Opinion
A147541
02-09-2017
In re the Marriage of CHERYL and ARTHUR BACA. CHERYL ATKINSON, Appellant, v. ARTHUR BACA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD13-00266)
In this family law dissolution proceeding, Cheryl Atkinson and Arthur Baca entered into a consent agreement, based on an earlier premarital agreement, resolving characterization and distribution of certain real and personal property. Atkinson moved to set aside the consent agreement and invalidate the premarital agreement, alleging duress. Immediately prior to a scheduled date for further trial on Atkinson's motions, she made pro se motions to compel discovery from Baca and continue the trial. The motions were denied and trial proceeded. Midtrial, Atkinson did not appear and again moved, through former counsel, for a continuance, alleging a medical condition prevented her appearance. The court did not find the stated reasons credible and denied the motion to continue. Atkinson did not attend the final two days of trial. Atkinson's motion to set aside the consent agreement was denied and the premarital agreement's validity was confirmed. The court later entered a final judgment for dissolution, incorporating detailed findings of fact.
Atkinson argues the trial court denied her due process of law and abused its discretion in denying her motions to compel discovery and continue trial, and the resulting judgment is void. She further urges the judgment fails to make an equitable distribution of community assets. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
Three days prior to the parties' marriage in May 1994, Atkinson and Baca entered into a premarital agreement defining their separate property earnings and assets. Baca petitioned for dissolution of the marriage in January 2013. Shortly thereafter, the parties executed a consent agreement, containing multiple handwritten interlineations and notations, expressly "affect[ing] their rights relating to and regarding the allocation of property rights which are subject to the [dissolution proceeding]." The consent agreement provided that it superseded the premarital agreement with regard to property characterization to the extent the two agreements were inconsistent, but that the consent agreement was not intended to supersede or replace the entirety of the premarital agreement. The consent agreement further provided that property not otherwise identified remained uncharacterized pending determination by the court or agreement of the parties.
The premarital agreement was amended during the marriage on August 31, 1995, and December 18, 2002.
On June 20, 2014, Atkinson moved to set aside the consent agreement, alleging duress. Trial on the issue commenced on March 26, 2015, with Atkinson and two other witnesses called and exhibits introduced. Further hearing on the consent agreement was continued to April 10. On that date, Atkinson filed a motion to invalidate the premarital agreement and further testified on cross-examination regarding the consent agreement. Unable to complete trial on the consent agreement issue, the matter was continued to August 14. The motion to invalidate the premarital agreement was initially set for June 22, and then continued to July 30. Ultimately, with the consent of both parties, hearing on both agreements was set for trial with the remaining dissolution issues on November 30 and December 17 and 18.
On November 6, 2015, Atkinson filed notice that she was self-represented. On November 25, she filed a pro se ex parte motion seeking to compel discovery, monetary sanctions, and continuance of the trial date. The court (Hon. Anita Santos) declined to issue orders on an ex parte basis and hearing on Atkinson's motion was set for the first day of trial already scheduled on November 30. On November 30, the court (Hon. Suzanne Fenstermacher) denied the motion to compel discovery as untimely, and denied the motion to continue, noting that the matter had been pending for two years and trial had "already commenced on part of the case." Testimony was taken and exhibits were introduced.
Atkinson had four attorneys of record prior to representing herself.
The ex parte motion was signed by Atkinson on November 18, 2015, and service by facsimile on Baca's attorney apparently was made that same date. Baca's attorney disputed receipt of the full 93-page motion and contested the sufficiency of what e-mail notice he acknowledged having received regarding it.
