Opinion
A168298
07-01-2024
LENA GIKKAS, Plaintiff and Appellant, v. ROGER ALAN STERN, Defendant and Respondent.
NOT TO BE PUBLISHED
(San Francisco City &County Super. Ct. No. FDV 23 816668)
This appeal may be resolved by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
BANKE, ACTING P. J.
Plaintiff Lena Gikkas appeals from an award of attorney fees and costs to her ex-boyfriend, defendant Roger Alan Stern, following the denial of her request for a domestic violence restraining order (DVRO) against him. Plaintiff contends she had no notice of the hearing on defendant's fee motion, the trial court abused its discretion in failing to enforce a purported settlement agreement, and the fee award is not supported by the evidence. We affirm.
Notice
Plaintiff maintains she was not properly served with the fee motion or supporting papers and, as a result, was unaware of the hearing date and had no opportunity to respond.
The court record is to the contrary. The record shows the notice of motion and supporting papers were served on plaintiff by mail on April 27, 2023 at her address of record, a condominium apparently owned by defendant. Plaintiff's claim that she had "been evicted from" that residence "by non [sic] other than [defendant] himself" is not supported by any record evidence. To the contrary, according to her own e-mails and declaration, plaintiff did not move out of the condominium until May 7, more than a week after service. Plaintiff's claim is also belied by multiple e-mail exchanges with defendant's counsel in which he referred to the pending fee motion and she, in turn, gave no indication she had not received the motion papers or was unaware of it.
Plaintiff filed her declaration the day after the hearing on the motion for attorney fees, unaccompanied by any motion or request to the trial court.
While plaintiff notes she was "unrepresented by counsel," that did not excuse her from complying with applicable court rules and procedures. (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu).)
Furthermore, plaintiff did not at any pertinent time update her address with the court. Indeed, two weeks after the hearing on the fee motion, plaintiff filed another request for a restraining order against defendant listing the same address for herself. At the hearing on that request, plaintiff told the court all of her mail sent to that address "gets forwarded" to her. The court both admonished her and ordered her to update her address with the court immediately.
Plaintiff's notice of appeal, notice designating record on appeal, and civil case management statement also used the condominium address and she did not update her address with this court until August 24, 2023.
In short, plaintiff's assertion that she was not properly served with defendant's fee motion is meritless.
Settlement Agreement
Plaintiff also contends the trial court erred in failing to recognize the existence of a settlement agreement regarding attorney fees, which plaintiff purportedly accepted through substantial performance.
To begin with, since plaintiff filed no opposition to the fee motion and made no appearance at the hearing, and thus did not advance this contention in the trial court, she has forfeited such argument on appeal. (See Bitner v. Department of Corrections &Rehabilitation (2023) 87 Cal.App.5th 1048, 1065 ["Having failed to raise or develop this issue in the trial court, plaintiffs cannot raise the issue for the first time on appeal."].)
Even if plaintiff did not forfeit the argument, it has no merit. Plaintiff's argument is predicated on a May 4, 2023 e-mail from defense counsel which stated, in relevant part:
"[I]f you vacate [defendant's] condominium leaving all of his furniture, furnishings or personal property there, and leave all the keys and the garage opener to the unit, and the security code to the security alarm system (without which, as you point out he cannot access his condominium) then [defendant] will withdraw the pending motion for attorney fees and costs filed against you in the DVRO case; and waive recovery of the damages and costs incurred in the forcible detainer case now pending against you as well as the monetary sanctions you were ordered to pay the amounts of which are all specified above.
"If you fail to vacate and leave all the keys and the garage opener to the unit, and the security code to the security alarm system, then you are still in possession of the subject premises and [defendant] will proceed to have the San Francisco Superior Court set the forcible detainer case for trial forthwith.
"Please let me know how you would like to proceed."
