Opinion
G056998
12-01-2020
In re Marriage of GAIL MARIE DUNCAN and SHASHI KUMAR TEJPAUL GAIL DUNCAN, Respondent, v. SHASHI K. TEJPAUL, Appellant.
Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11D011505) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
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While appellant Shashi K. Tejpaul ("SK") and respondent Gail Duncan ("Gail") were married, SK unilaterally purchased a restaurant in association with third parties (the Risdanas). The Risdanas later sued SK, and a jury found SK had committed intentional torts and awarded damages.
Because the parties refer to each other as "SK" and "Gail," respectively, in their appellate briefing, we will use the same pronouns.
After judgment was entered in the Risdana matter, a bench trial proceeded on claims raised in Gail's petition to dissolve the marriage. In the midst of trial, SK discharged his attorney despite the trial court's advice not to do so. The court declined to permit discharged counsel to sit at counsel's table with SK, but noted discharged counsel could sit in the audience and SK could speak with discharged counsel outside of court proceedings. Following the bench trial, the family court determined SK's intentional torts did not benefit the community. It imposed liability solely on SK for (1) the Risdana judgment, and (2) legal fees incurred by Gail and their LLC in defending against claims raised in that matter.
SK argues the judgment should be reversed because the trial court denied him his due process right to counsel and a fair trial when it precluded his former counsel from sitting at counsel's table. However, SK has not shown a legally cognizable due process right to have former counsel sit at counsel's table.
SK also argues no evidence supports the trial court's imposition of liability for the Risdana judgment and legal fees solely on him. As discussed below, we conclude substantial evidence supported the trial court's finding that SK's intentional torts did not benefit the community. The record shows the trial court properly imposed liability on SK for the liabilities resulting from those torts. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Gail's Petition to Dissolve Marriage and the Risdana Action
The facts are largely undisputed. The parties married in August 2002, and separated in October 2011. They are the sole members of The Emerald Bay Inn, LLC ("EBI"), which owned a hotel in Laguna Beach. On December 12, 2011, Gail petitioned for dissolution of the marriage.
In 2013, SK, Gail, and EBI were named defendants in the Risdana action, arising from SK's involvement in the purchase of a restaurant called the Picayo. In 2014, Gail filed a breach of fiduciary duty claim against SK, based in part on SK's unilateral purchase of the Picayo, which she claimed resulted in a $550,000 loss to the community. In July 2015, the family court stayed the dissolution action pending the Risdana trial.
On October 27, 2016, the jury in the Risdana action found that SK alone had committed financial elder abuse and intentional fraud. It awarded the plaintiffs damages of $300,000 for financial elder abuse and $348,291 for intentional fraud, and attorney fees and costs of $158,353, for a total of $806,644. The jury rendered defense verdicts on all claims made against Gail and EBI.
The family law case went to trial after the Risdana verdict. At trial, SK asserted "[t]he community benefitted from all of my activity. Never once did I do anything for my personal benefit." He testified the parties only had joint bank accounts. "So if there was a payment to be made, it would have come out of community property. [¶] If there was a value, the value stayed in community property."
On cross-examination, SK admitted Gail was not a member of the The Picayo LLC, which owned the restaurant, and was not a signatory on any of the The Picayo LLC accounts. SK admitted he lost over $500,000 in buying the restaurant, and had not paid taxes on the Picayo LLC since October 2011. B. SK's Discharge of Counsel
The parties gave their opening statements, and proceeded to call witnesses. The next day, SK's counsel advised the court SK wanted to represent himself because "he has 30 years of knowledge on the subject [of the litigation]," whereas counsel had been on the case for about a year, was ill much of the time, and did not have access to records. The court directly advised SK not to proceed with self-representation, stating: "Sir, if you want to represent yourself, it is a civil case. You can do that. . . . [¶] And I will just tell you this, for what it's worth. Representing yourself is almost a zero-sum game of being a positive experience for you . . . [¶] I will tell you, 24 years on the bench, working multiple assignments, including 13 years doing heavy felony cases where people's lives are in question for life, I have never seen -- I can't think of a time that getting rid of your lawyer is a good thing. But I can't tell you what to do. I just give you that warning."