Trial resumed on December 17, 2015. A former attorney of record for Atkinson appeared and orally requested a continuance on Atkinson's behalf, asserting that Atkinson suffered a health issue for which she sought medical attention. The clerk's minutes reflected that no medical declaration or certified records were provided, and the court found the request not credible, particularly in light of the denial of Atkinson's earlier continuance request. The attorney was directed to notify Atkinson. Trial proceeded in Atkinson's absence as scheduled on December 17 and 18. At the conclusion of evidence, the court denied the motion to set aside the consent agreement, making a finding of fact that Atkinson had not acted under duress, and confirmed the premarital agreement's validity. Baca's counsel was directed to prepare a statement of decision.
No stenographic record of the proceedings is before us. Pursuant to Contra Costa County local rules of court, no court reporters are employed in family law departments, and no official record of the proceedings is made "unless a party who desires an official record makes arrangements for a private certified court reporter as set forth in Local Rule 2.51." (Super. Ct. Contra Costa County, Local Rules, rule 5.9(f)(1).)
The court's written findings, as we discuss post, state the attorney seeking the continuance initially represented that Atkinson had suffered a heart attack earlier in the week and was discharged from the hospital on the morning of December 17. The attorney, at some point, brought in "partial medical records which indicated [Atkinson] was admitted to a hospital on December 16, 2015 for what is described as a 'contusion of right great toe without damage to nail.' "
On February 1, 2016, the court entered a judgment of dissolution, incorporating detailed findings of fact. Atkinson filed a timely notice of appeal.
II. DISCUSSION
We begin by reiterating the well-settled rule of appellate review. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of demonstrating error on the part of the trial court. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "].) A. Denial of Motion to Continue
Atkinson argues the court's denial of her ex parte motion to continue trial was an abuse of discretion and reversible error. "Continuances are granted only on an affirmative showing of good cause requiring a continuance." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823; Cal. Rules of Court, rule 3.1332.) "[T]rial courts are vested with broad discretion to determine whether to grant a continuance. The granting or refusal of a continuance is a matter of discretion with the trial court and its ruling will not be disturbed unless a clear abuse of that discretion is shown." (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, fn.11.) We find no abuse of discretion.
Atkinson insists the court was required to grant her ex parte motion to continue trial because she was no longer represented by counsel and was without funds necessary to retain counsel; she was incapable of personally prosecuting the case due to its complexity; the court was aware her health would play a major role in her ability to appear and participate at trial; and Baca had failed to respond to her discovery demands. Atkinson contends there had been no continuances of the subject matter then set for trial, and Baca would have suffered no prejudice from a continuance.
Atkinson is incorrect that there were no continuances. As the court noted, trial had already commenced. The clerk's minutes reflect trial on Atkinson's motion to set aside the consent agreement began on March 26, 2015, with Atkinson testifying on both direct and cross-examination, and each side calling other witnesses. Atkinson testified again on cross-examination on April 10. With the parties' agreement, trial on the consent agreement was continued to August 14, and ultimately put over to conclude in November and December. Atkinson's motion to invalidate the premarital agreement was originally set for hearing on June 22, continued to July 30, and (again with the parties' agreement) ultimately put over for trial with other issues in November and December.
We also note Atkinson's November 2015 ex parte motion was based in part on her attorney's withdrawal—notice of which was filed with the court on November 6—12 days prior to her signing and purported service of the motion. Denial of her request for ex parte orders was filed on November 25, 2015 (the Wednesday before the Thanksgiving holiday weekend), and hearing on the motion was set for the following Monday—the previously-scheduled date for trial. A party seeking a continuance "must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules of Court, rule 3.1332(b).)
Finally, the trial court did not make its ruling in a vacuum. The matter had been assigned to this bench officer "for all purposes" since June 2014, and the court was presumably familiar with the case history and the issues before it. Baca alleged Atkinson engaged, during the marriage, in an elaborate series of forgeries and fraudulent transactions in order to steal his separate property. During the time the case had been before her, the trial judge had heard and granted three motions by Baca to compel discovery from Atkinson, and found an award of sanctions appropriate in each case. The court also was aware that Atkinson had retained, and discharged, four different attorneys over the roughly three-year span of the litigation, and it could reasonably view with skepticism Atkinson's termination of her most recent attorney less than a month before resumption of trial and the claim she lacked funds to retain new counsel. We find no abuse of the court's considerable discretion in denying the ex parte motion to continue.
