Opinion
A164482 A167003
03-06-2024
SIMONA FARRISE, Petitioner and Appellant, v. KIMBERLEY FARRISE, Respondent.
NOT TO BE PUBLISHED
(County of Alameda Super. Ct. No. AF14744271)
TUCHER, P.J.
These consolidated appeals arise from a protracted marital dissolution action that was filed in 2014. For clarity, we refer to the parties by their given names. Simona, who appears in pro per, contends that a November 2022 judgment on reserved issues must be reversed because (1) the trial court committed multiple prejudicial errors during a 2021 court trial, and (2) the judgment was entered by a different judge than the judge who conducted the trial. We affirm the judgment in its entirety.
BACKGROUND
The Marriage and Termination of Marital Status
The parties married in 1994. At the time, Simona was an attorney "beginning her practice," and Kimberly was a cosmetologist. Simona has one child from a prior relationship and the parties have two children together. Early in the marriage, Kimberly stopped working in cosmetology and started a business salvaging luxury cars. Meanwhile, Simona developed a successful law practice that focused on plaintiff-side personal injury litigation, which "became very profitable for a period," and enabled the "parties to purchase multiple properties and investments and to enjoy an affluent lifestyle for many years."
The parties separated in August 2014 and Simona filed a petition for dissolution of the marriage the following October. In 2016, the parties stipulated to the appointment of the Honorable Catherine Gallagher as private judge pro tem for all purposes. Around that same time, Simona's "[law] practice and her reputation declined sharply" due to significant mental health issues, as well as "structural matters in the legal system [that] inhibited her practice." In April 2018, Judge Gallagher withdrew from her appointment, after which the parties aggressively pursued litigation in the superior court. On April 2, 2019, the parties' marital status was terminated.
The 2021 Court Trial
In 2021, a court trial was held to address reserved financial issues pertaining to property division, child support, and spousal support. Child custody issues were bifurcated. Claims were presented to the Honorable S. Raj Chatterjee, who conducted the trial over 12 court days between February and April. Thereafter, the parties submitted briefs and requests for attorney's fees. In October 2021, the court issued a proposed statement of decision (SOD), and both parties filed objections. On November 30, 2021, the court issued a 24-page final SOD.
Property Division
By the time of trial, neither party was gainfully employed. Simona's law practice (the Farrise firm) was insolvent and defunct, and she was not currently working. Kimberly had not worked "in any meaningful way" after the parties separated. Their "marital lifestyle was highly leveraged with debt, and they liquidated and disbursed the majority of the marital estate as of the trial date, both to pay debts and to support themselves and their children." In its detailed SOD, the court divided the parties' remaining assets and liabilities, which required it to resolve multiple valuation disputes, among other things.
The trial evidence included a post-separation accounting dated January 4, 2018, that was prepared by Richard Schiller, a forensic accountant retained by Simona earlier in the litigation. At some point, Schiller had temporarily stopped work on the report because Simona stopped paying for his services, but Judge Gallagher ordered Schiller to complete it. Simona included Schiller on her list of trial witnesses and Kimberly called him to testify. Schiller had little recollection about his work relating to the 2018 accounting, but the court found that Schiller's report was useful because it addressed many of the parties' issues and provided a "partial snapshot of most of the accounting as of the date of the report."
The court also considered a post-separation accounting prepared by Kimberly's expert, Diana Lesgart. Lesgart accepted Schiller's "principle conclusions," and then conducted additional work to generate her own updated accounting report. The trial court found that Lesgart's trial testimony was "fraught with complications" and that there were issues with her credibility, but it did not strike her testimony.
Simona presented testimony from two witnesses she employed as accountants, Tamara Hull and Mary Jannisse. Prior to trial, the court precluded Simona from eliciting expert opinions of these witnesses, and in its SOD, the court found that their credibility as percipient witnesses was diminished because they and their accounting firm had failed to comply with an order compelling them to produce properly subpoenaed documents.
To determine the value of the marital estate, the court relied primarily on Schiller's report, and also utilized Lesgart's updated calculations albeit with material adjustments. The court found that Schiller's report had "credibility" because it was prepared while Schiller was Simona's expert and then Kimberly adopted the report, offering it into evidence. Due to concern about Lesgart's credibility, the court gave "reduced weight to her testimony and conclusions."
Schiller's report stated that, as of December 31, 2016, the marital estate was valued at $1,149,799. It credited Simona with $523,638 and Kimberly with $626,161, which would have required an equalization payment from Kimberly, barring other issues. Schiller did not include Simona's law firm (the Farrise firm) in his calculation of the estate's value. He reported that, as of 2014, the Farrise firm had a book value of $1,205,849, but a significant component of that valuation consisted of $2,141,122 in" 'Case Costs Advanced'" to contingency fee clients. Although treated as an asset for accounting and tax purposes, Schiller reported, these case costs "have essentially no value unless there is a recovery at the time of the disposition of the case."
