Opinion
F079298 F079703 F079883
11-19-2021
In re the Marriage of VICTOREA MARTINEZ and EUGENE ROBINSON. v. EUGENE A. ROBINSON, Respondent. VICTOREA T. MARTINEZ, Appellant, VICKI T. MARTINEZ, Plaintiff and Appellant, v. EUGENE ROBINSON, Defendant and Respondent. EUGENE ROBINSON, Plaintiff and Respondent, v. VIKII T. MARTINEZ, Defendant and Appellant.
David L. Axelrod for Appellant. Dawe & Christopherson, Dean A. Christopherson; Law Office of Juley Salkeld and Juley Salkeld for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County Nos. FL10741, CV61331, CV61903. James A. Boscoe, Judge.
David L. Axelrod for Appellant.
Dawe & Christopherson, Dean A. Christopherson; Law Office of Juley Salkeld and Juley Salkeld for Respondent.
OPINION
FRANSON, J.
Victorea Martinez (Martinez) petitioned the Tuolumne County Superior Court to dissolve her five-year marriage to Eugene Robinson (Robinson) in 2011. Before their marriage, the couple purchased a home with money borrowed from Martinez's parents, which was evidenced by a note secured by a deed of trust. During the family law proceedings, Robinson filed a civil action against Martinez in Contra Costa County Superior Court to quiet title to the house by removing the deed of trust's lien under the doctrine of merger and to obtain a declaration the note was unenforceable. Martinez next filed a civil action against Robinson in Tuolumne County Superior Court to collect half of the balance due on the note. The Contra Costa action was transferred to Tuolumne County Superior Court, and the two civil actions were consolidated with the family law action for trial.
Following a four-day court trial in October 2018, the trial court determined issues concerning the home, including valuation and its disposition, the enforceability of the note and deed of trust, and Watts and Epstein credits. The trial court also ruled that Martinez misappropriated community funds by using them for her own purposes. The trial court issued a separate judgment in each action and Martinez appealed from each of them. After briefing was completed, we consolidated the three appeals.
In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts).
In re Marriage of Epstein (1979) 24 Cal.3d 76.
On appeal, Martinez raises numerous issues relating to each action. On Robinson's civil action, Martinez contends the trial court erred when it overruled her demurrer to the complaint and found the note was extinguished under the doctrine of merger. Regarding Martinez's civil action, she contends the trial court erred in awarding Robinson sanctions when Martinez refused to set aside his default, and in dismissing her claims for breach of contract and common counts. On both civil actions, Martinez argues the trial court erred in awarding postjudgment attorney fees to Robinson. In the family law action, Martinez argues the trial court erred: (1) in finding she misappropriated community funds and crediting Robinson with an equivalent amount; (2) in ordering her to admit certain requests for admissions; (3) in its award of Watts credits; (4) when it denied her pretrial motion to permit inspection and appraisal of the home; and (5) when it denied her request for attorney fees. Finding no merit to Martinez's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Martinez and Robinson married in March 2006 and separated on May 1, 2011. Martinez petitioned for dissolution of the marriage to Robinson in June 2011 in Tuolumne County Superior Court (the family law action). Before Martinez and Robinson separated, Martinez had an affair with Jeff Carter which she kept secret from Robinson. Martinez purchased a mobile home in August 2010 so Carter could live there, and she gave him and his relatives over $30,000 in cash.
We note Martinez is identified in the family law action as Victorea T. Martinez or Vikii Martinez. In the Tuolumne civil action, she is identified as Vicki T. Martinez. In the Contra Costa civil action, she is identified as "Vicki T. Martinez a/k/a Vicki Theresa Martinez a/k/a Victorea Martinez a/k/a Vikii T. Martinez."
In 1997, nearly nine years before their marriage, Martinez and Robinson purchased a home on Rain Cloud Drive in El Sobrante, in Contra Costa County (the Rain Cloud property), holding title to the property as joint tenants. The couple borrowed $200,000 of the purchase price from Martinez's parents, James and Antoinette Martinez. The parties executed an installment note, which required Martinez and Robinson to make equal payments to Martinez's parents from July 1997 through June 2017 (the note). The note was secured by a deed of trust on the Rain Cloud property which listed Martinez's parents as beneficiaries and Martinez and Robinson as trustors. When Martinez's father passed away in November 1999, Martinez's mother assigned the note and deed of trust on the Rain Cloud property to herself and Martinez as joint tenants. Martinez's mother passed away in November 2005. In August 2011, the family law court awarded Robinson exclusive possession of the Rain Cloud property.
In September 2017, Martinez notified Robinson he was in default on the note and demanded payment of half of the balance due. Two months later, Robinson filed a civil action against Martinez in Contra Costa County Superior Court to quiet title to the Rain Cloud property and for declaratory relief (the Contra Costa civil action). Robinson sought to remove the deed of trust encumbering the Rain Cloud property held by Martinez under the doctrine of merger, and a judicial determination that any claim against him on the note secured by the deed of trust is unenforceable.
Upon learning of that filing, the family court determined the Contra Costa civil action should be tried in Tuolumne County.