Plaintiff responded as follows: "The below is agreeable to me, if your Client pays my moving fees $8,570 and for the Venetian shutters $14,000 I am leaving behind." (Italics added.) She then listed additional expenses she claimed to have incurred for improvements to and furnishings in the condominium, totaling $75,231, and stated, "Reasonably, since I lived there rent-free, I would agree to $25,000 cash to move and to get help established in a new place, and not to have [defendant] ever bother me again with his abusive threats or via his lawyers and to dismiss everything in Court."
Three days later, plaintiff sent defendant's counsel an e-mail stating she had moved out and defendant could "take possession of the condo immediately." (Underscoring omitted.) She also wrote: "[Defendant] is welcome to use his condo starting today. He has offered to pay me $10K and $5K-I will take it now to help pay for the $14K Venetian shutters and the $8.5k moving expenses. Please drop the case and all demands against me. If I don't get reimbursed for anything unfairly, I will be forced to open a small claims court case." (Underscoring omitted.)
This e-mail exchange does not establish the existence of a settlement agreement relieving plaintiff of liability for attorney fees. Her initial response to defense counsel's May 4th e-mail was, at best, a counterproposal, which there is no evidence defendant accepted. Her follow-up e-mail three days later was, again at best, a second and different counterproposal, which there again is no evidence defendant accepted. In short, as a matter of contract law, the e-mails did not constitute any kind of mutually agreed-to settlement agreement. (See Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855-856; Civ. Code, § 1585 ["acceptance must be absolute and unqualified"; "A qualified acceptance is a new proposal."].)
Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370 (Guzman), on which plaintiff relies, is inapposite. The issue in that case was whether a" 'grumbling'" and somewhat belated acceptance of a Code of Civil Procedure section 998 (section 998) settlement offer was operative. (Guzman, at pp. 1376-1377.) The trial court concluded it was not, finding the plaintiff's denigrating comments about the offer prior to her acceptance thereof were reasonably understood by the defendant to be a rejection of the offer. (Id. at p. 1373.) The Court of Appeal reversed.
The appellate court first observed that under general contract principles, whether conduct constitutes a rejection of, or, conversely, a withdrawal of, an offer can be an issue of fact. (Guzman, supra, 71 Cal.App.4th at pp. 1376-1377.) Such was the case in Guzman. Plaintiff's counsel was "extremely critical" of the defendant's offer when it was made, and although she did not "unequivocally reject" it, defense counsel "interpreted her comments as doing so." (Id. at p. 1377.) Whether defense counsel "was justified in construing [plaintiff's counsel's] reaction to the offer as a rejection [was], under contract law, a question of fact. Thus, if general contract principles [applied], the trial court's finding that the offer was rejected would be sustainable on appeal." (Ibid.) However, given the strong policy favoring settlement reflected by section 998, the appellate court concluded the plaintiff's eventual, unequivocal acceptance of the offer, within the statutory time frame for acceptance, was valid and the trial court should have enforced the settlement. (Guzman, at p. 1377 ["in the absence of an unequivocal rejection of a section 998 offer, the offer may be accepted by the offeree during the statutory period unless the offer has been revoked by the offeror"].)
The instant case is not remotely comparable. To begin with, it does not involve a section 998 offer. More importantly, even if, under general contract principles, acceptance of an offer or rejection thereof may in some circumstances be an issue of fact, on the record plaintiff has offered here- namely the brief e-mail exchange-there is no triable issue. Plaintiff's initial response to defendant's proposal cannot reasonably be characterized as anything other than a counteroffer. Her second e-mail, in turn, cannot reasonably be characterized as anything other than a different counteroffer. Thus, unlike the plaintiff in Guzman, plaintiff never acted in any manner that could reasonably be considered an acceptance of defendant's May 4th proposal.
We deny defendant's request for judicial notice of a number of documents from the underlying proceedings, the transcript of the July 19, 2023 hearing, and filings in the record on appeal. None of the underlying documents are material to our disposition of the issues on appeal. The July transcript is already part of the augmented record. And we do not need to take judicial notice of our own records on appeal.
