Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-00- FL095823
Duffy, J.
In this proceeding involving the dissolution of a lengthy marriage, the husband, Lewis G. Creary, petitioner below (Lewis), and the wife, Eleanor G. Creary, respondent below (Eleanor), entered into a stipulation for entry of judgment as to status only in December 2004. Thereafter, the parties attended a settlement conference in September 2005 in which they agreed, inter alia, that Lewis would pay Eleanor $260,000 for her interest in the community residence. There was a recital on the record at the conclusion of the settlement conference, agreed to by the parties, that “[a]ll other assets . . . will be awarded to the party who has that asset in [his or her] current possession.”
For the sake of clarity, we refer to the parties by their first names. We mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Lewis’s attorney thereafter prepared a draft stipulated judgment purporting to confirm the parties’ agreement concerning the division of assets. Eleanor’s counsel objected to the draft, contending that it failed to divide the parties’ community property interests in Hewlett Packard (HP) and Agilent Technologies (Agilent) stock and certain HP stock options. (Hereafter, the HP stock and stock options and Agilent stock are sometimes collectively referred to as the HP and Agilent stockholdings.) Her counsel asserted that this property had an aggregate value of more than $425,000 and requested that the proposed stipulated judgment be modified to reflect an equal division of these assets. Lewis’s attorney rejected this modification request.
Thereafter, Eleanor, through her attorney, filed a motion for relief from the stipulation entered at the settlement conference pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)), claiming that through mistake, the settlement recited on the record failed to address the HP and Agilent stockholdings. Eleanor asked that the stipulated judgment be amended to include an equal division of the HP and Agilent stockholdings or, in the alterative, that the judgment be set aside. She argued in the alternative that the HP and Agilent stockholdings were community assets omitted from the stipulated judgment that should be divided equally pursuant to Family Code section 2556. Lewis opposed the motion, claiming that pursuant to the parties’ agreement, all property not specifically mentioned during the settlement conference was to be distributed to the party holding it; since Lewis possessed the HP and Agilent stockholdings, he was entitled under the settlement to have those assets distributed to him.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The court entered judgment in accordance with the stipulated judgment prepared by Lewis’s counsel, the parties having stipulated that the court could enter judgment and reserve for later determination the merits of Eleanor’s motion. The court later denied Eleanor’s motion for relief under section 473(b) and her alternative motion for adjudication of omitted assets pursuant to Family Code section 2556.
Eleanor contends on appeal that the court erred by denying the motion for relief. She argues that the undisputed evidence demonstrated that the alleged omission of the HP and Agilent stock holdings was either a unilateral or mutual mistake and that all of the parties’ discussions up to the time of the settlement conference showed an intention that the HP stock and stock options and Agilent stock would be divided equally. We conclude that the court did not abuse its discretion by denying Eleanor’s motion for relief under section 473(b) and that the denial of the motion under Family Code 2556 was not error. Accordingly, we will affirm.
PROCEDURAL HISTORY
Lewis filed a petition for dissolution of his marriage with Eleanor on October 19, 2000. He alleged that the parties were married in June 1963 and that they separated in August 1990. In December 2000, Eleanor filed her response. In an amended response filed three years later, Eleanor averred that the date of separation was the date of the filing of the dissolution petition, more than 10 years later than the date of separation claimed by Lewis. After their participation in a settlement conference in February 2004, the parties agreed that the date of separation would be the date their daughter graduated from high school (May 1993). Thereafter, based upon the parties’ stipulation, the court entered a judgment of dissolution (status only) on December 28, 2004.
The matter was set for settlement conference and trial on September 28, 2005 and October 11, 2005, respectively. Eleanor applied for, and obtained leave to appear at the settlement conference telephonically on the basis that she lived in Michigan and had limited resources. Both parties filed settlement conference statements. It is apparent from a review of these statements that the primary issues requiring resolution concerned the family residence in San Jose, namely, valuation, the method by which Lewis would buy out Eleanor’s community interest therein, and whether Eleanor was entitled to Watts credits based upon Lewis’s exclusive use of the home since 1990.
In re Marriage of Watts (1985) 171 Cal.App.3d 366.
The parties reached an apparent settlement at the settlement conference held before a judge pro tem, John Yohanan, that was placed on the record. Yohanan noted at the outset that it was his understanding that “we have reached a resolution on all the property issues.” Lewis’s attorney, Jack Steiner, recited the terms of the apparent settlement. Steiner recited the terms relative to the San Jose property; that real property in Michigan would be awarded to Eleanor; that retirement assets would be divided pursuant to QDRO; and lastly, that “[a]ll other assets, that includes the Vanguard IRAs, the B of A IRAs, the Schwab IRA, that includes bank accounts, will be awarded to the party who has that asset in their [sic] current possession.” Steiner recited that there would be “a stipulated judgment [prepared] incorporating this, but this is a binding judgment on the parties as of their assent today.” Steiner and David Yomtov, counsel for Eleanor, agreed that Steiner would draft the stipulation. Both Lewis and Eleanor were subjected to voir dire by their respective attorneys and they confirmed their agreement to the terms of the apparent settlement that Steiner had recited.
