Parvizian v. Parvizian

Filed 8/17/07 Parvizian v. Parvizian CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Linda Lefkowitz, Judge. Remanded.

Syrus Parvizian, in propria persona, for Defendant and Appellant.

Law Office of Alex Powell and Alex Powell, for Plaintiff and Respondent.

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This is an appeal from a trial court order awarding costs on appeal. We reverse the order insofar as it awards costs incurred in connection with a cross-appeal, and in all other respects affirm.

This case arises from the dissolution proceedings ending the marriage of respondent Malak Parvizian and appellant Syrus Parvizian.[1] When the marriage was dissolved, in October 2001, Malak was awarded a West Hills property owned by the couple. Syrus was awarded property in Calabasas and was directed to pay certain credit card debts, Malak's attorney's fees and an equalization payment.

Syrus did not make the payments, and did not convey his interest in the West Hills property to Malak as ordered. Instead, about two weeks after the judgment of dissolution was entered, he conveyed his interest in the West Hills property and the Calabasas property to his brother, Parviz, also an appellant here. Malak filed an action against appellants for enforcement of a money judgment arising from the dissolution and to set aside Syrus's transfers of the properties. She prevailed on her action, but did not prevail on her request for attorney's fees.

Syrus appealed from the judgment and Malak appealed from the denial of attorney's fees. In B178609, we affirmed on both appeals. With the remittitur, we ordered "respondent to recover costs."

In the trial court, Malak moved for costs in the amount of $1,642.94. Appellants moved to tax costs and strike portions of her costs memorandum. The court granted appellants' motion in part, by striking parking fees, and awarded Malak $1,631.94 in costs. Syrus and Parviz have appealed.

We first discuss Malak's contention that the appeal must be dismissed, because it was taken from a minute order, which is not an appealable order. (Engel v. Worthington (1997) 60 Cal.App.4th 628.) We initially dismissed the case on that ground, but vacated the dismissal after Syrus obtained a written order. We may hear the appeal.

Appellants' first contention[2]is that Malak was not entitled to costs because she did not prevail on appeal. The argument is not well taken. Malak was awarded costs as respondent, that is, on Syrus's appeal, on which she prevailed. The trial court followed our order, and did not err. (Hamptonv.Superior Court (1952) 38 Cal.2d 652, 655.)

Next, appellants argue that Malak's costs memorandum was not supported by substantial evidence. Again, we find no merit to the contention. The costs memorandum was properly completed and signed by counsel. No more was required. Further, because appellants have not designated a reporter's transcript, we do not have a complete record of the information available to the trial court, and thus cannot find error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 ["It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error"].) (The parties briefed this issue at our request.)

Appellants next contend that Malak wrongly recovered filing fees for filing an opposition, for which no fees are charged. However, their record citation is to costs awarded for service of documents. That is a proper items of costs. (Cal. Rules of Court, rule 8.276, subd. (c)(1)(C).)

Appellants cite the fact that Malak sought $15.00 for issuing a writ of execution, noting the date as "aprx 4/06." Without citation to the record, they contend that the writ was actually issued in March, and that Malak was not entitled to recover for "future costs." Nothing in our record provides us with any information about the writ or the date of the writ, and as we earlier noted, appellants have not provided us with the reporter's transcript. We thus can find no error.

Finally, appellants note that Malak sought and obtained costs incurred in filing and serving the opening brief on her cross-appeal. We agree that under our order Malak was entitled to costs where she was the respondent, that is, on the appeal. She was not entitled to costs where she was the appellant, that is, on the cross-appeal.

Disposition

The matter is remanded to the trial court for recalculation of the costs award, consistent with this opinion. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

KRIEGLER, J.

Turner, P.J.

Concurring & Dissenting opinion

I agree with the view expressed in the respondents brief that the order under review should be affirmed because no reporters transcript or other suitable substitute was prepared. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Kathy P. (1979) 25 Cal.3d 91, 102.) In numerous situations, appellate courts have refused to reach the merits of an appellants claims because no reporters transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judges ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994)30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporters transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., 1094.5 petition]; Sui v. Landin (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporters transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration award].) Based on this authority, which includes decisions by our Supreme Court, I would affirm.

TURNER, P.J.

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[1] For convenience, we refer to the parties by their first names.

[2] Relevant to his comments about Malak and her attorney, Syrus requests that we take judicial notice of the file in B158111, in Division One of this court. We cannot see that those materials are relevant to this appeal, and deny the request.