Opinion
F062331
02-01-2013
In re the Marriage of DIANA and SCOTT PERRY. DIANA CHANDLER, Appellant, v. SCOTT PERRY, Appellant.
Yarra, Kharazi & Associates and H. Ty Kharazi for Appellant Diana Chandler. John Brekhus and Christine J. Levin for Appellant Scott Perry.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 05CEFL02294)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles and M. Bruce Smith, Judges.
Yarra, Kharazi & Associates and H. Ty Kharazi for Appellant Diana Chandler.
John Brekhus and Christine J. Levin for Appellant Scott Perry.
INTRODUCTION
Scott Perry (Perry) appeals from two 2011 orders of the trial court denying his motion to set aside a stipulated order regarding spousal support and a separate motion for spousal support. Diana Chandler (Chandler), formerly Diana Perry, cross-appeals raising various issues arising from the trial court's denial of her request for attorney fees. In addition, Chandler has moved to dismiss a portion of Perry's appeal and has requested imposition of sanctions. For reasons to be stated, we conclude the July 8, 2010, order was an appealable order after judgment (Code Civ. Proc., § 904.1, subd. (a)(2)), that a final judgment on the issue of spousal support was entered on July 8, 2010, and that the trial court was correct in treating Perry's subsequent motion as a request for modification of spousal support, and not as an original motion for permanent spousal support. We have determined that none of the other issues raised by the parties establish reversible error. Accordingly, we affirm all of the orders from which the parties have appealed. In addition, we deny the motion to dismiss and decline to impose sanctions.
FACTS AND PROCEDURAL HISTORY
Judgment of Dissolution
Perry and Chandler married in 1979. During the last 10 years of the marriage, approximately, the parties were partners in a business known as Lien Machine. Chandler filed an action for dissolution of marriage in 2005. In 2007, the court entered temporary orders permitting Chandler to operate the business. Among other provisions of the temporary orders was an order that each party would receive a monthly draw of $7,500 from the business and that certain other expenses of the parties would be paid by the business. By stipulation of the parties, the matter was bifurcated and the court entered a judgment of dissolution on October 7, 2008, as to status of marriage only; the court reserved jurisdiction over all other issues. (See Fam. Code, § 2337.)
All further statutory references are to the Family Code unless noted otherwise.
Stipulated Agreement on Reserved Issues
On February 1, 2010, the parties appeared for a settlement conference. At the conclusion of the conference, the parties placed upon the record a stipulated resolution of the reserved issues. The stipulation awarded personal and real property to each party, except for real estate at Bass Lake, which was awarded to the parties as tenants in common, for the purposes of sale and division of the proceeds. The parties agreed the court would "reserve jurisdiction to deal with this property in the event that there is a dispute between the parties." The stipulation awarded the business to Chandler. The parties agreed that, as equalization payments, Chandler would pay Perry $550,000, payable with interest in monthly installments, and that she would maintain and pay for health and life insurance for Perry for his life. The stipulation set spousal support at zero, and reserved jurisdiction of spousal support as "to either party." The stipulation made certain other provisions concerning payment of various debts.
The monthly equalization payment was $7,500 from Chandler to Perry. As a net result, from and after the date of this stipulation, Perry received no further monthly income from Lien Machine but received an equal monthly payment as a capital distribution.
In addition to the foregoing specific dispositions, the parties stipulated that this was the full agreement between them and that "neither party owes the other party anything other than what we've talked about with regard to this settlement today." Each party waived the "right to notice and time and place of trial, right to request a statement of decision, [to] move for a new trial and [the] right to appeal on the issues being resolved today." In response to further questioning of Perry by his own attorney, Perry said that he understood "that today is a full and final resolution of this case"; that counsel had not had an opportunity to conduct full discovery and hire an expert to evaluate the business; and that he "want[ed] to settle it today."
Order on Reserved Issues
The court adopted the agreement of the parties. Chandler's attorney prepared an Order on Reserved Issues, which the court initially signed on April 29, 2010. The court subsequently determined that this order did not accurately reflect the parties' stipulation (and, therefore, the court's oral order) in certain respects, and the court struck the earlier order and entered a new order on July 8, 2010. The revised order (prepared by Perry's attorney) provided, among other provisions, "[Spousal support] is currently set at zero. The Court retains jurisdiction over the issue of spousal support for either party." Neither party filed a notice of appeal with respect to this order.
