Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. FL200173
Pollak, J.
Erica Revesz Bergstrom petitioned the court to dissolve her 20-year marriage to Stephan Revesz. The couple had separated approximately 10 years earlier when Stephan returned to Hungary. Stephan visited California twice during the pendency of the dissolution, but did not respond to certain discovery requests regarding property the couple acquired during the marriage and did not attend the trial or settlement conferences at which he had been ordered to appear. The trial court imposed issue sanctions for his failure to answer discovery requests, and denied a request by Stephan’s attorney on the day of trial for a further continuance. Erica was the only witness at the trial, at the conclusion of which the court issued findings and orders regarding the division of community property. Following the entry of judgment, Stephan has appealed, challenging the sanction order, the denial of the request for a continuance, and the manner in which the court allocated community property. We conclude that the trial court erred in calculating the division of community property but that Stephan’s remaining contentions are without merit.
Background
Stephan and Erica were married on May 24, 1974. On March 1, 2004, Erica filed a petition to dissolve the marriage. Stephan filed a response and requested spousal support of $2,000 a month. In the supporting declaration he stated that he is an American citizen but has “returned to live in Hungary where I was born, after spending from 1968 to 1994 in California. The petitioner and I married in May, 1974 and moved to Lake County in 1980. The petitioner and I bought and sold many properties in Lake County. We had a falling out in 1994 and reached an agreement about our assets. We filed appropriate transfer deeds to separate our interests. Though we continued to live together in the same house, we were in separate bedrooms and were no longer acting as though married. [¶] Since returning to Hungary I have been working as a contractor, but am not earning much money. I have property still in Lake County, but no money and cannot pay my attorney. [¶] The petitioner is a real estate agent who makes very good income and can afford to pay spousal support and to help pay my attorney fees. As I will be in Hungary my attorney will have to handle all aspects of his case. I will not be able to even do any research or errands for him. Thus, I seriously need representation and help in paying fees.”
On July 11, 2005, the parties stipulated to continue the mandatory settlement conference from September 6 to December 5, and the trial from September 20 to December 20. At some point the trial was again rescheduled to April 11, 2006. On April 5, 2006, Stephan filed a motion to continue the trial to June 27, 2006. In support of the motion, his attorney filed a declaration stating that Stephan had moved back to Hungary “about the time the parties herein separated,” and that he had returned to Lake County approximately twice a year, most recently in December 2005 for a settlement conference. The declaration stated that the attorney had sent a fax to Stephan on March 22 “reminding him of his pending court dates and of his need to be present on March 28, 2006” but that he had “received a fax from Mr. Berdo Levente concerning Mr. Revesz and stating that he could not travel.” The document attached to the declaration is handwritten, dated March 27, 2006, and states only, “Mr. Revesz got very thick [sic]. He could not travel. Best Regards[,] Berdo Levente.” The declaration stated that the court had continued the mandatory settlement conference to April 5 and ordered Stephan to be present “and to provide documents reflecting the nature of his illness.” The attorney stated that he had received various documents by fax from Stephan, but that they were “in Hungarian and represent his attempt to comply with the court’s request for documentation both of his hospitalization and prior travel itinerary. I do not believe Mr. Revesz is faking this situation, but believe him to be truly unable to participate.” The cover letter from Stephan, dated April 3, 2006, states, “This is very unfortunate. I don’t know how long I have to stay in the hospital, but I will let You know as soon as Dr Scheller tells me when I can fly home. Hereby I am sending You the papers.”
No record of this continuance appears in the clerk’s transcript.
On April 14, the trial court granted the continuance and rescheduled the trial for July 25, 2006, but attached certain conditions to the order. The court ordered Stephan to be present for trial, for the mandatory settlement conference on May 23, and for trial assignment on July 21. The court also ordered Stephan to provide Erica “on or before May 1, 2006, the documents requested pursuant to the amended notice of taking deposition with production of documents . . .” The court also ordered Stephan to appear for his deposition on May 24, and to “provide petitioner’s counsel a legible report from his doctor explaining his medical condition and specifically explaining why Respondent was unable to travel during the period March 27 through April 11, 2006.”