Lesgart "grossed up" Schiller's figures and included additional items in her valuation of the estate, including the Farrise firm. Lesgart concluded that the community estate had a value in excess of $7.6 million, of which more than $5 million was credited to Simona. In its SOD, the trial court substantially reduced several of Lesgart's calculations regarding disputed assets and liabilities, supporting its conclusions with detailed analyses. The net result of this painstaking exercise was an order requiring Simona to pay Kimberly $55,964 as "an equalization payment for the division of [their] assets, debts, and reimbursements."
Spousal Support
Interim orders issued by Judge Gallagher required Simona to pay child and spousal support to Kimberly as of February 2017. Simona was ordered to pay $500 a month for child support and $7,000 per month for spousal support, with the court reserving jurisdiction to make retroactive modifications to both orders. At trial, both parties requested retroactive modification of the interim support order. Denying these requests, the court found the parties had waited too long to pursue this issue and neither had produced credible evidence warranting retroactive modification.
The trial court also denied Kimberly's request for long-term spousal support, after considering factors set forth in Family Code section 4320. In reaching this conclusion, the court observed the marital standard of living was exceptionally high, as it was based on Simona's income from settlements and verdicts in her once successful law practice. But after the parties separated, Simona's income "declined drastically, and her practice collapsed." By the time of trial, neither party was working, and they had liquidated many assets. "Expecting either party to live at or near the marital standard of living [was] unreasonable," the court found.
Other Issues
The court reserved issues pertaining to child support, as the parties were required to raise these before the Department of Child Support Services in the first instance.
The court also denied the parties' requests for sanctions and attorney's fees. Citing Family Code, section 271, the court found both sides engaged in "problematic" conduct. But it concluded that neither party had the ability to pay attorney's fees under section 271, and that paying sanctions would also be a financial burden for both sides. In addition, the court found no disparity in income or access to capital that would warrant payment of attorney's fees under Family Code section 2030.
At the conclusion of the SOD, the court summarized its material findings in a list of 17 discrete orders, labeled from A to Q. The court ordered Kimberly to submit a proposed judgment within 10 days.
Appeal in Case No. A164482
On January 26, 2022, prior to entry of judgment on reserved financial issues, Simona filed her notice of appeal in case no. A164482, purporting to appeal (1) the November 2021 SOD; (2) a panoply of pretrial and trial orders relating to the SOD; and (3) a December 1, 2021, child custody order, which Simona described as an order terminating her parental rights. The December 2021 order attached to Simona's notice of appeal is a minute order from a custody hearing that contains no ruling terminating parental rights, but that adopted recommendations in a Family Court Services Report to grant sole legal and physical custody of the minor to Kimberly.
The November 2022 Judgment
Meanwhile in the trial court, on January 4, 2022, Kimberly served and attempted to file a proposed judgment on reserved issues, which incorporated a 22-page "Addendum" of alleged findings, orders, and rulings by Judge Chatterjee. The document was returned to Kimberly's counsel in early March, with an explanation from the superior court clerk that "[t]he Judgment should reflect the Court's orders." Subsequently, Kimberly submitted a revised proposed judgment, to which Simona filed lengthy objections. She also filed her own proposed judgment, attaching her own version of the trial court's findings.
With no judgment forthcoming, on September 26, 2022, Kimberly filed a Request for Order seeking (1) entry of judgment based upon the 2021 SOD, and (2) issuance of Qualified Domestic Relations Orders (QDROs) dividing the parties' two retirement accounts as contemplated by the SOD. On November 2, 2022, a hearing on Kimberly's request was conducted by the Honorable Peter Borkon. At the hearing, Kimblery's counsel said he was "stumped" as to why his revised proposed judgment had not been entered by the court. He acknowledged that QDROs dividing the retirement accounts could not be issued until judgment was entered but explained that he sought those orders because Kimberly was in "dire straits financially." Judge Borkon responded that after this matter was brought to his attention, he spent a "fair bit of time" looking into the matter and determined there were discrepancies between Kimberly's proposed judgment and the SOD as well as "superfluous verbiage." Simona objected that Judge Borkon had no authority to enter judgment because he was not the trial judge and, after Judge Borkon ruled, she made an oral motion to transfer this matter to Judge Chatterjee, who was sitting in a different department.
At the conclusion of the November 2 hearing, the court denied Kimberly's request for entry of judgment due to the improper form of the proposed revised judgment, denied the request for issuances of QDROs as premature, and advised the parties that it would decide later whether to request another proposed judgment. The court also denied Simona's motion to transfer the case.
On November 3, 2022, a judgment prepared by the court was filed and served. The judgment incorporates the exact list of orders set forth at the end of Judge Chatterjee's SOD. On December 22, 2022, Kimberly served notice of entry of the judgment on Simona. On January 3, 2023, Simona filed her notice of appeal in case Al67003, which appeals from this judgment.
