Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. TED003522. Ronald R. Heumann and Sherrill A. Ellsworth, Judges.
Judge Heumann entered the challenged order of September 30, 2002, regarding the parties’ respective rights in a house in Orange County.
Law Offices of Michael G. York and Michael G. York for Appellant.
Minnie K. Holbrook, in pro. per., and Michael D. Iverson for Respondent.
OPINION
RICHLI J.
In this dissolution of marriage proceeding, the key disputed issue was the parties’ respective rights to a house in Orange County. On the date set for a trial on this issue, the trial court held husband Dennis Miles in default because his counsel had failed to comply with its “local local” rules; it awarded the house to wife, Minnie Holbrook, and to her son, Isaac Horne. Later, it denied Dennis’s motion to vacate that order.
About two years later, after a trial on all of the remaining issues, the trial court ordered Dennis to pay Minnie $22,000 in attorney fees and entered a final judgment of dissolution.
We refer to the parties by their first names, as is customary in family law appeals, for reasons of clarity and ease of reference. (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 4, fn. 2.) No disrespect is intended.
Dennis appeals. We will hold that, to the extent that Dennis is challenging the order awarding the house to Minnie and Isaac, his appeal is moot; that order long ago became final with respect to Isaac, and it is therefore collateral estoppel with respect to Minnie. We will further hold that Dennis has not shown that the trial court erred in its award of attorney fees. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Minnie and Dennis were married in 1997. In 1999, Minnie filed this dissolution proceeding.
In 2000, Dennis filed a separate action in Orange County against both Minnie and her son, Isaac Horne. In it, Dennis alleged that he had orally agreed to sell a house in Orange County to Minnie and Isaac, but Minnie and Isaac had failed to make the agreed-upon payments. The Orange County court sustained a demurrer to the complaint and stayed the action, on the ground that there was a prior action pending — namely, this dissolution proceeding.
Accordingly, in this proceeding, the parties stipulated to bifurcate and try separately the issue of their respective interests in the Orange County house. Dennis, Minnie, and Isaac further stipulated to join Isaac, as a third-party claimant, to the dissolution proceeding. (See Cal. Rules of Court, rule 5.150 [“a person who claims or controls an interest subject to disposition in the proceeding may be joined as a party to the proceeding”].)
The register of actions demonstrates that such a stipulation exists; however, the stipulation itself has not been included in the appellate record. In our tentative opinion (see Ct. App., Fourth Dist., Div. Two, Internal Operating Practices & Proc., VIII), we proposed to take judicial notice of the terms of the stipulation. Having received no objection, we hereby take such judicial notice.
The case was assigned to Judge Ronald R. Heumann and set for trial on September 3, 2002. The parties were given written notice of Judge Heumann’s trial rules and procedures. These provided, among other things:
“No later than fourteen (14) days prior to the trial date, all parties shall:
“a. Meet and confer, prepare and provide to the Court a list of the issues remaining for resolution, and a short explanation of each.
“b. Meet and confer and provide to the Court a concise Statement of Facts. [¶] . . . [¶]
“d. Prepare and provide to the Court and to opposing parties a one-page document setting out that party’s position regarding how property . . . should be divided . . . .
“e. Provide to the Court and to opposing parties a list of witnesses and a short statement of the content of the testimony.”
They further provided: “[I]f one party has complied with the pre-trial rules set forth above and is prepared for trial and the other(s) is/are not, then in addition to sanctions, the Court will proceed with trial as if the matter was uncontested, and no paperwork or oral arguments will be accepted from the non-complying party.”
On July 3, 2002, Minnie’s counsel wrote to Dennis’s counsel, asking him to meet and confer pursuant to the trial court’s rules. On July 25, 2002, Minnie’s counsel wrote again, again asking Dennis’s counsel to meet and confer. Dennis’s counsel did not respond.
On September 3, 2002, the matter was called for trial. Isaac was present in propria persona. Minnie’s counsel had served and lodged a trial brief and exhibits. The trial court noted that it had not received a trial brief or other required documents from Dennis. Dennis’s counsel argued that Minnie had not submitted the required witness list. Minnie’s counsel responded that the only witness he intended to call was Minnie.
The trial court ruled that Minnie and her counsel had substantially complied with its rules: “[T]hey have complied with all of the requirements that were necessary for them to comply with.” It explained that her failure to file a witness list did not defeat substantial compliance, because she was her own sole witness: “[T]he whole purpose of this is to avoid surprise witnesses coming out of the woodwork all of a sudden, so I’m not too concerned about that.”
The trial court then held Dennis in default. After hearing testimony from Minnie, it ruled that Minnie and Isaac owned the Orange County house as joint tenants and that Dennis had no interest in it. On September 30, 2002, it entered a formal written order to the same effect (September 30 order).
On April 11, 2003, Dennis filed a motion to vacate the September 30 order, on the ground that it had been the result of his attorney’s mistake, inadvertence, surprise, or neglect. In support of the motion, Dennis’s counsel submitted a declaration stating that he had failed to meet and confer because he “was overwhelmed with work.” He also argued that Minnie’s counsel had not complied with the trial court’s rules, or at least that it was reasonable for him to believe that Minnie’s counsel had not.