The court ultimately found that Atkinson had wrongfully taken several million dollars from Baca.
We also observe on review of Atkinson's 93-page ex parte motion that it would appear she either continued to receive unacknowledged legal assistance or, alternatively, she was entirely capable of representing herself.
Nor do we find abuse of discretion in denial of Atkinson's subsequent midtrial motion to continue, submitted orally by former counsel. The court's findings of fact after trial recite that one of Atkinson's former attorneys appeared in her stead on December 17, 2015, and claimed Atkinson suffered a heart attack earlier in the week, and had been discharged from the hospital that morning. The attorney, however, presented only partial medical records, which indicated Atkinson was admitted to a hospital on December 16, 2015, for what was described as a " 'contusion of right great toe without damage to nail.' " The court denied the motion, finding the information not credible and determining Atkinson was attempting to intentionally delay trial. We do not reconsider credibility determinations made by the trial court. (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1126.)
As note ante, minutes of the December 17 hearing indicated a representation that Atkinson suffered from a "nonspecific health issue for which she sought medication [sic] attention" and she had not been admitted to the hospital. The minutes noted that no declaration from a doctor or certified medical records had been provided. To the extent in conflict, we give greater credence to the findings of fact signed by the court. We note that Atkinson's opening brief states she was "rushed to the hospital with cardiac arrhythmia." Atkinson does not cite to the record, perhaps because no such information appears there. We previously declined to take judicial notice of December 28, 2015 correspondence from a physician because it was not before the trial court at the time of its decision and was therefore not relevant to the manner in which the court exercised its discretion. (See Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578 [matter to be judicially noticed must be relevant]; Evid. Code, §§ 350, 450.)
Atkinson also suggests the court was required to continue trial as a reasonable accommodation for her physical disabilities. The California Rules of Court enable persons with disabilities under the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), the Americans with Disabilities Act of 1990, and other state and federal statutes to apply for accommodations to ensure full and equal access to the courts. (Cal. Rules of Court, rules 1.100(a), (b).) A litigant may make a request for an accommodation "ex parte on a form approved by the Judicial Council, in another written format, or orally," and the request "must include a description of the accommodation sought, along with a statement of the impairment that necessitates the accommodation." (Id., rule 1.100(c)(1), (2).) Under appropriate circumstances, a trial continuance may be an appropriate accommodation. (See In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1276.) There is no evidence Atkinson ever made a request for a disability accommodation of any kind. The only reference to her medical condition in her ex parte motion was a statement that she "is and has been under the care of a heart specialist so her health plays a major role at the time of trial . . . ," but she made no claim that she suffered from any immediate disability that prevented her attendance or participation at the trial. At no point in her motion did Atkinson assert any entitlement to a disability accommodation. The court did not violate rule 1.100 of the California Rules of Court by not continuing the trial as a reasonable accommodation for a disability in the absence of such a request and in the absence of supporting evidence. B. Denial of Motion to Compel Discovery
Atkinson's first mention of a disability accommodation was in a December 18, 2015 motion seeking to disqualify Judge Fenstermacher.
Atkinson also assigns error to the trial court's denial of her ex parte motion to compel discovery. She contends Baca's failure to provide discovery was an additional basis to continue the trial. We disagree.
On September 30, 2015, Atkinson's counsel served form and special interrogatories, a request for production of documents, and requests for admissions on Baca. Responses from Baca's counsel were dated October 29, and Atkinson's counsel declared the responses were received by mail on November 2, 2015, but were unverified. The motion to compel argued the failure to verify the responses rendered them inadequate.