DISCUSSION
I. The Appeal In Case No. A164482 Shall Be Dismissed
"The existence of an appealable judgment or order 'is a jurisdictional prerequisite to an appeal.' [Citation]. A corollary of this rule is that an appeal from a judgment or order that is not appealable must be dismissed." (In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77-78; see also Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.) Appealable orders and judgments are listed in Code of Civil Procedure Section 904.1. This provision" 'codifies the "one final judgment rule" and provides that only final judgments are appealable.'" (Deal, at p. 78.)
Statutory references in the opinion are to the Code of Civil Procedure unless another statute is cited. References to appellate court rules are to the California Rules of Court.
In case no. A164482, Simona purported to appeal from the SOD and related orders made prior to or during trial. The general rule is that a statement of decision is not appealable because the trial court's final rulings typically appear, not in the statement of decision, but in a subsequent final order or judgment. (Warwick California Corp. v. Applied Underwriters, Inc. (2020) 44 Cal.App.5th 67, 73.) By the same token, an order on a motion in limine is not itself an appealable order, but may be reviewed pursuant to an appeal from the ensuing judgment. (A&M Records, Inc. v. State Bd. of Equalization (1988) 204 Cal.App.3d 358, 362, fn. 2, disapproved on other ground in Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221, fn. 7.) Our review of the record confirms that these general rules govern here. The SOD addressed discrete financial issues, reserved other issues, and resulted in orders that were expressly incorporated into the 2022 judgment.
We also note that one of the trial orders listed on Simona's first notice of appeal is a February 1, 2021, order, dismissing claims by and against ACF 2006 Corp. (ACF), a judgment creditor of Simona and the Farrise firm. On the first day of trial, the court approved a good faith settlement of those claims, dismissed Kimberly's complaint against ACF, and dismissed all of ACF's claims against the parties. This court has already granted ACF's motion to dismiss the part of Simona's appeal in case no. A164482 that purports to challenge the ACF settlement. Accordingly, we do not consider it further here.
In case no. A164482, Simona also purported to appeal the December 1, 2021, custody order. "[T]he right to appeal a child custody determination is generally limited to final judgments and orders made after final judgments." (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377.) The minute order attached to Simona's notice of appeal is not a final judgment or postjudgment order. Furthermore, Simona fails to articulate a claim of error with respect to this order in her appellate briefs, thereby abandoning this aspect of her purported appeal. (See e.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1120 [when appeal is deemed abandoned for failure to support any theory of error, proper disposition is to dismiss the appeal].)
In her appellant's opening brief, Simona continues to maintain that her separate appeal from the SOD was authorized by Code of Civil Procedure section 904.1, relying on subdivisions (a)(1), (a)(10), and (a)(12). Subdivision (a)(1) does not apply because the SOD was not a final judgment. Subdivision (a)(10) authorizes an appeal from an order made appealable by the Family Code. Family Code section 2025 gives appellate courts discretion to entertain an interlocutory appeal in a marital dissolution action, but that authority arises only after the superior court "certifies that the appeal is appropriate," which did not occur here. Finally, subdivision (a)(12) of section 904.1 authorizes an appeal from an interlocutory judgment directing payment of a monetary sanction that exceeds $5,000. Here, the SOD incorporates prior orders imposing monetary sanctions on both parties for discovery abuses, but neither party was required to pay more than $5,000.
This court has authority to "treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Rule 8.104.) We need not decide if it would be appropriate to apply rule 8.104 here since Simona filed a separate timely appeal from the 2022 judgment. Legitimate claims of error relating to the 2020 trial may be raised in Simona's appeal in case no. A167003. But to avoid further confusion and delay, we dismiss the appeal in case no. A164482 because the orders Simona listed in her notice of appeal are not appealable orders.
II. Appellate Rules and Standard of Review
" 'A judgment or order of the lower court is presumed correct.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)" '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.'" (Ibid.) Simona's decision to act as her own attorney on appeal does not exempt her from these rules. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
This means that the burden is on Simona to articulate claims of reversible error and "present argument and authority on each point made." (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591.) Issues in an appellant's opening brief that are not properly presented or sufficiently developed to be cognizable may be deemed waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) It is also the appellant's obligation to provide an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Issues raised that are not supported by an adequate record shall be decided against the appellant. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
Importantly, this court is" 'not required to make an independent, unassisted study of the record in search of error.'" (Sprague v. Equfax, Inc. (1985) 166 Cal.App.3d 1012, 1050 .) This principle is reflected in multiple rules of court that Simona has largely ignored. For example, her appellant's opening brief does not "[p]rovide a summary of the significant facts limited to matters in the record" (rule 8.204(a)(2)(C)), and she fails to '[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears" (rule 8.204(a)(1)(C)). Moreover, Simona's 2896-page appellant's appendix, which is full of irrelevant material, is not properly indexed. (See rules 8.124(d) &8.144.)
These principles and rules of appellate procedure necessarily limit the scope of our review. This court will not address errors that Simona purports to allege in her deficient statement of facts. Issues are waived and forfeited unless they are addressed in the "Legal Argument" section of Simona's brief and accompanied by adequate analysis.