The court's initial order, prepared by Chandler's attorney, stated in detail that both parties waived the section 2105 requirement for exchange of final declarations of disclosure and the order stated that "neither party shall pay ongoing spousal support to the other party."
Subsequent Motion for Spousal Support, etc.
On September 2, 2010, Perry, represented by a new attorney, filed a motion for spousal support in the amount of $7,500 per month, and certain other relief, including an order requiring Chandler to execute a promissory note to secure the equalization payments. In his declaration in support of this motion, Perry contended the parties had not agreed to a waiver of spousal support; that he had no income; that Chandler had continued to receive income greatly in excess of the $7,500 per month draw upon which the parties had agreed during the pendency of the action; and that Perry required spousal support in order to "meet present[] living expenses consistent with the standard of living established during the marriage," citing section 4320.
While this motion was pending, Chandler instituted proceedings for a domestic violence restraining order. A one-year order was granted on January 3, 2011. This request apparently arose from a harassing telephone call to Chandler from the parties' adult son; Chandler thought Perry was behind the telephone call.
Motion to Set Aside Order, Hearing and Ruling
On January 28, 2011, Perry filed a separate motion to set aside the order (sometimes referred to as a judgment in Perry's pleadings) of February 1, 2010 (which was later finalized in the Order on Reserved Issues dated July 8, 2010). The hearing on the motion to set aside was heard by Judge Skiles on February 16, 2011. The court denied the motion on the basis that any procedural defects in the earlier proceedings were not prejudicial and did not amount to a manifest injustice.
Hearing on Spousal Support and Ruling
Shortly thereafter, the motion for spousal support was heard by Judge Smith. Based on a ruling that the Order on Reserved Issues dated July 8, 2010, constituted a valid final judgment on the issue of spousal support, Judge Smith concluded that Perry had not shown a change of circumstances that justified an award of spousal support under the court's reserved jurisdiction on that issue, and denied the motion for spousal support on February 28, 2011. The court awarded certain other relief, and denied both parties' requests for attorney fees. Judgment was entered accordingly on March 17, 2011.
Chandler's Attorney Fee Request
Chandler, contending that Smith's order regarding attorney's fees did not cover an award of attorney fees requested on the domestic violence order, reiterated her fee request before Judge Skiles on March 7, 2011. Judge Skiles denied the request, finding that Judge Smith had included that issue in his original denial of fees.
Issues on Appeal
Perry filed a timely notice of appeal from Judge Skiles's order dated February 16, 2011, Judge Smith's February 28, 2011, order and the judgment entered March 17, 2011. Chandler filed a timely cross-appeal from the denial of her attorney fee requests.
Perry's initial theory, asserted in his September 2, 2010, motion for spousal support, was that there had been no order concerning permanent spousal support in the February 1, 2010, stipulation or in the July 8, 2010, order on reserved issues. His declaration stated: "We did not however agree to a waiver of spousal support.... I was informed that spousal support would be dealt with at the next hearing."
Apparently taking a different approach in his later declaration in support of the motion to set aside the judgment, filed January 28, 2011, Perry asserted a new theory that the stipulation and the July 8, 2010, order on reserved issues were "unfair" because they were based upon "two year old information and [he] was unaware how the business was actually doing." In that declaration, he does not appear to dispute that the July 8, 2010, order did, in fact, set permanent spousal support at zero; he appears to contend, instead, that he did not have sufficient information to support his stipulation to the zero-support order. Similarly, the points and authorities in support of the January 28, 2011, motion to set aside are based entirely on the theory that Chandler did not file a final disclosure of financial information prior to the stipulation, and that the order of July 8, 2010, must be set aside for this reason.
In this appeal, Perry adopts both theories: (1) he contends that no permanent spousal support stipulation was legally permitted without Chandler's filing of final financial disclosures (or his own express waiver of that requirement) and (2) as a matter of construction of the language of the stipulation and order, the order did not purport to set permanent spousal support at zero. We address these contentions in part I. of the Discussion, post. Perry also contends insufficient evidence supports the court's denial of spousal support in its ruling on his September 2, 2010, motion for child support. We discuss this issue in part II. We discuss the cross-appeal in part III. Finally, we discuss Chandler's pending motion to dismiss the appeal in part IV.