The court directed SK to confer with his counsel before informing it of his decision. After SK conferred with his counsel, the court was then handed a substitution of attorney form. Before accepting the form, the court again admonished SK, noting that the proceedings would follow certain rules, such as the hearsay rule in the Evidence Code, and the court could not assist SK. SK repeatedly affirmed that he understood.
SK then asked the court to permit discharged counsel to sit next to him. The court responded, "He is either in or out. [¶] . . . [¶] The surest way to muck this thing up is to have him sitting there as non-counsel. [¶] . . . [¶] So it's your call. [¶] . . . [¶] But he is either in or out. But he is not going to kind of be in and jumping in and out. That just won't work." When counsel interjected that he could sit silently, the court responded, "You are going to be sitting in the back row, or in the front row, but you won't be sitting at counsel table, you're not counsel. And you can talk to him on the breaks if you want, but you are not going to run back and forth. You're either in or out. [¶] . . . [¶] It is the only way to be fair."
SK then stated he understood the conditions, and the trial court accepted the substitution of counsel form and excused counsel. C. Trial Court's Ruling
Following trial, the family court issued its ruling in a statement of decision. The court found SK had committed intentional torts causing harm to the community. It stated SK had been given "ample opportunity to provide proof to the Court that his conduct was a benefit to the community. He failed to provide any evidence of benefit to the community. He did say he did this to help the community but provided no proof." The court also noted that SK failed to comply with "virtually all discovery requests." As to the Picayo, the court found it had no value because its liquor license had expired and "the lack of evidence presented" on valuation. After concluding SK had failed to show his intentional torts benefitted the community, the family court determined "the Risdana Judgment is the sole and separate responsibility of [SK]." The court also found the legal fees incurred by SK, Gail and EBI for the Risdana action were the sole responsibility of SK, although SK was entitled to proceed on any claims against the Risdanas for legal fees they owed to Gail and EBI as prevailing parties. A judgment incorporating the statement of decision was entered September 7, 2018.
II
DISCUSSION
A. Due Process Claim
SK contends he was denied his due process right to counsel and to a full and fair trial when the family court refused to permit his former attorney to sit at counsel's table. SK cites no legal authority for this contention. His reliance on Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 (Doppes), cited in his opening brief, and Apollo v. Gyaami (2008) 167 Cal.App.4th 1468 (Apollo) and McMillan v. Shadow Ridge at Oak Park Homeowner's Assn. (2008) 165 Cal.App.4th 960 (McMillan), cited in his reply brief, is misplaced. Those cases do not address whether an unrepresented litigant has a due process right to have former counsel sit at counsel's table.
In Doppes, this court affirmed an attorney fees award that disallowed fees for a second chair attorney despite that fact that "[h]aving a second chair at trial is not unusual and often necessary." (Doppes, supra, 174 Cal.App.4th at p. 999.) In Apollo, supra, the appellate court reversed an order granting summary judgment against an unrepresented indigent prisoner because the evidence suggested the prisoner had been denied meaningful access to the court to prosecute bona fide civil claims. (Apollo, supra, 167 Cal.App.4th at pp. 1487-1488.) The court specifically noted that "in certain cases, appointment of counsel may be the only remedy available to protect a prisoner litigant's right of meaningful court access." (Id. at p. 1484.) In McMillan, supra, the appellate court affirmed an order denying a self-represented plaintiff's motion to disqualify opposing counsel for speaking with her about the case rather than with new counsel she had retained for limited purposes. (McMillan, supra, 165 Cal.App.4th at p. 963.) The court ruled that plaintiff "had every right to be assisted by an attorney not of record, but neither she nor the assisting attorney could unilaterally limit the ability of opposing counsel to confer with the attorney of record." (Id. at pp. 965-966.) None of these cases hold that a pro per litigant has a right to have a former attorney sit at counsel's table during trial. Consequently, SK has not shown a denial of a legally recognizable due process right.
