Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment orders of the Superior Court of Orange County No. 02D003831 Mark Millard, Judge.
Law Office of Gary G. Kreep and Gary G. Kreep for Appellant.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent.
OPINION
FYBEL, J.
Introduction
The marriage of Duglas and Janece Wright was dissolved in 2003. On appeal, Janece challenges the trial court’s characterization of certain property as Duglas’s separate property, and its valuation of community property. We affirm.
We will refer to Duglas Wright, Janece Wright, and Duglas’s father, Donald Wright, by their first names to avoid confusion; we intend no disrespect.
The trial court found that the family residence was owned 50 percent by the community estate and 50 percent by Duglas as his separate property. This finding is supported by substantial evidence that Duglas’s separate property share was quitclaimed to him as a gift by Donald.
The trial court did not err in valuing the community property accounting business. The court could discount the value of the business based on the potential of future attrition of clients, to which both parties’ expert witnesses testified. Having reviewed the record on appeal, we conclude Janece’s contention that the trial court applied a double discount is without merit.
The trial court’s finding that Duglas did not breach a fiduciary duty owed to Janece is also supported by substantial evidence.
Procedural History
Duglas and Janece were married on July 31, 1983. The couple separated in December 2001, and Duglas filed a petition for dissolution of the marriage in April 2002. The couple had one child; neither child support nor custody is at issue in this appeal. A status-only judgment of dissolution was entered November 7, 2003.
The trial court entered judgment on reserved issues on January 30, 2009; notice of entry of judgment was filed and served the same day. Janece’s motions for a new trial and to vacate the judgment were denied. Janece timely appealed.
Duglas argues in his respondent’s brief that the appeal was not timely, because Janece’s motion for a new trial and motion to vacate judgment were untimely. A motion for a new trial or a motion to vacate judgment must be filed within 15 days after the notice of entry of judgment is served. (Code Civ. Proc., §§ 659, 663a.) The notice of entry of judgment in this case was served on January 30, 2009, and Janece’s motions were filed on February 17, 2009, 18 calendar days later. We may take judicial notice that February 17 was the 15th business day after January 30, as February 14 fell on a Saturday, February 15 on a Sunday, and February 16, 2009, was Presidents’ Day, a federal holiday. (Evid. Code, §§ 452, subd. (h), 459, subd. (a); Cal. Rules of Court, rule 1.10(b) [“Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday”]; Code Civ. Proc., §§ 10 [“Holidays within the meaning of this code are every Sunday and any other days that are specified or provided for as judicial holidays”], 12a, subd. (a) [“If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, ‘holiday’ means all day on Saturdays, all holidays specified in Section 135”], 135 [every holiday designated by Government Code section 6700, and every Saturday, are judicial holidays]; Gov. Code, § 6700, subds. (a), (e) [state holidays include every Sunday, and the third Monday in February].) The postjudgment motions were timely filed, and therefore valid. Janece’s notice of appeal was filed on the next business day after the 30th day following denial of the motion to vacate, making it timely. (Cal Rules of Court, rule 8.108(c)(1).)
Discussion
I.
Motion to Dismiss Appeal
Janece’s appeal is nominally from the denial of her motion for a new trial, which is a nonappealable order. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 (Walker).) Janece later filed a notice of errata, correcting the notice of appeal to reflect that the appeal was from the order denying the motion to vacate, which is also a nonappealable order because it did not decide new issues, but merely affirmed the validity of the judgment. (311 South Spring Street Co. v. Department of General Services (2009)178 Cal.App.4th 1009, 1014.) Janece never filed a notice of appeal from the judgment. Duglas therefore argues in his respondent’s brief that Janece is precluded from challenging the judgment on appeal.
Almost one full year after filing his respondent’s brief, and after oral argument had been continued twice, Duglas’s appellate counsel filed a “Motion re Appealability and/or Limited Appealability, ” which this court treated as a motion to dismiss the appeal. The gist of this motion is that Janece’s appeal is only from the order denying the motion to vacate, and this court should therefore limit oral argument to the motion to vacate and consider dismissal of the appeal.
While a motion to dismiss an appeal may be filed at any time, one of the preeminent treatises on appellate practice cautions against waiting as late as the filing of the respondent’s brief to file a motion to dismiss an appeal: “[W]here dismissal is discretionary with the court of appeal, the court may be less amenable to granting a motion to dismiss filed after substantial court time has been invested in preparing for a determination on the merits.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 5:41, p. 5-18.1 (rev. #1, 2009).)
