Filed 2/6/20 Bartholomew v. Hupp CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

WANDA JOYCE BARTHOLOMEW,

Plaintiff and Respondent,

v.

PAUL HUPP,

Defendant and Appellant.

E071973

(Super.Ct.No. MCP1601191)

OPINION

APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed.

REQUESTS FOR JUDICIAL NOTICE. Denied.

Paul Hupp, Defendant and Appellant in pro. per.

Richardson | Ober, Kelly G. Richardson, and Jonathan R. Davis for Plaintiff and Respondent.

In this elder abuse case, Paul Hupp filed a prior appeal. He challenged (among other things) the trial court’s award of attorney fees against him. We affirmed. We also awarded the respondent, Wanda Bartholomew, her attorney fees on appeal.

Now Hupp appeals again, challenging (among other things) the trial court’s award on remand of attorney fees on appeal against him. Once again, we will affirm. And once again, we will award Bartholomew her attorney fees on appeal.

I

PROCEDURAL BACKGROUND

In December 2016, Bartholomew filed a petition for an elder abuse injunction against Hupp. (Welf. & Inst. Code, § 15657.03.) In February 2017, the trial court granted the petition and issued an injunction.

Hupp appealed. In August 2018, we issued our opinion affirming the injunction. We also awarded Bartholomew costs on appeal, including attorney fees, against Hupp. (Welf. & Inst. Code, § 15657.03, subd. (f).)

In November 2018, Bartholomew filed a memorandum of costs, seeking $863. She also filed a motion for attorney fees on appeal, seeking $27,797.50 in fees. The motion was set for hearing on January 2, 2019.

Hupp did not file a motion to tax costs, nor did he file any opposition to the motion for attorney fees. Instead, on December 17, 2018, he filed an ex parte application to continue the hearing for approximately 90 days. It did not show that he had given Bartholomew notice of the application.

On December 20, 2018, the trial court denied a continuance, but without prejudice. It added: “Party will need agreement from other side with a signature or party will have to file a noticed ex-parte.”

On December 27, 2018, Hupp filed a second ex parte application to continue the hearing for 90 days.

On January 2, 2019, the trial court denied the second ex parte application. It then awarded Bartholomew attorney fees in the reduced amount of $26,000. It also awarded the full $863 in costs.

On January 7, 2019, Hupp filed a notice of appeal from this ruling.

On January 14, 2019, Bartholomew filed a motion to quash certain discovery subpoenas to third parties. The motion was set for hearing on February 13, 2019.

Hupp did not file any opposition to the motion. Instead, on January 31, 2019, he filed an ex parte application for a 30-day continuance of the hearing. On February 4, 2019, the trial court denied a continuance.

On February 11, 2019, Hupp filed a motion to disqualify the trial judge. On February 13, 2019, the trial court struck the disqualification motion, on the ground that it failed to show any grounds for disqualification.

Also on February 13, 2019, the trial court granted the motion to quash. And also on February 13, 2019, it entered a formal order granting Bartholomew’s motion for attorney fees and awarding costs.

II

APPEALABILITY

Hupp contends that the trial court erred by (1) striking the disqualification motion, (2) denying a continuance of the motion to quash, and (3) granting the motion to quash. The trial court made all of these orders after Hupp had already filed his notice of appeal. He did not file another notice of appeal.

This tees up the question of whether we have jurisdiction to review those orders. Bartholomew has not raised this issue. “Nonetheless, since the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion. [Citations.]” (Olson v. Cory (1983) 35 Cal.3d 390, 398.)

We can give effect to a premature notice of appeal in only one situation — if the trial court has already announced its intent to render the ruling appealed. (Cal. Rules of Court, rule 8.104(d) [rule 8.104(d)].) That did not happen here.

The question is complicated somewhat by the fact that we have already ordered that the notice of appeal be deemed premature but valid — in one respect. When Hupp filed his Civil Case Information Statement (CCIS) (see Cal. Rules of Court, rule 8.100(g)), he attached two orders granting the motion for attorney fees — the January 2, 2019 minute order and the February 13, 2019 formal order. We ordered him to submit a copy of the formal order from which he was appealing. In response, he filed another copy of the February 13, 2019 formal order. We therefore ordered that the appeal be deemed to be taken “from the order filed February 13, 2019.”

