Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 753734
Swager, J.
This appeal has been taken from two orders in this dissolution proceeding: the first, that denied appellant’s motion to extend jurisdiction to characterize and distribute the value of patents; and the second, that denied appellant’s motion for reconsideration and a new trial, and awarded respondent attorney fees. We find that the trial court properly denied appellant’s motions, and did not abuse its discretion by awarding attorney fees to respondent pursuant to Family Code section 271 (hereafter section 271). We therefore affirm the denial of appellant’s motions and the award of attorney fees to respondent.
Statement of Facts and Procedural History
We are severely impaired in our recitation of the pertinent facts by appellant’s failure to provide an adequate record on appeal. Our statement of facts will accordingly be abbreviated, by necessity rather than by choice.
This protracted action to dissolve a 10-month marriage commenced with a petition filed by respondent Bernard Hagan on May 15, 2003. By April 14, 2005, a dissolution judgment was entered. Although the judgment is not before us, we know from references in the record that the court retained jurisdiction in the case until May 13, 2007, to determine and litigate the value of patents owned by respondent. In the provision for reservation of jurisdiction, however, the court specified that jurisdiction to litigate the community property value of the patents “shall and must terminate” if the patents had not produced income as of May 13, 2007.
Soon after the judgment was entered appellant filed motions for reconsideration and for a new trial, which were both denied on June 14, 2005. She then filed a notice of appeal, but the appeal was dismissed by this court on October 26, 2005. An extensive series of motions, responses and orders then ensued in the case, most of which are not at issue in this appeal.
In re Marriage of Hagan (Oct. 26, 2005, A111236) [app. dism.].
The register of actions discloses that in March and May of 2007, respectively, appellant filed two motions: the first, to extend the May 13, 2007, jurisdictional “deadline” in the case imposed by the trial court “over patents,” and the second, to compel further responses to a request for production of documents “to evaluate patents.” Appellant was essentially requesting additional time to conduct further discovery to determine if patents owned by respondent had “some value.” A hearing on the motions was set for May 10, 2007. At the hearing, the court declined to extend jurisdiction beyond the time limit previously imposed following trial in the case, and thus found appellant’s motion to compel further discovery responses “moot.” The motion to extend jurisdiction was denied after the hearing.
Another motion to compel further responses “to evaluate patents” was filed by appellant on May 9, 2007, and scheduled for hearing on June 21, 2007. On May 18, 2007, appellant also filed a motion for reconsideration, for a new trial, and to vacate the order of May 10, 2007, based on the following grounds: the need to review evidence of a “new letter” from an expert that details the information needed from respondent to undertake an “evaluation of the patents”; the failure of the court to hear appellant’s motion to compel along with the motion for extension of jurisdiction due to a clerk’s error in filing the motion in the “wrong courtroom” of the family law department; new evidence of a voicemail message in which respondent’s counsel agreed to an extension of jurisdiction; concealment of documents by respondent; and the court’s error in relying on the short duration of the marriage to deny appellant community property rights. Respondent filed opposition to the motions and requested sanctions pursuant to section 271.
At a hearing on July 10, 2007, the trial court reiterated that jurisdiction to litigate the value of the patents terminated in accordance with the prior court order, and found that appellant failed to present any new evidence to justify reconsideration or a new trial. Appellant’s motions were denied. Following a brief examination of appellant at the hearing, the court awarded respondent attorney fees in the amount of $1,055, based on findings that appellant had “frustrated the purpose of settlement” of the case, and imposition of fees would not impose an unreasonable financial burden on her. The present appeal is from the denial of the appellant’s motion for reconsideration and for a new trial on May 10, 2007, and from the order that granted respondent’s request for attorney fees on July 10, 2007.