He failed to serve the motion on Isaac.
In her opposition, Minnie argued, among other things, that the motion to vacate was untimely.
On June 30, 2003, after hearing argument, the trial court agreed that the motion to vacate was untimely; it therefore denied the motion.
On September 9, 2005, the trial court held a trial on all remaining issues. On March 16, 2006, it entered a final judgment of dissolution.
III
DISCUSSION
A. Mootness.
On our own motion, we questioned how Isaac’s involvement in the trial court affects this appeal. We gave the parties an opportunity to file supplemental briefs on this issue. Minnie did not file one, but Dennis did, and we have duly considered it. For the reasons discussed below, we conclude that in light of Isaac’s involvement the appeal, to the extent that it challenges the September 30 order, is moot.
The September 30 order awarded the Orange County house to Minnie and to Isaac, as joint tenants. By this appeal, Dennis seeks to undo that order. Nevertheless, he did not serve his notice of appeal or any of his briefs on Isaac. Although this surprised us at first, we have come to realize that it was not improper.
As between Dennis and Minnie, the September 30 order was not a final judgment. The dissolution proceeding presented additional disputed issues that remained to be resolved before the trial court could enter a final judgment. (See In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 687-689; In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638-1639 [Fourth Dist., Div. Two].)
On the other hand, as between Dennis and Isaac, the September 30 order was a final judgment. “[A] . . . judgment or order that leaves no issue remaining to be determined as to one of the parties is considered final as to that party and thus appealable. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:91, p. 2-58.) This is true even if the legal issues with respect to that party are the same as the legal issues with respect to other parties who still remain in the action. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880-881.)
Here, the September 30 order specifically provided that it was “a final determination of Petitioner’s, Respondent’s, and Claimant[’]s interest in the ownership of the property . . . .” As between Dennis and Isaac, no disputed issues remained to be resolved. Moreover, Isaac’s rights were inextricably intertwined with Millie’s, both substantively and procedurally. As a result, if Dennis had appealed at that point, we could have reversed the September 30 order as to both Isaac and Millie, even though there was no final judgment as to Millie. (Miller v. Silver (1986) 181 Cal.App.3d 652, 658.)
Dennis, however, failed to file a notice of appeal from the September 30 order. “If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata. [Citation.]” (In re Matthew C. (1993) 6 Cal.4th 386, 393.) Thus, with respect to Isaac, the September 30 order has become final and no longer appealable. Solely with respect to Minnie, however, we can review the September 30 order in this appeal from the final judgment in the dissolution proceeding. Isaac is not a proper party to such an appeal.
At this point, however, mootness rears its head. Because the September 30 order is final as to Isaac, Minnie can assert it as collateral estoppel against Dennis. The September 30 order expressly found that Dennis had no interest in the Orange County house. “California . . . accords collateral estoppel effect to default judgments, at least where the judgment contains an express finding on the allegations. [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.) Moreover, California allows the offensive nonmutual use of collateral estoppel. (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812-813.)
Admittedly, collateral estoppel normally involves the effect that a final judgment has in a later, different action. Nevertheless, a final judgment or other sufficiently final order — i.e., an appealable order that has not been appealed — can have collateral estoppel effect later in the same action. (See, e.g., In re Daniel D. (1994) 24 Cal.App.4th 1823, 1832-1833; Estate of Anderson (1983) 149 Cal.App.3d 336, 346; Estate of Wemyss (1975) 49 Cal.App.3d 53, 57-59.)
To take just one example, in Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, the plaintiffs filed a complaint for personal injuries against multiple defendants, including Columbus, Royal Viking, and Gray Line. Columbus and Royal Viking then filed a cross-complaint for indemnity against Gray Line. (Id. at p. 626.) The trial court granted summary judgment on the complaint in favor of Gray Line and against the plaintiffs, on the grounds that Gray Line had not been negligent and that Gray Line was not vicariously liable for any negligence of any other defendant. The trial court then granted summary judgment on the cross-complaint in favor of Gray Line and against Columbus and Royal Viking, even though Columbus and Royal Viking argued that they had raised a triable issue of fact with respect to whether Gray Line was vicariously liable. (Id. at pp. 626-627.)
The appellate court held that the summary judgment on the complaint was collateral estoppel and required the entry of the summary judgment on the cross-complaint. (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc., supra, 120 Cal.App.3d at pp. 628-633.) It noted, among other things, that the first summary judgment, in favor of Gray Line and against the plaintiffs, had become final. (Id. at p. 629.) Here, similarly, the September 30 order has become final. Accordingly, it is entitled to collateral estoppel effect, even in a later stage of the same proceeding.
Allowing Minnie to assert the September 30 order as collateral estoppel would not be unfair. Dennis had a full and fair opportunity to litigate his claims to the Orange County house; he simply failed to comply with the trial court’s procedural requirements for doing so. Moreover, even assuming the trial court’s order precluding him from litigating the issue was erroneous, Dennis’s remedy was to take a prompt appeal from the September 30 order. Once again, he failed to do so.