At the time, of course, we were unaware that the trial court had issued other orders on February 13, 2019 — a formal order striking the disqualification motion and a minute order granting the motion to quash. Hupp did not attach those orders to his CCIS and did not submit them to us in response to our order. Obviously, then, we did not deem the appeal to be taken from either of these orders. Under rule 8.104(d), we could not.

In sum, then, we lack jurisdiction to review the orders striking the disqualification motion, denying a continuance of the motion to quash, and granting the motion to quash.

III

DENIAL OF A CONTINUANCE

Hupp contends that the trial court erred by denying him a continuance of the hearing on the motion for attorney fees.

A. Additional Factual and Procedural Background.

In support of his first ex parte application for a continuance, Hupp testified: “I am in the process of filing an omnibus motion that will affect Bartholomew’s motion for attorney fees. That motion is not finished.” (Capitalization altered.)

In support of his second ex parte application for a continuance, he repeated his claim that he was preparing an “omnibus motion.” However, he also testified: “I cannot reply to the motion at this time for the reasons stated supra.” Those reasons were:

1. “[T]he time allowed for review and drafting of the fees opposition was/is insufficient.”

2. “[I] will need additional time to document and draft the documented and verified perjured statements” of Bartholomew’s attorneys.

B. Discussion.

Hupp now claims that he showed good cause for a continuance, in that: “[I] was preparing for and in trial from December 2019, through January 2019, which prevented [a] timely repl[y] . . . .”

He does not cite any support in the record for this claim. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) Hence, he has forfeited it. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 156.) Moreover, there is no such support. His ex parte applications never mentioned this as a ground for a continuance.

Hupp concedes that the existence of his other trial is “not part of this record.” He asks us, however, to take judicial notice of it. We must decline to do so, for three independent reasons. First, he has not filed a separate motion for judicial notice, as required. (Cal. Rules of Court, rule 8.252(a).) Second, he has not furnished this court with sufficient information to enable it to take judicial notice of the matter. (Evid. Code, § 453, subd. (b).) And third, “[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)

Finally, Hupp does not argue that any of the grounds that he did offer — the need to prepare an “omnibus motion,” the need for more time to respond, and the need to document assertedly perjured statements — were meritorious. Hence, he has also forfeited all of these contentions. (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 [“An appellant’s failure to raise an argument in the opening brief waives the issue on appeal.”].)

IV

EX PARTE COMMUNICATIONS

Hupp asserts that the trial court engaged in prohibited ex parte communications.

While this assertion is made under a separate heading, it is not at all clear that it is a separate contention. Hupp seems to be arguing that the trial court erred by granting the motion to quash, because the subpoenas would have led to evidence of ex parte communications. He may also be arguing that the ex parte communications required the trial court to grant his motion for disqualification.

If only out of an excess of caution, then, we reject this contention because the record does not show that the alleged ex parte communications actually occurred. All we have is Hupp’s statement, in his declaration in support of his disqualification motion, that the trial judge “engages in ex parte communications . . . .” If Hupp was not present, however — which is what “ex parte” means — he can hardly have personal knowledge of this. (See Evid. Code, § 702, subd. (a).) Moreover, his characterization of the communications is a legal conclusion, unsupported by any evidentiary facts; hence, it is not evidence at all. (United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018.)

V

ATTORNEY FEES

Hupp contends that the award of attorney fees was not supported by sufficient evidence.

A. Additional Factual and Procedural Background.

Bartholomew’s fee motion included a copy of the “attorneys fee bill for this litigation.”

Three attorneys had worked on the prior appeal — Jonathan R. Davis, Tamara Yeritsyan, and Theodore H. Dokko.

Both Davis and Yeritsyan testified: “I have reviewed [the fee bill] with respect to those charges that represent my activities in the case and I believe those are true and correct representations of the activities and the dates that I performed them. My practice is to prepare written entries of my time, either contemporaneously with the performance of those duties or soon thereafter.”

Dokko had since left the firm. Davis testified, however: “I have reviewed [the fee bill] with respect to those charges that represent Mr. Dokko’s activities in the case, and I believe those are true and correct representations of the activities and the dates that Mr. Dokko performed them.”

