Filed 4/29/15 Gordon v. Ventura CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



ERROL J. GORDON,                                                     B256954

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BC469802)
         v.

DONALDO VENTURA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Holly
Kendig, Judge. Affirmed.
         Robin E. Paley for Defendant and Appellant.
         Law Office of Arnold Melvin Johnson and Arnold Melvin Johnson for Plaintiff
and Respondent.
                                         ________________________
       Defendant and appellant Donaldo Ventura appeals from a judgment in favor of
plaintiff and respondent Errol J. Gordon in this action to set aside a fraudulent transfer of
real property.1 The trial court found a transfer of real property from Donaldo’s mother
was void, ordered a lien on the property and awarded damages against Donaldo in the
amount of Gordon’s claim. Donaldo contends the judgment allows Gordon to recover
twice for the same damages, and therefore, the trial court abused its discretion to fashion
a remedy under the Uniform Fraudulent Transfer Act (UFTA) (Civ. Code, § 3439 et
seq.).2 We conclude the judgment does not award a double recovery and the remedy was
within the trial court’s statutory authority. To the extent Donaldo contends the trial court
abused its discretion based on the facts of the case, he has failed to provide an adequate
record for review on appeal. Therefore, we affirm.


                      FACTS AND PROCEDURAL BACKGROUND


       Attorney Gordon represented Marta Rodriquez in her dissolution action from
Reynaldo Rodriguez beginning in 2004. Reynaldo secretly diverted community property
assets to his mother Raquel Ventura. Marta joined Raquel in the dissolution proceedings
as a claimant. Raquel gave false testimony about the diversion, perpetuating a fraud upon
the court and Marta. On June 12, 2007, the family law court issued a pendente lite order
against Reynaldo and Raquel jointly to pay Marta’s attorney fees of $25,000 directly to
Gordon.
       Marta filed a motion for additional attorney fees and sanctions scheduled to be
heard on May 11, 2009. On May 5, 2009, the family law court continued the motion.
Four days later, on May 9, 2009, Raquel purchased a condominium unit in Sylmar. She

       1
       Parties and participants in the underlying proceedings who share the same last
name will be referred to individually by their first names for ease of reference.

       2   All further statutory references are to the Civil Code, unless otherwise stated.

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executed a promissory note in the amount of $77,350 and gave a deed of trust to the
lender. That same day, she executed a grant deed conveying title to her son Donaldo as a
gift. After she transferred the property to Donaldo, she permanently relocated to El
Salvador with all of her belongings.
       In September 2009, the family law court issued an order on reserved issues. The
court ordered Raquel to pay $65,000 for Marta’s attorney fees directly to Gordon, with a
credit of $32,622.24 for attorney fees previously paid through a writ of execution on the
pendente lite order. The total amount of attorney fees remaining to be paid was
$32,377.77. The judgment of dissolution was entered on March 1, 2010.
       On September 20, 2011, Gordon filed a complaint against Donaldo and Raquel to
set aside a fraudulent transfer of real property. The complaint sought to have the property
transfer declared void to the extent necessary to satisfy Gordon’s judgment against
Raquel, plus interest. Gordon also sought an award of attorney fees against Donaldo and
Raquel. In Gordon’s trial brief, he stated that the total principal and interest owed on the
judgment was $44,904.49.
       A trial was held on January 13, 2014, and a proposed judgment was filed. The
record on appeal does not contain a reporter’s transcript of the trial proceedings, a minute
order from the trial date, or the proposed judgment. Donaldo objected to the proposed
judgment on the grounds that the trial court was not authorized to order a lien on the
property and the award of damages must be eliminated because it would allow Gordon a
double recovery, in that Gordon could recover on both judgments.
       Gordon filed a response to Donaldo’s objections and a second proposed judgment.
He noted the minute order from January 13, 2014, reflects that the trial court granted a
lien against the real property. He also stated the trial court found against the defendants
for the remaining balance of the judgment. Section 3439, subdivision (b)(1), authorized
the court to enter a monetary judgment for the amount necessary to satisfy the creditor’s
claim against the first transferee of the asset or for whose benefit the transfer was made.
The first transferee was Donaldo, so the judgment was authorized. Under section