Discussion
I. The Denial of Appellant’s Motions for Reconsideration and a New Trial .
Appellant complains that her motion for reconsideration should have been granted on the ground that her prior motion to compel production of documents was “filed timely” before the jurisdictional deadline of May 13, 2007, but was “lost” as a result of error by the court clerk and sent to the wrong department. She claims that in the “interest of justice” any “mistake” in failing to have the motion to compel heard before the jurisdictional deadline must be relieved, so as not to deprive her of a proper adversary hearing on the value of the patents.
At oral argument appellant’s counsel made reference to a “lost declaration” that supports her claim of error by the court clerk. Our search of the record on appeal has disclosed neither the declaration nor any reference to it.
As a preliminary matter, we observe that not only has appellant failed to provide citation to the record as required, but she has also not furnished an adequate record on appeal. As pertinent here, we do not have before us any evidence to support appellant’s claim that her motion to compel production of documents was “lost.” We do not even have before us the motion to compel, only references to it in the register of actions. The “inadequacy of the record alone provides a basis to dismiss the appeal.” (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498.) We must adhere to the rule that, “ ‘an “order of the lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” ’ [Citation.] ‘The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.’ [Citation.]” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398; see also Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Appellant “ ‘cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked [her] responsibility in this respect.’ [Citation.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) “Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.” (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660.)
Appellant and respondent have filed motions before this court to augment the record and to take judicial notice. The motions, which were filed a year after the notice of appeal without any explanation for the delay, are denied as untimely. (See County of Los Angeles v. County of Los Angeles Assessment Appeals Bd. (1993) 13 Cal.App.4th 102, 108, fn. 3; Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 366–367.) We add that much of the information included in the motions is irrelevant and some of it has not been properly established as either a record in the present case or judicial record in another case. (See Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 502, fn. 22; People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6; Elk County Water Dist. v. Department of Forestry & Fire Protection (1997) 53 Cal.App.4th 1, 14; Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 753-754, fn. 1.)
We realize that appellant is a pro per litigant who is not versed in imparting arguments to the court, but nevertheless we cannot overlook serious deficiencies in the presentation of her case which adversely affect our review on appeal. “ ‘When a litigant is appearing in propria persona, [s]he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].’ [Citations.]” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)
In any event, even based on the incomplete record we have before us—specifically, the reporter’s transcript of the hearing—we can confidently resolve appellant’s argument against her. The trial court did receive and specifically consider appellant’s motion to compel at the hearing on her associated motion to extend jurisdiction. The court found that appellant was not entitled to an extension of jurisdiction to prove the value of the patents, and therefore expressly decided that her motion to compel further discovery responses was moot. Appellant was not deprived of the opportunity to have appropriate consideration given to her motions. We further conclude the trial court did not abuse its discretion by deciding that with the passage of more than two years from the date of the judgment no further extension of jurisdiction would be granted in the case. Finally, appellant did not present any proper grounds to support her subsequent motions for reconsideration and for a new trial. Denial of appellant’s motions was not error.
II. The Award of Attorney Fees under Section 271 .
We turn to appellant’s claim that the court erred by ordering her to pay respondent’s attorney fees in the nature of imposition of a sanction pursuant to section 271. She argues that the order violates the prohibition in section 271 against imposing an unreasonable financial burden upon a party.
Section 271, subdivision (a), provides that “the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. . . .” “That statute advances the policy of the law ‘to promote settlement and to encourage cooperation which will reduce the cost of litigation.’ [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys’ fees and costs as a sanction.” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.)
The statute adds important caveats. “[T]he requisite delicts are limited. The statute is aimed at conduct that furthers or frustrates settlement of family law litigation and at reduction of litigation cost.” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.) In addition, “An award under section 271 ‘is in the nature of a sanction,’ and is payable only from the property or income of the party against whom it is imposed.” (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 399.) Under subdivision (a) of section 271, “In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.” Subdivision (b) adds: “An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”
However, “In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (§ 271, subd. (a).)