Apparently, some or all of this real property was inherited by Eleanor. It does not appear that there was a significant dispute concerning the separate property character of these assets.
“[Congress] declared the transfers of pension benefits between spouses in a divorce context were prohibited alienations within the meaning of the anti-alienation provision [29 U.S.C. § 1056(d)(1) under ERISA (the Employee Retirement Income Security Act)]. [Citation.] [But] Congress created a limited exception to the rule, providing the anti-alienation provision ‘shall not apply if the order is determined to be a qualified domestic relations order [QDRO].’ [Citation.] Consistent with this language, Congress added an exception to the express ERISA preemption provision, stating the preemption provision ‘shall not apply to [QDRO’s].’ [Citation.] [¶] These amendments provide that a domestic relations order that attempts to transfer pension benefits away from the employee is specifically barred by the spendthrift clause unless the order satisfies the QDRO criteria. [Citations.] As one commentator explains, ‘[b]y stating explicitly that divorce divisions of pension plans are [alienations], Congress has foreclosed community ownership of the right to receive benefits by non-participant spouses unless that right is transferred to the spouse by a QDRO.’ [Citation.]” (In re Marriage of Shelstead (1998) 66 Cal.App.4th 893, 899-900, fn. omitted.)
On or about November 7, 2005, Steiner sent a proposed stipulated judgment to Yomtov. Yomtov responded on December 15, 2005, advising Steiner that the proposed stipulated judgment did not address the division of 5,734 shares of HP stock, 1,355 shares of Agilent stock, or stock options of 400 shares of HP stock. Yomtov asked that the stipulation be modified to reflect an equal division between the parties of those assets. Thereafter, on January 25, 2006, Steiner wrote Yohanan to advise that a dispute had arisen between Yomtov and himself and that he requested that the judge pro tem execute the judgment. Yomtov objected to Yohanan’s signing of the judgment based upon its alleged failure “to address some of the assets (stock and stock options).” Yohanan declined to execute a judgment absent agreement between counsel as to its contents.
On March 15, 2006, Eleanor filed a motion that was captioned motion to “amend or set aside judgment re: omitted assets” (hereafter, the motion). Eleanor asked that the court order that the judgment be amended to include an equal division of the HP and Agilent stockholdings; alternatively, she requested that the stipulated judgment be set aside or that the HP and Agilent stockholdings be treated as omitted community assets. The motion also sought recovery of attorney fees and costs. Eleanor, in her accompanying declaration, requested relief based upon her “unilateral mistake” in failing to notice that Steiner’s recital of the terms of the settlement did not include the stock or stock options; this relief was sought “pursuant to Code of Civil Procedure [section] 473 and/or Family Code [section] 2556.” Lewis opposed the motion. Yomtov filed a reply declaration and points and authorities.
To avoid repetition, we present in detail the substance of Eleanor’s motion, Lewis’s opposition, and the court’s denial of the motion in part II of the Discussion, post.
The parties entered into a stipulation allowing for the entry of judgment, subject to the later disposition of Eleanor’s motion. Accordingly, the court entered judgment on June 23, 2006. The court filed its order on October 2, 2006, denying Eleanor’s motion. In its 10-page order, the court, inter alia, found that Eleanor had not established grounds for relief from mistake under section 473(b), and that “the community stock and stock options were previously adjudicated by the stipulated judgment” and were thus not omitted assets that were subject to post judgment division under Family Code section 2556. The court also denied Eleanor’s motion and Lewis’s cross-motion for attorney fees. Eleanor filed a notice of appeal December 1, 2006.
An order denying a motion for relief from default judgment under section 473(b) is an appealable order after judgment. (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1469; see also In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 107, 109 (Eben-King) [appeal challenging both stipulated judgment of dissolution and subsequent order denying motion to set aside judgment (brought pursuant to § 473(b)) held untimely as to judgment but timely as to post judgment order].) Likewise, an order finally disposing of a post judgment motion to distribute omitted community assets pursuant to Family Code section 2556 is appealable. (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1027-1028.)
DISCUSSION
I. Issues On Appeal
The following are the primary issues to be resolved in the instant appeal:
1. Whether the trial court erred in denying Eleanor’s motion for relief from judgment pursuant to section 473(b).
2. Whether the trial court erred in its denial of Eleanor’s alternative motion to treat the HP and Agilent stockholdings as community assets omitted from the parties’ stipulated judgment under Family Code section 2556.
