Filed 8/21/20 Burks v. Bobo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

VALARIE BURKS,

Plaintiff and Appellant,

v.

PATRICIA BOBO,

Defendant and

Respondent.

B296870

(Los Angeles County

Super. Ct. No.

18CMRO01245)

APPEAL from an order of the Superior Court of Los Angeles County, Armando Duron, Commissioner. Affirmed.

Cliff Dean Schneider for Plaintiff and Appellant.

James N. Crowell and Alan S. Yockelson for Defendant and Respondent.

____________________________

Valarie Burks appeals from a trial court order awarding Patricia Bobo a total of $13,304.50 in attorney fees and costs after the trial court denied Burks’s request for a civil harassment restraining order against Bobo under Code of Civil Procedure section 527.6. Finding no abuse of discretion, we will affirm.

BACKGROUND

Burks filed a request for a civil harassment restraining order against Bobo under section 527.6 on July 5, 2018. The trial court heard the matter in August, September, and October 2018, and denied Burks’s request for a restraining order on October 1, 2018.

On November 30, 2018, Bobo filed a request for attorney fees and costs as the prevailing party in the matter. In support of her attorney fee request, Bobo filed a declaration from her attorney outlining his hourly rate and providing the trial court with information outlining the time he spent defending Bobo. Bobo requested $14,392 in attorney fees and $435 in costs. Bobo filed her request on Judicial Council form FL-300, which instructs a responding party to file and serve, among other documents, a Judicial Council form FL-150 income and expense declaration.

The only indication of the trial court’s order in the record is a minute order dated March 8, 2019. The minute order reflects that the trial court called the matter for hearing, that the parties were sworn and testified, that the matter was argued, and that the trial court “grants [Bobo’s] request for attorney fees in the sum of $12,869.50, costs of $435 for a total award of $13,304.50.”

Burks filed a timely notice of appeal.

DISCUSSION

Burks challenges the trial court’s order on three grounds. First, Burks argues that the trial court abused its discretion by requiring her to file an income and expense declaration and by considering that declaration in its decision to award attorney fees. Second, Burks contends that the trial court abused its discretion by awarding fees based on a motion that did not include itemized records regarding the time Bobo’s attorney spent defending against Burks’s request for a restraining order. And third, Burks argues that the trial court abused its discretion by awarding an excessive amount of attorney fees.

Among other responses, Bobo argues that the record is insufficient for us to review any of Burks’s contentions. Citing Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483, Bobo argues that a trial court order is presumed correct on appeal and that it is the appellant’s burden on appeal to demonstrate error on the record. Even if we assume both that the document instructing Burks to file an income and expense declaration was a court order and that the order was error, Bobo argues that without a reporter’s transcript, we cannot determine whether that error was prejudicial. Burks contends that the errors she asserts are errors of law, and no reporter’s transcript is required to demonstrate prejudicial error.

We agree with Bobo. Absent a reporter’s transcript or settled or agreed statement under California Rules of Court, rules 8.134 or 8.137, we have no way to know whether the trial court considered the contents of Burks’s income and expense declaration when it awarded attorney fees to Bobo. Consequently, if the trial court ordered Burks to file an income and expense declaration, and if that constituted error, we still have no way to determine whether that error was prejudicial. “[E]rror to be reviewable must be prejudicial . . . . [Citations.] Moreover, the burden is on the appellant to establish the existence of prejudicial error affecting the merits of his appeal, and such prejudice must affirmatively appear in order to warrant a reversal.” (Kyne v. Eustice (1963) 215 Cal.App.2d 627, 635-636.)

We know from the record that the trial court heard testimony at the attorney fee hearing. But we have no way to know what that testimony was, and therefore have no way to know what evidence was before the trial court when it made its attorney fee award. We cannot determine from the record before us whether the attorney fee award was excessive or was based on either insufficient or improper evidence. What we can determine from the record before us is that the trial court exercised its discretion to reduce the attorney fees and costs awarded from the $14,827 total requested to the $13,304.50 total awarded.

Burks’s arguments here ask us to ignore fundamental tenets of appellate review. “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) And corollary, “[w]e presume the trial court knew and properly applied the law absent evidence to the contrary.” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103.) We find no abuse of discretion based on the record before us.

DISPOSITION

The trial court’s order is affirmed. Both parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

SINANIAN, J.*