Zhang v. Sugars
Filed 4/17/13 Zhang v. Sugars CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SHUMIN ZHANG,
Plaintiff and Appellant,
v.
STEVEN L. SUGARS et al.,
Defendants and Respondents.
B243152
(Los Angeles
County
Super. Ct.
No. BC466079)
APPEAL from
orders of the Superior Court
of
County, Malcolm H. Mackey, Judge. Affirmed.
Shumin
Zhang, in pro. per., for Plaintiff and Appellant.
No
appearance for Defendants and Respondents.
___________________________________________
In a prior
appeal (Jan. 28, 2013,
B238290), we affirmed the trial court’s order granting defendant-attorneys’
special motions to strike brought under the statute prohibiting strategic
lawsuits against public participation (SLAPP) (Code Civ. Proc., § 425.16;
undesignated section references are to that code.) By way of the present appeal, plaintiff
Shumin Zhang challenges the trial court’s subsequent orders awarding defendants
their costs and attorney fees. More
specifically, she contends that defendants’ memorandum of costs and one of the
motions for attorney fees were untimely filed and that the trial court erred in
awarding costs to one of the defendants because the costs were not incurred in
connection with bringing his anti-SLAPP motion.
We conclude that plaintiff’s contentions lack merit and affirm.
The order
granting the anti-SLAPP motions was filed on November 4, 2011.
On May 2, 2012,
defendant-attorney Steven L. Sugars filed and served plaintiff by mail
with a memorandum of costs. On or about
the same day, Sugars also filed and served plaintiff by mail with a motion for
attorney fees. On or about May 8, 2012, defendant-attorney
Paul P. Cheng filed and served plaintiff by mail with a motion for
attorney fees and costs. For her part,
on or about May 21, 2012,
plaintiff filed and served defendants by mail with a motion to strike and tax
costs; the motion was directed at Sugars’s memorandum of costs. On or about May 25, 2012, plaintiff filed and served defendants
by mail with an opposition to Cheng’s motion for attorney fees. On or about June 1, 2012, she filed and served defendants with an
opposition to Sugars’s motion for attorney fees.
In the
foregoing paragraph, we say “on or about†because the record does not include
the proofs of service for the pertinent documents with the exception of
Sugars’s memorandum of costs. In the
absence of the proofs of service, we have relied on other information—such
as the dates on which the documents were signed or file-stamped—to
estimate the dates of service.
Because plaintiff, as the appellant, was required to provide this court
with a complete record and failed to do so, she cannot be heard to complain
that we have used estimated dates of service.
(See Stasz v. Eisenberg (2010)
190 Cal.App.4th 1032, 1038–1039; Estate
of Fain (1999) 75 Cal.App.4th 973, 987, 992.)
By minute
order dated June 8, 2012,
the trial court denied the motion for attorney fees brought by Cheng because he
had represented himself in bringing his anti-SLAPP motion. (See Trope v. Katz (1995)
11 Cal.4th 274, 292.) The same
minute order awarded Cheng $830 in costs.
By minute
order dated June 14, 2012,
the trial court granted in part the motion for attorney fees brought by
Sugars. He had represented himself as
well as other, independent attorneys in bringing an anti-SLAPP motion. As the trial court explained in its minute
order: “The Court finds that any work
that Steven Sugars did on his own behalf or on behalf of the Law Offices of
Steven Sugars is not recoverable as attorney’s fees. Attorney’s fees in conjunction with
representing other defendant attorneys is recoverable.†The court awarded Sugars $13,300 in attorney
fees and $1,975 in costs for a total of $15,275. It also advanced the June 29, 2012
hearing on plaintiff’s motion to strike and tax costs to June 14, 2012,
and “vacated [the motion] as moot.â€
Plaintiff filed an appeal from the June 8 and 14, 2012 minute
orders.
On appeal,
plaintiff contends that Sugars’s motion for attorney fees was untimely filed
and should have been denied on that ground.
She makes the same argument about Sugars’s memorandum of costs. Plaintiff also argues that the trial court
erred in awarding $830 in costs to Cheng because the costs were not incurred in
connection with his anti-SLAPP motion.
We reject these contentions for the following reasons.