After describing the motion in some detail, we will address Eleanor’s claims of error and subsidiary contentions below.
II. Motion to Set Aside Judgment or Identify Omitted Assets
A. Eleanor’s Motion
In Eleanor’s motion, she asked that the court order that the judgment be amended to include an equal division of HP stock and Agilent stock and an assignment to her of one-half of the HP stock options; alternatively, she requested that the stipulated judgment be set aside or that the HP and Agilent stockholdings be treated as omitted assets. The motion also sought recovery of attorney fees and costs. The motion was accompanied by declarations from Eleanor and Yomtov. In her declaration, Eleanor requested relief based apparently upon claims of her own “unilateral mistake” and on the “excusable neglect and inadvertence on the part of [her] attorney.”
Eleanor declared, inter alia, that the parties held “many community property assets” and that it “took a few years to resolve” the division of those assets in this proceeding. She declared further that during the parties’ marriage and prior to the agreed separation date, “Lewis had acquired a great deal of stock with [HP] and Agilent. . . .” Eleanor stated in her declaration that on two occasions during the dissolution proceedings and prior to the September 2005 settlement conference, Lewis’s attorneys stated in correspondence that there were 5,734 and 1,354 shares of community property shares of HP and Agilent stock, respectively; these letters were written on June 30, 2004, by Lewis’s former attorney, Susan Crandall, and on June 10, 2005, by Steiner. She assigned a total value of the HP and Agilent stock of $425,456, in which she claimed a fifty percent interest.
We acknowledge that the record discloses a discrepancy in the number of shares of Agilent stock at issue. In her declaration, Eleanor stated three times that 1,354 Agilent shares were subject to division; she also stated elsewhere in the declaration that the controversy involved 1,355 Agilent shares. Both Yomtov’s December 15, 2005 letter to Steiner following the settlement conference and the court’s October 2, 2006 order refer to 1,355 shares of Agilent stock. This one-share discrepancy has no bearing on the resolution of this appeal.
In her declaration, Eleanor also stated that the sole remaining disputes at the time of the September 2005 settlement conference were the amount of Lewis’s equalizing payment to Eleanor for her share of the community residence and how that equalizing payment would be made. She declared that these issues concerning the family residence were the only “topic[s] of contention that we discussed” at the settlement conference. Specifically, there was no discussion about Eleanor’s waiving her community interest in stock or stock options. She stated further that Lewis did not take the position—either at or prior to the settlement conference—“that he should be awarded sole ownership of the 5,734 shares of HP stock, and 1,354 shares of Agilent stock.” Eleanor declared that the recital of the terms of the settlement placed on the record by Judge Pro Tem Yohanan at the conclusion of the conference noted the parties’ agreement concerning “the timing and manner of Lewis’s payment to [Eleanor] for the house buy-out. All retirement benefits were referred to a third attorney for preparation of a QDRO strictly based upon the time rule.” She acknowledged that the recital of the settlement included “[a] catchall clause . . . that all other assets were confirmed to the party who currently had control of that asset.” But Eleanor asserted that the omission in the recital at the settlement conference of any reference to the HP and Agilent stockholdings from the specific listing of assets, the division of which were not in dispute, “was the result of excusable neglect and inadvertence on the part of [her] attorney.” Eleanor declared that her failure to notice the omission of the HP and Agilent stockholdings from the settlement recitals when she participated in the conference from Michigan by telephone was “absolutely . . . a unilateral mistake . . . .” And she claimed “that there was no quid pro quo, no exchange of value whatsoever,” for her purported relinquishment of any interest in the HP and Agilent stock. (Original bold.) She asked for relief under “[section] 473 and/or Family Code [section] 2556.”
Since Eleanor participated at the settlement conference by telephone from Michigan and presumably was not privy to all discussions between counsel and the settlement judge pro tem occurring in San Jose, it is difficult to understand how she would have had personal knowledge that the community residence in San Jose was the only topic of discussion.
The declaration of Eleanor’s attorney, Yomtov, did not present any evidence in support of the motion beyond that found in his client’s declaration. Yomtov declared that his client “rightly believes” that the recital of the terms of the settlement by Steiner “omitted some [HP] and Agilent stock that was worth quite a bit. There was [sic] also some accumulated stock options that needed to be divided, as well as a reimbursement owed to [Eleanor] for some stock options [Lewis] had unilaterally exercised prior to judgment. None of these assets had before been the subject of any debate. In fact, throughout the pendency of the case[, Lewis’s] own proposed division had always been accepted by [Eleanor] as proper.” The remainder of Yomtov’s declaration addressed his efforts to include the division of the HP and Agilent stockholdings into the judgment and the time expended in preparing the motion.