DISCUSSION
I. THE JULY 8, 2010, ORDER AS A FINAL JUDGMENT
The July 8, 2010, order, captioned "ORDER ON RESERVED ISSUES," purports to be a final resolution of all issues between the parties and provides that the parties waive the right to appeal "on the issues being resolved today." Because it leaves no further issues for judicial resolution other than issues arising from enforcement, the July 8, 2010, order is a final judgment for purposes of the Code of Civil Procedure. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698.) Neither party appealed from that judgment, making it final for purposes of res judicata and collateral estoppel. (In re Marriage of Maxfield (1983) 142 Cal.App.3d 755, 759.) Not only has that judgment become final, but the judgment expressly provides that the parties "waive their right to ... move for a new trial ...." Yet Perry's January 28, 2011, motion in the trial court was for precisely that relief -- an order setting aside the judgment and granting him a new trial on spousal support. His express waiver of that remedy in the stipulated judgment precludes the relief he seeks.
When questioned at the time the stipulation was placed on the record, Perry's counsel asked him if "you understand that today is a full and final resolution of this case?" Perry answered, "Yes."
Perry contends, however, that the Family Code "has very specific and express procedures as to how and when a judgment may be entered." He appears to contend that his general waiver of the right to seek a new trial does not, for reasons he does not explain, constitute a waiver of the right to seek a new trial under the Family Code. In particular, Perry contends section 2105 requires that each party file a final declaration of financial disclosure or that the parties expressly waive that requirement in the detailed terms set forth in section 2105, subdivision (d). The parties did not comply with section 2105 in this case. Section 2106 provides that "no judgment shall be entered with respect to the parties' property rights" unless the parties have complied with section 2105. Section 2107, subdivision (d) provides: "[I]f a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error." Such a motion to set aside a judgment must be made within "one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply." (§ 2122, subd. (f).) Accordingly, Perry argues, he was entitled to have the order on reserved issues set aside, even if it was a final judgment under Griset v. Fair Political Practices Com., supra, 25 Cal.4th at page 698, because section 2107, subdivision (d) specifically provides for such relief, and even if he expressly waived the right to a new trial.
The motion was filed within a year after the parties entered into the stipulation on reserved issues, which would be the date upon which appellant "reasonably should have discovered" Chandler's failure to comply with section 2105.
The appellant in In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519 (Steiner)made a similar claim. The Court of Appeal stated: "In this appeal we conclude that the failure on the part of two divorcing spouses to exchange final declarations of disclosure ... does not constitute a 'get-a-new-trial-free' card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice. (Cal. Const, art. VI, § 13.)" (Id. at p. 522.) The court explained that the constitutional requirement of prejudice for reversal of a judgment supersedes the statutory attempt to relieve an appellant of such a showing in the circumstances of section 2107, subdivision (d). (Steiner, supra, at p. 527.)
Perry contends Steiner is inapplicable because that judgment was entered after a trial of all of the issues so, presumably, the court knew all of the information that would have been disclosed if the parties had complied with section 2105, whereas neither Perry nor the trial court knew what would have been in Chandler's disclosure, if she had timely filed the disclosure. We reject this distinction for two reasons. First, Steiner's rationale was not based on the fact that the trial court may have known the same information; the decision was based on a policy against permitting a party to unilaterally create the conditions for automatically setting aside an otherwise valid judgment. (Steiner, supra, 117 Cal.App.4th at p. 528.)
Second, even though Perry complied with the disclosure requirement himself, he waived all claims against Chandler and waived the right to a new trial on all of the issues. At the stipulation hearing, under questioning from his own counsel, Perry acknowledged that there was other information that he might obtain in this case, but that he wanted to enter into the stipulated judgment. In addition, counsel asked: "There is no need for you to talk to me any further about this matter and you want to settle it today; is that correct?" Perry answered "Yes." As in Steiner, supra, 117 Cal.App.4th at page 528 it would "create[] a most perverse set of incentives" to permit a party who has expressly released all claims against an opposing party to move for a new trial without a showing of prejudice, simply because the moving party did not expressly include the waivable right to disclosure contained in section 2105. (See § 2107, subd. (d).) We conclude, pursuant to Steiner, supra, at page 527, that Perry was required to establish that entry of the July 8, 2010, judgment constituted a miscarriage of justice in order to entitle him to a new trial on any of the issues included in that judgment. He failed to do this.
