Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. GC034525 Joseph F. De Vanon, Judge.
Hammer Law Offices and Sheryl L. Hammer for Plaintiff and Appellant.
Chang Mattern and Stephen H. Mattern for Defendant and Respondent.
VOGEL, J.
A brother sued his sister, alleging that she had wrongfully obtained real property from their mother. A jury agreed that the sister had acted inappropriately and found that the property should be returned to the mother’s trust, but did not award any damages to the brother. The trial court entered a judgment on the jury’s verdict, and thereafter denied the brother’s motions for attorney’s fees and for imposition of a constructive trust on other properties owned by the sister. The brother appeals from the post-trial orders. We affirm.
FACTS
A.
Bik Yuk Wong has two adult children, Jerry Cheu Wong and Julie Kuen Wong. In 1992, Bik created a revocable trust and transferred four parcels of real property (two in Montebello, one in Alhambra, one in Pasadena) to the trust. Although both children were originally named as beneficiaries, Bik’s 1996 amendment to the trust named Jerry as the sole beneficiary and as co-trustee along with Bik.
In 2004, Julie -- claiming that her mother had revoked the trust on April 3, 2004 and quitclaimed the Pasadena property to Julie -- used the Pasadena property as security for a $300,000 loan.
B.
In November, Jerry sued Julie (but not their mother) for financial elder abuse, fraud, conversion, and breach of fiduciary duty, asking for compensatory and punitive damages, attorney’s fees, an order quieting title to the Pasadena property, a constructive trust, and an accounting. Julie answered and cross-complained against Jerry, alleging the same causes of action and seeking the same forms of relief.
Although the case was tried to a jury, the record on this appeal does not include a reporter’s transcript or any of the evidence or the jury instructions, only the jury’s special verdicts and findings. According to the verdicts, Jerry was not his mother’s caretaker, did not have a confidential relationship with her, and did not exercise any real or apparent authority over her. Although Julie is the owner of the Pasadena property and has been since 2004, Jerry (knowing the rents belonged to Julie) took them for himself between 2004 and 2006 -- but this did not cause any damage to Julie and he does not have to return the rents he collected. As trustee, Jerry owed a fiduciary duty to Bik but did not breach it.
According to the jury’s special findings, Julie, who had a confidential relationship with Bik and was her caretaker, actively participated in procuring an amendment to the trust from which she unduly profited at Jerry’s expense, so that the transfer of the Pasadena property to her was invalid -- but did not cause any damage to Jerry. Julie also exercised undue influence over Bik, from which she also unduly profited but this did not cause any damage to Jerry. Julie did not make any affirmative misrepresentations to Bik but did conceal the revocation of the trust amendment, again without damage to Jerry. With regard to the quiet title claims, the jury found that Bik’s trust amendment was valid, but the transfer of the Pasadena property to Julie was invalid (and the property should be put back in the name of the trust).
The judgment entered on the jury’s verdicts on August 24, 2006 declares that the deeds transferring the Pasadena property to Julie are null and void and that the property is to be transferred back to Bik’s trust, imposes a constructive trust for the benefit of Bik’s trust on the loan proceeds obtained by Julie, and awards Jerry his reasonable attorney’s fees in an amount to be determined.
C.
In January 2007, Jerry filed a motion asking for $110,599.64 for attorney’s fees and costs. Julie opposed the motion, contending (1) it was untimely because it was filed more than 60 days after he received a copy of the August 2006 judgment; (2) the amount sought was excessive because Jerry was not the prevailing party on all causes of action; and (3) that the fees were excessive. In March 2007, the trial court denied Jerry’s motion for fees, finding the only basis for such an award was the elder abuse cause of action “which Jerry Wong lacked standing to prosecute. Standing is a jurisdictional requirement and is not waived by failure to raise the defect by way of demurrer or affirmative defense [and] may even be raised for the first time on appeal.”
At the same time he filed his motion for fees, Jerry (as co-trustee of Bik’s trust) filed a motion in which he asked for an order (1) imposing a constructive trust on two parcels of real property purchased by Julie, allegedly with the loan proceeds and (2) selling those properties so the proceeds could be used to repay the $300,000 loan obligation incurred by Julie (and secured by the Pasadena property). The only evidence supporting the motion was a declaration by Jerry’s lawyer to the effect that the two properties were purchased within six months after the loan was funded. Julie opposed the motion, contending that because the trust had been revoked, Jerry had no standing to make this motion. The trial court denied the motion on the ground it was unsupported by any evidence.
Jerry appeals from the two post-judgment orders.
DISCUSSION
I.
Jerry contends the trial court’s order denying his motion for fees is tantamount to a prohibited collateral attack on a final judgment. He is wrong.
First, the August 2006 judgment, by its express terms, retained the trial court’s jurisdiction to award attorney’s fees after considering a motion for such an award and, necessarily, any opposition to that motion. The fact that the trial court agreed with Julie that Jerry lacked standing to recover fees on an elder abuse theory was not a collateral attack on a final judgment. (Olson v. Cory (1983) 35 Cal.3d 390, 399 [a judgment is interlocutory to the extent issues remain to be decided]; P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053-1054 [a judgment that provides for the recovery of fees but does not determine the amount thereof is not final because further judicial action is necessary].)
Second, Jerry offers neither authority to suggest that the trial court erred in determining that he lacked standing to recover fees under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) nor a record to support his assertion that the issue was waived by Julie’s failure to raise it at an earlier time (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 [lack of standing may be raised at any time]; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [when an appellant fails to provide an adequate record, the presumptively correct judgment and orders must be affirmed]).
II.
Jerry contends the trial court’s order denying his request for a constructive trust on Julie’s properties “was also the result of an impermissable [sic] collateral attack on the judgment, plus the consideration of inadmissable [sic] evidence.” Assuming without deciding that the order is appealable, these arguments miss the point -- the motion was denied because it was unsupported by any evidence linking Julie’s properties to the loan proceeds, and there is nothing in Jerry’s appellate briefs to suggest there is such evidence in the record (and we certainly haven’t found any). The coincidental fact that Julie bought two parcels of property within six months of obtaining the loan does not by itself establish that the loan proceeds were used to buy the properties. Jerry’s theory is pure speculation.
DISPOSITION
The orders are affirmed. Julie is entitled to her costs of appeal.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.