On May 12, Erica filed a motion for monetary and issue sanctions, alleging that Stephan “has misused the discovery process by failing to respond or submit to an authorized method of discovery and by disobeying a court order to provide discovery.” The motion stated that Stephan’s deposition originally had been noticed on March 17, to take place on March 29, but that he “failed to appear for the deposition and never produced any documents.” The attorney’s declaration in support of the motion stated that he had served form interrogatories on Stephan’s attorney on May 11, 2005, and that “[n]ot having received any response to that discovery in several months, I filed a motion to compel the answers on November 7, 2005. Shortly before the hearing on that motion, I receive[d] answers to the form interrogatories and I dropped my motion. However, upon reviewing the answers, I noticed that, although the answer to Interrogatory No. 10 indicated that the schedule of assets and debts was attached, there was no such attachment. On December 14, 2005, I wrote to Mr. Friel [Stephan’s attorney] and asked him to provide the schedule. The Schedule was never received. As Mr. Friel acknowledged in his declaration in support of motion to continue the April 11, 2006 trial date, respondent was present in Lake County in December of 2005 and, thus, available to complete that document.” The declaration further states that no documents or doctor’s note had yet been received.
At the hearing on May 23, 2006, Stephan’s attorney indicated that Stephan would not be present for his deposition scheduled for the following day. The trial court rescheduled the hearing on sanctions for June 12 and ordered Stephan “to show cause why he should not be held in contempt and otherwise assessed monetary sanctions for his continued failure to appear at 3 settlement conferences.” The court stated that it would also consider Stephan’s failure to appear for deposition. The hearing on sanctions was continued to June 26.
On the day of the continued hearing, Stephan’s counsel filed a declaration in opposition to the motion for sanctions. The declaration stated that except for two trips to the United States, Stephan had been in Hungary since the action was filed, that he “has no appreciable income and no liquid assets, which makes it very difficult for him to afford to travel,” and that “he has only a limited command of English,” all of which the attorney argued hampered his “ability to effectively participate in this case.” The declaration went on to state that “after Mr. Revesz returned to Hungary in December of 2005 he became ill, and has been unable to travel to return to California ever since.” In support of this statement, the attorney attached four “letters received from Mr. Revesz setting forth his inability to travel due to health issues. Given the serious negative consequences to Mr. Revesz of not participating in his own case, it is impossible to believe that he is faking the illness and its impact on his ability to travel. It would be manifestly unfair to the respondent for the court to restrict his ability to effectively participate in this case simply because he became ill in the course of the litigation and could not travel.”
The first two attached letters are the March 26 note from Berdo Levente, and a typed note from Stephan dated April 28, 2006, stating, “My Doctor’s opinion, that I’m not in the position to travel in may. I am going under therapies, He cannot tell me at this time, when I can travel. I will let You know as soon as He tells me.” The third is a typed note on plain paper dated May 16, 2006, entitled “MEDICAL EXPLAINING” which states, “Hereby the undersigned Dr Scheller György, Mr Revesz’s Phisician [sic] explaining, that Mr Stepan Revesz (born on April 11.1942, mother’s name: Krajcsi Julianna) is under my & my collegs’ [sic] care since March 27th 2006. After the hospital treatment He is still going under different treatments and therapies. Mr Revesz is not in the physical condition to travel. The ability for travel depends on His speedy recovery. Recognizing His condition we also recommend to Mr Revesz, not to travel in hot weather.” The fourth is a letter from the Vice-Consul of the United States in Budapest, stating that “he is thoroughly conversant with the Hungarian and English languages, and that he has carefully compared the attached English translations with the original documents written in the Hungarian language, and that the said translations are correct and true translations of such documents and of the whole thereof.” It is not clear to what documents the letter refers, though in his brief on appeal Stephan states that it refers to the letter from Dr. György, which is in both Hungarian and English.
On July 6, 2006, the trial court ordered Stephan to produce by July 10 a lengthy list of documents, all of which had been included in the prior discovery demands. The order specified that if Stephan did not “comply with the above orders by 5:00 p.m. July 10, 2006, then the following sanctions shall apply at the time of trial: [¶] A. Respondent shall be precluded from presenting any evidence in support of his request for spousal support. [¶] B. Respondent will be precluded from presenting any evidence to refute Petitioner’s claim that he removed $300,000 of community property. [¶] C. Respondent will be precluded from presenting any evidence that any of the real property owned by the parties or either of them is anything other than community property.” The trial court also stated that the court “may grant sanctions if medical documents are not supplied as to respondent[’]s illness.” The court found that Stephan had failed to provide documents as earlier ordered, and assessed $3,940.30 in monetary sanctions.