In January 2018, Martinez, representing herself, filed a civil action against Robinson for breach of contract and common counts in Tuolumne County Superior Court (the Tuolumne civil action). Martinez alleged Robinson breached the note when he stopped making monthly payments in August 2005 and he owed her $95,033.21 in unpaid principal and interest, which was due and payable in June 2017.
The Tuolumne civil action came to the family court's attention at a February 2018 review hearing. The court ordered the Tuolumne civil action consolidated with the family law action for purposes of trial.
A trial setting conference was held in July 2018. The trial court set an October 22, 2018 trial date, ruled on earlier filed in limine motions, and continued the hearing to review consolidation of the Contra Costa civil action, which it ultimately granted. In the formal order granting the motion to transfer and consolidate the Contra Costa civil action for trial, the trial court ordered the Contra Costa civil case transferred to Tuolumne County Superior Court to be tried with the other two actions and responsive pleadings in the two civil actions to be filed by August 15, 2018.
Martinez applied for and obtained Robinson's default in the Tuolumne civil action on September 12, 2018. One month later, Robinson filed an ex parte application to set aside the default and for sanctions.
A four-day bench trial of the three actions began on October 22, 2018 and concluded on October 29, 2018. Witness testimony was taken, and documentary exhibits were entered into evidence. The proceedings apparently were not recorded. On the first day of trial, the trial court granted Robinson's application to set aside the default in the Tuolumne civil action, deemed Robinson's general denial filed, and imposed $1,870 in sanctions against Martinez under Code of Civil Procedure section 128.5 for taking the default without communicating with Robinson's attorneys and refusing to vacate the default after the issue was raised despite her apparent agreement to do so. The trial court also denied Martinez's motion for a late appraisal.
While Martinez was represented by Attorney David Axelrod in the family law action, she represented herself in the Contra Costa and Tuolumne civil actions.
Undesignated statutory references are to the Code of Civil Procedure.
Thirteen issues were submitted to the trial court for decision. After conclusion of the evidence, the parties submitted posttrial briefs. The trial court subsequently issued a tentative decision on the 13 issues. Martinez requested a statement of decision, correction, and reconsideration, while Robinson requested revisions to the tentative decision. The trial court granted Robinson's requested revisions and adopted the revised tentative decision as its statement of decision.
A judgment was entered in the family law action on April 10, 2019, which incorporated the statement of decision's findings (the family law judgment). The family law judgment required Robinson to prepare separate judgments on the Contra Costa and Tuolumne civil actions, which were filed on July 3, 2019. After briefing was completed, we ordered the three appeals consolidated for purposes of oral argument and decision.
DISCUSSION
I. THE STANDARD OF REVIEW AND ADEQUACY OF APPELLATE RECORD
"In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.)
"It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility. [Citation.] 'A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.' [Citation.] Specifically, '[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision.'" (Thompson v. Asimos, supra, 6 Cal.App.5th at p. 981.) If an appellant fails to bring ambiguities and omissions in the statement of decision's factual findings to the trial court's attention, "the reviewing court will infer the trial court made every implied factual finding necessary to uphold its decision, even on issues not addressed in the statement of decision." (Faldeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 48.)
We have a limited record of the trial court proceedings, since Martinez elected to proceed on appeal without a reporter's transcript of the trial or a suitable substitute, such as an agreed or settled statement. It is an appellant's burden "to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)" 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." '" (Id. at p. 609.)
As the appellant, Martinez is required to provide either a reporter's transcript, an agreed statement, or a settled statement if she "intends to raise any issue that requires consideration of the oral proceedings in the superior court . . . ." (Cal. Rules of Court, rule 8.120(b).) While a reporter's transcript may not be necessary if the appeal involves legal issues requiring de novo review, where the standard of review is substantial evidence or abuse of discretion, a reporter's transcript or an agreed or settled statement is usually "indispensible" to appellate review. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992; Flannery, supra, at p. 483.)
With these principles in mind, we consider Martinez's claims of error.
II. THE CONTRA COSTA CIVIL ACTION
In the Contra Costa civil action, Robinson asserted title to the Rain Cloud Property should be quieted by expunging the deed of trust encumbering the property under the doctrine of merger. Robinson alleged Martinez, whose mother added her to the note and deed of trust after her father's death, became both the creditor and debtor under the note and the beneficiary and trustor under the deed of trust following her mother's death, therefore her rights and obligations as beneficiary and trustor merged into her underlying fee interest and the note and deed of trust were extinguished.
A. Martinez's Demurrer
After the Contra Costa civil action was ordered consolidated with the other two actions, Martinez demurrered to the complaint, which was set for hearing on October 1, 2018. She argued Robinson's quiet title and declaratory relief actions failed to state facts for relief because they failed to set forth the person or entity claiming the title sought to be quieted, and the complaint could not be amended to cure the defect because the Rain Cloud property was held in joint tenancy and funded in part by community property assets and the indebtedness through the note. Martinez further argued no cognizable basis existed to grant declaratory relief on the points enumerated in the complaint. In her conclusion, Martinez asserted the complaint was barred by section 430.10, subdivision (c) because another action was pending between the same parties on the same cause of action.