A notice of appeal “must be liberally construed” in favor of its sufficiency. (Cal. Rules of Court, rule 8.100(a)(2).) The notice of appeal from the order denying the motion for a new trial or the motion to vacate the judgment should be construed to encompass the underlying judgment. (Walker, supra, 35 Cal.4th at pp. 20-21.)
Duglas, however, argues Janece has appealed from the order denying the motion to vacate, “and nothing more.” Duglas cites cases holding that when the notice of appeal evidences a clear intention to appeal from only one part of the judgment or from only one of two separate appealable judgments or orders, the rule of liberal construction to permit appeal from the judgments, orders, or parts of a judgment not specifically referenced does not apply. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.) We conclude these cases are not applicable here. Janece’s motion to vacate challenged the judgment as legally incorrect, and unsupported by the evidence. Even if the notice of appeal unambiguously evidenced an intent to appeal only from the order denying the motion to vacate, and not from the judgment, the entire judgment was embraced by the order denying the motion to vacate. Duglas has not presented any evidence or argument that he was misled or prejudiced by any errors or ambiguities on the face of Janece’s notice of appeal, and he had the opportunity to address all issues on the merits. (Luz v. Lopes (1960) 55 Cal.2d 54, 59-60.)
We construe Janece’s appeal as being taken from the judgment entered January 30, 2009, as well as the denial of her postjudgment motions. We therefore deny Duglas’s motion to dismiss the appeal.
II.
Standard of Review
On appeal, we view the entire record in the light most favorable to the prevailing party to determine whether there is substantial evidence to support the trial court’s findings, and resolve all conflicts in the evidence and draw all reasonable inferences in favor of the findings. (In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931.) We presume the judgment on reserved issues is correct. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)
No statement of decision was requested or filed with regard to the trial on reserved issues. (Code Civ. Proc., § 632; Cal. Rules of Court, rule 3.1590(a).) Therefore, “all intendments will favor the trial court’s ruling and it will be presumed on appeal that the trial court found all facts necessary to support the judgment.” (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649; see Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 104.) Even if a statement of decision had been filed (or the trial court’s tentative ruling were deemed to be one), any ambiguities or omissions were required to be brought to the attention of the trial court. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) Janece did not object to the tentative ruling or request clarification or additions. We therefore infer any findings necessary to support the judgment. (Ibid.)
Janece argues the correct standard of review is abuse of discretion. She miscites Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, in support of her argument. In the portion of Horsford which Janece quotes in her opening appellate brief, the appellate court applied the abuse of discretion standard to its review of the trial court’s attorney fees award under the Fair Employment and Housing Act. (Horsford, supra, 132 Cal.App.4th at p. 393.) Elsewhere in the opinion, however, the appellate court applied the substantial evidence test to its review of the plaintiffs’ challenge to the judgment itself. (Id. at pp. 374-375.)
III.
Characterization of Family Residence
One of the key issues at trial was the ownership of the family residence in Huntington Beach (the property). The trial court found the property was 50 percent community property and 50 percent Duglas’s separate property.
The history of the ownership of the property is somewhat complicated. In June 1976, before Duglas and Janece were married, Duglas and his father, Donald, acquired a ground lease on the property with an option to purchase the fee as joint tenants. Just a week later, Duglas quitclaimed his interest in the property back to Donald. In July 1989, Donald quitclaimed his interest in the property to himself and Duglas, as tenants in common. No consideration was paid, and the transfer was identified on the preliminary change of ownership report as a transfer from parent to child. The fee option was exercised in July 1992, at which time the property was deeded as follows: 50 percent interest to Duglas and Janece, and 50 percent interest to Donald, as tenants in common. In May 2001, Donald quitclaimed his 50 percent interest in the property to Duglas.
The trial court found that the May 2001 transfer was a gift to Duglas, making that 50 percent interest in the property Duglas’s separate property. “It is this Court[’]s finding that the deed quitclaimed to [Duglas] from his father on 05-31-2001 constituted a gift from [Duglas]’s father to [Duglas]. The title is clearly in the name of [Duglas] as to father’s 50% interest. While it was received during marriage it was not in [Duglas] and [Janece]’s name and was in [Duglas]’s name only. It was from his father. Despite the form deed language there was no consideration. It was a gift, as defined in Family Code Section 770[, subdivision] (a)(2) as to father’s 50% interest in the home. The gift was received six months before separation and to the extent community property payments were made should be apportioned accordingly.” We conclude substantial evidence supports this finding.