Stephen was ordered to produce the following: “A. Any and all check registers, check stubs, bank statements, and reconciliation statements covering transactions from January 1, 2003 to the date of production specified in this request . . . . [¶] B. Any and all passbooks and periodic . . . statements covering the period from January 1, 2003 to the date of production . . . [¶] C. Any and all monthly, quarterly, or annual statements for any tax sheltered annuities, other annuities, deferred compensation plans, stock accounts, IRAs, CDs, retirement plans, or any other investment or interest account in your name alone or jointly with any other person or entity or upon which you are an authorized signator for the period from January 1, 2003, to date of production. [¶] D. Copies of receipts, invoices, checks, correspondence, and other documents from any auction houses in the United States or Europe where you have bought or sold items of personal property from 1980 to present . . . . [¶] E. Copies of contracts, receipts, invoices, canceled checks, or other documents reflecting any purchase or sale of jewelry, silver, diamonds, watches, vehicles, furniture and furnishings, art work, or other personalty for the period 1980 to present. [¶] F. Copies of any deeds, deeds of trust, contracts of sale, escrow statements, promissory notes, or other documentation regarding the purchase or sale or any real estate anywhere in the world from 1980 to present. [¶] G. Copies of any financial statements, credit reports, promissory notes, escrow documents, applications, or other documents regarding any monies borrowed by you from any person or entity for the period 1996 to present. [¶] H. Copies of all W-2s wage stuffs, employment contracts, profit and loss statements, invoices, 1099s, or other documentation reflecting any income received by you from any source from January 1, 1996 to present. [¶] I. Copies of all bills of lading, shipping documents, invoices, or other documents that reflect or refer to any items shipped by you from Europe to the United States or from the United States to Europe for the period 1980 to present. [¶] J. Copies of all pages from any passports that you have. [¶] K. Copies of any and all documents in support of any claim you are making that there are certain assets in your possession or under your control or in [Erica’s] possession or under her control that are your sole and separate property.”
Stephan states in his opening brief that “The only evidence of the hearing on Erica’s motion to be found in the court file is the clerk’s minutes dated June 26, 2006.” We granted Erica’s motion to augment the record on appeal with the order signed and filed by the trial court, which contains the language quoted above.
This portion of the order appears in the court’s minute order, but not in the written order signed by the court on the same day.
On July 21, 2006, the court set the trial to proceed on July 26. On July 25, Erica filed an income and expense declaration and a community and quasi-community property declaration. Stephan was not present for the trial, and his attorney moved for a continuance based on “the late receipt of those documents filed on behalf of [Erica].” Counsel observed that “more disconcerting, perhaps, than their late arrival and the fact that I did not see them until this morning . . . is the extent to which the documents, particularly the community property declaration, differs from all prior information given by the petitioner to me prior to, effectively, this morning.” The requested further continuance was denied and Erica was the only witness at trial.
After trial, the court made its findings and orders. The court began by noting that Stephan “has not cooperated with petitioner since separation in 1996. The respondent has apparently not returned to the United States since that time. Since 1996 the parties have maintained separate checking and savings accounts. . . .” The trial court further noted that it had “considered the facts that respondent frustrated settlement by his refusal to cooperate with counsel and failed to provide requested discovery. Prior to trial those issues were considered and both sanctions and attorney fees were ordered . . . . This court finds that the prior sanctions (both evidentiary and attorneys fees award) adequately addressed respondent[’]s lack of cooperation.” Following the entry of judgment, Stephan timely appealed.
Discussion
Property division
Stephan argues that the trial court divided the community property unequally and erred in granting certain credits to Erica. Family Code “[s]ection 4800, subdivision (a) is the court’s authority to divide the community estate. It is worth mentioning . . . that unlike virtually every other state, California has restricted judicial authority by requiring trial courts to divide the community estate equally between the parties, except for limited circumstances.” (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 87.)
Family Code section 4800 has been repealed and replaced by Family Code section 2580. (Stats. 1992, ch. 162, § 3, operative Jan. 1, 1994.) The concepts expressed in In re Marriage of Cream were not affected.