Indeed, the declaration’s caption—“Declaration of David Yomtov in Support of Attorney’s Fee Award Pursuant to Family Code [section] 271”—suggested that the document was not intended to offer evidentiary support for Eleanor’s motion for relief, but was merely presented in support of her request for an award of attorney fees in the sum of $5,000.
B. Lewis’s Opposition
Lewis opposed Eleanor’s motion. In Lewis’s responsive declaration, he characterized Eleanor’s motion as “somewhat strange because she seeks to amend the Judgment before it is formally entered.” Lewis presented a history of the dissolution proceedings from his perspective. He asserted that Eleanor in her declaration had misrepresented the value of the HP and Agilent stock that she claimed to have been omitted from the settlement “by nearly a factor of two.” (Original bold.) Lewis disputed the existence of any “remaining stock options,” noting that all options had been exercised long before the settlement conference. He declared that “[t]he full terms of the settlement were recited on the record at the [September 28, 2005 settlement conference]. It was agreed that all other assets would be awarded to the party who has the asset in their [sic] current possession. I understand that this includes the [HP] and Agilent stock.” Lewis concluded that “[a]t best, [Eleanor] and/or her attorney made a mistake and now they have the effrontery to seek an award of fees from me, . . .”
Steiner also submitted a declaration in opposition to the motion. In it, he stated that the stipulated judgment that he prepared and submitted to Yomtov “mirrors the exact language cited in the record at the September 28, 2005 Mandatory Settlement Conference . . . .”
C. Eleanor’s Reply
Yomtov submitted a supplemental declaration. He stated that the IRA accounts and “bank accounts” mentioned by Steiner in the catchall portion of the recitals had an aggregate value of only about $37,000, in contrast to the substantially greater value of the HP and Agilent stock that was not mentioned by Steiner. Yomtov characterized Steiner’s failure to mention the division of the HP and Agilent stock in reciting the terms of the settlement as a “mutual mistake.” The remainder of Yomtov’s supplemental declaration consisted of a significant amount of legal argument that was improper; the intended purpose of a declaration is to state under penalty of perjury relevant facts that are within the personal knowledge of the declarant. (See In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)
Eleanor through her counsel also submitted a memorandum of points and authorities in support of her motion that was filed in response to Lewis’s opposition. The memorandum did not include legal argument concerning the granting of relief under section 473(b).
III. Motion To Set Aside Judgment Under Section 473(b)
A. Standard of Review
Eleanor argues that we should review de novo the court’s order denying her motion for relief under section 473(b). Lewis responds that abuse of discretion is the appropriate standard of review. Lewis is clearly correct on this issue.
A motion for relief from default under section 473(b) is subject to the discretion of the court, and “must be based on a showing of ‘mistake, inadvertence, surprise or excusable neglect.’ [Citations.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 5:310, p. 5-83, quoting § 473(b).) Accordingly, “[i]t is well established that ‘ “a motion for relief under . . . section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal.” ’ [Citations.]” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 (Carroll), 897-898; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).) And as the Supreme Court explained in In re Marriage of Connolly (1979) 23 Cal.3d 590, 598, “[a]lthough precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]” Because, however, the remedial section 473(b) is to be liberally construed, “a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-234 (Elston), superseded by statute on another point as noted in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978-980.)
As the First District Court of Appeal, Division Three, has explained: “The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] . . . The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion. [Citation.]” (Eben-King, supra, 80 Cal.App.4th at p. 118, fn. omitted.)
Eleanor bases her claim that we should review the trial court’s order de novo on two cases, Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861 (Parsons), and Citizens For Goleta Valley v. HT Santa Barbara (2004) 117 Cal.App.4th 1073 (Goleta Valley). Neither case supports her contention.
The appeal in Parsons arose from a judgment after a court trial in which judgment was rendered in favor of the defendant based upon an interpretation of a contract to perform architectural services. Parsons, supra, 62 Cal.2d at p. 864.) The Supreme Court held that the interpretation of a contract is solely a judicial function “unless the interpretation turns upon the credibility of extrinsic evidence.” (Id. at p. 865.) Accordingly, the court held that it was not bound by the trial court’s interpretation of the contract and would decide the interpretation question de novo. (Id. at pp. 865-866.) In contrast to Parsons, we review here whether the trial court erred in denying Eleanor’s motion to set aside judgment under section 473(b) on the basis of mistake, not whether the court, after hearing evidence in a trial, incorrectly interpreted a contract.
Likewise, in Goleta Valley, supra, 117 Cal.App.4th at page 1075, the appeal arose from a judgment following a court trial in which the trial court determined that the defendants were required to provide a bond or a letter of credit to secure their obligation to make payments under a settlement agreement. There, the parties concurred and the appellate court agreed—citing Parsons—that the de novo standard of review applied because the issue concerned an interpretation of the settlement contract and there was no conflicting extrinsic evidence bearing on that question. (Goleta Valley, supra, at p. 1076.)