“ ‘A sanction order under . . . section 271 is reviewed under the abuse of discretion standard. . . .’ [Citation.]” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) “We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review. [Citation.] ‘ “ ‘ “In reviewing the evidence on . . . appeal all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in [order] to uphold the [finding] if possible.” ’ ” ’ [Citation.]” (Id. at p. 1479.)
A. The Notice of the Motion for Sanctions.
At oral argument appellant’s counsel challenged for the first time the notice of respondent’s motion for sanction given to appellant. We find no defect in the notice for several reasons. First, appellant’s failure to present an objection to the notice in the trial court constitutes a forfeiture of the claim on appeal. (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 129-130.) Appellant had the opportunity to complain of a defect of the notice in the trial court, but failed to do so. We therefore exercise our discretion to find a forfeiture on appeal, since the claimed defective notice and the consequences flowing from it could have been easily corrected if promptly raised in the trial court. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Further, the record submitted by appellant fails to in any way support the claim of defective notice. While respondent had the burden to provide proper notice in the trial court, appellant has the affirmative burden on appeal to establish error with an adequate record, and has failed to do so. (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1315; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1657.) Finally, the record—and specifically the register of action and the reporter’s transcript of the hearing on the motion—indicates that appellant filed opposition to the motion for sanctions and appeared at the hearing to argue against imposition of sanctions, and thus had actual notice of the motion. (See People v. Cunningham (2001) 25 Cal.4th 926, 1016; Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1684; Tobin v. Casaus (1954) 128 Cal.App.2d 588, 592.)
B. The Evidence to Support the Imposition of Sanctions.
We turn to an examination of the evidence to support the court’s findings in support of the imposition of sanctions pursuant to section 271. For good reason appellant has not contested the trial court’s determination that she has unduly extended the duration of the action, increased the cost of the litigation, and frustrated the policy of the law to promote settlement. The imposition of sanctions on appellant in the nature of attorney fees under section 271 was justified for her pursuit of entirely and obviously unfounded motions for reconsideration and for a new trial.
The crucial and more challenging inquiry in the present appeal is whether the requisite financial basis for the order was established. “[T]he primary right intended to be vindicated by Family Code sections 271 and 2030 is the right of a party to a family law proceeding to an adequate opportunity to litigate, notwithstanding a disparity in the parties’ income and assets.” (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1102.) Section 271 demands as a prerequisite to an award of attorney’s fees that the trial court examine “all evidence concerning the parties’ incomes, assets, and liabilities.” (Nicholson v. Fazeli, supra, at p. 1101; see also In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) The court also “ ‘shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.’ ” (Nicholson v. Fazeli, supra, at p. 1101.) “Indeed it is entirely consistent with this code section for trial courts to take account of the comparative wealth of the competing litigants and the effect of wealth disparities on litigation behavior when they fashion any fee and cost awards they may impose pursuant to this section. What is a reasonable award for one party to a dissolution proceeding may be unreasonable if imposed on the other. For, unless trial courts ‘scale’ any such awards to the comparative wealth of the parties they may discourage the economically weaker party from filing actions she or he should and from pursuing those actions with the vigor they deserve.” (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60.) Respondent’s recovery of attorney fees in the family court under section 271 “was necessarily limited to the amount necessary to ensure h[is] ability to pursue the family court litigation and restricted to an amount that would not impose a financial burden on the adverse party.” (Nicholson v. Fazeli, supra, at p. 1102.) Thus, to affirm the fee order, we must find substantial evidence that appellant had adequate resources to pay the order without incurring an unreasonable financial burden.
In re Marriage of Norton dealt with Civil Code section 4370.5, the predecessor of Family Code section 271.
We know from the record that no current income and expense declaration from appellant was before the trial court. The court instead conducted an investigation which consisted of questioning appellant about the value of her home and a prior judgment she obtained in the amount of $150,000 pursuant to the parties’ settlement agreement.