III. Issues Pertaining to the 2021 Court Trial
Simona contends the trial court committed prejudicial errors by (1) excluding Simona's expert witnesses; (2) permitting Schiller to testify as Kimberly's expert; (3) failing to grant Simona's request for sanctions against Kimberly; and (4) imposing arbitrary time limits.
A. Simona's Accountant Witnesses
The trial court precluded Simona's personal accountants, Hull and Jannisse, from offering expert opinions at trial as part of an in limine ruling that precluded Simona from offering expert testimony from any of the accountant witnesses she had declared her intention to call. Seeking de novo review, Simona contends this ruling was reversible error. A trial court ruling excluding or admitting expert evidence is reviewed for abuse of discretion, except to the extent the court based its ruling on a conclusion of law. (Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 545 (Pina).)
1. Additional Background
On December 4, 2020, Simona served Kimberly with a demand to exchange expert witness information, which included a specific request to exchange all discoverable expert reports and writings. (§ 2034.210.) On January 4, 2021, Kimberly served his response to the demand, which disclosed expert information about Lesgart and produced her report. That same day, Simona served Kimberly with a document that was captioned as her "Expert Witness Disclosure," which listed eight retained experts and nine non-retained experts. Pertinent to Simona's claim of error, the first five witnesses on Simona's list were designated as Certified Public Accountants (CPAs), and included Jannisse, Hull, and Schiller.
Prior to trial, Kimberly filed a motion in limine to exclude Simona from calling expert witnesses. He argued that Simona's disclosure of experts was deficient because she failed to provide a declaration setting forth the qualifications of her experts, failed to attach expert reports, and failed to state whether her designated witnesses were available and sufficiently familiar with the case to give a meaningful deposition. (See § 2034.260, subd. (c).) Kimberly also alleged that his counsel had attempted to meet and confer about these deficiencies and then filed formal objections, but Simona refused to correct her designation.
Arguing Simona's conduct was" 'litigation gamesmanship'" and an unreasonable violation of the Code of Civil Procedure, Kimberly pointed out that it was Simona who made a demand to exchange expert information, and then she submitted her deficient disclosure less than a month before the scheduled trial. The timing of her disclosure allowed only 11 days to depose experts, and yet she allegedly refused to waive the rule that experts must be deposed 15 days before trial. (See § 2024.030.) Kimberly also objected that Simona designated five experts to testify about a single issue-the parties' income for purposes of support-without stating that any of them had agreed to testify, were available for a deposition, or were sufficiently knowledgeable to give a meaningful deposition.
Simona opposed Kimberly's motion, which she interpreted as a limited motion to exclude only her accounting witnesses. She argued the motion should be denied for three reasons. First Jannisse and Hull were percipient witnesses because they were the parties' accountants during the marriage and continued to work for Simona. Second, Simona argued that alleged "technical defects" in her expert designation were not prejudicial because Kimberly was already familiar with her experts and elected not to depose any of them. Finally, Simona argued that her initial demand to exchange expert witnesses was defective, and in her view that meant that neither party had an obligation to comply with witness disclosure rules.
In limine motions were heard on February 1, 2021, the first day of trial. The court's tentative ruling was to grant the motion to preclude Simona's experts due to her failure to comply with the Code of Civil Procedure. The court found that Kimberly was prejudiced because he was not provided with sufficient information to decide whom to depose. As an example, Simona listed five experts to testify about income available for support. The court clarified that it was not precluding Jannisse and Hull from testifying as percipient witnesses. Simona responded positively to this clarification and made an additional request, that the court exclude only her financial experts as they were the specific target of Kimberly's motion. The court agreed, and limited its order to Simona's CPA experts, which also included Schiller.
Finally, we note a few saliant facts regarding the testimony that Hull and Jannisse provided as percipient witnesses. While examining Hull, Simona argued she could elicit testimony about work her accountants did to assist her in this litigation so long as that work was also done in their capacity as her accountants. Kimberly's objection to this line of questioning was overruled. Thus, for example, Hull testified extensively about a report she prepared regarding Kimberly's potential tax liability for alleged underreporting of income, and that report was admitted into evidence.
After completing her examination of Hull, Simona called Hull's partner, Jannisse. Kimberly objected that Jannisse should be excluded as a witness because she previously failed to comply with a subpoena to produce documents at her deposition, was sanctioned by the court and ordered to produce documents, but never complied. Simona insisted the documents had been produced. The court deferred ruling on Kimberly's objection until Jannisse was examined about the matter. During cross-examination, Jannisse was shown a copy of a 2018 order compelling her firm to produce documents and imposing sanctions for failing to comply with the subpoena. Jannisse admitted that she never produced documents to Kimberly nor paid the sanctions. Following this admission, Kimberly renewed his motion to strike the witness's testimony, but the court elected to "reserve that," and the parties completed their respective examinations of this witness.