The trial court purported to effect an equal division of the community property and there is no dispute with respect to most of its calculations. The court awarded Erica eight properties valued at $1,185,000, plus “[m]iscellaneous furniture, furnishings, antiques, art and other property” in her possession with a value of $15,000 and a 1963 Mercedes 300 with a value of $60,000. She thus received community property with a total value of $1,260,000, plus half interest in the “Conestoga” property, the value of which was unknown at the time of trial (but estimated to be worth between $2,000,000 and $4,000,000). No question is raised concerning these values. Erica was also awarded an “Epstein credit” of $230,905 “as reimbursement of expenditures of her separate funds spent to maintain and manage the community property and debts of the parties during the last ten years.” This amount is to be paid out of the proceeds of the sale of the Conestoga property.
In re Marriage of Epstein (1979) 24 Cal.3d 76.
The trial court awarded Stephan six pieces of real property valued at $380,000, plus personal property valued at $177,500, for a total of $557,500. Stephan complains that Erica received income-producing real property whereas the property he received is not, but there was no evidence suggesting that this factor was not taken into account in determining the values of the respective properties, and no objection on this basis was raised in the trial court. Although Stephan suggests that the personal property he received was undervalued, Erica’s testimony supports the value utilized by the court and the trial record contains no contrary evidence. Stephan was also awarded half interest in the Conestoga property.
Stephan was awarded an equalization payment of $281,250 to be paid out of the proceeds of the sale of the Conestoga property. The court ordered that the $230,950 Epstein credit to Erica be “deducted from the equalization payment ordered herein payable by petitioner to respondent in the amount of $281,250.00. The difference of such amount being an amount of $50,345.00.” Its order provides that Stephan receive the first $50,345 from the proceeds of the sale of the Conestoga property, and that the remainder be divided equally between the parties.
The court apparently calculated the $281,250 equalization payment by taking half of the difference between $1,260,000 and $557,500 (i.e., $702,500/2, or $351,250), less $60,000 which had been borrowed by Stephen against one of the properties to be received by Erica ($351,250 - $60,000 = $291,250), with an arithmetic error of $10,000, reducing the equalization payment to $281,250. As indicated, the court deducted the $230,905 Epstein credit from the resulting equalization payment and directed that Stephan receive the difference of $50,345 from the proceeds of the sale of the Conestoga property, before dividing the balance of the proceeds equally. The parties agree that the trial court incorrectly calculated the amount of the equalization payment and the amount to be paid to Stephan from the first proceeds of the sale of the Conestoga property. Accepting all of the values utilized by the trial court, we have identified three errors in the court’s calculations.
The court appreciates the candor of Erica’s counsel, G. Scott Gaustad, in correcting these calculations.
First, Stephan challenges the amount of the Epstein credit awarded to Erica. “With respect to the ‘payment credits,’ the seminal case of In re Marriage of Epstein (1979) 24 Cal.3d 76 holds that ‘ “a spouse who, after separation of the parties, uses earnings or other separate funds to pay preexisting community obligations should be reimbursed therefor out of the community property upon dissolution. However, . . . reimbursement should not be ordered where the payment on account of a preexisting community obligation constituted in reality a discharge of the paying spouse’s duty to support the other spouse.” ’ ” (In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552, quoting Epstein, supra, at pp. 84-85.) “ ‘Epstein credits’ . . . are . . . to be paid from or paid to the community. Inasmuch as both spouses have an equal interest in community assets [citation], and in light of a trial court’s obligation under the Family Law Act to divide community assets equally between the parties upon a dissolution of the marriage [citation], it follows that the net effect of allocating ‘Epstein credits’ . . . in a division of community assets should be . . . the equal sharing of ‘Epstein credits’ by both spouses.” (Id. at p. 553.) Subtracting the amount that one spouse has paid for the maintenance of community property after separation from the value of the community property awarded to that spouse is an appropriate means of accounting for this credit. (Ibid.)
Stephan argues that the amount of the Epstein credit granted Erica is excessive because it does not take into account the fact that Erica had exclusive use of the community assets for which she made payments, and that the value of her usage should be deducted from the amount of the credit. However, this objection was not raised in the trial court, and Erica responds that if it had been she would have been entitled to increase the credit by the value of her personal services which also were not included in the court’s computations. Since neither contention was raised below, both are waived on appeal and provide no basis for rejecting the amount of the credit utilized by the trial court. “An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444; see also In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [mother waived objection to computation of child support]; In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 [father waived objection to calculation of child support by failing to bring error to the trial court’s attention].) Stephan also contends that he “was in no position to support himself and, in light of the disparity of incomes, any payments from Erica’s separate funds to maintain community property constituted a discharge of her duty to pay spousal support.” However, the court never ordered the payment of spousal support to Stephan, so that the payments to maintain the community property cannot be regarded as the discharge of any such obligation.
