Filed 2/28/20 Siu v. Wang CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

TA SIU,

Plaintiff and Appellant,

v.

LIAN WANG,

Defendant and Respondent.

B293599

(Los Angeles County

Super. Ct. No. KC068248)

APPEAL from an order of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Affirmed.

Law Offices of Steven P. Chang, Steven P. Chang and Heidi M. Cheng; Law Offices of Steven L. Sugars and Steven L. Sugars, for Plaintiff and Appellant.

Law Offices of Jeffrey T. Bell, Jeffrey T. Bell and Rick Ma, for Defendant and Respondent.

_________________________

Plaintiff and appellant Ta Siu (Plaintiff), a judgment creditor, appeals an order denying his motion for $28,104 in postjudgment attorney fees that allegedly were incurred in enforcing a default judgment against defendant and respondent Lian Wang (Wang).

A motion for the costs of enforcing a judgment, including attorney fees, “shall be made before the judgment is satisfied in full.” (Code Civ. Proc., § 685.080.) Here, the trial court denied Plaintiff’s postjudgment motion for attorney fees on the ground that Plaintiff was “estopped from seeking attorney’s fees based upon the representations made in court” with respect to the amount that Wang needed to pay to satisfy the judgment, Wang having given Plaintiff a check in that amount, and the check having cleared.

Plaintiff has not provided a record of the earlier January 26, 2018 hearing at which the relevant colloquy took place. The lack of an adequate record precludes us from reviewing Plaintiff’s claim on the merits. Therefore, Plaintiff cannot establish that the trial court erred in determining that Plaintiff is “estopped from seeking [additional] attorney fees based upon the representations made in court.” Accordingly, the order denying Plaintiff’s motion for an additional $28,104.55 in attorney fees is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Unpaid loans, default judgment and satisfaction of judgment.

On April 15, 2014, Plaintiff lent defendant Wang $10,000, which was documented in a written loan agreement. On January 10, 2015, Plaintiff lent Wang another $40,000 in a second written loan agreement, for American New Era TV Media Group, Inc.’s (American New Era) business cash flow. Both agreements included a provision for attorney fees.

On February 25, 2016, Plaintiff filed suit, alleging nonpayment of the loans. The operative first amended complaint, filed March 7, 2016, asserted causes of action against Wang and American New Era for breach of contract, fraud (promises made without intention of performing), and conversion.

No answers having been filed, on May 9, 2016, the superior court clerk entered the defaults of Wang and American New Era. On June 21, 2016, Plaintiff obtained a default judgment against them in the amount of $59,525.16 (consisting of damages of $50,000.00, prejudgment interest of $7,080.16, attorney fees of $1,890.00, and costs of $555.00).

On January 26, 2018, the trial court denied a motion by Wang to set aside the default and default judgment. At the courthouse, immediately after the denial of Wang’s motion, Wang gave Plaintiff a check in the amount of $69,066.51 to satisfy the judgment, based on the principal sum of $59,525.16 plus postjudgment interest. The check cleared the bank.

2. Plaintiff’s counsel unsuccessfully moves for postjudgment attorney fees.

On March 8, 2018, Plaintiff’s counsel, Steven P. Chang (Chang), filed a motion seeking to recover additional postjudgment attorney fees of $28,104.55 from Wang and American New Era. Chang contended the attorney fees were necessarily incurred due to extensive collection proceedings, including an application for sale of Wang’s dwelling.

In opposition, Wang argued, inter alia, that the motion for attorney fees should be denied because it had not been served on her codefendant, American New Era, and that Wang’s satisfaction of the judgment barred the postjudgment motion for attorney fees and costs. The supporting declaration of Wang’s attorney, Jeffrey T. Bell, dated May 4, 2018, stated: “On January 26, 2018, [debtor] Wang fully satisfied the judgment in this matter. This occurred at the Courthouse immediately following the Court’s denial of Ms. Wang’s motion to set aside the default against her. The parties conferred in the hallway and I personally spoke with [Heidi Cheng, opposing counsel,] about the debt owed. Thereafter, I had my client write a check for the full amount of the debt owed plus all interest owed as of that date. It was agreed that if the check did not clear or the amount was incorrect that Ms. [Cheng] would immediately notify my office and additional [monies] would be paid to fully satisfy the judgment if there [were] any problems. We had this discussion because the court had already ordered my client’s house to be sold and the sale was delayed one week to allow my client to fully satisfy the judgment to stop the sale. I never heard back from Ms. [Cheng] and the sale never took place. [¶] Since January 26, 2018, I have repeated[ly] demanded that Ms. [Cheng’s] office provide me with a satisfaction of judgment which to this date [they] have refused to provide me.”