SK also argues the family court abused its discretion in precluding his former counsel from sitting at counsel's table, but he failed to object to the court's ruling. SK argues he did not forfeit his claim the court abused its discretion because "[i]t was clear from the record that SK did not agree with the court" and the issue presented a pure question of law. We disagree.
The record shows that even though SK wanted former counsel present, he agreed to the court's conditions before deciding to represent himself. In addition, the family court determined it would not be fair to Gail for SK to have former counsel sitting at the table providing assistance, and due to the lack of an objection, Gail did not have an opportunity to explain whether or how she would have been prejudiced. For example, Gail also might want a nonparty person to sit at counsel's table to assist her at various stages in the proceedings. In sum, SK has forfeited his claim the trial court abused its discretion in precluding former counsel from sitting at counsel's table. B. Whether SK's Wrongdoing Benefitted the Community
SK argues the family court erred in imposing liability solely on him for the Risdana judgment and the related legal fees. Family Code section 1000 guides the determination of whether SK's wrongdoing in the Risdana matter benefitted the community. (All further statutory references are to this code.)
Section 1000 provides:
"(a) A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist.
"(b) The liability of a married person for death or injury to person or property shall be satisfied as follows:
"(1) If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.
"(2) If the liability of the married person is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate."
Here, pursuant to section 1000, subdivision (a), Gail is not separately liable for SK's wrongdoing because she did not participate in or ratify the wrongdoing. Under section 1000, subdivision (b), tort liability must be allocated first to SK if his wrongdoing did not benefit the community. Accordingly, as this court has held, "[a]n innocent spouse is not required to share in losses incurred by the intentionally tortious or criminal conduct of a spouse where there is no benefit to the community." (In re Marriage of Hirsch (1989) 211 Cal.App.3d 104, 110; accord, In re Marriage of Bell (1996) 49 Cal.App.4th 300, 309 (Bell).) In addition, the allocation of legal fees incurred to defend claims arising from wrongful conduct are subject to the same test. (In re Marriage of Stitt (1983) 147 Cal.App.3d 579, 587; accord, Bell, supra, 49 Cal.App.4th at p. 309.)
In imposing liability for the Risdana judgment and the related legal fees on SK, the family court impliedly found SK's wrongdoing did not benefit the community. Substantial evidence supports that finding. SK admitted the purchase of the Picayo resulted in a loss to the community of over $500,000. The Risdana jury found SK's intentional torts caused over $800,000 in damages. There was no evidence presented showing the Picayo had any value or that profits from the Picayo LLC, if any, were deposited into the community's bank accounts.
SK argues his intent to benefit the community is sufficient to show the community benefitted. The family court, however, was not required to credit SK's testimony on his intent and we must defer to the court's resolution of conflicting evidence. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 ["Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations."].)
Citing section 760, SK argues that all property and obligations incurred during a marriage is presumed community property or community debt. Section 760, however, only applies to personal or real property or a contractual right, not obligations and debts. (See § 760 ["Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community"].) Section 910 generally provides that all debts and obligations incurred during a marriage is community debt, but expressly states the rule is subject to exceptions provided in other statutes, which in this case would include section 1000. (See § 910 ["Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt"].) In sum, section 1000 authorizes imposition of liability solely on a party for debts that party incurred during marriage if those debts did not result from an activity benefitting the community. Because substantial evidence supported the trial court's finding that SK's wrongdoing did not benefit the community, the court properly imposed liability for the Risdana judgment and the related legal fees solely on SK.
III
DISPOSITION
The judgment is affirmed. Gail Duncan is entitled to her costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.