The Fee Award
Plaintiff additionally claims the attorney fee award is unsupported. She argues the trial court erred in deeming her application for a DVRO frivolous, claiming the court's assessment was based on misleading arguments by defense counsel. She also maintains in this regard that the trial court's grant of an ex parte temporary protective order is inconsistent with the court's later assessment that her application for a DVRO was frivolous. She further argues the court awarded a "disproportionate and excessive" amount of fees, again arguing defendant's conduct, which according to plaintiff entitled her to a DVRO, was the source of the discord between the parties. She additionally argues the fee award is "unsupported by any admissible evidence." Finally, she argues the court failed to take into account her asserted inability to pay.
To begin with, by failing to file written opposition to the fee motion and failing to appear at the hearing, plaintiff has forfeited all of these arguments. (See Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 ["It is well settled that the failure to raise an issue in the trial court typically forfeits on appeal any claim of error based on that issue."]; Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483, fn. 7 [party who "did not file any opposition to the motions" in the trial court "waived all arguments against the motions" on appeal].)
Even had plaintiff not forfeited the arguments she now seeks to advance by failing to raise them below, they founder for additional reasons. To the extent plaintiff's arguments are a rehash of her claim that defendant engaged in culpable conduct and she made a sufficient case for issuance of a DVRO, her argument is forfeited on appeal for failure to properly present and discuss that issue under an appropriate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 ["Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading."].) Moreover, plaintiff fails to provide proper citations to the record supporting her claims. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu, supra, 122 Cal.App.4th at p. 1246 [court will deem argument waived if party fails to support an argument with necessary citations to the record].) Plaintiff asserts, for example, that defendant misled the court by misrepresenting that she had "changed her story" contrary to "her filings, oral arguments, [and] subsequent declarations," but she cites only to defendant's memorandum of points and authorities in support of his fee motion and one page of her own declaration in support of her request for a DVRO. In any event, it is well settled that the "trial court [is] in the best position to evaluate credibility and to resolve factual disputes." (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1426.) We will not revisit the trial court's factual findings where supported by substantial evidence, and plaintiff has not cited any aspect of the underlying record that would support drawing an inference contrary to that supporting the judgment. (See Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.)
In his respondent's brief, defendant argues plaintiff did not appeal from the trial court's order denying her request for a DVRO and that her appeal concerns only the award of attorney fees and costs. Plaintiff did not file a reply brief addressing this contention or any of the other arguments made by defendant.
She has additionally waived any challenge to the sufficiency of the evidence supporting the trial court's fee ruling by failing in her opening brief to summarize the evidence in the light most favorable to the ruling. (See Ashby v. Ashby (2021) 68 Cal.App.5th 491, 509 [by "reciting only favorable evidence, [appellant] forfeited his sufficiency of the evidence" challenge to trial court's DVRO ruling]; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 ["As with all substantial evidence challenges, an appellant challenging [a finding of fact] must lay out the evidence favorable to the other side and show why it is lacking. F ailure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden."].) In any case, defense counsel filed a declaration stating the number of hours he spent on the case, his hourly rate, and setting forth his experience and qualifications. Absent any objection by plaintiff or contrary evidence, this sufficed to support the fee award. (See The Kennedy Com. v. City of Huntington Beach (2023) 91 Cal.App.5th 436, 466 [" 'It is well established that "California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent."' "].)
Finally, plaintiff cannot complain that the trial court failed to consider her asserted inability to pay the fees when she failed to oppose the motion on that ground, let alone failed to present any evidence supporting such claim. (See Children's Hospital &Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776 [" 'An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.' "].)
DISPOSITION
The order awarding defendant $24,777.38 in attorney fees and costs is AFFIRMED. Defendant to recover costs on appeal.
WE CONCUR: SIGGINS, J. [*] LANGHORNE WILSON, J.
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.