language that Kemp be awarded attorney fees of $2,000.
Wolff filed a Response to Amended Judgment Denying Request for Orders to Stop Harassment on November 5, 2007. By this time, she had found in the court file the judgment signed by Judge Miles on August 29, 2007, which she purportedly had never received. Wolff contended, among other things, that the attorney fees issue had already been decided on August 29, 2007, when Judge Miles struck out the language awarding Kemp her attorney fees.
Judge Brown signed Kemp’s proposed amended judgment without change on November 6, 2007, awarding Kemp $2,000 in attorney fees. The amended judgment was entered the next day. Notice of entry of judgment was served upon Wolff by mail and filed with the court on November 16, 2007. The notice was served using the zip code that Wolff contends is incorrect.
According to Wolff’s opening brief in this appeal and attached documents, Kemp thereafter filed a lien on the Wolff homestead. Wolff contends the abstract of judgment denotes the incorrect zip code for Wolff.
Wolff filed a notice of motion and motion to vacate the amended judgment. After a hearing, Judge Brown denied the motion by written order filed on March 4, 2008. Judge Brown explained: “It is true that language granting an attorney fee award was stricken from the Judgment, as signed by Judge Miles. This was because there had not been filed a motion for such fees with the necessary itemization of time spent by the attorney in defending the action. That motion was eventually filed and heard by the undersigned. Petitioner was present and contested the motion on other grounds. The court then granted the motion, having considered the declaration containing the necessary evidence as to the time spent by the attorney on the case.”
On March 27, 2008, Wolff filed a notice of appeal “from the Ruling re. Motion to Vacate entered in the Superior Court of California, County of Humboldt on March 4, 2008.”
II. DISCUSSION
Wolff contends the court improperly awarded attorneys fees to Kemp. She also contends the lien on her property was improperly obtained.
A. Attorney Fees
Section 527.6, subdivision (i) states: “The prevailing party in any action brought under this section may be awarded court costs and attorney fees, if any.” There is no dispute that Kemp was the prevailing party on Wolff’s request for an anti-harassment order, which is an action brought under section 527.6. (See § 527.6, subd. (a) [pertaining to both temporary restraining orders and injunctions prohibiting harassment].)
Wolff does not establish that the attorney fees award was an abuse of discretion. Kemp’s motion for attorney fees was supported by counsel’s declaration substantiating the requested fees of $2,000. Wolff does not specify any work that should not have been performed; nor does she take issue with the time spent or hourly rate. (See Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248 [trial court’s discretion in awarding attorney fees will not be disturbed without citation to the record or explanation of particular fees that were inappropriate].)
Wolff instead contends an award of attorney fees was limited to instances in which a TRO issued without sufficient facts. Section 527.6, subdivision (i), however, contains no such limitation. Section 527.6 applies to actions seeking orders prohibiting harassment, whether it be a temporary restraining order or an injunction. Furthermore, the fact that the Judicial Council’s form answer referenced the issuance of a TRO is immaterial. The form language does not limit the statutory authority provided by section 527.6, subdivision (i). Nor can it be said to have misled Wolff, who obviously filed her request for an anti-harassment order before receiving Kemp’s answer, and filed her request with at least constructive knowledge that an attorney fees award could be imposed under section 527.6, subdivision (i).
Wolff next maintains that the judgment signed by Judge Miles on August 29, 2007, which had struck language awarding attorney fees to Kemp, precluded Judge Brown from awarding attorney fees on October 5, 2007. Her arguments lack merit.
Wolff relies in part on the doctrine of res judicata, contending that the judgment signed by Judge Miles on August 29 is a “final and binding order (CCP 1908, 1911).” Res judicata, however, bars relitigation due to a judgment in another case. (The real issue -- whether the court has authority to modify a judgment in the same case – is addressed post.) In any event, the August 29 judgment had no res judicata effect. A judgment becomes final for res judicata purposes only upon expiration of the time to file a notice of appeal. (National Union Fire Ins. Co. v. Stites Prof. Law Corp. (1991) 235 Cal.App.3d 1718, 1726.) Here, the deadline for appealing the August 29 judgment was 60 days after service of notice of its entry. (Cal. Rules of Court, rule 8.104.) The August 29 judgment was therefore not final when the order granting attorney fees was filed on October 5, 2007, and the August 29 judgment did not bar the October 5 order under res judicata principles.