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3439.07, subdivision (a)(3)(C), in addition to voiding a fraudulent transfer, the trial court
had the power to award any relief the circumstances may require.
       The trial court entered judgment in favor of Gordon on March 5, 2014. The
judgment found the transfer between Raquel and Donaldo was void, granted a lien on the
real property to secure payment of the balance due on the judgment against Raquel in the
total amount of $44,904.49, and rendered consequential damages against Donaldo as
transferee of a fraudulent transfer in the amount of $44,904.49.
       Donaldo renewed his objections to the judgment. On March 18, 2004, Donaldo
filed a motion to vacate the judgment. He argued that the legal basis for the award of
damages against Donaldo was not supported by the facts. There was no wrongdoing by
Donaldo and the judgment doubled Gordon’s recovery. A hearing was held on October
31, 2014.3 The trial court found the motion to vacate the judgment was untimely. On the
court’s own motion, as a correction of a clerical error in the event the judgment could be
interpreted to provide double recovery of $44,904.49, it made the award of damages
against Donaldo joint and several with the obligation against Raquel.
       On June 13, 2014, Donaldo filed a notice of appeal from the judgment.


                                       DISCUSSION


Construction of the Judgment


       Donaldo contends the judgment provides Gordon with an impermissible double
recovery, because he may satisfy the debt of $44,904.49 from the lien on the real property
and obtain damages of $44,904.49 from Donaldo. We disagree with Donaldo’s
interpretation of the judgment.




       3Gordon’s motion to augment the record on appeal with the minute order of
October 31, 2014, and the notice of judgment mailed November 13, 2014, is granted.

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       “The meaning of a court order or judgment is a question of law within the ambit
of the appellate court. [Citation.] ‘The true measure of an order . . . is not an isolated
phrase appearing therein, but its effect when considered as a whole. [Citations.] In
construing orders they must always be considered in their entirety, and the same rules of
interpretation will apply in ascertaining the meaning of a court’s order as in ascertaining
the meaning of any other writing. If the language of the order be in any degree uncertain,
then reference may be had to the circumstances surrounding, and the court’s intention in
the making of the same.’ [Citations.]” (In re Insurance Installment Fee Cases (2012)
211 Cal.App.4th 1395, 1429-1430.)
       The only reasonable interpretation of the judgment in this case is that the remedies
in combination allow Gordon a total recovery of $44,904.49. Gordon sought $44,904.49
at trial. The judgment awards damages of $44,904.49, which may be satisfied through
the real property lien or other methods of execution on the judgment. Gordon cannot
recover in excess of $44,904.49 under the judgment, and therefore from the face of the
judgment, it does not provide a double recovery.


Exercise of Discretion


       Donaldo contends the trial court abused its discretion by awarding damages
against him in addition to a lien on the property. We conclude the relief provided was
within the trial court’s statutory authority, and in light of the failure to provide a complete
record of the proceedings below, Donaldo has not demonstrated any abuse of discretion.


       A. Standard of Review


       The UFTA provides the trial court discretion in fashioning a remedy for a
fraudulent transfer. (Renda v. Nevarez (2014) 223 Cal.App.4th 1231, 1237 (Renda);
Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 839-840 (Filip).) The trial court’s
decision will not be disturbed on appeal unless the appellant demonstrates a clear abuse

                                              5
of discretion. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10.)
“‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason,
all of the circumstances before it being considered. The burden is on the party
complaining to establish an abuse of discretion, and unless a clear case of abuse is shown
and unless there has been a miscarriage of justice a reviewing court will not substitute its
opinion and thereby divest the trial court of its discretionary power.’” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 566.) “‘Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call such action an
“abuse” of discretion.’ [Citation.]” (Horsford v. Board Of Trustees Of California State
University (2005) 132 Cal.App.4th 359, 393.)
       It is a well-established rule of appellate procedure that the judgment or order of the
lower court is presumed correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
To overcome this presumption, an appellant challenging an order must affirmatively
demonstrate prejudicial error. (Id. at p. 566.) An appellant cannot carry its burden of
demonstrating a prejudicial abuse of discretion without providing the appellate court with
an adequate record of the lower court’s proceedings. (Ballard v. Uribe (1986) 41 Cal.3d
564, 574 [appellate record was inadequate to demonstrate error regarding damages
awarded because plaintiff failed to include a reporter’s transcript of the portion of the trial
relating to the issue of damages].)
       Our review of the trial court’s order is limited to matters in the appellate court
record. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.) An
appellant cannot demonstrate prejudicial error based on assertions of fact that do not
appear in the record.