Perry next contends he established adequate prejudice because Chandler failed to disclose that she had not paid all of the taxes she had been ordered to pay in a 2007 order and that "she had not provided [Perry] with the 2008 and year end 2009 partnership returns and financial information until after 2010." As to the latter information, Perry acknowledged he knew he did not have that information and wanted to enter into the stipulation in any event. Accordingly, he has not shown that the absence of such information materially affected his determination to enter into the stipulation. While the record is not clear that Perry knew at the time of the stipulation that Chandler had not paid the required taxes, Perry has made no showing this would have affected the issue of spousal support. A party who obtains an order setting aside a dissolution judgment because the opposing spouse has failed to make disclosures is only entitled to set aside "those portions of the judgment materially affected by the nondisclosure." (§ 2105, subd. (c).)
As far as we can determine from the record (and as alleged in Perry's declaration in support of his motion for spousal support), the 2007 order required that "the business" shall continue to pay all personal and business taxes. Perry fails to explain why any failure to make such payment by the business would have been disclosed on Chandler's personal financial disclosures. In the absence of a dual showing -- that the information in question would have been on the disclosures and that the information would have led to different terms of the stipulation -- Perry has failed to establish that the failure to comply with section 2105 was prejudicial. (Cal. Const., art. VI, § 13.) As a result, we conclude that the trial court's (Judge Skiles) February 16, 2011, denial of the motion to set aside judgment clearly was correct and must be affirmed.
In his reply brief, Perry takes a somewhat different tack. There, he acknowledges that the stipulated order of July 8, 2010, was a final judgment on many issues of property division, but he contends the order did not seek to establish permanent spousal support and, in fact, the parties agreed to "resolve the payment of permanent spousal support at a future time." This contention is without any support in the record whatsoever.
The parties were married in 1979. Although there is some dispute whether the marriage was of 26 or 27 years duration, in either case it was a "marriage of long duration," as defined in section 4336, subdivision (b) ["presumption ... that a marriage of 10 years or more ... is a marriage of long duration"]. In such cases, unless there is a "written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely ...." (§ 4336, subd. (a).) That retained jurisdiction includes jurisdiction to award spousal support, whether permanent spousal support is awarded in the final judgment or not. (In re Marriage of Ostrander (1997) 53 Cal.App.4th 63, 65-66.) In the present case, the stipulation of the parties and the subsequent order on reserved issues established permanent spousal support at zero. Reiterating that there was no "agreement of the parties to the contrary" under section 4336, subdivision (a), the stipulation and the order also stated that the issue of spousal support "shall be reserved to either party." All of the relevant language in the stipulation and in the order contemplates that the setting of spousal support at zero was a part of the full and final resolution of all the issues between the parties; as affirmed by Perry upon questioning by his attorney, "today is a full and final resolution of this case." There is no support in the record whatsoever for Perry's contrary assertion on appeal.
Perry's reply brief also contends that Judge Skiles, at the hearing on the motion to set aside the judgment, "expressly acknowledged that setting permanent spousal support was expressly reserved in the judgment ...." This entirely and overtly mischaracterizes Judge Skiles's statements. Judge Skiles clearly ruled that the order, including the portion setting spousal support at zero, constituted a final judgment on reserved issues. Judge Skiles also added that modification of spousal support is not dependent on setting aside the judgment: "[T]he Court still has retained jurisdiction to modify if the facts warrant modification. That doesn't require me to set aside the judgment. It's part of the judgment."