A. Motion for Attorney Fees
“A
of motion to claim attorney’s fees for services up
to and including the rendition of judgment in the trial court—including
attorney’s fees on an appeal before the rendition of judgment in the trial
court—must be served and filed within the
time for filing a notice of appeal . . . in an unlimited civil
case . . . .†(Cal. Rules
of Court, rule 3.1702(b)(1), italics added.) “[A] notice of appeal must be filed on or
before the earliest of: [¶]
days after the superior court clerk serves on the party filing the notice of
appeal a document entitled ‘Notice of
Entry’ of judgment or a file-stamped
copy of the judgment, showing the date either was served; [¶]
days after the party filing the notice of appeal serves or is served by a party
with a document entitled ‘Notice of Entry’
of judgment or a file-stamped copy of
the judgment, accompanied by proof of service; or [¶]
added.)
According
to the record, no one served either a “Notice of Entry†of the order granting
the anti-SLAPP motions or a file-stamped copy of that order on any party. Similarly, the “Case Summary,†which shows
the docket entries in the trial court, does not indicate that a “Notice of
Entry†or a file-stamped copy of the order was served on any party. Consequently, defendants had 180 days from
the entry of the order granting the anti-SLAPP motions within which to file a
motion for attorney fees. The anti-SLAPP
motions were granted by an order filed on November 4, 2011.
Under California Rules of Court, rule 8.104(a)(1)(C), Sugars had
180 from that date—up to and including May 2, 2012—within which
to file his motion for attorney fees.
Because Sugars filed and served the motion for attorney fees on May 2, 2012,
it was timely filed.
B. Memorandum of Costs
“A prevailing party who claims
costs must serve and file a memorandum of
costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk
. . . or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.†(Cal. Rules of Court, rule 3.1700(a)(1),
italics added.) As stated, no one served
a “Notice of Entry†of the order granting the anti-SLAPP motions on any party. Accordingly, under California Rules of Court,
rule 3.1700(a)(1), the deadline for filing a memorandum of costs was the
same as the deadline for filing a motion for attorney fees, that is, on or
before May 2, 2012. Because the
memorandum of costs was filed and served on May 2, 2012, it was timely.
C. Cost Award of $830
In general,
a defendant who prevails on an anti-SLAPP motion is entitled to recover his or
her costs and attorney fees. (See
§ 425.16, subd. (c)(1).) In
Publishing Co. (1995) 39 Cal.App.4th 1379 (Lafayette), the Court of Appeal held that, under the anti-SLAPP
statute (§ 425.16,
subd. (c)(1)), a prevailing defendant is entitled to costs and attorney
fees incurred in connection with bringing the anti-SLAPP motion but not for
work performed on other aspects of the case (Lafayette, at p. 1381).
“[A] prevailing defendant on a motion to strike [is] allowed to recover
attorney fees and costs only on the motion to strike, not the entire
suit.†(Id. at p. 1383.)
Plaintiff
relies on Lafayette in arguing that
the $830 in costs awarded to Cheng were not incurred in connection with the
bringing of his anti-SLAPP motion and were therefore not recoverable. In awarding the challenged costs, the trial
court stated in its minute order: “The
Court grants costs in the amount of $830.00, as fully reflected in the notes of
the official court reporter and incorporated herein by reference.†Plaintiff elected not to have a reporter’s
transcript prepared. But as the
appellant, she has the burden of proving the trial court erred. (See Bell
v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80;
208 Cal.App.4th 1590, 1600.) In the
absence of the reporter’s transcript, we presume that the trial court’s ruling
was correct. (See Bell, at p. 80; Plotnik,
at p. 1600.) Further, although plaintiff
has apparently overlooked a relevant part of the record, we point out that, in
seeking to recover costs, Cheng indicated he had paid $790 as a “first
appearance†fee and $40 to file the anti-SLAPP motion. Cheng had to pay both of those amounts to
bring the anti-SLAPP motion. His first
appearance was not by way of an answer or demurrer to the complaint. Rather, the anti-SLAPP motion constituted his
first appearance. Under
$830 in costs.
Finally,
plaintiff appears to challenge the trial court’s June 14, 2012 order
advancing the hearing on her motion to strike and tax costs and declaring it
moot. But the arguments plaintiff made
in that motion were the same arguments that appeared in her oppositions to defendants’
motions for attorney fees and costs. As
a result, she suffered no prejudice.
Absent prejudice, the trial court’s decision cannot be reversed. (See Taylor
v. Varga (1995) 37 Cal.App.4th
750, 759, fn. 9; Cal. Const., art. VI, § 13; Code Civ. Proc.,
§ 475; Soule v.
8 Cal.4th 548, 573–574.)
In sum,
none of plaintiff’s contentions have merit.
We therefore affirm the orders challenged on appeal.
The orders are affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