2. Analysis
Simona contends the trial court committed reversible error by excluding her experts and evidence. To begin with, Simona does not identify any specific evidence, let alone show that it was improperly excluded. Furthermore, Simona was precluded from eliciting expert opinions from accounting witnesses, but those witnesses were not excluded. When the court made its in limine ruling, it contemplated expressly that evidence regarding the parties' finances could be admitted through non-expert testimony. Indeed, Hull and Jannisse, the only two ostensible experts who receive more than a passing reference in appellant's briefs, testified extensively. We conclude Simona has established no prejudicial abuse of discretion.
Section 2034.210 provides that any party may demand an exchange of information regarding expert witnesses. "Section 2034.260 sets forth the general requirements for the exchange and the information to be provided, which includes a list of the names and addresses of the experts (§ 2034.260, subd. (b)(1)) and a declaration by the party's attorney setting forth the expert's qualifications (§ 2034.260, subd. (c)(1)), the expected nature of the testimony (§ 2034.260, subd. (c)(2)), and '[a] representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial' (§ 2034.260, subd. (c)(4))." (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1444 (Staub).) A demand to exchange expert information may also include "all discoverable reports and writings, if any, made by [a designated] expert . . . in the course of preparing that expert's opinion." (§ 2034.210, subd. (c).)
Section 2034.300 codifies the trial court's authority to exclude the "expert opinion of any witness that is offered by any party who has unreasonably failed" to comply with expert designation rules. Noncompliance with these rules "may be found to be 'unreasonable' when a party's conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues. [Citation.] The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes:' "to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise." '" (Staub, supra, 226 Cal.App.4th at p. 1447.)
These settled principles undermine Simona's claim of error. After demanding the parties exchange expert information, Simona refused to comply with the rules governing that exchange by purporting to designate eight retained experts and nine non-retained experts without providing sufficient information for Kimberly to evaluate whom he should depose. In response, Simona's sole factual argument appears to be that the trial court "ignored the fact" that Kimberly did not attempt to depose Simona's disclosed experts "prior to seeking total exclusion." Simona ignores the trial court's finding, which is that Simona's failure to provide requisite information about her eight retained experts and nine non-retained experts made it impossible for Kimberly to decide whom to depose. Moreover, contrary to the false impression Simona creates, the trial court did not exclude all of Simona's experts. Nor did the court preclude Simona's accountants from testifying about their accounting work, including work they undertook to assist her at trial.
Simona contends that excluding expert testimony as a discovery sanction violates due process. She cites no authority supporting this sweeping proposition, which conflicts with the plain language of section 2034.300. Nor does she provide record support for her claim that the order at issue here deprived her of the "ability to present her side of the story."
Simona attempts to support her due process argument by citing People v. Jackson (2022) 75 Cal.App.5th 1 (Jackson). In Jackson, a jury found that the defendant was a Sexually Violent Predator (SVP), and he was committed to a state hospital for an indefinite term pursuant to the Sexually Violent Predator Act (SVPA). (Welf. &Inst. Code, § 6600, et seq.) (Jackson, at p. 7.) The issue on appeal was whether the trial court erred by granting the prosecution's motion to exclude the defendant's only SVP expert witness as a sanction for failing to re-designate the witness as an expert after a delay in the proceedings. Reversing the judgment, the Jackson court held that "in the context of SVP cases," the determination whether to exclude a defense witness requires a court to consider not just civil discovery law, but also the defendant's statutory rights under the SVPA, and the defendant's "constitutional due process right to present such evidence." (Jackson, at p. 7.) In reaching this later conclusion, the court applied authority establishing that a "defendant in an SVP proceeding is entitled to due process protections because civil commitment involves a significant restraint on liberty." (Jackson, at p. 8.)
Putting aside that the expert discovery violation in Jackson was materially different from what happened in this case, this is not an SVPA proceeding, and thus Jackson's due process analysis does not apply. Moreover, even in that context, the Jackson court made clear that excluding a defense expert witness from an SVP trial is not always reversible error. (Jackson, supra, 75 Cal.App.5th at p. 27.) In this case, the trial court's order is consistent with the governing statute and supported by evidence of Simona's unreasonable conduct. Simona fails to demonstrate any violation of her due process rights.
In her reply brief, Simona relies on Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485 in arguing that her "technical mis-step" did not warrant exclusion of her experts. In Du-All, the trial court abused its discretion by granting the plaintiffs' motion to exclude defense experts because the defendant complied with the expert discovery statutes, including section 2034.280, which permits a party to file a supplemental expert witness disclosure. (Du-All, at p. 497.) Here, by contrast, Simona failed to comply with the statutes, and refused to supplement her disclosure. Nor are we persuaded by Simona that her conduct was a technical misstep. As our background summary reflects, there was evidence before the trial court that Simona engaged in gamesmanship by demanding an exchange of experts and then purporting to designate 17 experts less than a month before trial without providing sufficient information for Kimberly to make a reasoned decision about whom to depose.