To summarize this portion of the opinion, we conclude that the order on reserved issues constitutes a final judgment, and that this final judgment sets the current amount of permanent spousal support to each party as "zero." Even if Perry had not expressly waived his right to a new trial, he still would be required to demonstrate prejudice, as required by California Constitution article VI, section 13, in order to set aside that final judgment under section 2107, subdivision (d). He has not done so. II. THE SPOUSAL SUPPORT HEARING AND ORDER
Perry contends the trial court (Judge Smith) abused its discretion in declining to increase spousal support for Perry from zero, the amount initially agreed to by the parties and established in the July 8, 2010, order on reserved issues. This argument is based solely on the erroneous premise that the July 8 order did not establish a permanent spousal support award. As we have discussed in the previous section, the "zero" award was for permanent spousal support -- modifiable in accordance with the law regarding support, but nevertheless a permanent, not temporary award. Because we reject Perry's premise that he was entitled to a "ground up" initial hearing on spousal support at the hearing before Judge Smith pursuant to section 4320, we reject Perry's conclusion that the court erred in failing to conduct such a hearing.
The trial court, in fact, conducted a three-day hearing on the motion for spousal support and made findings relevant to a request for change in permanent spousal support, in accordance with the requirements set forth in In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 363. The court concluded, in essence, that the 2010 stipulated judgment permitted an inference that both spouses needs were met at the time of the judgment, which was only a few months prior to the filing of Perry's new motion for support. To the extent the evidence established a change in circumstances for Chandler, it tended to show that her business revenues had decreased. The evidence established that Perry's needs had not increased; he still had the same training, licenses and earning ability; he still owned the real and personal property he was awarded in the judgment; and he had elected to start business ventures instead of seeking employment. As a result of all of these conclusions, the court found that Perry had "not demonstrated to this Court that there has been a disparate impact to his income." Perry has not demonstrated on this appeal that the court's findings are not supported by the evidence or that its conclusions are an abuse of discretion. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 398 [abuse of discretion is relevant standard of review of orders modifying spousal support].)
"'In order to qualify for an increase in spousal support, the supported spouse must demonstrate two things: first, that material circumstances have significantly changed since the time of the last prior award and, second, that the reasonable present needs of the supported spouse are not being satisfied.' [Citation.] ... [W]here the changed circumstances relate solely to the supporting spouse's ability to pay, 'the supported spouse must demonstrate -- in addition to the other spouse's increased ability to pay that his or her need is not being satisfied by the existing spousal support award....'" (In re Marriage of Hoffmeister, supra, 191 Cal.App.3d at p. 363.) This may be shown by evidence that the supported spouse's needs were not met in the original order or that the supported spouse's needs "have in fact increased due to a change in that spouse's circumstances, such as a change in the health of the supported spouse which precludes employment ...." (Id. at p. 364.)
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Perry contends the court's conclusion concerning the date the parties separated and its conclusion concerning Chandler's current income were not supported by substantial evidence. Perry has not demonstrated any way in which these facts are material, in light of the trial court's conclusion that Perry had not shown a change in his needs or in his earning ability. (See In re Marriage of Hoffmeister, supra, 191 Cal.App.3d at pp. 363-364.) III. CHANDLER'S CROSS-APPEAL FOR ATTORNEY'S FEES
Chandler has cross-appealed, contending the trial court did not determine the issue of attorney fees in two respects, and contending she is entitled to a hearing limited to those two aspects of her fee request. After examination of the record, we agree with the trial court's (Judge Skiles) conclusion at a March 7, 2011, hearing, to the effect that all issues concerning attorney fees had been decided at previous hearings.
In Chandler's opening brief as cross-appellant, she notes she requested attorney fees in connection with the spousal support motion, and that she requested fees both as a matter of financial equity under section 2030, subdivision (a)(1), and as a litigation sanction under section 271. She correctly points out that Judge Smith, at the February 28, 2011, hearing on the merits of the support modification motion, only considered matters of financial equity and did not address sanctions. Chandler does not point out, however, that Judge Skiles, at the February 16, 2011, hearing on the motion to set aside the judgment, ruled that attorney fees as a sanction against Perry "at least at this point" were unwarranted, because the motion regarding spousal support was not frivolous or wholly unwarranted. Judge Skiles had an opportunity to revisit the issue of section 271 attorney fees at the March 7, 2011, hearing, and he stated that he had denied such fees on February 16, 2011. Chandler's counsel expressly agreed with the court's statement. The record on appeal does not support Chandler's contention that the trial court did not rule on her request for an award of attorney fees as a sanction under section 271.