Neither Parsons nor Goleta Valley provides a basis for Eleanor’s assertion that we must review the trial court’s order here de novo. We therefore review the order to determine whether the court abused its discretion in denying Eleanor’s motion for relief under section 473(b).
B. Denial of Motion for Relief
Under section 473(b), a party may bring a motion for relief from a “judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A party seeking relief under section 473(b) bears the burden of “establish[ing] his position by a preponderance of the evidence.” (Luz v. Lopes (1960) 55 Cal.2d 54, 62; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 5:390, p. 5-101 [“[w]here the moving party is responsible for the default . . . declarations must be filed establishing that the ‘mistake,’ ‘neglect,’ etc. was excusable”].) The granting of relief under section 473 “requires a showing by affidavit of the existence of grounds therefor, and notice to the opposing party of a motion for such relief.” (Wechsler v. United States of America (1976) 56 Cal.App.3d 574, 582, italics added; see also Deschamps v. Independent Cab Co. (1949) 94 Cal.App.2d 127, 135 [“person seeking relief from a judgment or order on the grounds of mistake or inadvertence has the burden of showing why he is entitled to the relief ‘and the assumption of this burden necessarily requires the production of evidence’ ”].)
Although it is clear that she did not base her motion on “surprise,” the legal basis for Eleanor’s motion for relief under section 473(b) is less than clear. Her declaration in support of the motion claimed that she made a unilateral mistake and that her attorney’s failure to include the HP and Agilent stockholdings in the settlement recited at the conclusion of the settlement conference constituted excusable neglect and inadvertence on his part. Yomtov’s supplemental declaration asserted that “mutual mistakes” were made by Steiner and himself in the omission of the assets. Yomtov’s request for statement of decision identified as an issue whether the omission of the HP and Agilent stockholdings in the recited settlement was the result of Steiner’s or Yomtov’s mistake, inadvertence, or excusable neglect. And the proposed statement of decision confused matters further by including as a proposed finding that the omission was “the result of mistake, inadvertence, and/or excusable neglect by all involved.”
On appeal, Eleanor opts for the ambiguous statement that “a mistake was made.” Elsewhere in her brief, she contends that the omission of the stock and stock options in the stipulated settlement “was a bilateral error.” Notwithstanding the lack of clarity of Eleanor’s position, it is plain from a review of the record that—regardless of whether her argument was based on mistake, excusable neglect, or inadvertence—the court below did not abuse its discretion by denying relief under section 473(b).
Mistake under section 473(b) is not easily defined. We have noted, however, under other circumstances—where a judgment may only be set aside for extrinsic fraud or mistake because six months have passed for setting aside a judgment under section 473(b)—that “[e]xtrinsic mistake involves the excusable neglect of a party. [Citation.]” (In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.) Similarly, section 473(b) relief based upon a mistake of law has a reasonableness component: “An examination of the cases applying section 473 of the Code of Civil Procedure discloses that not every mistake of law is excusable [citations] but that an honest mistake is excusable, the determining factor being the reasonableness of the misconception [citations].” (Viles v. State of California (1967) 66 Cal.2d 24, 29; cf Zamora, supra, 28 Cal.4th at p. 258 [attorney’s mistake or inadvertence excusable if same error might have been made by reasonably prudent person under the same or similar circumstances].)
Similarly, a party’s neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) Likewise, a conclusory statement of inadvertence will not suffice: “The inadvertence referred to in section 473 is not inadvertence in the abstract but it must be inadvertence which is satisfactory. [Citations.]” (Davis v. Kay (1973) 34 Cal.App.3d 680, 683-684.)
Thus, relief under section 473(b) is not available to relieve a party from adverse action taken against him or her as a result of any mistake, inadvertence, or neglect of that party or the party’s attorney; the mistake, inadvertence, or neglect must be excusable. “There is nothing in section 473 to suggest it ‘was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611-612; see also Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 339 [denial of section 473(b) relief will be affirmed on appeal where party’s neglect was inexcusable].) Hence, “[c]onduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) Such attorney neglect is imputed to the client, and if it is not excusable, the client may have recourse against the attorney for malpractice but is not entitled to relief under section 473(b). (Carroll, supra, 32 Cal.3d at p. 898; Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1602.)