In her reply brief, Simona also contends this case is "virtually identical" to Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936 (Boston), an appeal from a judgment in favor of the plaintiff in a wrongful termination case. In that case, when the plaintiff responded to a demand to exchange expert information, she provided information required by section 2034.260, but did not produce expert reports until a month later, which triggered a defense motion to exclude plaintiff's expert witnesses. The trial court denied the motion, finding the plaintiff had not violated section 2034.270 because the expert reports did not exist on the date specified for disclosing experts, and that the plaintiff's failure to secure reports on an earlier date was not unreasonable. (Boston, at p. 949.) Affirming this ruling, the appellate court observed that the defendant had admitted it made a strategic choice not to depose the plaintiff's experts, a factor the trial court properly considered along with the fact that the plaintiff promptly produced her experts' reports once she received them. (Id. at p. 954.)
Boston is not identical to this case, where the trial court acted within its discretion by sanctioning Simona for her unreasonable violation of expert disclosure rules. This incident is by no means the only example of litigation gamesmanship evidenced by the record. And unlike the Boston defendants, Kimberly did not admit to making a strategic decision not to take expert depositions, but argued expressly that he was denied sufficient information to decide which experts to depose.
Finally, Simona contends the order excluding her CPA experts was prejudicial per se, citing Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103 (Gordon). Gordon involved expert disclosure after a mistrial in a personal injury case. Prior to a retrial, the plaintiff disclosed new experts he intended to call to testify about a roof defect that allegedly contributed to the accident. However, the trial court granted a defense motion to strike portions of the plaintiff's supplemental expert witness disclosure on the ground that he was estopped from pursuing a new theory of liability at the retrial. (Id. at p. 1106.) Three circumstances combined to make this ruling a reversible error. First, it was substantively wrong; a plaintiff may present new expert witness testimony at a second trial even as to a theory of liability that was previously abandoned. (Id. at p. 1112.) Second, the record showed that the plaintiff had made a sufficient offer of proof in the trial court as to "the substance, purpose and relevance of the excluded evidence," as required by Evidence Code section 354. (Gordon, at p. 1113.) Third, the error was reversible per se because, "when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven," the error deprives the party "of a fair hearing and of the opportunity to show actual prejudice." (Id. at p. 1114.)
In contrast to Gordon, the ruling we review here was authorized by section 2034.300 and Simona fails to show it constituted an abuse of discretion. Further, we find no indication that "[t]he substance, purpose, and relevance of the excluded evidence was made known" to the trial court, either by an offer of proof or other means. (Evid. Code, § 354, subd. (a).) Finally, even if Simona had shown error with respect to the trial court's in limine order, the rule of per se prejudice discussed in Gordon only applies when an erroneous ruling excludes all evidence pertaining to a claim or expert evidence that is essential to a claim. (Gordon, supra, 170 Cal.App.4th at p. 1114.) Here, the record shows that CPAs listed on Simona's defective disclosure were not barred from testifying, but only from providing expert opinions. Tellingly, Simona does not articulate any specific expert opinion that could have been elicited from one of these witnesses. Nor does she identify any specific claim that depended on an expert opinion she was prevented from eliciting. For these additional reasons, we reject Simona's unsupported contention that the court committed reversible error per se by denying her a fair trial.
B. Schiller
Simona contends the trial court committed a related but independent error by permitting Kimberly to call Schiller as his expert. According to this argument, Kimberly too violated expert disclosure rules, and yet the court allowed him to call Schiller as an expert while punishing Simona for essentially the same conduct. This argument fails on multiple grounds.
1. Additional Background
Kimberly's list of trial witnesses included Simona, Kimberly, Lesgart, and Paul Myers, who was expected to testify about ACF's claim against the marital estate. Kimberly also reserved the right to call "any other witness (either expert or otherwise) designated by any other party to this action." Subsequently, Simona filed a motion in limine to preclude Kimberly or ACF from calling any witness who was not previously designated on their own respective witness list. The court denied this motion, ruling that it would "deal with witnesses on a witness-by-witness basis."
On February 2, 2021, as the second day of trial drew near, the court asked Simona how many more witnesses she intended to call. In her noncommittal response, Simona mentioned several people, including Schiller, regarding whom she said this: "I'm going to call possibly Mr. Schiller, although he and I are at odds about his schedule." At that point, the court reminded Simona to be cognizant of timing as she had used most of the time allotted for presenting her case. The next court day, February 8, Kimberly notified the court that he had served a subpoena on Schiller to appear that day because he intended to call Schiller as his first witness. Simona objected that Schiller was not on Kimberly's witness list.
Kimberly responded that he could call Schiller because Schiller was on Simona's witness list, and both parties had included his report on their exhibit lists, as it was a post-separation accounting that Judge Gallagher had ordered Schiller to prepare. Kimberly argued that the report could not be admitted without Schiller, and Kimberly had relied on Simona to call Schiller as a witness, but when she advised the court she was trying to work out a scheduling problem with Schiller, Kimberly suspected "gamesmanship" and served Schiller with a subpoena.
