Lytle v. Fettig

Filed 2/11/10 Lytle v. Fettig 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Brett C. Klein, Judge. Affirmed.

Laura Fettig, in pro. per., for Defendant and Appellant.

Law Offices of Craig M. Lytle and Craig M. Lytle for Plaintiff and Respondent.

________________________

I.

INTRODUCTION

This is the second time we have addressed issues relating to the dissolution of appellant Laura Fettig. In the present case, Fettig appeals from a judgment awarding her attorney, respondent Craig M. Lytle, attorney fees. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The prior appeal.

Fettig married Thomas A. Linnevers in 1994. In July 2004, Fettig and Linnevers executed a stipulated judgment for dissolution that did not resolve all issues. The marital status of Fettig and Linnevers ended on July 2, 2004. A trial on reserved issues was held in July 2004. The major issue was the effect of Fettigs physical injuries on the length of time for which Linnevers would be ordered to pay support. On November 14, 2005, the trial court entered a further judgment on reserved issues that, in part, ordered Fettig to receive spousal support for a limited period of time.

Fettig moved in the trial court to set aside the judgment. She also filed a motion for reconsideration contending the medication she had taken rendered her incapable of making sound decisions and thus, the July 2004 stipulated judgment and the November 14, 2005 judgment should be set aside. The trial court rejected Fettigs pleas.

Attorney Lytle represented Fettig from December 18, 2003 to November 17, 2005, when he withdrew due to the non-payment of attorney fees. During the course of the representation, Fettig paid attorney Lytle the total sum of $3,500.

Fettig appealed from the November 14, 2005 judgment. In an opinion filed on August 9, 2007, in case No. B188626, we held that there were no errors necessitating reversal of the judgment. In doing so, we found unpersuasive Fettigs argument that spousal support payments were prematurely ended despite her mental and physical condition and her financial circumstances. We noted the record demonstrated that the trial court had considered Fettigs health in determining the proper length of spousal support. We also held that we did not have jurisdiction to address the trial courts rulings denying her motion to set aside the judgment and denying the motion for reconsideration. We affirmed the judgment and remanded the matter to the trial court solely on the issue as to whether or not Fettig was entitled to attorney fees on appeal.

B. The current proceedings.

In a separate lawsuit, attorney Lytle sued Fettig for unpaid attorney fees. Fettig submitted a trial brief along with accompanying documents to support her numerous theories, including that attorney Lytle had not provided adequate representation to her in the dissolution proceedings. Fettig and attorney Lytle were the sole witnesses in the court trial.

In a statement of decision filed on September 29, 2008, the trial court found that Lytle was entitled to the sum of $30,000 as a reasonable fee. In issuing its September 29, 2008 statement of decision, the trial court stated it had credited the documentary evidence presented by attorney Lytle. The court also stated that it had considered, and found unpersuasive, the following arguments presented by Fettig: (1) she expected the divorce court to order her ex-husband to pay her legal fees; (2) attorney Lytle pressured her into signing the stipulated judgment; (3) attorney Lytle did not represent her competently; and (4) attorney Lytle had a conflict of interest. In reaching its conclusions, the trial court found Fettigs testimony that she had been coerced into entering the stipulated judgment was not credible, and found immaterial Fettigs suggestion that she did not expect to have to pay her attorney fees because her ex-husband would do so. The trial court also found there was no substantial evidence supporting Fettigs assertions that she had received substandard representation and there had been a conflict. Judgment in favor of attorney Lytle was entered on September 29, 2008.

Fettig moved to set aside the judgment. The record before us does not contain a ruling on this motion, which we assume was denied.

Fettig appealed from the judgment.[1]

On October 6, 2009, Lytle filed in this court a request for judicial notice and/or motion to augment. This pleading attached a number of documents from the dissolution proceeding. On October 27, 2009, we granted the motion to augment.

In this court, on November 19, 2009, Fettig filed a request for judicial notice and/or motion to augment the record. Fettig attached documents from attorney Lytles bankruptcy proceedings and documents from an unrelated matter (Lytle v. OGrady, Superior Court case No. YC055531) in which there had been accusations that attorney Lytle had not adequately represented Michael OGrady in a matter unrelated to the present controversy. We now deny Fettigs second request to take judicial notice and/or motion to augment the record because the documents submitted are not relevant to the issues before us and Fettig has failed to demonstrate that they had been submitted to the trial court.

III.

DISCUSSION

Fettig has failed to meet her burden of proof on appeal.

Fettig contends the trial court should have rejected attorney Lytles request for attorney fees because he did not render competent legal services, he committed legal malpractice, and he violated the Rules of Professional Conduct. Fettig also contends the trial court should have ordered attorney Lytle to disgorge the $3,500 paid to him. These arguments appear to recast and combine the factual arguments that the trial court rejected. In essence, Fettig contends the record lacks substantial evidence to support the trial courts decision that attorney Lytle was entitled to $30,000 for services rendered.

Under the substantial evidence standard of review,   [w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.  [Citations.]  [W]e have no power to judge of the effect of or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.  [Citations.] (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766; accord, Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.)

As the appellant, it is Fettigs responsibility to produce an adequate appellate record demonstrating the trial court erred in reaching its factual conclusions. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) To evaluate a substantial evidence argument, we must have been presented with a transcript of the trial and the evidence presented by both sides. We must have the entire record. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 50, fn. 11; Estate of Young (2008) 160 Cal.App.4th 62, 76.) If the record is not sufficient, we must affirm. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

Here, Fettig has presented voluminous records she presented to the trial court, but she has not produced a transcript of the proceedings or the evidence presented by attorney Lytle. Without a complete record of the proceedings below, it is impossible for us to conclude that the record lacked sufficient evidence to support the verdict. We must give deference to the trial court which found attorney Lytle and his records credible. Further, Fettig has not explained why the evidence relied on by the trial court and the credibility determinations of the trial court are not sufficient to support the verdict. It is rare that we can discard the courts findings on credibility as the trial court is in the best position to observe the demeanor of witnesses. We will not second-guess the trial courts findings in this regard. (People v. Kelly (2008) 162 Cal.App.4th 797, 807-808; Department of Alcoholic Beverage Control v. Alcoholic Beverage ControlAppeals Bd. (2002) 103 Cal.App.4th 1084, 1094.)

In support of her arguments, Fettig presents letters from Linneverss counsel sent during the pendency of the dissolution proceedings. We assume that these letters were considered by the trial court as at the bottom, in handwriting, they are designated with exhibit numbers.[2] Fettig has not met her responsibility to demonstrate that these documents prove that the trial courts factual conclusions, which we must presume are correct (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267), are not supported by substantial evidence.

IV.

DISPOSITION

We affirm the judgment in favor of attorney Lytle awarding him $30,000 in attorney fees.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] Although Fettig appears on appeal in propria persona, she is afforded no special treatment. Litigants appearing in propria persona are entitled to the same, but not greater, rights as other litigants. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.)

[2] Fettig attaches a number of documents to her opening and reply briefs. We have considered only the judgment and the trial courts statement of decision. We have not considered the other exhibits as they are either irrelevant, or Fettig has not shown that they had been presented to, and considered by, the trial court.