To support her claim for these credits, Erica testified that during many of the years after the couple separated, there was a net loss and that she used her own savings to pay for the short falls. She submitted an exhibit that summarized the transfers from her separate account to support the properties. For example, she testified that in 2000, the bank was planning to foreclose on the Conestoga property and that she contributed $34,500 of her own money to prevent that from happening. She also testified that she never reimbursed herself for these contributions. She stated that “the figure of $230,905 is the sum of these various contributions” she has made since the date of the separation, and that the amount does not include any reimbursement for her time spent maintaining the properties.
Although there is no basis to alter the amount of the Epstein credit utilized in the trial court’s calculations, we do find a significant error in the manner in which the court applied the credit. The credit is to be “ ‘reimbursed . . . out of the community property upon dissolution.’ ” (In re Marriage of Epstein, supra, 24 Cal.3dat p. 84.) By deducting the amount of the credit from the amount of the equalizing payment to Stephan, rather than from the value of the community property, the reimbursement was effectively made from Stephan’s separate property rather than from the community property awarded to Erica. Erica was thereby reimbursed for 100 percent of the amount she paid to maintain community property assets, rather than for only the 50 percent that was Stephan’s share of those expenses. This had the effect of reducing the equalization payment to Stephan by $115,452.50 ($230,905/2).
A similar computational error was made with respect to the treatment of the $60,000 that Stephen borrowed against the “Sandy” property allocated to Erica. The court correctly reduced the value of the property by $60,000 but it failed to take into account that the $60,000 that Stephen borrowed was itself a community asset to be divided equally. Although the obligation to repay the debt was a personal obligation of Stephan and Erica assumed that obligation, Stephan was entitled to half of the $60,000 he received as the proceeds of the loan against the property. If Erica had not assumed the $60,000 debt, Stephan would have owed the bank the $60,000 he borrowed but he would have received credit for his entitlement to half of the $60,000 from the community. Because she assumed the obligation to repay the $60,000 debt, Erica was credited with receiving an asset worth only $140,000 that was in fact worth $200,000 (less the amount of the encumbrance). By both reducing the value of the property by the full $60,000 and reducing the equalization payment by the full $60,000, Stephan received no credit for the fact that he was entitled to half of the $60,000 he borrowed. This resulted in incorrectly reducing the equalization payment to Stephan by $30,000.
I.e., assume the Sandy property had a value of $200,000 and that Stephan personally borrowed $60,000 against that property. The value of the property is thus reduced to $140,000 but the $60,000 still must be regarded as a community asset, so that both parties receive $100,000 as their share of the community property.
Thus, the net amount of the payment to which Stephan is entitled from the first proceeds of the sale of the Conestoga property must be increased by $115,452.50 plus $30,000 plus the $10,000 arithmetic error made by the court, or by $155,452.50, to $205,797.50. However, since the payment is to be made from the proceeds of the Conestoga property, itself a community asset half of which is Stephan’s, Stephan should receive twice that amount from the sale proceeds before dividing the balance equally. To confirm the accuracy of these corrections, we restate the calculation of the community property to be received by both parties (excluding the Conestoga property), before making the equalization payment:
Erica
Real property
$1,185,000.00
Personal property
75,000.00
Subtotal
$1,260,000.00
Less Epstein credit
(230,905.00)
Subtotal
$1,029,095.00
Stephan
Real property
$380,000.00
Personal property
177,500.00
Subtotal
$557,500.00
Plus loan proceeds
60,000.00
Subtotal
$617,500.00
The difference between the two amounts is $411,595 ($1,029,095 - $617,500), half of which is $205,797.50, the correct amount of the equalization payment. ($1,029,095 - $205,797.50 = $823,297.50; and $617,500 + $205,797.50 = $823,297.50.) The judgment should be modified to indicate this amount as the equalization payment and that Stephan is to receive $411,595 from the first proceeds of the sale of the Conestoga property, and the balance of the proceeds is to be divided equally between the two parties..
