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NAHEED AZIZ v. ANNE MASON-ARNOLD

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


November 29, 2010

NAHEED AZIZ, PLAINTIFF AND APPELLANT,
v.
ANNE MASON-ARNOLD, DEFENDANT AND RESPONDENT.

Appeal from an order of the Superior Court of Orange County, Glenn Mondo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super. Ct. No. 30-2008-00073535)

The opinion of the court was delivered by: Ikola, J.

Aziz v. Mason-Arnold

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Plaintiff Naheed Aziz appeals from an order awarding attorney fees and costs to defendant Anne Mason-Arnold and denying plaintiff's motion to tax costs. Plaintiff fails to provide an adequate record affirmatively showing any error. We affirm.

FACTS

Plaintiff asserts these facts in his briefs. Plaintiff applied for a temporary restraining order in June 2008, alleging defendant had harassed plaintiff at work. The parties entered into a stipulation whereby plaintiff dismissed the action in exchange for defendant's promise to stop coming to plaintiff's work. Defendant moved to recover attorney fees and costs in July 2008. The court granted the motion in September 2008, awarding $1,050 in attorney fees. Plaintiff satisfied the resulting judgment in March 2009 by paying defendant $1,050. Defendant filed a memorandum of costs seeking $15 in costs, $56.55 in interest, and $2,550.50 in attorney fees incurred in enforcing the judgment. The court awarded $2,600 in attorney fees and costs to defendant in July 2009.

Defendant adds the following assertions in her brief. The parties entered their stipulation on June 20, 2008, just before the court called the matter for hearing. The stipulation required plaintiff to dismiss the action with prejudice and entrusted the court with discretion to award attorney fees and costs. Plaintiff paid the $1,050 only after extended correspondence and negotiations between the parties, including the scheduling of a judgment debtor examination. Plaintiff did not include payment of $56 in postjudgment interest. Defendant incurred $2,622.05 in her attempts to collect the judgment.

DISCUSSION

Plaintiff challenges defendant's entitlement to recover postjudgment attorney fees on two grounds. First, she asserts defendant failed to file a memorandum of costs before plaintiff fully satisfied the judgment. (See Code Civ. Proc., § 685.070 [judgment creditor claiming costs "shall file a memorandum of costs" "[b]efore the judgment is fully satisfied but not later than two years after the costs have been incurred"].)*fn1 Second, plaintiff contends "[n]either the underlying case nor order was pursuant to a contract action [, nor were] attorney's fees authorized by contract." (§§ 685.040 ["Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to" § 1033.5, subd. (a)(10)(A)] 1033.5, subd. (a)(10)(A) [attorney fees allowed as costs when authorized by contract].)

Defendant contends she timely filed her motion to recover attorney fees as costs before plaintiff fully satisfied the judgment, noting plaintiff never paid the $56 in postjudgment interest. Defendant further asserts she was entitled to recover postjudgment attorney fees "as the prevailing party, . . . as a matter of 'right' under the statute, [section] 1032[, subd.] (b)." More persuasively, defendant states the underlying judgment provided for recovery of attorney fees pursuant to the parties' stipulation -- i.e., a contract. (See §§ 685.040, 1033.5, subd. (a)(10)(A).)

We are bound by "three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

The scant record consists of a clerk's transcript containing four documents. Three of these are the docket, the notice of appeal, and the notice designating record on appeal -- in which plaintiff elected to proceed without a reporter's transcript and designated no documents for inclusion in the clerk's transcript.

The fourth document is the one-page, written order of July 2009. It provides: "IT IS HEREBY ORDERED that the motion to tax costs is denied, and the Court awards additional attorney fees and costs to Defendant ANNE MASON-ARNOLD in the amount of $2,600."

Plaintiff does not provide any basis for concluding the court erred by awarding the postjudgment attorney fees incurred by defendant. The record lacks virtually every material document: the June 2008 stipulation, defendant's July 2009 attorney fees motion and any opposition, the September 2008 order awarding attorney fees to defendant, the resulting judgment, any evidence plaintiff paid $1,050 to defendant in March 2009, defendant's memorandum of costs seeking postjudgment attorney fees and any opposition.

Plaintiff leaves us in the dark. We cannot definitively ascertain defendant's grounds for seeking attorney fees in June 2008 or the court's grounds for awarding attorney fees in September 2008. The grounds are important because postjudgment attorney fees incurred in enforcing a motion are recoverable when the underlying judgment awarded attorney fees pursuant to a contract. (§§ 685.040, 1033.5, subd. (a)(10)(A); see also Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557-558 [actual award of attorney fees in underlying judgment is required to award fees incurred in enforcing judgment].) We similarly cannot determine defendant's grounds for seeking postjudgment attorney fees or the court's grounds for awarding those fees. All we have is an order -- and nothing in the record shows it was wrong.*fn2 Plaintiff thus fails to overcome the presumption of correctness with "an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th at p. 58.)

DISPOSITION

The order is affirmed. Defendant shall recover her costs on appeal.

WE CONCUR: O'LEARY, ACTING P. J. MOORE, J.


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