“Generally, factors determinative of whether property is separate or community are the time of the property’s acquisition; operation of various presumptions, particularly those concerning the form of title; and whether the spouses have transmuted or converted the property from separate to community or vice versa....” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291.) Janece and Duglas were married at the time the 50 percent interest in the property was quitclaimed by Donald to Duglas, so a presumption arises that the property was community property. (Fam. Code, § 760.) But a contrary presumption arises because title to the property was taken in Duglas’s name alone. (Evid. Code, § 662; see In re Marriage of Lucas (1980) 27 Cal.3d 808, 813.) Further, property acquired during marriage by gift is separate property. (Cal. Const., art. I, § 21; Fam. Code, § 770, subd. (a)(2).)
Janece argues Duglas bore the burden of proving the May 2001 transfer was a gift, citing In re Marriage of Mix (1975) 14 Cal.3d 604. That case, however, is inapposite: “‘[P]roperty acquired by purchase during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. [Citations.]’ [Citation.] This presumption applies to property purchased during the marriage with funds from a disputed source, such as an account or fund in which one of the spouses has commingled his or her separate funds with community funds. [Citations.]” (Id. at pp. 610-611, italics added.) The 50 percent interest in the property acquired from Donald in May 2001 was not acquired by purchase.
Although Janece argues she, her father, and her uncle made substantial contributions of money and labor to the improvement of the property, believing they were contributing to the community estate, there was no evidence any such contributions were made after May 2001. The trial court accounted for property payments made after May 2001 by ordering Duglas to reimburse the community estate for the amount paid to reduce the property loans between May 2001 and the date of the parties’ separation.
Although Janece points to evidence that, she contends, indicates the property was community property, rather than one half of Duglas’s separate property, given the standard of review that evidence is of no significance, as long as there was substantial evidence supporting the trial court’s findings. As we explained, ante, substantial evidence supports the findings.
Janece also argues that when property is acquired during marriage using commingled separate and community property funds, the entire property must be treated as a community asset unless the party claiming that property is separate property can clearly trace the funds to his or her separate property. (In re Marriage of Mix, supra, 14 Cal.3d at p. 611.) The portion of the property we are considering was the portion deeded to Duglas by Donald in May 2001, not the portion acquired by Janece and Duglas in July 1992, which is unquestionably community property. That one portion of the property was acquired with community funds and was deemed community property does not make the later acquired portion of the property community property as well.
Finally, Janece argues the trial court issued inconsistent evidentiary rulings regarding the characterization of the property. Janece complains that the trial court prevented her from offering parol evidence of Donald’s intent that the property was to be community property. At trial, the court did allow Janece to offer parol evidence regarding the parties’ intent; the court refused, however, to permit Janece to testify as to Donald’s statements during alleged meetings among Donald, Duglas, and Janece.
“[Janece’s counsel]: But back to the parol[] evidence, Your Honor.
“The Court: I don’t think I’m going to allow dad’s statements.
“[Janece’s counsel]: All right.
“The Court: The parties, yes, they are admissions.
“[Janece’s counsel]: All right.” (Italics added.)
The court’s exclusion of that evidence was based on its designation as hearsay, not on its designation as parol evidence. We find no abuse of discretion in the trial court’s ruling. (Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 190 [exclusion of hearsay evidence reviewed for abuse of discretion].)
IV.
Valuation of Business
Janece argues the trial court erred by discounting the value of the community property accounting business, because a discount had already been applied by the parties’ appraisers. We conclude the trial court did not err, because Janece’s assumption that the appraisers applied a discount in their valuation of the business is not supported by the evidence.
Duglas’s accounting practice, Duglas Wright & Co./West Coast Financial Strategies, Inc., was a community property asset. Both Janece and Duglas hired appraisers to value the property. Both used a gross adjusted revenue earnings method. Using this method, Duglas’s appraiser valued the business at $330,000; Janece’s appraiser valued the business at $337,000. The trial court found the correct value of the business was $330,000; Janece does not argue on appeal that the court erred by accepting the value proposed by Duglas’s appraiser.