At the March 7, 2011, hearing, Chandler's attorney did contend to Judge Skiles that Judge Smith had not ruled on Chandler's request for fees pursuant to section 6344, which provides for an award of attorney fees in domestic violence proceedings. Judge Skiles found that the request for fees from the restraining order proceeding had been included in Chandler's request for fees at the spousal support hearing, and had been resolved by Judge Smith when he denied, more generally, fees to either party at the February 28, 2011, hearing. We have reviewed the record of the February 28, 2011, hearing, and we conclude that Judge Smith intended to rule on all of the attorney fees requests that were before him at that time, which included the section 6344 fee request, even though he did not separately identify the fee request arising under that section. In denying the fee request, he noted the total amount of fees requested by Chandler, and this figure included the fees arising from the restraining order. Because the award of fees under section 6344 is not a sanction or a penalty for engaging in domestic violence, but is instead based on financial equity to permit the moving party to have access to the courts (see § 6344, subd. (b)), a similar standard to the fee issue under section 2030, there is no reasonable likelihood the trial court would have reached a different conclusion if its determination had expressly included consideration of section 6344. (People v. Watson (1956) 46 Cal.2d 818, 836.) IV. CHANDLER'S MOTION TO DISMISS APPEAL AND REQUESTS FOR SANCTIONS
By separate motion filed September 8, 2011, Chandler moved to dismiss the appeal and for imposition of sanctions. Perry filed a response and this court, by order of September 30, 2011, deferred consideration of the motion pending our consideration of the merits of the appeal. The motion is based on the premise that Judge Skiles's order at the February 16, 2011, hearing on the motion to set aside the judgment was not an appealable order, for various reasons. The motion does not address the portion of the appeal arising from Judge Smith's February 28, 2011, order or March 17, 2011, judgment.
We deny the motion to dismiss. Even if the February 16 order was not appealable, Judge Smith revisited the same issues at the hearing on the merits of the support motion. Accordingly, those issues are properly before us and dismissal of the appeal is not warranted even if, as contended by Chandler, the requested relief on appeal (i.e., reversal of Judge Skiles's order as well as Judge Smith's) was not available to Perry as appellant. Similarly, the request for sanctions is limited to the appeal insofar as it seeks review of the February 16, 2011, order. Since we have determined that the issues raised by that order were properly before us, award of sanctions for filing the appeal is inappropriate. The motion for sanctions is denied.
In her respondent's brief, Chandler also makes a more generalized request for sanctions based, in effect, on poor lawyering by Perry's last attorney in the trial court and current appellate counsel. Chandler relies on Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151 in support of her request for sanctions. In Evans, the plaintiffs' briefs were "cornucopias" of rules violations, and the "violations continued in the reply brief even after defendants had highlighted them in the motion for sanctions." (Id. at p. 166.) In addition, the appeal was from a nonappealable arbitration award and plaintiffs' "crude attempts" to characterize the issues as appealable was merely "an artifice." (Id. at p. 167.) Monetary sanctions were awarded against the plaintiffs and their counsel jointly. (Id. at p. 168.)
It is clear that the record in this case was assembled, presented, and cited in briefing by Perry's counsel in a manner that burdened opposing counsel and the court. Many of Perry's arguments, as we have indicated in this opinion, were patently without merit or were directly contradicted by the record. Nevertheless, one issue, namely, the trial court's exercise of discretion in denying the motion to increase the spousal support based on changed circumstances, presented colorable legal issues. Other issues, while meritless, were apparently presented in subjective good faith. (See Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 22.) Finally, we note that after Chandler's brief pointed out the failings of Perry's opening brief and requested sanctions, Perry's counsel associated co-counsel and the reply brief represented a significant improvement over the opening brief. (See Evans v. Cornerstone Development Co., supra, 134 Cal.App.4th at p. 166.) While it is a close matter, and reasonable minds might disagree, we conclude that sanctions will not be imposed in this appeal.
DISPOSITION
The orders from which the appeal and cross-appeal were taken, namely, the trial court's orders of February 16, February 28, and March 7, all of 2011, are affirmed. Respondent is awarded costs on appeal.
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Franson, J.
WE CONCUR: ________________________
Gomes, Acting P.J.
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Kane, J.