       B. Application of the UFTA


       Donaldo contends the trial court abused its discretion in awarding relief to
Gordon, because the UFTA does not authorize an award of damages in addition to a lien
on the real property. We disagree.

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       “The UFTA permits defrauded creditors to reach property in the hands of a
transferee.” (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) A fraudulent transfer under the
UFTA involves “‘“a transfer by the debtor of property to a third person undertaken with
the intent to prevent a creditor from reaching that interest to satisfy its claim.”’
[Citation.]” (Filip, supra, 129 Cal.App.4th at p. 829.)
       The UFTA provides creditors the following relief, subject to limitations: “(1)
Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s
claim. [¶] (2) An attachment or other provisional remedy against the asset transferred or
its proceeds . . . . (3) Subject to applicable principles of equity and in accordance with
applicable rules of civil procedure, . . . (C) Any other relief the circumstances may
require.” (§ 3429.07, subd. (a).) In addition, to the extent the transfer is voidable, “the
creditor may recover judgment for the value of the asset transferred, [subject to
adjustment as equity requires], or the amount necessary to satisfy the creditor’s claim,
whichever is less.” (§ 3439.08, subd. (b).) The judgment may be entered against the
“first transferee of the asset or the person for whose benefit the transfer was made” and
“[a]ny subsequent transferee other than a good faith transferee who took for value or
from any subsequent transferee.” (§ 3439.08, subd. (b)(1) & (2).)
       “[A] plaintiff is entitled to only a single recovery for a distinct harm suffered, and
double or duplicative recovery for the same harm is prohibited. [Citation.]” (Renda,
supra, 223 Cal.App.4th at p. 1237, fn. omitted.) “The UFTA does not impose on the
debtor any liability additional to or distinct from the existing claim of the creditor; it
simply allows the creditor to obtain ‘[a]voidance of the transfer . . . to the extent
necessary to satisfy the creditor’s claim.’ (§ 3439.07, subd. (a)(1), italics omitted.) A
‘defrauded creditor is not entitled to an enhancement of position beyond what it was
before the fraud.’ [Citations.]” (Renda, supra, at p. 1238.)
       The remedy in this case did not exceed the trial court’s authority under the UFTA.
The trial court may void a transfer of real property to the extent necessary to satisfy the
creditor’s claim, authorize foreclosure on the property, and enter a money judgment
against the transferee for the full amount necessary to satisfy the underlying judgment.

                                               7
(See Filip, supra, 129 Cal.App.4th at pp. 839-840 [trial court acted within its discretion
by setting aside fraudulent transfers of real property, authorizing foreclosure, and
entering money judgment against all defendants in the full amount of the underlying
judgment].) It was within the trial court’s discretion to authorize a lien on the property
and award monetary damages.
       To the extent Donaldo contends it was an abuse of discretion to award damages
against him based on the facts of the case, the record is inadequate for appellate review.
Without a reporter’s transcript of the proceedings below, or a suitable substitute such as a
settled or agreed statement, we cannot review evidence of Donaldo’s culpability, the
value of the property at the time of transfer, or any subsequent transfers or encumbrances
of the property.
       Renda, which Donaldo relies upon, is readily distinguishable. In Renda, the trial
court denied recovery of money damages from the debtor in a fraudulent transfer action.
The appellate court affirmed, because a creditor cannot recover the same damages in two
judgments against the debtor. (Renda, supra, 223 Cal.App.4th at pp. 1236-1237.) In the
present case, Donaldo is not the debtor. He is a transferee, and the UFTA expressly
provides for money damages against a transferee. Gordon does not have a prior
judgment for damages against Donaldo. The holding of Renda applies to debtors, not
transferees.




                                             8
                                   DISPOSITION


      The judgment is affirmed. Respondent Errol J. Gordon is awarded his costs on
appeal.




             KRIEGLER, J.


We concur:




             TURNER, P. J.




             GOODMAN, J.*




      * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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