Duglas’s appraiser also valued the business using an excess earnings calculation, and averaged the values determined by the gross adjusted revenue earnings method and the excess earnings calculation to come up with a lower business value. The trial court rejected the use of the excess earnings calculation; no party argues on appeal that the trial court erred in that respect.
The trial court then applied a 20 percent discount on the value of the business, determining the net value of the business was $264,000. Both appraisers testified that a discount on the business value would apply due to attrition of business.
The values attributed to the accounting business in the appraisers’ reports did not discount the value of the business. Therefore, Janece’s argument that the trial court improperly discounted the value of the business by 40 percent is incorrect.
Janece also argues the trial court erred by applying any discount to the value of the business. We disagree. In In re Marriage of Foster (1974) 42 Cal.App.3d 577, 584, the appellate court approved the use of a method of valuation that took “into consideration the expectancy of the continuity of the medical practice.” Although this is not a forced sale case, it was not inappropriate for the court to apply a discount to account for the attrition of clients that would naturally occur in the life of any going concern business. Both expert witnesses agreed. This distinguishes the present case from In re Marriage of Quay (1993) 18 Cal.App.4th 961, 967, in which the court concluded, “‘it is inappropriate when awarding the property to one spouse to reduce the value of the business by the speculative value of a hypothetical noncompetition agreement.’” The attrition of clients from the community property accounting business is not a speculative event that may or may not occur in the future.
Janece argues that the trial court abused its discretion by refusing to allow “any arguments or evidence about the discount that the appraisers had already applied to the value of the business.” As noted ante, Janece’s initial premise is incorrect. Further, her citation to the reporter’s transcript does not show any attempt at argument or providing additional evidence regarding application of a discount to the value of the business.
V.
Breach of Fiduciary Duty
Janece argues Duglas breached his fiduciary duty during their marriage by failing to disclose Donald’s May 2001 transfer of title to the property to Duglas. The trial court found no breach of fiduciary duty by Duglas.
Spouses owe a fiduciary duty toward each other during marriage: “(a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried. [¶] (b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following: [¶] (1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. [¶] (2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions. [¶] (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.” (Fam. Code, § 721.)
Duglas’s acceptance of a quitclaimed interest in separate property from Donald is not subject to Family Code section 721. Janece does not cite to any evidence that Duglas (1) failed to make Janece aware of an opportunity for the community estate to acquire Donald’s share of the property, (2) improperly convinced Donald to quitclaim his interest in the property to Duglas as his separate property, rather than to Janece and Duglas as community property, or (3) ever told Janece that Donald’s 50 percent interest in the property was or would become owned by the community.
Janece also argues Duglas breached his fiduciary duty by concealing an asset during the pendency of the dissolution proceeding. Janece alleges that Duglas failed to produce documentation proving that an account originally identified as Duglas’s was actually owned by Duglas’s client. At trial, a letter to Duglas was admitted into evidence, without objection, stating, in relevant part: “Please accept this letter as confirmation that you are not the owner of Account.... Our records indicate that you used to receive duplicate statements for this account in the past.” This letter constitutes substantial evidence supporting the trial court’s implied finding that the account was not an item of community property, and that Duglas did not breach any fiduciary duty by concealing it from Janece.
VI.
Alleged Neglect by Janece’s Trial Counsel
Janece argues that the judgment on reserved issues should be reversed because she received ineffective assistance from her trial counsel. In support of this argument, Janece cites cases holding that a criminal defendant is entitled to effective assistance of counsel, and claims her counsel’s failures caused her to be denied due process of law. Janece’s argument is specious. In a civil case, there is no right to counsel; therefore, the concomitant right to effective assistance of counsel promised by the state and federal Constitutions does not apply. (White v. Board of Medical Quality Assurance (1982) 128 Cal.App.3d 699, 707; Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978-979.)
Disposition
The judgment and postjudgment orders are affirmed. In the interest of justice, because respondent failed to respond in a meaningful way to many of appellant’s arguments, each party shall bear its own costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.
Duglas also argues that the motion to vacate judgment was a “disguised” motion for a new trial, and therefore not valid. As support for this argument, Duglas cites to Janece’s motion for a new trial, not to her motion to vacate. Duglas’s argument on this point in specious.