Wolff also refers to the concepts of issue preclusion or collateral estoppel, by which a final valid judgment on the merits bars the parties or their privies from relitigating an issue that was actually and necessarily decided. (See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) As we discuss post, the August 29 judgment did not actually decide the issue of attorney fees on the merits. Even if it had, there would be no issue preclusion because, as discussed ante, the August 29 judgment had not become final by the time of the October 5 order awarding attorney fees.
Wolff further argues that one judge of a superior court cannot overrule the order of another judge in the same court, citing People v. Ellison (2003) 111 Cal.App.4th 1360 (Ellison). In Ellison, two judges interfered with or rescinded another judge’s order releasing the defendant from jail. (Id. at pp. 1363, 1366.) On appeal, the court held their actions improper. (Id. at p. 1367.) The appellate court explained: “ ‘ “ ‘One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court.’ ” ’ ” (Id. at p. 1366.)
Ellison is distinguishable from the matter at hand, because Judge Brown’s order did not enjoin, restrain, or otherwise interfere with Judge Miles’s order. As Judge Brown explained in denying Wolff’s motion to vacate the amended judgment, the “language granting an attorney fee award was stricken from the Judgment” by Judge Miles because Kemp had not filed a formal motion for those fees, not because Judge Miles had ruled on the merits of the fee request. Substantial evidence supports Judge Brown’s conclusion: the minute order from the hearing on the request for an anti-harassment order specifically stated that Kemp would have to file a motion for attorney fees if she wanted to recover them, and as of the time Judge Miles crossed out the language pertaining to the attorney fees in the August 29 judgment, Kemp had not yet filed a motion for attorney fees. Indeed, the usual manner of recovering attorney fees as costs is by noticed motion. (Cal. Rules of Court, rule 3.1702.) Furthermore, while the record does not disclose any statement by Judge Miles as to why she crossed out the attorney fees language, it is Wolff, as the appellant, who bears the burden of affirmatively demonstrating error from the record. She has not done so.
The parties do not address whether Judge Brown was precluded from modifying the judgment for a slightly different reason. Unlike the modification of an order, an entered judgment may be modified only in limited circumstances as to matters included in the judgment. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.) Here, we may conclude the judgment could be modified to add an award of attorney fees, because the issue of attorney fees was not determined in the judgment: Judge Miles struck the attorney fees language and left the matter open because no motion for attorney fees had yet been filed, as opposed to denying the fee request on the merits. While it might have been clearer for the court to have struck only the reference to the $2,000 amount and replaced it with an indication that attorney fees might be awarded according to proof, the record suggests this was the court’s intention, and the court could subsequently award attorney fees to the prevailing party despite the absence of any express recital in the judgment that attorney fees could be recovered. (See Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 928; Williams v. Santa Maria Joint Union High Sch. Dist. (1967) 252 Cal.App.2d 1010, 1013.)
Lastly, Wolff contends the failure to use the correct zip code in serving Wolff with the August 29 judgment denied her right to an “affirmative defense.” Specifically, she claims her non-receipt of the August 29 judgment excused her from having to raise res judicata or collateral estoppel earlier. Our ruling in this appeal, however, is not based on the notion that she waived her res judicata or collateral estoppel arguments. Furthermore, Wolff was ultimately able to present her res judicata and collateral estoppel arguments to Judge Brown, and since they lacked merit, they would not have changed the outcome if she had been able to present them earlier. Wolff has not demonstrated prejudice from the purportedly inadequate service of the August 29 judgment.
Wolff urges that the repeated service on her with an improper zip code was indicative of the bad faith of Kemp’s counsel and a violation of the Rules of Professional Conduct. The appellate record is insufficient for us to decide her contention. In any event, we need not and do not decide the issue in resolving this appeal.
B. Lien
Wolff contends the lien Kemp obtained on the Wolff homestead violated certain provisions of the Code of Civil Procedure. However, the matter is not properly before us. Wolff appealed only from the denial of her motion to vacate the amended judgment, which does not pertain to the lien. Kemp may or may not have some recourse in regard to the lien, but it is not in this appeal. Furthermore, while in her reply brief she urges that “[t]he alleged improprieties surrounding the judgment lien may be considered by the court when assessing the honesty of the appellee [Kemp] and in establishing a pattern of behavior,” we remain unconvinced that Wolff established error in the trial court’s denial of her motion to vacate the amended judgment.
III. DISPOSITION
The order is affirmed.
We concur. JONES, P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.