Baca's counsel states in the respondent's brief that copies of the verifications and proof of service were provided at the November 30, 2015 hearing. However, minutes of the unreported hearing are silent on this issue. --------
Code of Civil Procedure section 2024.020, subdivision (a), provides that "[e]xcept as otherwise provided in this chapter" discovery, as a matter of right, must be completed, on or before the 30th day "before the date initially set for the trial of the action," and motions concerning discovery heard on or before the 15th day before trial. "[A] party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard." (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) "[T]he court may grant leave . . . to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set . . . ." (Code Civ. Proc., § 2024.050, subd. (a), italics added.) The court has discretion to grant or deny the motion, considering factors including " '[t]he necessity and the reasons for the discovery' and '[t]he diligence or lack of diligence of the party seeking . . . the hearing of a discovery motion, and the reasons that . . . the discovery motion was not heard earlier.' " (Pelton-Shepherd Industries, at pp. 1586-1587, citing Code of Civ. Proc., § 2024.050, subds. (a) & (b)(1), (2).)
Hearing minutes reflect that the court denied the motion as "untimely." No record is provided of argument, or of the basis for the court's determination. " ' "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." ' " (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) "The party seeking to challenge an order on appeal has the burden to provide an adequate record to assess error. [Citation.] Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him." (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) Atkinson fails to provide any basis to conclude the court abused its discretion in declining to grant an untimely motion.
Moreover, Atkinson fails to articulate how the lack of verification to responses—not alleged to be otherwise deficient—affected her trial preparation or otherwise caused her prejudice. " ' "The burden is on the appellant, not alone to show error, but to show injury from the error." ' [Citation.] 'Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record.' [Citation] 'Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.' [Citation.] A miscarriage of justice is not found 'unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.' " (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.) Atkinson fails to meet her burden. C. Due Process
Atkinson asserts the judgment entered in this matter is "void" due to a lack of due process. Her discussion is summary and entirely conclusory. She cites—without any reasoned argument—an inapplicable provision of the Federal Rules of Civil Procedure and the Fifth Amendment to the United States Constitution. She cites case authority addressing a party's ability to collaterally attack a judgment void on its face when rendered in the absence of personal or subject matter jurisdiction, or in granting relief which the court had no power to grant, but she makes no effort to explain in what manner the court lacked jurisdiction. Citations to general principles without applying those principles to the circumstances before the court results in abandonment of the argument. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1116.)
"[T]he party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised." (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408; see Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) Atkinson fails to do so. She is not exempt from the rules because she chose to represent herself on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) "[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) D. Inequitable Property Distribution
Atkinson contends the judgment awarded the entire community estate to Baca, while she received nothing but indebtedness, and that this distribution was entirely the result of her inability to appear at trial. Rather than discussing the court's findings with respect to any particular asset or group of assets, or discussing the evidence relied upon by the court, she cites only sections of the Family Law Code providing for equal distribution of the community. We again find the claim abandoned by Atkinson's failure to present meaningful legal analysis, supported by citations to authority and facts in the record to support the claim of error. (In re S.C., supra, 138 Cal.App.4th at p. 408.) We do not search the record to ascertain whether it contains support for an appellant's contentions. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1116.)
Furthermore, Atkinson ignores the fact that the trial court found nearly all of the disputed assets were Baca's separate property under the terms of the premarital and consent agreements, and that the amount that Atkinson owed Baca was the direct consequence of her fraudulent conduct. She does not bother discussing the evidence the court relied upon, most of which is contained in two volumes of clerk's transcripts and readily citable had she chosen to do so. Even if she had, "[w]e do not reweigh the evidence or reconsider credibility determinations" made by the trial court. (In re Marriage of Dandona & Araluce, supra, 91 Cal.App.4th at p. 1126.) We would, in any event, resolve conflicts in evidence in favor of the prevailing party and draw all reasonable inferences to uphold the trial court's decision. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
III. DISPOSITION
The judgment is affirmed. Atkinson shall bear Baca's costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.