Opinion
H041882
10-26-2018
In re the Marriage of DIANA Q. DONG and OLIVIER G. GARBE. DIANA Q. DONG, Appellant, v. OLIVIER G. GARBE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 608FL000101)
On December 1, 2014, the trial court denied Appellant ("Wife") Diana Q. Dong's motion to set aside an order requiring her to, among other things, pay $100,000 in attorney fees and costs to Respondent ("Husband") Olivier G. Garbe. Wife timely filed a notice of appeal from the order denying her motion to set aside. However, in her opening brief, Wife fails to make any legal or factual argument pertaining to the December 1, 2014 order denying her motion to set aside, addressing only the underlying attorney fee order from June 2014, which is not the subject of this appeal. As a result, we affirm the trial court's December 1, 2014 order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The trial court entered a judgment of dissolution in September 2010. The parties thereafter engaged in extensive litigation, including an 18-day trial on custody and visitation, and a trial regarding property division, as well as other motions. In March 2014, Husband filed a request for orders seeking to modify child support, and asking that Wife pay his attorney fees and costs under Family Code sections 271 and 3557. Pursuant to a stipulation signed by the parties' then attorneys, Husband's motion was set to be heard at the same time as an attorney fees motion filed by Wife. The parties and their attorneys appeared in court on June 13, 2014. The court confirmed that Wife's attorney fee request would not be heard at that time as it had been taken off of the court's calendar. Wife's attorney indicated that he represented Wife only on her attorney fee matter as he was appearing in limited scope. After the court rescheduled the hearing on that matter, the court excused Wife's attorney. Wife represented herself for the remainder of the hearing without objecting to her attorney's absence, including when the trial court addressed Husband's attorney fee request. She did not object to her attorney leaving.
The parties appealed the judgment, which we affirmed in a nonpublished opinion. (In re Marriage of Dong and Garbe (Nov. 26, 2013, H036286).
Attorney Salomon Quintero represented Wife in limited scope for purposes of Wife's attorney fee motion only. He withdrew from that representation in July 2014. The Supreme Court has approved this form of representation in family law cases. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1346 (Elkins); Judicial Council of Cal., Admin. Off. of Cts., Elkins Family Law Task Force: Final Report and Recommendations (Apr. 2010) p. 61, at <http://www.courts.ca.gov/documents/elkins-finalreport.pdf> [as of Oct. 16, 2018], archived at <https://perma.cc/T99C-DDR8>.)
Wife did object to the court proceeding on Husband's support and attorney fee requests on other grounds, arguing she did not receive proper notice. Husband had served her with notice at the address listed on the last pleadings she filed with the court. The court found such service to be proper, as Wife had not filed a notice of change of address with the court. The court heard evidence and argument from both parties in a court session that extended at least half of a day. Having found evidence that Wife had engaged in conduct that frustrated the policy of the law to promote settlement and to reduce the cost of litigation, the trial court also considered whether the imposition of attorney fee sanctions would impose an unreasonable financial hardship on Wife. In an order filed June 23, 2014 ("June 2014 order"), the trial court ordered Wife to pay $100,000 in Husband's fees and costs under Family Code sections 271 and 3557 rather than $225,000 in fees and costs as requested by Husband.
In July 2014, Wife filed a motion to set aside the June 2014 order under Code of Civil Procedure section 473.5. She alleged she did not receive proper notice of the hearing that resulted in the entry of that order, noting that the original motion listed a hearing date in July 2014, rather than June 2014. Wife argued that the lack of notice left her unable to properly prepare and present evidence at the hearing. She also argued that Mr. Quintero was supposed to represent her both for Husband's attorney fee request and her own attorney fee request. She denied knowing that Mr. Quintero stipulated to move the hearing on Husband's motion to June 2014. The trial court heard Wife's motion to set aside the attorney fee order on November 21, 2014, where she was represented by a different attorney in a limited scope capacity. As reflected in the order filed December 1, 2014, the court denied Wife's request to set aside the June 2014 order "on all grounds raised in the pleadings and argued in court . . . ."
The attorney who appeared at Wife's motion to set aside also filed certain pleadings supporting Wife's motion. She authored Wife's appellate briefs and appeared at oral argument on this appeal.
Wife without counsel timely filed her notice of appeal on December 31, 2014, specifying that she was appealing from the December 1, 2014 order denying her Code of Civil Procedure 473.5 motion. (Code Civ. Proc., § 904.1, subd. (a)(2); Cal. Rules of Court, rule 8.104(a).)
Husband filed a motion to dismiss the appeal in February 2016. Initially, he moved to dismiss the appeal under the disentitlement doctrine. He later amended his motion to include a request for dismissal on the grounds the appeal was untimely, as Wife filed notice of the appeal more than 180 days after the trial court filed the June 2014 attorney fee order. In response, Wife, through yet a third attorney who was retained in limited scope, argued that she timely appealed the denial of the statutory motion to set aside the order. We denied Husband's motion to dismiss, stating, "The appeal shall proceed as to the December 1, 2014 order, denying the motion to set aside the judgment."
If Wife intended to appeal the June 2014 attorney fee order, she had to file notice of such appeal no later than December 22, 2014, 180 days after entry of the order, if not earlier. (Cal. Rules of Court, rule 8.104(a) and (c); Code Civ. Proc., § 668.5; see Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1267, fn. 2.) Wife's motion to set aside did not extend the deadline beyond 180 days. (Cal. Rules of Court, rule 8.108(c).) Wife filed the instant notice of appeal on December 31, 2014.