Simona acknowledged that Schiller was on her own witness list and explained that she decided not to call him to testify because she owed him money and believed he would be hostile toward her. Simona argued for the court to preclude Kimberly from calling Schiller since he was not designated as Kimberly's expert and Simona had not had the opportunity to depose him prior to trial. After an off-the-record discussion, the court overruled Simona's objection, stating "he's on Petitioner's witness list, so I'm going to allow this witness to testify." But because Simona's expert designation was defective and Kimberly had not designated Schiller as an expert, the court ruled that Schiller's testimony would "be limited to his percipient knowledge."
In her appellate briefs, Simona does not address the substance of Schiller's testimony. We note that Simona questioned Schiller extensively, and not just about his post-separation accounting report. Simona also used Schiller's testimony to introduce other exhibits that were admitted into evidence.
2. Analysis
Simona contends the trial court committed reversible error by permitting Kimberly to call Schiller as Kimberly's expert witness because Kimberly did not disclose Schiller. But Simona conceded that Schiller was on her witness list and, as the trial court found, Kimberly expressly reserved the right to call witnesses designated by other parties. Simona ignores these facts in presenting her claim of error. Instead, Simona makes two discrete arguments.
First, Simona invokes the rule codified in section 2034.300 that the trial court shall exclude from evidence the expert opinion of a witness that is offered by a party who unreasonably failed to designate that expert on its expert witness list. We reject Simona's premise that Schiller testified as Kimberly's expert. On appeal, Simona ignores the trial court's express ruling that Schiller's testimony would be limited to percipient information. She posits that Schiller must have been Kimberly's expert "as that was his only connection to the case." Not true. Schiller was connected to this case because he prepared a court-ordered accounting based on work that he did while acting as Simona's expert. Simona does not dispute the relevancy of Schiller's report or that his percipient testimony was sufficient to authenticate it. Nor does she cite any evidence suggesting that the court allowed Kimberly to elicit an expert opinion from Schiller. And although it was Kimberly who ultimately offered Schiller's report into evidence, it was offered and admitted as a court-ordered report, not as a report by Kimberly's expert.
Even if we were persuaded to construe Schiller's report as Kimberly's expert evidence, the record does not compel a finding that Kimberly unreasonably failed to designate Schiller as an expert. (§ 2034.300.) Kimberly did, after all, expressly reserve the right to call expert witnesses designated by other parties, and Schiller was Simona's expert, acting in that capacity when the court ordered him to complete his report. The relevancy of this report is undisputed and both parties fully anticipated it would be admitted at trial, as it appeared on their exhibit lists and Simona included Schiller on her witness list. And at the first sign Simona might not call Schiller as a witness, Kimberly responded by serving Schiller with a subpoena. Under these circumstances, we find no abuse of discretion in the decision to permit Kimberly to call Schiller as a witness.
The second prong of Simona's claim is a remarkable turnabout. Abandoning her premise that Schiller was Kimberly's expert, Simona posits that he was her expert and that permitting Kimberly to elicit Schiller's opinions violated the attorney work-product privilege, intimating that Schiller was essentially a part of her legal team. (Citing § 2018.030, subd. (b).) None of Simona's authority supports this view. Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558 concerns the deposition of a party's attorney when the information sought was protected by the attorney-client privilege. (Id. at pp. 1564-1565.) Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 128, holds that a pro per litigant may assert the work product privilege, but has nothing to do with former experts. And other cases Simona cites stand for the irrelevant proposition that the identity of nonexpert witnesses intended to be called at trial is entitled to a qualified work product privilege that may warrant protecting the information from disclosure during the discovery phase of litigation. (Snyder v. Superior Court (2007) 157 Cal.App.4th 1530, 1536.)
Finally, as Simona's cited authority confirms, "[e]rror in the admission of evidence is reversible only if there is a reasonable probability . . . that the appellant would have obtained a more favorable result had the evidence been excluded." (Pina, supra, 38 Cal.App.5th at p. 545.) Simona fails to make that showing here, or even to articulate a coherent theory of prejudice. We note for example, that the SOD documents how the trial court's use of the Schiller report inured to Simona's benefit, a fact Simona simply ignores.
C. Denial of Sanctions
Simona contends the trial court erred by refusing to order Kimberly to pay sanctions pursuant to Family Code section 271, which provides that" '[t]he 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.'" A ruling on a request for attorney's fees under the Family Code is reviewed for abuse of discretion. (In re Marriage of Turkanis &Price (2013) 213 Cal.App.4th 332, 345.)
Simona contends the trial court erred in failing to order Kimberly to pay attorney's fees despite alleged evidence of his misconduct. This argument is not supported by a valid record citation, analysis, or legal authority. Furthermore, Simona misconstrues section 271, which provides that even if a party's conduct warrants sanctioning under the statute, the court must first determine that the party is reasonably likely to have the ability to pay. Here, the trial court found that both parties engaged in problematic conduct but neither had the ability to pay an attorney fee sanction. Simona cites no evidence inconsistent with the court's discretionary ruling.