Appellate courts have therefore upheld denial of relief under section 473(b) in a variety of cases in which the mistake, surprise, or neglect was not deemed excusable. For example, counsel’s failure to advance all appropriate arguments in opposition to a summary judgment motion was found not to constitute the type of inadvertence, mistake, or neglect that was excusable to warrant section 473(b) relief. (Garcia v. Hejmadi, supra, 58 Cal.App.4th at pp. 683-685; see also Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400 (Generale Bank) [counsel’s failure to list witnesses in trial brief despite prior order and the failure to lay proper foundation for documentary evidence not excusable neglect warranting section 473(b) relief].) Likewise, the failure to include a provision that each party will bear its own costs and attorney fees in an offer to compromise under section 998 was held not to constitute excusable neglect. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 671; accord, Premium Commercial Services Corp. v. National Bank of California (1999) 72 Cal.App.4th 1493, 1495-1497.)In another case, the hospitalization of the attorney’s girlfriend was held to be an insufficient basis for section 473(b) relief from a default entered because of the attorney’s failure to answer a complaint. (Beeman v. Burling, supra, 216 Cal.App.3d at pp. 1602-1603.) And an attorney’s failure to specifically provide in a settlement offer that a lump sum payment included future retirement benefits was held not to constitute excusable neglect that would warrant section 473(b) relief from the judgment entered on a settlement. (Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 634-635.)
The trial court here did not abuse its discretion by denying Eleanor’s motion for relief under section 473(b). While Eleanor established that she and her attorney committed a mistake by failing to include the division of HP and Agilent stockholdings in the stipulated judgment arising out of the September 2005 settlement conference, the court’s denial of section 473(b) relief was appropriate; it did not abuse its discretion by finding that this omission was “a unilateral mistake that would not have been made by a reasonably prudent person under similar circumstances.” (See Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58 [section 473(b) relief not warranted for mistake, inadvertence, or neglect, unless evidence shows it was “ ‘of the excusable variety’ ”].
Eleanor attacks at some length other reasons enunciated by the trial court in support of its order denying relief under section 473(b), including the absence of any hiding of assets by Lewis and the fact that a stipulated judgment will “not be set aside simply because it was inequitable when made or because subsequent circumstances caused it to become inequitable.” We need not examine the relevance of each of these reasons for the court’s denial of section 473(b) relief where the record otherwise demonstrates that no abuse of discretion occurred.
If the focus is on the mistake by Eleanor, the court was justified in concluding that it was not excusable. Eleanor clearly was aware of the existence of the HP and Agilent stockholdings at the time of the settlement conference. She offered no reason for her failure to mention them during the recital of the parties’ settlement other than the conclusory statement that her omission was “absolutely . . . a unilateral mistake . . . .” As the Supreme Court has said, “[c]ourts do not relieve litigants from the effects of mere carelessness.” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529.)
The court likewise did not abuse its discretion when it held that the mistake by Yomtov was not excusable. Yomtov, like his client, was clearly aware of the HP and Agilent stockholdings at the time of the settlement conference. The explanation for the omission was again nothing more than conclusory statements from (1) Eleanor that the omission “was the result of excusable neglect and inadvertence on the part of [her] attorney”; and (2) Yomtov that Steiner’s failure to mention the division of the HP and Agilent stock in reciting the terms of the settlement was a “mutual mistake.” The claimed mistake was not of the type that “is a clerical or ministerial mistake that could have been made by anybody.” (Zamora, supra, 28 Cal.4th at p. 259 [trial court did not abuse discretion by finding that clerical mistake of substituting “ ‘against’ for ‘in favor of’ ” was excusable].) The court’s finding that the omission was “a unilateral mistake that would not have been made by a reasonably prudent person under similar circumstances,” constituted an implied conclusion that the omission represented “[c]onduct falling below the professional standard of care . . . [which] is not therefore excusable.” (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 682.) We find on the basis of the record before us that the trial court did not abuse its discretion by denying section 473(b) relief on the basis of these express and implied findings.
Because we find no abuse of discretion with respect to the court’s conclusion that Eleanor did not establish mistake, inadvertence, or excusable neglect warranting relief under section 473(b), we need not address her contention that there was no showing that Lewis would have been prejudiced by the granting of such relief. (Carroll, supra, 32 Cal.3d at p. 900 [noting that where neglect was not excusable, absence of prejudice sustained by opposing party by itself was insufficient to justify section 473(b) relief]; see also Generale Bank, supra, 61 Cal.App.4th at p. 1402.)
Applying our “quite limited” standard for the reviewing of an order disposing of a section 473(b) motion, we conclude that Eleanor failed to establish that the trial court abused its discretion by denying her the relief she requested. (Eben-King, supra, 80 Cal.App.4th at p. 118.) From the record before us, we cannot find that “the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly, supra, 23 Cal.3d at p. 598.)
IV. Motion to Adjudicate Omitted Assets
Eleanor also argues that the court erred by denying her motion to adjudicate the HP and Agilent stockholdings as omitted assets. She contends—albeit with the briefest of arguments—that relief should have been granted under Family Code section 2556. We reject that claim.