Issue sanctions
Stephan objects to the trial court’s order that he was “precluded from presenting any evidence that any of the real property owned by the parties or either of them is anything other than community property.”
The record contains no indication that Stephan challenged the issue sanction or argued, as he does here, that the sanction was unrelated to his failure to participate in discovery. Nevertheless, the contention is without merit. Moreover, neither in the trial court nor on appeal has Stephan made a proffer of the evidence he was precluded from presenting, so that even if the court erred in issuing the sanction order, we have been provided no basis to determine that the error was prejudicial.
Code of Civil Procedure section 2023.010, subdivision (d) provides that “[f]ailing to respond or to submit to an authorized method of discovery” is a misuse of the discovery process, and Code of Civil Procedure section 2023.030, subdivision (b) provides that for such misuse, “[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)
“The power of the trial court to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. Only two facts are absolutely prerequisite to imposition of the sanction: There must be a failure to comply with a valid discovery order, and the failure must be willful [citation]. Where those facts are found by the trial court to be true, such findings are entitled to deference on appeal. The test on appeal is whether the lower court abused its discretion, and each case must be decided on its own facts, with the appellant having the burden of showing an abuse. A trial court’s exercise of discretion will be upheld if it is based on a reasoned judgment and complies with the legal principles and policies appropriate to the particular matter at issue.” (In re Marriage of Economou (1990) 224 Cal.App.3d 1466, 1475-1476.)
There is no doubt that the court was justified in awarding some form of sanction. The record reflects that Stephan was in California at the end of 2005, and that he had access to communications by fax, but that he refused to respond to material and relevant discovery requests. His proffered reason for failing to produce the information that was demanded of him, his alleged illness, was never supported by credible evidence. Stephan states that the trial court “knew [he] was sick and living approximately 8,000 miles away in Hungary” but gave him only “four days to comply with the request for production of documents.” However, the request for production of documents was served on March 17, 2006. Stephan was repeatedly requested to produce responsive documents, culminating in the order of June 26, 2006, advising that if the documents were not produced by July 10, issue sanctions would be imposed. The trial court did not have any persuasive evidence before it that Stephan was so ill that he was unable to comply. Neither the letter that allegedly was written by Stephan’s physician in Hungary nor any other information provided the court indicated the nature of Stephan’s illness, much less that he was unable to obtain and forward the requested documents, even assuming he could not personally travel to California.
Nor was the scope of the challenged portion of the sanction order excessive. Stephan argues that the only request for documents that related to this issue sanction was the request for “Copies of any and all documents in support of any claim you are making that there are certain assets in your possession or under your control or in [Erica’s] possession or under her control that are your sole and separate property.” The challenged issue sanction, that Stephan could not introduce evidence that any of the properties purchased by the couple during the marriage was not community property, was directly related to the information Stephan failed to produce and to the single issue at trial: the division of community property. Stephan had ample opportunity to respond to the requested discovery and to present his evidence concerning the proper disposition of the properties. He presented no persuasive reason for not having done so.
The record also reflects that in November 2005, after Erica filed a motion to compel answers to interrogatories, Stephan served answers to those interrogatories indicating that he had attached a schedule of debts and assets, but that he had failed to do so, and that schedule was never produced. The trial court ordered him to produce both “copies of any deeds, deeds of trust, contracts of sale, escrow statements, promissory notes, or other documentation regarding the purchase or sale o[f] any real estate anywhere in the world from 1980 to present” as well as the documents regarding separate property.
Stephan argues that the “sanction was draconian in that Stephan had not withheld anything from Erica which precluded her from knowing the extent of their real property holdings and in whose name the real property was held.” He argues that the “information concerning the real property was readily available to the public at the Lake County Assessor’s office.” The manner in which the property was held does not resolve the question of whether it was community property. Erica was entitled to know through the discovery process which properties Stephan intended to claim as separate property. Stephan also argues that the couple had a post nuptial agreement that “had divided their properties following their separation.” He cites to Erica’s responses to form interrogatories in which she answered the question, “Are there any agreements between you and your spouse, . . . made before or during your marriage . . . or after your separation, that affect the disposition of assets, debts, or support in this proceeding?” Erica replied, “Yes and no. We signed a post nuptial agreement which is attached. However, that agreement was signed at the request of respondent. He indicated as he had throughout our marriage that I needed to sign this just as an accommodation for something he was doing. He told me that the agreement was just a temporary accommodation and had no impact on our joint ownership of our assets. [¶] In fact, after the agreement was signed, it was essentially ignored by us and we continued to hold and manage our assets as we had prior to the agreement.” Stephan makes no representation to the content of the agreement other than to state that “at least two of the properties she was claiming were held in Stephan’s name.” This assertion does not answer the ultimate question of whether the property belonged to the community or should have been considered separate. The trial court did not abuse its discretion by imposing the issue sanctions.