While Robinson filed an opposition to the demurrer, it does not appear in the record. In her reply, Martinez addressed arguments in Robinson's opposition and asserted: (1) the demurrer was timely noticed and set for hearing; (2) Robinson failed to address or correct deficiencies in the quiet title claim; and (3) Robinson's assertion that Martinez failed to meet and confer regarding the demurrer was meritless. Martinez claimed both she and her attorney communicated to Robinson the Contra Costa civil action should be abated and dismissed under section 430.10, subdivision (c).
On the first day of trial, October 22, 2018, the trial court overruled the demurrer. The minute order states: "Demurrer - is overruled, all previous ruling[s] and orders stand." The minute order indicates Martinez's attorney was not present when the hearing convened at 8:40 a.m. and that he arrived at 9:10 a.m.
On appeal, Martinez argues the trial court should have abated and dismissed the Contra Costa civil action under section 430.10, subdivision (c) and Leadford v. Leadford (1992) 6 Cal.App.4th 571. Martinez further argues the quiet title action was defective because (1) it does not set forth the person or entity claiming the title sought to be quieted, as required by section 761.020, and the defects cannot be corrected by amendment, and (2) it refers to a purported omission in Martinez's schedule of assets and debts filed in the family law case as further confirmation the note was forgiven, but that document was superseded by Martinez's amended schedule of assets and debts. Finally, Martinez asserts the trial court should have conducted a hearing on the demurrer. She claims the trial court postponed the October 1, 2018 demurrer hearing date without setting a new date and instead simply announced on October 22, 2018, that it overruled the demurrer without permitting oral argument.
Because our review of the trial court's ruling on a demurrer is de novo, it is essential that the record on appeal include all documents necessary to consider Martinez's demurrer. (See, e.g., Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Cal. Rules of Court, rules 8.122(b)(3), 8.124(b)(1)(B).) Here, the record does not include Robinson's opposition, or a reporter's transcript, or suitable substitute, of the October 22, 2018 court proceedings. It was Martinez's duty to "present a complete record for appellate review, and in the absence of a required reporter's transcript or other documents, we presume the judgment is correct." (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039; see also Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 (Foust).) "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)
The record of the proceedings on the demurrer is both incomplete and one-sided, presenting only Martinez's argument below and no information regarding Robinson's opposition or what occurred when the trial court ruled on the demurrer, other than what the minute order stated. A record is inadequate, resulting in the appellant's default," 'if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.'" (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) Without Robinson's opposition, we do not know whether he raised meritorious arguments that show the trial court properly overruled the demurrer. Moreover, without a record of the proceedings, there is no basis for reviewing Martinez's claim she was improperly denied a hearing on the demurrer. Accordingly, the issues Martinez raises must be resolved against her.
B. Enforceability of the Note and Deed of Trust
The parties asked the trial court to decide the merger issue as it affected the family law action. During this phase of the trial Martinez, Robinson and Martinez's brother, James Martinez, testified, and the grant deed, note, deed of trust, and settlement statement on the purchase of the property were entered into evidence.
The trial court found the following facts were undisputed. Martinez's parents originally held the note and deed of trust on the Rain Cloud property. On the death of Martinez's father in 1999, Martinez's mother added her to the note and deed of trust, with each holding an undivided one-half interest as joint tenants. When Martinez's mother died in 2005, Martinez became the sole owner of the note and deed of trust, for which Martinez and Robinson were liable. During her testimony, Martinez acknowledged she was jointly and severally liable with Robinson on the note. Finally, Martinez conceded at trial that her obligation on the debt was extinguished when she acquired the note and deed of trust on her mother's death because her obligation merged with her ownership of the debt.
The trial court noted Martinez contended the merger extinguished only one-half of the debt because her obligation on the note was for only one-half of the outstanding balance, while Robinson argued the entire debt was extinguished because he and Martinez were jointly and severally liable on the note. The trial court agreed with Robinson. Relying on Wilson v. McLaughlin (1937) 20 Cal.App.2d 608 (Wilson), the trial court found Martinez became both debtor and creditor for the same debt on her mother's death. The trial court reasoned that since Martinez and Robinson were jointly and severally liable for the balance due on the note, the entire debt merged with Martinez's ownership of the note and was extinguished. Therefore, the trial court found in Robinson's favor on his claims to quiet title and for declaratory relief. In the resulting judgment, the trial court discharged the lien arising under the deed of trust.
In valuing and disposing of the Rain Cloud property in the family law action, the trial court found the property's value was not subject to deduction based on the note, as the note was extinguished. The trial court deducted from the property's value Robinson's separate property contribution to the purchase price of the property along with his share of the property's appreciation and divided the remaining amount equally between the parties. The trial court awarded the property to Robinson subject to him paying Martinez her share of the equity in the property within 90 days of the date of entry of final judgment of dissolution of marriage. If Robinson was unable to pay, Martinez had the right to pay Robinson his share of the equity and obtain title and possession of the property.
According to the October 22, 2018 minute order of the trial, the attorneys stipulated the Rain Cloud property was community property.