Under Family Code section 2556, the family court has continuing jurisdiction to order a post judgment division of community assets and liabilities where such division was not previously the subject of adjudication. A party contending that a community asset or liability was omitted or not adjudicated under the judgment may bring a motion or an order to show cause. (Ibid.) But this statute does not permit the relitigation of property matters generally following the entry of judgment in a dissolution proceeding. “[T]he family court’s power under [Family Code] section 2556 is limited to [community] assets which have not been previously adjudicated.” (In re Marriage of Hixson (2003) 111 Cal.App.4th 1116, 1123.)
Family Code section 2556 provides as follows: “In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a post judgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”
In this instance, the HP and Agilent stockholdings were previously adjudicated in the stipulation entered into by the parties at the conclusion of the September 2005 settlement conference—under the omnibus provision, “[a]ll other assets, . . . will be awarded to the party who has that asset in [his or her] current possession.” (See Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter Group 2007) ¶ 8:1521.1, p. 8-366 [cautioning that use of “ ‘omnibus’ ” provision awarding “a party ‘all property standing in [that party’s] name’ . . . is likely to be viewed as preempting [Family Code] section 2556”].) The court having properly rejected Eleanor’s motion to vacate the judgment (see pt. III, ante), it was thus appropriate for it to reject her Family Code section 2556 motion because she did not establish that the HP and Agilent stockholdings were community assets that had been “omitted or not adjudicated.” (Cf. In re Marriage of Mason, supra, 46 Cal.App.4th at p. 1028 [party, after unsuccessful motion to set aside stipulated judgment based on fraud concerning alleged omitted asset, may not relitigate same issue under guise of motion under Family Code section 2556].)
In support of her argument that the motion should have been granted, Eleanor cites several cases involving post-dissolution suits to divide omitted marital assets. None of these cases supports her position.
In Irwin v. Irwin (1977) 69 Cal.App.3d 317, 320, the wife obtained a judgment of dissolution after the husband defaulted; in her petition, she checked a box indicating that “ ‘[t]here is no property subject to disposition by the court in this proceeding.’ ” The Irwin court rejected the husband’s contention that the wife’s later suit to adjudicate her interest in the husband’s retirement pension was barred by res judicata, because (1) “controversies over matters collateral to the issue of the dissolution of the marriage, such as the division of marital property . . . may be litigated in a separate action [citations]” (id. at p. 320), and (2) the statement in the dissolution petition concerning the disposition of property was ambiguous (id. at p. 322). Here, unlike in Irwin, controversies over the division of property that were “collateral to the issue of the dissolution of the marriage” (ibid.) were litigated in the dissolution proceeding in 2005, after judgment as to marital status only was entered in 2004.
In Miller v. Miller (1981) 117 Cal.App.3d 366, 368, the husband’s pension was not listed as an asset by either party and neither party was awarded the asset in the final dissolution decree. The court rejected the argument that the wife’s later partition action concerning her former husband’s retirement benefits was barred by res judicata, concluding that the parties had not intended to divide the pension in the prior dissolution proceeding. (Id. at p. 370.) In contrast, the HP and Agilent stockholdings claimed to have been omitted were specifically referred to in prejudgment correspondence and pleadings, and, as we have noted, were embraced by the omnibus provision of the stipulated judgment.
And in Bowman v. Bowman (1985) 171 Cal.App.3d 148, the former wife sought, inter alia, an order that she held a community interest in her former husband’s pension plan. While the case largely concerned a discrete legal issue not relevant here—i.e., whether the former wife’s claim was barred by the “terminable interest rule” (id. at pp. 151-156)—the appellate court rejected the argument of the later wife that the former wife’s claim was barred by principles of former adjudication; although the former wife had pleaded an interest in the pension, the judgment of dissolution did not divide the pension and therefore did not adjudicate the issue. (Id. at pp. 156-157.) Unlike the case here, the Bowman court did not have before it a provision in a stipulated judgment that disposed of assets, including the claimed omitted assets, by distributing them to the party possessing them.
Lastly, in Hudleson v. Hudleson (1986) 187 Cal.App.3d 1564, 1567, the interlocutory judgment of dissolution incorporated the parties’ settlement agreement which contained no mention of the husband’s pension. Over 12 years later, the former wife sued to obtain a distribution of the pension as an undistributed asset. (Id. at pp. 1567-1568.) After rejecting the former husband’s contention that the former wife could not assert an interest in the pension because it had not vested by the date the parties separated (id. at pp. 1568-1569), the court held that the pension, as a missed asset, was subject to distribution in a post dissolution action even though the parties knew about the asset before the judgment, because the court had not been called upon to award the asset in the prior proceeding. (Id. at p. 1569.) Huddleson is distinguishable from the case before us.
We conclude that the court below did not err when it denied Eleanor’s motion to adjudicate the HP and Agilent stockholdings as omitted assets under Family Code 2566.