The post nuptial agreement is not attached, a fact that Stephan takes issue with in this court, but did not, apparently, at the trial court.
Continuance
Finally, Stephan argues that the trial court erred in refusing his request for a continuance on the day of trial. The request was made in response to a declaration filed by Erica the day before trial that stated lower values for various properties than had been reflected in her earlier filings. The trial court noted that Stephan had not filed anything “as to the valuation, income and expense, . . . which should have been filed. And further, the issue about the value of these properties and so on and so forth, were things that have been known to all the parties from the beginning. The different properties are mentioned long ago in different pleadings. So I don’t think there’s any surprise as to what the property consists of. The surprise is that maybe the value isn’t what you thought it should be. But there again those are things that are determined at the time of trial and that’s based on evidence as presented which may or may not support either party’s allegations as to what they’re worth. But that’s one of the functions that I was expected to perform today, based on that evidence. And then the court needs also to look, out of fairness or equity, as to the respondent’s conduct throughout these proceedings, put you at a severe handicap for his lack of cooperation for whatever reason. And at this point the court is not inclined to continue the trial because the petitioner filed some documents that may not have been what your client expected. But nevertheless, he’s still not here. He’s filed no documents on his own behalf and he has apparently made every resistance to any of the discovery issues . . . one of which is the interrogatories.”
The trial court went on to express its skepticism regarding the documents offered to support Stephan’s assertion that he was ill and unable to travel. He noted that the letter that was allegedly written by a doctor “doesn’t appear to be on hospital stationary. Looks like a computer printout that somebody sent that said they were a doctor. I can’t tell from that if he is a doctor or what kind of doctor he is or what the prognosis is or what the disease is or, you know, all the kind of information I’d like to have to make an intelligent decision.”
On appeal, Stephan argues that the late filing violated the local trial court rules, which provide that such a declaration “ ‘shall be filed no later than the fourth court day prior to the hearing unless an earlier filing is required by rule or statute.’ ” (Quoting Super. Ct. Lake County, Local Rules, rule 5.3.) He argues that he “could” have been “satisfied with the valuations placed on the properties by Erica when she submitted her answers to interrogatories and he would have been happy to settle for those figures when dividing the estate. However, had the new figures been submitted in a timely fashion, Stephan’s counsel might well have chosen to contest them and would have called an expert witness to question the valuations.”
“There is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, the granting of continuances is not favored and the party seeking a continuance must make a proper showing of good cause.” (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) “The granting or denying of a continuance is a matter within the court’s discretion, which cannot be disturbed ‘on appeal except upon a clear showing of an abuse of discretion.’ ” (Ibid.) “Discretion is abused when the trial court’s ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing from being held.” (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.)
Although Erica’s late filing violated the local rules, as the trial court noted its duty was to determine the current value of the couple’s community property and divide it accordingly. (Fam. Code, § 2552, subd. (a) [“For the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties . . . the court shall value the assets and liabilities as near as practicable to the time of trial”].) Stephan was also required by the same rule to file a property declaration before trial. Stephan failed to do so and he does not deny this lapse. Stephan made no showing that Erica’s corrected figures were inaccurate or unreasonable or that he in fact would have produced conflicting evidence if a continuance had been granted. Nor was Stephan denied the opportunity to challenge Erica’s revised figures or to explore on cross-examination the basis for her original valuations and the reasons for the subsequent modifications. The trial court did not abuse its discretion in denying the continuance.
Disposition
The judgment is reversed and the matter is remanded for correction of the amount of the equalizing payment and distribution of the proceeds of the sale of the Conestoga property, and in all other respects is affirmed. The parties shall bear their respective costs on appeal.
We concur: McGuiness, P. J., Siggins, J.