1. The Doctrine of Merger
The doctrine of merger provides that whenever the same person holds a greater and lesser estate in the same parcel of real property, without an intermediate interest or estate, the lesser estate generally merges into the greater and is extinguished. (Sheldon v. La Brea Materials Co. (1932) 216 Cal. 686, 689-690 (Sheldon); Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 361 (Kolodge); 5 Miller & Starr, Cal. Real Estate (4th ed. June 2021) § 13:53.) When there is a real property loan evidenced by a promissory note secured by deed of trust, merger of the lien created by the deed of trust and ownership of the property in one person generally extinguishes the lien. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1235.) To effect a merger, "the whole title, legal as well as equitable title, must unite in one and the same person." (Estate of Washburn (1909) 11 Cal.App. 735, 746.)
A merger, however, "does not always follow the union of a greater and lesser estate in the same ownership." (Ito v. Schiller (1931) 213 Cal. 632, 635 (Ito).) Whether there has been a merger depends on the equities and the intent of the parties, which presents a question of fact. (Kolodge, supra, 88 Cal.App.4th at p. 362; Ito, supra, at p. 635.)" 'It is well established that equity will interpose to prevent a merger where from the circumstances it is apparent that it was not the intention of the grantee that a merger should take place; and where it appears to be for the interest of the grantee that there should be no merger of the lesser estate, such will be presumed to have been his intention.'" (Sheldon, supra, 216 Cal. at p. 691.) Thus, equity will prevent or permit a merger as will best subserve the interests of justice and the parties' intent, but in the absence of an expression of intent," 'if the interest of the person in whom the several estates have united, as shown from all the circumstances, would be best subserved by keeping them separate, the intent so to do will ordinarily be implied.'" (Ito, supra, 213 Cal. at pp. 635-636.) "While it is presumed that there is no merger where merger would work an inequity, the presumption against merger can be overcome by evidence that the parties intended a merger upon the union of two or more estates, and as to this question the person claiming merger has the burden of proof." (Kolodge, supra, 88 Cal.App.4th at p. 362.) Since intent is a factual question, our review is for substantial evidence. (Strike v. Trans-West Discount Corporation (1979) 92 Cal.App.3d 735, 743; Batten v. Kern (1936) 16 Cal.App.2d 414, 416.)
2. Analysis
On appeal, Martinez asserts the debt should be deemed merged only to the extent she owed herself half of the balance due on the note. She contends her inheritance was never intended to inure to Robinson's benefit and the partial merger of her interests has no effect on Robinson's debt. Martinez argues that on her mother's death, she inherited her mother's rights as creditor and solely assumed the right to collect Robinson's debt under the note, therefore merger should not be applied to interfere with her right to collect that debt or absolve Robinson of his obligation and grant him a financial windfall. Finally, she asserts since Robinson's debt was not extinguished, the trial court erroneously failed to deduct Robinson's outstanding obligation under the note when it divided the Rain Cloud property between the parties.
Both parties assert Wilson is instructive. In Wilson, Elon Nelson gave Anna Ivey six $5,000 promissory notes secured by a deed of trust on real property. Following Ivey's death, the six notes were distributed in equal shares to her two daughters, Birdinia Wilson and Maud Nelson, Elon Nelson's wife. Elon Nelson also conveyed the real property to his wife with her agreement to pay the entire $30,000 debt. (Wilson, supra, 20 Cal.App.2d at pp. 609, 610.) The trial court found by the deed to Mrs. Nelson, her interest as beneficiary under the trust deed merged in her title to the property and extinguished $15,000 of the debt, leaving Wilson the owner of notes with an unpaid balance of $15,000 secured by the deed of trust. (Id. at p. 609.)
The appellate court affirmed, explaining Mrs. Nelson's undivided interest as beneficiary under the trust deed merged in the fee title she received from her husband by operation of law. (Wilson, supra, 20 Cal.App.2d at p. 609 .) While the appellate court noted in many instances equity will intervene to prevent a merger when "some right or just advantage would be lost to the owner of the two estates if the lesser were merged in the greater," the court concluded that principle was inapplicable on these facts, as Mrs. Nelson became the principal debtor when she agreed to pay the entire balance. (Id. at pp. 610-611.) The appellate court "conclude[d] that when Mrs. Nelson, as creditor to the amount of $15,000, became her own debtor in that amount, the debt was extinguished to that extent and her beneficial interest in the property, founded upon that debt, merged in the title which she acquired from the trustor." (Id. at p. 611.)
Here, as in Wilson, Martinez's undivided interest as beneficiary under the deed of trust merged with her fee title by operation of law. Martinez does not disagree, but instead asserts it only merged as to half of the balance due on the note. However, as Robinson points out, Martinez conceded she and Robinson were jointly and severally liable on the note. "A joint and several contract is considered to be a contract that is made both separately with each promisor and jointly with all the promisors. [Citation.] Parties to a joint and several contract are thus bound jointly, so that they are liable for the entire obligation, and severally, so each may be sued separately for the entire loss." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 820.)