D. Time Limits
Simona contends that the trial court violated her constitutional rights by strictly limiting the time for her to present her evidence.
Our review of the record discloses that on the first day of trial, the court stated that it was "planning" for the parties to present their cases over four court days, and to divide that time evenly among the parties. Neither party objected to this plan. In any event, the trial took 12 days to complete. Simona fails to show that unduly strict or arbitrary time limits were imposed on her.
Contending that she was subjected to arbitrary time restrictions, Simona provides this court with nothing more than a string of citations to the trial record. These citations show us that the trial court made reasonable efforts to move the trial along, and to dissuade Simona from pursuing irrelevant and cumulative matters. The trial court has discretion to limit witness testimony "to control any excesses by excluding cumulative as well as irrelevant testimony." (People v. Trinh (2014) 59 Cal.4th 216, 246; Evid. Code, §§ 350, 352.) The court also has an obligation to "exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment." (Evid. Code, § 765, subd. (a).)
Simona fails to show that the court abused its discretion by exercising control over the trial proceedings in this case. "Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. This view presumes that the trial judge must defer to the lawyers' time estimates for the conduct of the trial such that, for example, when examining witnesses, unless a valid objection is made by one's opponent, a party is entitled to take whatever time it believes necessary to question each witness. This view is not only contrary to law but undermines a trial judge's obligation to be protective of the court's time and resources as well as the time and interests of trial witnesses, jurors and other litigants waiting in line to have their cases assigned to a courtroom." (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 19, italics omitted.)
Simona's opening brief includes lengthy discussion of inapposite cases addressing general due process principles. We take her point that an arbitrary time-limit for presenting a case may implicate due process. But Simona fails to show that any restriction imposed on her was arbitrary.
IV. Entry of Judgment
Simona contends the judgment must be reversed because it was entered by Judge Borkon and, according to Simona, only the judge who presided at trial has authority to enter judgment. Simona cites no case or statute that supports this argument.
The general rule is that one superior court judge may not nullify the duly made ruling of another judge, even to correct an obvious error. (See e.g., In re Alberto (2002) 102 Cal.App.4th 421, 427-428.) The reason for this rule is that the superior court is one tribunal, though comprised of multiple judges, and another member of that single court may not assume the role of a one-judge appellate court. (Ibid.; see also People v. Woodard (1982) 131 Cal.App.3d 107, 111.) By the same reasoning, a superior court judge has the authority to act on behalf of that court to enter a judgment that incorporates verbatim the findings and orders made by a fellow judge who presided at a trial. Because "jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof," the judges of a department, "whether sitting separately or together . . . hold but one and the same court." (Williams v. Superior Court (1939) 14 Cal.2d 656, 662.)
Contending that California law "mandates" that a trial judge has exclusive authority to enter judgment, Simona relies on section 663, which provides that a motion for new trial shall be heard and determined by the judge who presided at trial unless that judge is unable or unavailable. Judge Borkon did not hear or determine a motion for new trial in this case, and section 663 does not address the authority of a superior court judge to enter a judgment, the only issue before us here. To the extent Simona contends that Judge Borkon's act of entering judgment was "unauthorized" because it deprived her of the right to have post-trial motions decided by the judge who presided at trial, we see no causal connection between entry of the judgment and a perceived deprivation of her right to pursue post-trial remedies before Judge Chatterjee. The final SOD was filed by the clerk of the superior court and served on the parties more than a year prior to entry of judgment, and Simona does not claim to have filed any motion for a new trial in the interim. Judge Borkon signed the judgment only after Judge Chatterjee was transferred to a different department.
Simona cites two cases, both of which undermine her contention that only a trial judge can rule on a new trial motion. In Still v. Pearson (1950) 96 Cal.App.2d 315 the defendant's new trial motion was granted by a different judge from the judge who presided at a jury trial. Affirming the order on appeal, the court held that "[i]t is not mandatory that the record show that the judge who presided at the trial is unable to hear and determine the motion for a new trial." (Id. at p. 317.) City of Long Beach v. Wright (1933) 134 Cal.App. 366 also confirms that a judge who was not the trial judge may rule on a motion for new trial, but in that case the judge who decided the motion erred by changing findings based on "extremely conflicting evidence." (City of Long Beach, at p. 371.) In our case, by contrast, there is no dispute that the judgment conforms to the final SOD in all respects. In any event, no motion for a new trial is before us. The issue we must decide is whether the superior court had authority to enter this long overdue judgment. We hold that it did.
DISPOSITION
The appeal in case no. A164482 is dismissed. The judgment appealed in case no. A167003 is affirmed. Costs are awarded to respondent.
WE CONCUR: FUJISAKI, J., RODRÍGUEZ, J.