II. DISCUSSION
Although the subject of this appeal is the trial court's December 1, 2014 denial of Wife's motion to set aside the attorney fee order, in her opening brief, Wife argues solely that the trial court erred in issuing the June 2014 attorney fee order. She cites three grounds: 1) there was no proof her allegedly sanctionable behavior caused Husband to incur specific attorney fees or costs; 2) the court "sen[t] away" Wife's attorney and conducted the hearing without her having counsel present, in violation of her due process rights; and, 3) there was no proof she had proper notice of the hearing. However, the June 2014 order is not the subject of this appeal, as confirmed by Wife's notice of appeal and this court's order denying Husband's amended motion to dismiss.
An appellant must provide argument and, where possible, citation to legal authority in support of contentions on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B).) We can treat as abandoned issues not properly addressed in the briefs. (Mecchi v. Picchi (1966) 245 Cal.App.2d 470, 475 [failure to provide points or authorities attacking the judgment deems appeal from that judgment waived and abandoned]; see Behr v. Redmond (2011) 193 Cal.App.4th 517, 538, as modified (Mar. 25, 2011); Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1336, fn. 2.)
Wife does not provide relevant argument, citation to legal authority or any relevant discussion in support of the appeal before us. Although Wife took the instant appeal from the trial court's December 1, 2014 order denying her motion to set aside, she makes no reference to that order in her opening brief. On the contrary, Wife states at several places in her brief she appeals from the underlying June 2014 Family Code section 271 attorney fee order. Wife does not discuss the November 21, 2014 hearing on her motion to set aside the attorney fee order under Code of Civil Procedure section 473.5 or the resulting December 1, 2014 order in her "Statement of Significant Facts." In discussing the standard of review, she cites law concerning the review of an attorney fee award under Family Code section 271, not the review of the denial of a request to set aside an order under Code of Civil Procedure section 473.5 or other legal grounds the trial court may have considered in issuing the December 1, 2014 order, the only order presently under appeal.
Wife provides a lengthy summary of the "reporter's transcript." While she does not specify the hearing date of the transcript she references, it is clear from the record she is discussing the June 13, 2014 attorney fee hearing. In her legal argument, Wife cites to portions of the record containing the June 2014 attorney fee order and pleadings filed for the June 13, 2014 hearing. Wife does not mention her motion to set aside the June 2014 order, or the subsequent proceedings related to that motion, in her brief.
Wife did not properly designate the reporter's transcript from the November 21, 2014 set aside hearing as part of the record on appeal. In her December 2014 notice designating the record on appeal, Wife indicated she would proceed with a record from the oral proceedings in the trial court, stating that she attached a certified transcript under California Rules of Court, rule 8.130(b)(3). She attached a partial transcript of the June 13, 2014 attorney fee proceedings. In February 2017, Wife filed an amended notice designating the record on appeal, listing only the partial and full transcripts from the June 13, 2014 attorney fee hearing in the section concerning reporter's transcripts. The November 21, 2014 transcript of the hearing regarding her request to set aside the attorney fee order is not part of the record provided to this court because she did not designate it to be included.
We recognize that Wife represented herself when she filed her opening brief. We recognize that we are reviewing the order of a family court, which is a court of equity. (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 801.) However, we may not give special consideration to Wife as a self-represented litigant. "While a party may choose to act as his or her own attorney, ' "[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. [Citation.]" [Citation.] Thus, as is the case with attorneys, [self-represented] litigants must follow correct rules of procedure. [Citations.]' [Citations.]" (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 208, rehg. denied (July 25, 2016), review denied (June 14, 2017) [first four citations omitted in orig.].)
However, Wife also had the assistance of counsel throughout the appellate process. While she filed her notice of appeal and her opening brief in propria persona, an attorney represented her in opposing Husband's motion to dismiss. The attorney substituted out of the appeal shortly after we denied that motion. After we sent notice that the parties could request oral argument, Wife retained a different attorney, who appeared for Wife at oral argument. That same attorney represented Wife in limited scope at the November 21, 2014 hearing on Wife's motion to set aside the attorney fee order. In a motion filed with this court on October 5, 2018, the attorney, in a supporting declaration, indicated she wrote the appellant's opening brief for Wife, who then filed it in propria persona.
We further note that this is not the first appeal in the lengthy family court litigation between Husband and Wife. In addition to the appeal of the judgment (see fn. 1, ante) each party filed an additional appeal, one of which was abandoned by Husband shortly after filing (Docket No. H033447), and one of which we dismissed after Wife failed to timely procure the record on appeal (Docket No. H039495).
Wife is aggrieved that the court issued the June 2014 attorney fee order against her, but she did not timely appeal that order, and we are precluded by jurisdictional law from taking any action on it. She attempts to raise her objections in the current appeal. However, having made no showing the trial court erred in issuing the December 1, 2014 order, Wife is not entitled to a reversal of the court's denial of her motion to set aside the attorney fee order.
III. DISPOSITION
The December 1, 2014 order denying Wife's motion to set aside the June 23, 2014 attorney fee order is affirmed.
In light of our disposition of the case, Wife's Motion to Transmit Exhibit C, deferred to oral argument and taken under submission, is denied. --------
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.