Martinez asserts she did not understand the import of her concession because she is not a lawyer, and "her concession, if any, simply amounted to the recognition that her debt to herself canceled out, and that her position as debtor merged with her position as creditor, but only as to her portion of community-property obligation owed pursuant to the Note." Litigants representing themselves, however, are held to the same standards as lawyers. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) Moreover, without a record of the proceedings we are left with the trial court's finding that Martinez conceded joint and several liability on the note, which we presume is correct and supported by the unreported record. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Since Martinez and Robinson each were liable for the entire balance of the note, when Martinez's beneficial interest merged with her title to the property, the entire debt was extinguished. Put another way, like Mrs. Nelson in Wilson, when Martinez, as debtor to the entire balance due on the note, became her own creditor in that amount, the debt was extinguished to that extent and her beneficial interest in the property, founded upon that debt, became merged in the title. (Wilson, supra, 20 Cal.App.2d at p. 611.)
Moreover, as Robinson points out, the assignment of a joint and several debt to one of the co-obligors extinguishes that debt; the assignment amounts to payment and the note evidencing that debt becomes of no further effect. (Great Western Bank v. Kong (2011) 90 Cal.App.4th 28, 32.) While the co-obligor to whom the note is assigned can bring a claim for equitable contribution under Civil Code section 1432 against a co-obligor who has not paid their share of the obligation (Great Western, supra, at p. 33), Martinez did not bring such a claim, but instead sued Robinson for breach of contract.
Martinez asserts in her opening brief, without citation to authority, that joint and several liability applies only to third parties and "cannot be employed affirmatively to grant a spouse in a dissolution action an interest in real property that he never possessed or contributed." We reject this argument because Martinez failed to support it with reasoned argument and citations to authority. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 945.) We are not bound to develop Martinez's argument for her;" '[t]he absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.'" (Ibid.)
Martinez contends a merger of the entire debt should not be presumed because otherwise she is deprived of her right to collect half the debt. Citing to the Wilson court's recognition that "equity will intervene to prevent a merger" where "some right or just advantage would be lost to the owner of the two estates if the lesser were merged in the greater" (Wilson, supra, 20 Cal.App.2d at p. 609), Martinez argues merger should not be applied where it interferes with "the lawful creditor's right to collect a debt" or "absolve[s] the debtor of his obligation so as to grant him an unearned financial windfall."
Martinez, however, ignores the presumption against merger can be overcome by evidence the parties intended a merger, which is a question of fact. (Kolodge, supra, 88 Cal.App.4th at p. 362; Strike v. Trans-West Discount Corporation, supra, 92 Cal.App.3d at p. 743.) Without a record of the proceedings, however, we presume the trial testimony would support an implied finding a merger was intended. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
For the first time in her reply brief, Martinez asserts separate property cannot be recharacterized as community property through merger. However, we do not consider arguments made for the first time on reply. (See High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2 ["New arguments may not be raised for the first time in an appellant's reply brief."]; Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487, fn. 4 ["An appellant's failure to raise an argument in the opening brief waives the issue on appeal."].)
In sum, Martinez has failed to satisfy her appellate burden of showing the trial court erred when it found the note secured by the deed of trust was extinguished under the doctrine of merger. Accordingly, we agree with Robinson there is no basis for overturning the trial court's decision on the claims raised in the Contra Costa civil action.
III. THE TUOLUMNE CIVIL ACTION
In the Tuolumne civil action, Martinez alleged Robinson breached the note when he stopped making monthly payments in August 2005 and she sought to recover unpaid principal and interest totaling $95,033.21 that was due and payable in June 2017. Martinez challenges two issues with respect to this action-the award of sanctions against her on Robinson's motion to set aside his default and the trial court's decision to find against her on the merits of her claims.
A. Sanctions on the Motion to Set Aside the Default
Months after the Tuolumne civil action was consolidated with the family law action, Martinez, acting in pro. per., requested entry of default against Robinson in the Tuolumne civil action, which the clerk entered in September 2018. The following month, Robinson filed an ex parte application to set aside the default and requested monetary sanctions against Martinez pursuant to section 128.5.
The trial court granted the application and request for sanctions. Martinez was sanctioned $1,870 under section 128.5 for taking the default without communicating with Robinson's attorneys and refusing to vacate the default despite her apparent agreement to do so. On appeal, Martinez challenges the award of sanctions. Robinson contends the issue of sanctions under section 128.5 is moot because during trial he agreed to forgive payment of the sanctions in exchange for Martinez stipulating to the admissibility of Robinson's expert's report on the valuation of the Rain Cloud property. We agree. The minute order states the parties stipulated "they agree not to call the appraiser as a witness and that they deem the sanctions as to the Order on the Default as satisfied for the petitioner and further that the Sanctions issues as to appraiser is recalled." Since the sanctions were deemed satisfied, a reversal of the sanctions order would provide no additional benefit to Martinez and therefore is moot. (See City of Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031 [a case is moot" 'when a court ruling can have no practical impact or cannot provide the parties effective relief' "].)
B. The Trial Court's Dismissal of Martinez's Claims
As to Martinez's breach of contract and common counts claims, the trial court found it was undisputed Martinez and Robinson made payments on the note until August 2005, three months before Martinez's mother died, and thereafter neither party made any further payments. Martinez testified that she did not demand payments from Robinson because she was afraid to talk to him. The trial court found that testimony suspect, since Martinez married Robinson on her former attorney's advice only seven months after the payments stopped. The trial court further found that despite Martinez's mother assigning her the note in November 1999, Robinson had no knowledge of the assignment until Martinez demanded he pay one-half of the payments due in 2017, after payments stopped.
