Filed 11/8/19 Jabbar v. Loy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MEERAS JABBAR,

Plaintiff and Appellant,

v.

PATRICIA LOY,

Defendant and Respondent.

D075200

(Super. Ct. No.

37-2018-00034348-CU-PT-CTL)

APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.

Meeras Jabbar, in pro. per., for Plaintiff and Appellant.

Christina A. Ciceron, APC, and Keith S. Ciceron for Defendant and Respondent.

Meeras Jabbar appeals an order awarding $5,000 in attorney fees to Patricia Loy as the prevailing party in a proceeding Jabbar initiated to obtain an elder abuse restraining order. (Welf. & Inst. Code, § 15657.03.) Jabbar’s sole appellate challenge is that Loy cited the wrong statute in her moving papers—that is, she cited the statute that governs general civil harassment restraining orders (Code Civ. Proc., § 527.6), whereas Jabbar’s petition was based on the statute that governs elder abuse restraining orders. However, because the elder abuse restraining order statute contains an attorney fee provision (§ 15657.03, subd. (t)) virtually identical to the one Loy cited, and because Jabbar has not explained how Loy’s citation error has prejudiced him, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2018, Jabbar filed a petition seeking an elder abuse restraining order against Loy. Jabbar based his request on section 15657.03, which authorizes “[a]n elder . . . who has suffered abuse . . . [to] seek [a] protective order[].” (§ 15657.03, subd. (a)(1).)

According to the trial court’s August 3, 2018 minute order for the noticed hearing on Jabbar’s petition, Jabbar “ma[de] a request to dismiss” the action. The trial court granted the request and “order[ed] the entire action dismissed with prejudice.” The order indicates this hearing was not reported by a court reporter.

Loy then moved to recover her attorney fees as the prevailing party on Jabbar’s petition. Loy’s notice and motion stated it was “based on . . . [¶] . . . [¶] . . . Code of Civil Procedure Section 527.6(i)[, which] provides for an award of attorneys’ fees and related expenses to the prevailing party in a lawsuit such as the present one . . . .” Loy’s supporting memorandum of points and authorities also cited this provision, as well as “Civil Code § 527.6(h),” which she asserted “specifically provides for [attorney fees], in the Court’s discretion, to a prevailing party.”

In fact, when Loy filed her motion, neither statutory provision she cited authorized an award of attorney fees. Code of Civil Procedure section 527.6, subdivision (i) addressed the procedure for the restraining order hearing, and Civil Code section 527.6 did not exist. However, subdivision (s) of Code of Civil Procedure section 527.6 did (and still does) authorize an award of attorney fees to the prevailing party. (Code Civ. Proc., § 527.6, subd. (s) [“The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.”].)

Jabbar opposed Loy’s attorney fee motion. As relevant here, he noted Loy cited to “Civil Code section 527.6(h) WRONGFULLY.”

The hearing on Loy’s attorney fee motion was not reported. The substance of the court’s minute order states: “The Court having fully considered the arguments of all parties, both written and oral[,] now rules as follows: [¶] Respondent is awarded attorney fees in the amount of $5,000.00.” In its order after hearing, the court found that “Loy is the prevailing party and that an award of attorneys’ fees and related expenses in the amount of $5,000 is reasonable . . . .”

Jabbar appeals.

DISCUSSION

I. Appellate Principles
II.
“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ‘ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ‘ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) These appellate principles apply with equal force to an appellant who is not represented by counsel on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

Jabbar did not include in the appellate record several documents necessary to provide us with the relevant context in which to evaluate his claims. As noted (see fns. 3-4, ante), we augmented the record on our own motion so that we could evaluate his claim on the merits.

III. The Trial Court Did Not Err By Awarding Attorney Fees to Loy
IV.
Jabbar’s sole appellate contention is that the trial court erred in awarding attorney fees to Loy because “Civil Code 527.6(h) referred to by [Loy] [¶] . . . [¶] does not refer to [a]ttorney [f]ees at all,” and “[t]his fact was brought to the attention of the Court by [Jabbar].” Jabbar has not met his burden as the appellant to show reversible error.

It is clear that Loy moved for attorney fees under the wrong statute. Jabbar sought a restraining order under the elder abuse restraining order statute (§ 15657.03), yet Loy moved for attorney fees under the general civil harassment restraining order statute (Code Civ. Proc., 527.6). And even if Loy had cited the correct statute, she cited the wrong subdivisions. (See fns. 5-6, ante.) Yet, Jabbar has not explained how these errors prejudiced him. We conclude they did not.

To begin with, we presume the trial court’s order is correct. (Jameson, supra, 5 Cal.5th at pp. 608-609.) And, although Loy cited the wrong statute, the trial court nonetheless had the authority under the correct statute to award attorney fees to Loy as the prevailing party. (§ 15657.03, subd. (t) [“The prevailing party in an action brought under this section may be awarded court costs and attorney’s fees, if any.”].)

Jabbar does not claim that Loy’s citation to the wrong statute deprived him of adequate notice to oppose the attorney fees motion. Nor could he persuasively do so because the attorney fees language in the elder abuse and civil harassment restraining order statutes is virtually identical.

Finally, the trial court’s order granting Loy’s motion states the court’s ruling was based on “the arguments of all parties, both written and oral.” (Italics added.) But the hearing was unreported and, thus, we have no transcript to facilitate our review. Without a transcript, we must presume Loy’s citation error was brought to the trial court’s attention—as Jabbar acknowledges occurred—and that the trial court satisfactorily resolved the issue. (See Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [absent a reporter’s transcript, “[w]e must . . . presume that what occurred at that hearing supports the judgment”]; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [“in the absence of a required reporter’s transcript and other documents, we presume the judgment is correct”].)

In sum, Jabbar has not met his burden of showing that the trial court erred by awarding Loy $5,000 in attorney fees.

DISPOSITION

The order is affirmed. Loy is entitled to her costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.