B. Discussion.

The fee bill was hearsay. It was not shown to be admissible under the business records exception. (Evid. Code, § 1271.) Davis and Yeritsyan did both testify that they kept contemporaneous records, but there was no evidence that the fee bill was based on those records. Indeed, there was no evidence whatsoever as to “[t]he sources of information and method and time of preparation” of the fee bill. (Id., subd. (d).) Davis and Yeritsyan merely testified that they “belie[ved]” the fee bill was correct. “A statement made without personal knowledge and solely upon information and belief is hearsay and no proof of the facts contained therein. [Citations.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.)

Hupp, however, forfeited any objection to the declarations or to the fee bill by failing to object. (Evid. Code, § 353, subd. (a).) He did not file any opposition to the motion at all. And he has not given us a reporter’s transcript of the hearing, so he cannot show that he objected orally. “Under a[] long-standing rule, ‘incompetent hearsay admitted without objection is sufficient to sustain a finding or judgment.’” (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268, fn. omitted.) Thus, there was sufficient evidence that the fees were actually incurred in connection with the prior appeal.

Hupp also argues that there was no testimony that the fees were necessary. However, “‘[t]he “experienced trial judge is the best judge of the value of professional services rendered in his court . . . .”’ [Citation.]” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) “‘ . . . The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] . . .’ [Citation.]” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) In addition, the fee bill carefully itemized the work performed. From this, the trial court could properly conclude that the fees were reasonable and necessary.

Finally, Hupp argues that the fees were actually paid by Bartholomew’s homeowners association, not by Bartholomew. This is not at all clear. It is true that the fee bill lists the client as “Solera Oak Valley Greens Association.” However, it also lists the client as “Solera Oak Valley Greens — Bartholomew.” In the end, it does not matter who was actually paying. “The court may award fees when the successful party’s attorney fees have been paid by a third party. [Citations.]” (Pearl, Cal. Attorney Fee Awards (Cont. Ed. Bar 3d 2019) § 2.24, p. 2-22.2.)

VI

COSTS

Hupp contends that the trial court erred in awarding the cost of the reporter’s transcript, $410. He points out that neither side included the reporter’s transcript in the record in the prior appeal.

He forfeited this contention by failing to file a motion to tax costs. (Cal. Rules of Court, rules 3.1700(b), 8.278(c)(2).) “The ‘failure to file a motion to tax costs constitutes a waiver of the right to object. [Citations.]’ [Citation.]” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290.)

The contention lacks merit in any event. Recoverable costs on appeal include “[t]he amount the party paid for any portion of the record . . . .” (Cal. Rules of Court, rule 8.278(d)(1)(B).) The rule does not require that the record must have been filed with the appellate court. It requires only that the cost be “reasonable.” (Id., rule 8.278(d)(1).)

It is completely reasonable for a respondent to order a copy of the reporter’s transcript, even when the appellant has not requested it. The respondent’s counsel needs to know whether there is something in the transcript that would support the respondent’s position. That is the only way respondent’s counsel can make an intelligent decision about whether to seek to augment the record with the transcript. The only exception would be when the reported proceedings were both brief and recent and respondent’s counsel feels comfortable relying on memory. We cannot say that was the case here.

VII

OPPROBRIOUS EPITHET

Hupp contends that on August 9, 2017, the trial court’s bailiff addressed him using a profane word.

We must reject this contention for the simple reason that — as Hupp concedes — the record does not show that this ever happened. (See In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant has “burden of showing error by an adequate record.”].)

To remedy this defect, Hupp has asked us to take judicial notice of the formal complaint that he made to the Presiding Judge of the superior court. We must decline. While we could take judicial notice of the existence of the complaint (Evid. Code, § 452, subd. (d)), that, standing alone, is not relevant; we cannot take judicial notice that the facts that Hupp stated in it are true. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.)

Separately and alternatively, we also reject this contention because the trial court never ruled on it. The record shows no motion or other attempt to obtain a remedy from the trial court. Thus, there is no ruling for us to review. (See City of Napa v. Howland (1890) 87 Cal. 84, 87; Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)

VIII

DISPOSITION

The order appealed from is affirmed. Bartholomew is awarded costs on appeal, including attorney fees, against Hupp.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.