Based on these findings, the trial court dismissed Martinez's breach of contract and common counts claims on the following grounds: (1) since it found the debt merged with the note and deed of trust when Martinez acquired it on her mother's death, there was no remaining debt subject to collection; (2) even if the debt was not extinguished by merger, Martinez's action to collect on the note was barred by the security-first rule (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 997-999; § 726); and (3) her claims were barred by the doctrine of unclean hands as Martinez failed to disclose she had become a co-owner of the note in 1999 and did not demand payment from Robinson until 2017.
On appeal, Martinez challenges each of these grounds for the trial court's decision. Martinez makes the same arguments against merger that she makes in the Contra Costa civil action, namely that Robinson should not be able to avoid his loan obligation and benefit from the right of survivorship she inherited from her mother which, on its face, was never intended to directly benefit him. Martinez asserts she was prevented from foreclosing on her security due to a standard restraining order that had been in force since the dissolution action was filed in 2011, Robinson's filing of the Contra Costa civil action, and the lis pendens Robinson filed shortly after receiving Martinez's demand for payment. Finally, she challenges the trial court's factual finding that Robinson had no knowledge of the assignment until Martinez demanded payment in 2017 and claims she had the legal right to wait until the note matured to collect the debt.
Because we have concluded Martinez has not shown error with respect to the trial court's finding the debt was extinguished under the doctrine of merger, we must uphold the trial court's finding against Martinez on her breach of contract and common counts claims on the ground that there is no debt to collect. Since this finding disposes of
Martinez's claims against Robinson, we do not address the alternate grounds upon which the trial court found her claims failed.
IV. ATTORNEY FEES AWARDED IN THE CONTRA COSTA AND TUOLUMNE CIVIL ACTIONS
In her briefs in the Contra Costa and Tuolumne civil actions, Martinez challenges attorney fee awards that apparently were made in Robinson's favor after the notices of appeal were filed in these cases. Notably, none of the documents pertaining to the fee awards, including the moving, opposition and reply papers, as well as the trial court's orders, are in the appellate record. According to Martinez, the motions were filed on September 13, 2019, and "backdated" to August 13, 2019, and an order granting the motions was filed on December 30, 2019. Martinez also claims competing motions for reconsideration were filed, which resulted in the trial court awarding Robinson additional attorney fees on March 3, 2020. Robinson contends we do not have jurisdiction to review Martinez's challenges because Martinez failed to file a notice of appeal from the postjudgment orders awarding attorney fees. We agree.
Appellate jurisdiction" 'is limited in scope to the notice of appeal and the judgment or order appealed from.'" (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.)" 'An appellate court has no jurisdiction to review an award of attorney fees made after entry of the judgment, unless the order is separately appealed.'" (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171.)" 'When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.'" (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) However, when a judgment awards attorney fees and costs to a prevailing party but leaves the amount of the award for later determination, a separate appeal from the postjudgment award is unnecessary as "the notice of appeal subsumes any later order setting the amounts of the award." (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)
Here, Martinez appealed from the judgments issued in the Contra Costa and Tuolumne civil actions. Neither judgment awarded Robinson attorney fees, therefore the attorney fee award is not subsumed in the notices of appeal. Thus, because Martinez did not file separate notices of appeal from the attorney fee award, we do not have jurisdiction to review her claims related to that award.
As Robinson points out, the notice of appeal in the Contra Costa civil action states that in addition to the judgment, Martinez is appealing: (1) an order after judgment under section 904.1, subdivision (a)(2), and (2) "[j]udgment and further orders after Contra Costa County Superior Court Case No. C17-02259 was duly transferred to Tuolumne County Superior Court as Case No. CV61903 and thereupon consolidated in Tuolumne Co. Superior Ct. Case No. FL 10741." We agree with Robinson that to the extent Martinez purports to appeal from the attorney fee award, it is premature.
"A notice of appeal filed after rendition of a judgment or statement of intended ruling but before entry of judgment may be treated as timely." (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691; see Cal. Rules of Court, rule 8.104(d)(1), (2).) Martinez, however, filed her notice of appeal in the Contra Costa civil action on August 22, 2019, well before the attorney fees motions were decided. Thus, the notice as it relates to the trial court's subsequent ruling on Robinson's attorney fees motions is untimely. (Silver, supra, at p. 691 [dismissing appeal from order awarding attorney fees for lack of jurisdiction where notice of appeal specified appeal was being taken from the trial court's order on a motion for attorney fees, but the trial court had not yet ruled on the motion].)
Since the postjudgment order awarding Robinson attorney fees was separately appealable, Martinez was required to file a separate, timely notice of appeal. Her failure to do so deprives this court of jurisdiction over her purported appeal from that order and requires dismissal of that portion of the appeal.
V. THE FAMILY LAW ACTION
Martinez challenges several rulings the trial court made with respect to the family law action, which we address below.