V. Other Contentions
Eleanor makes a passing reference in one footnote in her opening brief to Family Code section 2121. She makes a similarly brief reference to Family Code section 2122 in her reply brief. That statute provides a basis for relief from a family law judgment or order that is alternative to section 473(b). (In re Marriage of Heggie, supra, 99 Cal.App.4th at p. 32.)
Family Code section 2122 provides in part: “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: [¶] (a) Actual fraud . . . . [¶] (b) Perjury. . . . [¶] (c) Duress. . . . [¶] (d) Mental incapacity. . . . [¶] (e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.”
We need not address the merits of any claim—assuming Eleanor is making one—that the court should have granted her relief under Family Code section 2122. Eleanor forfeited this argument because her motion did not include the claim that the judgment should be set aside under the authority of Family Code section 2122. It is a fundamental rule of appellate practice that, with exceptions not germane here, “theories not raised in the trial court cannot be asserted for the first time on appeal.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:229, p. 8-135.) This principle is founded on fairness to the trial court and the opposing party as well as on notions of waiver and estoppel. (Ibid.; cf Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [party seeking relief under § 473 must specify grounds upon which relief is sought, and court has no duty to consider grounds for relief not raised or sought by moving party].)
Eben-King, supra, 80 Cal.App.4th 92, is on point. In that case, the appellant argued that the judgment below should have been set aside under Family Code sections 2121 and 2122. (Eben-King, supra, at p. 110.) In response to a challenge by the respondent that the motion to set aside the judgment below was not based upon the newly minted appellate theory, the court held: “Nowhere in the record is there any mention of Family Code sections 2121 and 2122, nor is there the slightest suggestion [the] appellant’s motion to set aside was brought under any provision of law other than Code of Civil Procedure section 473. As a general rule, having chosen to file her motion in the trial court under section 473 and base all her arguments below upon that provision, appellant should not at this late date be permitted to change the entire basis of her motion because in hindsight it now seems expedient for her to do so. ‘A party is not permitted to change his [or her] position and adopt a new and different theory on appeal. To permit him [or her] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’ [Citations.]” (Id. at pp. 110-111.)
Eleanor’s motion contains no reference to Family Code sections 2121 or 2122. We cannot condone the practice of raising issues on appeal for the first time, thereby preventing the court and the opposing party from having had the opportunity to address them where they properly should have been addressed: the trial court. We accordingly find that Eleanor has forfeited any claim that the judgment should have been set aside under Family Code section 2122.
B. Contract Reformation
In her opening brief, Eleanor argues that the stipulation entered into at the conclusion of the September 2005 settlement conference should have been reformed on the grounds of mutual or unilateral mistake, pursuant to Civil Code section 3399. Lewis responds that Eleanor forfeited this legal argument by failing to raise it below. Eleanor does not address this forfeiture contention in her reply brief.
“When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express the intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” (Civ. Code, § 3399.)
We see no evidence in the record that Eleanor raised this contract reformation theory below. Accordingly, as was the case with Eleanor’s apparent appellate claim under Family Code section 2122, she has forfeited the contention that the stipulation was subject to reformation by the trial court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:229, p. 8-135.)
C. Statement of Decision
The parties’ briefs devote significant attention to Eleanor’s request for a statement of decision, whether the trial court complied by providing such a statement, and whether Eleanor waived her right to assert any defects in the court’s decision by failing to object to the court’s order. We need not address these arguments for two reasons.
First, as we have noted above, from a review of the entire record, the court did not abuse its discretion by denying Eleanor’s motion for relief under section 473(b). Therefore, irrespective of whether the court rendered a statement of decision or whether Eleanor properly preserved objections to any of the court’s findings, there was no error.
Second, the propriety of a statement of decision under the circumstances here—as the court in fact noted below—is doubtful at best. As explained by the court in In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040: “[S]ection 632 requires the trial court to issue a statement of decision ‘upon the trial of a question of fact’ when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable. [Citation.]” (See also Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1252 [no statement of decision for order on motion for attorney fees]; In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 79 [statement of decision not required from order on motion to set aside property and support provisions of interlocutory and final judgments].)
Therefore, it is doubtful that this was an appropriate case under which a statement of decision, following the request of a party, is required, and the absence of any such statement does not affect the outcome of the appeal.
D. Attorney Fees
An order disposing of a motion for attorney fees under Family Code section 271 is reviewed on appeal for abuse of discretion. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) Clearly, since the court properly denied Eleanor’s alternative motions under section 473(b) and under Family Code section 2556, it did not abuse its discretion by denying her motion for attorney fees.
DISPOSITION
The order denying both Eleanor’s motion to set aside judgment pursuant to Code of Civil Procedure section 473(b) and her alternative motion to adjudicate omitted marital assets under Family Code section 2556 is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.