In response to the trial court’s examination, appellant stated that she had no job or income. The court did not receive any other detailed information on appellant’s income, current liabilities or expenses. When queried about the equity in the home she owned, appellant declined to place a value on her property. She asserted without specifying any factual basis that she “used whatever equity” she had in her property to pursue the litigation and could not “borrow any more money against it.” Appellant acknowledged that she received a prior judgment in the case for $150,000. When the court questioned appellant about the value of the judgment, she was evasive. She claimed only $120,000 of the judgment remained, and told the court that her attorneys “put unreasonable liens” on the recovery “so that there’s nothing left,” but she did not itemize the liens. When the court advised appellant that she failed to state “what the liens are,” appellant proceeded to specify two liens that amounted to $109,000. The court noted that at least $11,000 remained, even accepting appellant’s uncorroborated statement of the liens. Appellant complained that medical bills exceeded the remainder so “there’s nothing left,” but again failed to detail or substantiate the amounts. She also indicated to the trial court that she had been granted fee waivers in the family court and the appeals court. The court expressly found that imposition of an order to pay $1,055 in attorney’s fees, half the amount requested by respondent, would not impose an unreasonable financial burden on appellant.
When we indulge all reasonable inferences in support of the order, as we must in our limited review, we cannot find that the trial court abused its discretion. (See In re Marriage of Feldman, supra, 153 Cal.App.4th 1470, 1478; In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991; In re Marriage of Petropoulos, supra, 91 Cal.App.4th 161, 177–178.) “ ‘An abuse of discretion occurs “where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898–899.) Reversal of a trial court’s exercise of discretion is “appropriate where there is no reasonable basis for the ruling or the trial court has applied ‘the wrong test’ or standard in reaching its result. [Citation.]” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.)
Here, the trial court was aware of its discretion and adhered to the standards articulated in section 271 to determine if a fee award was authorized. The court attempted to properly assess appellant’s financial condition, but was encumbered by her evasiveness. While we may not have reached the same conclusion, we cannot for that reason disturb the award. “Quite similar facts might result in one trier of fact granting relief and another denying it, yet each ruling might be upheld. [Citation.] Appellate review thus respects this sometimes divergent exercise of discretion. The abuse-of-discretion standard requires us to uphold a ruling which a reasonable judge might have made, even though we would not have ruled the same and a contrary ruling would also be sustainable. We cannot substitute our own judgment.” (People v. Woods (1993) 12 Cal.App.4th 1139, 1153.) We think the trial court was justified in concluding that appellant had sufficient assets in the nature of some equity in her real property—which she did not persuasively negate—and a remaining interest in the prior judgment to pay at least the modest and reduced fee order of $1,055 without incurring an unreasonable financial burden. The award of attorney fees as a sanction pursuant to section 271 is based on substantial evidence and was not an abuse of discretion. (In re Marriage of Bower, supra, 96 Cal.App.4th 893, 899.)
Disposition
Accordingly, the order that denied appellant’s motions for reconsideration and for a new trial is affirmed. The order that granted respondent attorney fees is also affirmed. We do not find the present appeal frivolous, and therefore we deny respondent’s request for sanctions. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a).) The parties are to bear their own costs on appeal.
We concur: Marchiano, P. J., Margulies, J.
We also observe that appellant has submitted a brief in which she has failed to provide any citations to the record in support of her statement of facts as required by California Rules of Court, rule 8.204(a)(1)(C). (See Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 55, fn. 2; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 363, fn. 7.) “Statements of fact that are not supported by references to the record are disregarded by the reviewing court.” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.) “ ‘It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found.’ ” (City of Watsonville v. Corrigan (2007) 149 Cal.App.4th 1542, 1545, fn. 1; see also In re S.C. (2006) 138 Cal.App.4th 396, 406–407.)
On November 7, 2008, after oral argument in this appeal, appellant filed another request to augment the record with the motion to extend the jurisdictional deadline filed on April 13, 2007. We also deny this request as untimely. (Courtell v. McEachen (1956) 147 Cal.App.2d 219, 221.)