A. Martinez's Misuse of Community Property Funds
The trial court determined Martinez misused community funds when she purchased a mobile home for her "paramour" and gave community property cash to he and his relatives. Specifically, the trial court made the following findings. Martinez paid "$85,000 for the purchase the Peppermint Creek mobile home and an additional $38,000 was paid to the Carters in the form of checks, from checking accounts for Vik-Mar Accounting or Three Legged Dog Enterprises." The payments were made during the marriage, Martinez's community property earnings were regularly deposited into the accounts, and the payments were made for the benefit of Martinez's "admitted paramour, Jeff Carter (and his relatives)," as Martinez acquired the mobile home where "this paramour could reside" while keeping her affair with Mr. Carter secret from Robinson. The court found Martinez's testimony that the accounts contained her separate property funds was less than credible and she failed to overcome the presumption the accounts were community property, as they "included her community property earnings from Vik-Mar Accounting or Three Legged Dog Enterprises after marriage."
Based on these findings, the trial court determined Martinez violated her fiduciary obligation to the community in making the purchase and gifts as they were made without Robinson's knowledge or consent, and therefore she breached her fiduciary duty within the meaning of Family Code section 2602. The trial court therefore ordered Martinez to reimburse Robinson $123,000-the total of these expenditures.
On appeal, Martinez contends (1) the evidence does not support the trial court's conclusion community property funds were given to the Carters or used to buy a place for Mr. Carter to secretly reside in; (2) there is insufficient evidence she "deliberately misappropriated" the funds within the meaning of Family Code section 2062; (3) the trial court's finding she breached her fiduciary obligation to Robinson does not equate to deliberate misappropriation as required under Family Code section 2062; and (4) the trial court erred in awarding all of the money to Robinson rather than dividing it equally.
Although the trial court was obligated to divide the community estate equally, it had the discretion to make an unequal division of property if it found one spouse breached his or her fiduciary duty to the other. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 972-973 [risky investment assigned to spouse who made the investment in breach of fiduciary duty].) Moreover, Family Code section 2602 gives the trial court discretion to make "an additional award or offset against existing property . . . from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate." While the negligent mishandling of a community asset or debt will not support an unequal division under Family Code section 2602, a spouse's breach of fiduciary duty in the management and control of community property may warrant an unequal allocation of community property. (Hogoboom & King, Cal. Practice Guide, Family Law (Rutter Group 2021) ¶ 8:1016, p. 8-352, citing Fam. Code, §§ 721, subd. (b), 1100, 1102, and Marriage of Quay, supra, at pp. 972-973.)
As the first two contentions of error involve the sufficiency of the evidence to support the trial court's factual findings, without a reporter's transcript or suitable substitute we cannot undertake a meaningful review of Martinez's arguments, since we must presume the trial testimony supports the trial court's factual findings. (Foust, supra, 198 Cal.App.4th at p. 187.) Martinez asserts there is no evidence to contradict her testimony the funds in the two accounts were her separate property, the trial court failed to discern what proportion of her separate accounts was composed of community property funds, and there is no evidence she understood or believed the funds were anything other than her separate property. Martinez, however, provides nothing to rebut the trial court's findings the funds were community property which she used during the marriage without Robinson's knowledge for purposes that did not benefit the community. She points only to two purported trial exhibits that are not in the appellate record and Robinson's deposition testimony, which was attached to her declaration filed a year before trial that does not appear to have been admitted as evidence at trial. Martinez essentially wants this court to reevaluate her credibility and reweigh the evidence presented below but we can do neither. (Id. at pp. 187-188.)
As to whether breach of fiduciary duty may amount to deliberate misappropriation within the meaning of Family Code section 2602, we agree with Robinson that it may. Here, the trial court found Martinez breached her fiduciary duty when she purchased a home for Mr. Carter, and gave him and his relatives cash, without Robinson's knowledge or consent. This was a breach of her fiduciary duty under Family Code section 721, subdivision (b)(3), which imposes on spouses a fiduciary duty to "hold[] as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property." While Martinez claims she honestly believed the funds were her separate property, the trial court found otherwise when it rejected her testimony as incredible. Since we do not have a transcript of the trial proceedings, it is impossible to determine whether substantial evidence supports the trial court's implied finding that Martinez's breach of fiduciary duty amounted to a deliberate misappropriation of community property.
Finally, Martinez contends the trial court abused its discretion when it ordered her to reimburse him the entire amount of the payments rather than dividing that amount equally. But under Family Code section 2602 "courts are not always required to divide community property equally." (Marriage of Economou (1990) 224 Cal.App.3d 1466, 1483, citing Civ. Code, § 4800, subd. (b)(2), the predecessor to Fam. Code, § 2602.) Thus, the trial court had discretion to order Martinez to reimburse Robinson not only his half of the payments from community property but also her half as an additional award or offset against her share of the community property. (Fam. Code, § 2602.) And given the lack of a transcript of the proceedings, we must presume testimony or other evidence adduced at trial would support the trial court's decision to award the entire amount to Robinson.
Martinez argues for the first time in her reply brief the word "share" in Family Code section 2602 has "some ambiguity" and may refer only to the funds in question rather than her share of the community property assets. As we have stated, we do not consider arguments made for the first time in the reply brief. (See High Sierra Rural Alliance v. County of Plumas, supra, 29 Cal.App.5th at p. 111, fn. 2.)