In the reply papers, Plaintiff’s counsel asserted the motion had been properly noticed and served, that all costs should be allowed because Wang never filed a motion to tax costs, and that Wang had not fully satisfied the judgment, making the motion for attorney fees and costs timely. A reply declaration by counsel stated that Wang “has not yet fully satisfied the judgment as there are still outstanding costs incurred for service of the writs by [the] Los Angeles County Sheriff’s Department levying officer in the amount of $25.00. This fee was indicated in the writ served upon Wang, and it remains unpaid as of the filing of this motion. Therefore, since per [section] 695.210, all costs of serving a writ by levying officer must be paid in order to satisfy a money judgment, and Wang has not paid these costs, the judgment has not been fully satisfied by Wang and this motion is timely.”

On May 17, 2018, the matter came on for hearing. The trial court denied Plaintiff’s motion for attorney fees and costs. It ruled, inter alia, that Plaintiff had failed to serve American New Era with the motion for attorney fees and costs, and that American New Era was entitled to notice of the motion, irrespective of its defaulted status. The trial court also ruled that it is the judgment creditor who is entitled to recover the reasonable and necessary costs of enforcing a judgment, but here, the movant was Plaintiff’s counsel, the Law Offices of Steven P. Chang, not Plaintiff. The trial court further found that “it appears the judgment has been fully satisfied, such that the motion (and memorandum of costs [after judgment] received by the court on 3/8/18) is untimely.”

3. Plaintiff’s subsequent motion for attorney fees is also denied.

Five days later, on May 22, 2018, Plaintiff filed another motion for attorney fees. This time Plaintiff was the movant, and the motion was served on both Wang and American New Era. Plaintiff reiterated counsel’s earlier argument that the judgment had not been fully satisfied “as there are still outstanding costs incurred for service of the writs by [the] Los Angeles County Sheriff’s Department levying officer in the amount of $25.00.”

A supporting declaration by Plaintiff’s counsel stated: “The underlying judgment in this case has not yet been satisfied by [Wang]. Further, although Wang paid the principal amount of the judgment, she has not paid for outstanding postjudgment enforcement costs incurred. [Plaintiff] has never agreed to accept less than the full amount of the judgment. [Plaintiff] has always made it clear to [Wang] that judgment was not yet paid in full and had not been satisfied. In fact, I have spoken and corresponded with Mr. Bell, counsel for [Wang], on multiple occasions informing him that I could not issue him a satisfaction of judgment as certain costs were still outstanding. Mr. Bell then demanded that a partial satisfaction of judgment be issued instead. As the money judgment has not yet fully been paid, this motion is timely.”

Wang did not file opposition to this motion for attorney fees. Instead, on June 5, 2018, Wang filed a motion to tax costs, contending that because Plaintiff’s memorandum of costs was untimely, the memorandum of costs should be taxed in full.

On September 14, 2018, Plaintiff’s motion for attorney fees came on for hearing. The trial court denied the motion, stating that Plaintiff “appears to urge reconsideration of the court’s 5/17/18 order.” The trial court noted that it had denied the previous motion on the grounds that (1) the motion was not served on the defaulted corporate defendant, American New Era, (2) the motion was not brought by Plaintiff, who was the judgment creditor, and (3) the judgment had been fully paid. “ ‘[Plaintiff] is now refiling this motion having properly served all judgment debtors/defendants and also having corrected the misnomer in that [the] judgment creditor/Plaintiff [] is the moving party of this motion for attorney’s fees.’ [Plaintiff’s counsel] further advises that ‘[t]he underlying judgment in this case has not yet been satisfied by [Wang].’ [Plaintiff], however, has not presented any new or different facts, circumstances or law warranting reconsideration of the motion.” Thus, the motion “constitutes an improper motion for reconsideration that does not comply with . . . section 1008.”

The trial court also ruled that “the motion is denied because [Plaintiff] is estopped from seeking attorney’s fees based upon the representations made in court.” The trial court stated to Plaintiff’s counsel: “My recollection is this was a case where Mr. Bell, [Wang’s counsel,] stated that his client was prepared to issue a check to satisfy the judgment.[ ] You represented to him how much the amount would be to satisfy the judgment. A check was given to you. The check cleared.” The trial court reiterated, “You stated in front of me to Mr. Bell how much it would take to satisfy the judgment.” Therefore, the trial court found that Plaintiff was estopped from seeking additional attorney fees.

On October 11, 2018, Wang’s pending motion to tax costs was taken off calendar.

On October 26, 2018, Plaintiff filed a notice of appeal from the September 14, 2018 postjudgment order denying his motion for attorney fees.

CONTENTIONS

Plaintiff contends: (1) as the prevailing party in an action on a contract with an attorney fee clause, he is entitled to an award of postjudgment attorney fees, provided that the motion was timely and was supported by a showing that the fees were reasonably necessary; (2) the initial motion, filed erroneously in the name of counsel rather than the client, did not transform the second motion into a renewed motion under section 1008, which would require a showing of new facts or circumstances; and (3) the trial court erred in finding that Plaintiff was estopped to seek an award of attorney fees and costs after accepting a check from the judgment creditor.