Accordingly, even if we agreed with Dennis on the merits — and even if we reversed the September 30 order as to Minnie — on remand, Minnie would be entitled to entry of an identical order, this time based on collateral estoppel. We therefore conclude that Dennis’s appeal, to the extent that he is challenging the September 30 order (or the order denying his motion to vacate the September 30 order), is moot. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 120-121 [“‘“[w]hen no effective relief can be granted, an appeal is moot”’”].)
B. The Award of Attorney Fees.
Dennis contends that the trial court erred by awarding $22,000 in attorney fees against him.
1. Additional factual and procedural background.
The parties entered into a partial marital settlement agreement. Although they have not provided us with a copy of it, it appears to have resolved all but three disputed issues, which were reserved for trial. One of the reserved issues was “attorney[’]s fees.”
In May 2005, both parties filed trial briefs and income and expense declarations. They have not provided us with copies of these declarations.
On September 9, 2005, a trial was held on the reserved issues. Minnie testified that she had paid her counsel approximately $66,000 in attorney fees and owed him approximately $48,000 more. Minnie’s counsel then testified that, in his opinion, these fees were reasonable and necessary. He further testified that Dennis’s claim to the Orange County house had been groundless and that Dennis had refused an offer of $4,700 to settle his claim.
In closing argument, Minnie’s counsel asked the trial court to order Dennis to pay half of Minnie’s attorney fees.
In response, Dennis’s counsel stated: “ . . . Counsel has never cited [Family Code section] 271, but presumably that’s the statute under which he is requesting attorney[’]s fees.” He argued that there had been an insufficient showing that any particular amount of attorney fees was attributable to any particular conduct that was subject to sanctions under Family Code section 271. He further argued that there was insufficient evidence of the parties’ respective incomes, assets, and liabilities to support an award of attorney fees under Family Code section 271.
The trial court took the matter under submission. Later that same day, it ordered Dennis to pay Minnie $22,000 in attorney fees.
2. Analysis.
Dennis continues to assume that the trial court awarded attorney fees as a sanction, pursuant to Family Code section 271. He therefore argues that there was insufficient evidence of any particular amount of attorney fees incurred as a result of any sanctionable conduct. He also argues that there was insufficient evidence of the parties’ respective financial circumstances.
Family Code section 271, subdivision (a) provides: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.”
However, Family Code section 2030, subdivision (a) also provides:
“(1) In a proceeding for dissolution of marriage . . ., the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
“(2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay.”
“The most fundamental rule of appellate review is that a judgment is presumed correct, and the appealing party must affirmatively show error. [Citation.]” (In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418.) Thus, if the trial court could properly award attorney fees under Family Code section 2030, it is Dennis’s burden on appeal to demonstrate that, in fact, it awarded attorney fees improperly, under Family Code section 271. He has failed to do so.
At a hearing in 2003, Minnie’s counsel had noted that one “open issue” was Dennis’s “contribution” toward Minnie’s attorney fees “from day one . . . to completion of this matter.” This sounds like a description of fees sought under Family Code section 2030, not under Family Code section 271. Moreover, at the trial in 2005, Minnie’s counsel asked to have Dennis pay just half of her attorney fees, rather than more than half, or all. Once again, this strongly suggests that the request was made under Family Code section 2030. The parties’ trial briefs, which at least might have clarified the basis of the fee request, have not been included in the record.
Dennis notes that Minnie’s attorney seemed to be trying to show, by his testimony, that Dennis had engaged in sanctionable conduct. Minnie, however, was entitled to seek attorney fees under both Family Code section 271 and section 2030. Dennis also notes that in argument, his own counsel asserted that the fees were being sought under Family Code section 271 and that nobody contradicted him. But nobody said he was right, either. His bare assertion was not somehow binding on the trial court.
Dennis therefore argues that, even assuming the fees were awarded under Family Code section 2030, there was insufficient evidence of the parties’ respective financial circumstances. Both sides, however, had filed income and expense declarations. Moreover, the trial court indicated that it had taken judicial notice of the declarations; when Minnie’s counsel referred to one of them in closing argument, Dennis’s counsel objected, but the trial court stated: “The Court has reviewed it. . . . [I]t is part of the court file. I have considered it and looked at the court file in preparation for trial.” The parties have not included the income and expense declarations in the appellate record. We must presume that they contained sufficient evidence to support the award of attorney fees.
Finally, Dennis argues that, even assuming the trial court did consider the income and expense declarations, he was not given sufficient notice of its intention to do so. When the trial court expressly stated that it had considered the court file, however, he did not raise an objection on this particular ground. Hence, he has forfeited it for purposes of appeal. (See Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 291.)
We therefore conclude that Dennis has not shown that the trial court erred by awarding Minnie $22,000 in attorney fees.
III
DISPOSITION
The judgment is affirmed. Minnie is awarded costs on appeal against Dennis.
We concur: RAMIREZ P.J., KING J.
Judge Ellsworth entered the challenged order denying the motion to vacate the order regarding the house. She also entered the challenged order awarding attorney fees and the final judgment.