DISCUSSION

1. Inadequacy of record precludes appellate review of Plaintiff’s challenge to trial court’s finding of estoppel.

a. Standard of appellate review.

“ ‘ “ ‘The standard of review on issues of attorney’s fees and costs is abuse of discretion. The trial court’s decision will only be disturbed when there is no substantial evidence to support the trial court’s findings or when there has been a miscarriage of justice.’ ” ’ [Citation.] As with all orders and judgments, this fee order ‘is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance.’ [Citation.]” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 882 (Ellis).)

The abuse of discretion standard “ ‘ “is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” [Citation.]’ [Citation.]” (Ellis, supra, 218 Cal.App.4th at p. 882.)

b. Plaintiff’s failure to provide an adequate record precludes appellate review of the trial court’s finding that Plaintiff was estopped to seek additional attorney fees.

Evidence Code section 623, which codifies the doctrine of equitable estoppel (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459), states: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” The existence of an estoppel is generally a question of fact for the trial court, whose determination is conclusive on appeal “unless the opposite conclusion is the only one that can be reasonably drawn from the evidence.” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) Thus, we review the trial court’s ruling as to the existence of an estoppel “ ‘in the light most favorable to the judgment and determine whether it is supported by substantial evidence.’ ” (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 565.)

Plaintiff contends the trial court erred in finding that he was estopped from seeking an award of additional attorney fees because his attorney, Heidi Cheng, “made no representation that she was accepting a check tendered by Defendant . . . as full satisfaction of the judgment.” Plaintiff’s opening brief states that Cheng made it clear to opposing counsel that she was not sure that this was the full amount that was due, and opposing counsel agreed that Wang would pay any additional amount that was due. Thereafter, according to Plaintiff, Cheng sent an email memorializing the fact that the amount paid was insufficient to pay the judgment, and then Plaintiff filed the motion seeking additional attorney fees.

However, this narrative in the appellant’s opening brief is not supported by citations to the appellate record (Cal. Rules of Court, rule 8.204(a)(1)(C)), and therefore is disregarded. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) Further, the record on appeal does not contain a copy of any email from Cheng to opposing counsel stating that the amount paid by Wang was insufficient to satisfy the judgment.

Moreover, Plaintiff’s claim that Wang was notified the $69,066.51 check was insufficient to satisfy the judgment was controverted by the declaration of Wang’s attorney, Jeffrey T. Bell. His declaration stated “[i]t was agreed that if the check did not clear or the amount was incorrect that [opposing counsel] would immediately notify my office and additional [monies] would be paid to fully satisfy the judgment,” but he “never heard back” from opposing counsel regarding the alleged $25 shortfall or otherwise.

The trial court credited Wang’s narrative, and in denying Plaintiff’s motion for additional attorney fees, the trial court found that Plaintiff “is estopped from seeking attorney’s fees based upon the representations made in court” at the earlier hearing. The trial court stated to Plaintiff’s counsel: “My recollection is this was a case where Mr. Bell, [Wang’s counsel,] stated that his client was prepared to issue a check to satisfy the judgment. You represented to him how much the amount would be to satisfy the judgment. A check was given to you. The check cleared.” The trial court emphasized, “You stated in front of me to Mr. Bell how much it would take to satisfy the judgment.” The trial court concluded that under these circumstances, Plaintiff was estopped from seeking additional attorney fees “based upon the representations made in court.”

As with “any civil appeal, we must presume the [order] is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the [order].” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) “An appellant has the burden to overcome the presumption of correctness and show prejudicial error.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) An appellant also has the burden of ensuring that an adequate record exists for review. (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1507.)

Here, there is no reporter’s transcript or settled statement of the underlying hearing of January 26, 2018, to which the trial court had referred. The failure to provide this court with an adequate record not only fails to satisfy an appellant’s burden to demonstrate error (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 312), but also precludes the appellant from contending the evidence is insufficient to support the trial court’s ruling. An appellant may not contend that the record lacks substantial evidence with respect to a factual issue in a case in which the appellant does not provide a proper record for review. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Thus, “an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (Ibid.)

Consequently, in the absence of a record of the proceedings held on January 26, 2018, Plaintiff is precluded from challenging the trial court’s finding that based on Plaintiff’s “representations made in court” that day, Plaintiff was estopped from seeking additional attorney fees.

It is unnecessary to address Plaintiff’s remaining arguments.

DISPOSITION

The September 14, 2018 order denying Plaintiff’s motion for an additional $28,104.55 in attorney fees is affirmed. Wang shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EPSTEIN, P. J. (Ret.)*