B. The Requests for Admission
Martinez contends the trial court erred by issuing an order that required her to admit certain requests for admission after it granted Robinson's motion to compel further responses, which also sought monetary sanctions. We cannot review her claim of error, however, because she has not provided us with an adequate record to do so.
The only pertinent documents in the record are Robinson's notice of motion; Robinson's reply brief in support of the motion; and a minute order which stated the motion to compel was granted, reserved ruling on a request for sanctions, and set deadlines for submission of orders and further responses. The record also contains Martinez's amended response to request for admissions. Notably, the record does not include the motion's supporting papers, which included a memorandum of points and authorities, an attorney declaration, and a separate statement of interrogatories and answers; Martinez's opposition; and the written order. In addition, there is no record of the proceedings that shows the colloquy at the hearing on this matter.
Martinez purports to base her request for review on a written order issued on a companion motion to compel further responses to form and special interrogatories, which includes an order that Martinez "need not provide a further response to Form
Interrogatory No. 17.1 as to Requests for Admission 10, 11, 14, 15, 20 and 21, given the Order Granting Motion to Compel Further Responses to Request for Admission and for Monetary Sanctions, entered contemporaneously herewith, [] specifically requires that [Martinez] unequivocally admit Requests for Admission 10, 11, 14, 15, 20 and 21."
While this order suggests the order granting the requests of admissions required Martinez to admit at least some requests for admission, without all the motion papers as well as a record of the trial court's ruling and reasoning, we cannot say the trial court erred and we are required to resolve this issue against her. (See Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [where a "party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him"]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
C. Possession of Rain Cloud Property and Watts Credits
In July 2011, the trial court granted Robinson exclusive possession of the Rain Cloud property effective August 9, 2011. As framed by the trial court in the family law judgment, Martinez sought an order requiring Robinson to reimburse the community for his exclusive use of the property from the date of separation, May 1, 2011, to the date of trial, pursuant to Watts, supra, 171 Cal.App.3d 366. The trial court found it was undisputed Robinson had exclusive use and possession of the Rain Cloud property for about seven years, from April 11, 2011 to October 22, 2018, and the average annual fair market rental value of the property for each of those seven years was $38,417, with an average monthly fair market rental value of $3,201.43. The trial court thus found the total fair market value of the property while Robinson occupied it was $268,920, which entitled Martinez to be reimbursed for one-half of that amount, $134,460.
Martinez asks us to extend the period of liability for Watts credits to include the entire period of Robinson's possession of the Rain Cloud property, from the date of separation until the property is sold. She asserts that while the appellate court in Watts concluded the trial court there erred in concluding it had no authority to reimburse the community for the "exclusive use of the family residence and the medical practice between the date of separation and the date of trial" (Watts, supra, 171 Cal.App.3d at p. 374), the date of trial is not the outer limit for calculating the reimbursement.
Trial courts are afforded wide discretion to fashion appropriate solutions to equalize property distribution in dissolution proceedings. (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) As part of that discretion," '[w]here one spouse has the exclusive use of a community asset during the period between separation and trial, '" the court may require that spouse" 'to compensate the community for the reasonable value of that use.'" (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978.) This compensation, "commonly known as a 'Watts charge, '" is used in the calculation for dividing community property. (Ibid.; see Watts, supra, 171 Cal.App.3d at pp. 373-374.) Watts charges are in essence" 'usage charges.'" (In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552.)
Here, while the trial court stated Watts credits were requested up to the time of trial, in awarding seven years of credits the trial court awarded credits up to the issuance of the April 2019 judgment. Thus, the trial court did not err in calculating the reimbursement Martinez was entitled to under Watts. As for credits for possession of the Rain Cloud property after entry of judgment, we note that in In re Marriage of Jeffries, supra, 228 Cal.App.3d 552, the appellate court recognized Watts charges could be assessed when one party had exclusive use of the family home from the date of separation until the date" 'the community itself no longer held an interest in the residence.'" (Marriage of Jeffries, supra, at p. 552.) As the community has an interest in the Rain Cloud property until one party purchases the other's share or the property is sold, Watts charges could be assessed up to that point. As the trial court retained jurisdiction over the Rain Cloud property until its final disposition, entitlement to and calculation of postjudgment Watts charges is properly addressed to the trial court.
Martinez also asserts the trial court erroneously stayed further action on the disposition of the Rain Cloud property pending this appeal. As explained in section VI. B, infra, we have taken judicial notice of the trial court's July 24, 2019, ruling on numerous issues, including Robinson's request to extend his payment due date and clarifying consolidation of the civil cases was for trial only. There, the trial court explained that while Robinson sought an order extending the time for him to pay Martinez her equity in the Rain Cloud property, he argued the issue was moot since the notices of appeal Martinez filed in the three cases automatically stayed all actions to enforce the judgment pursuant to section 916, subdivision (a). The trial court agreed and denied Robinson's request to extend the due date without prejudice pending the outcome of the appeal.
Martinez argues the order calling for the disposition of the Rain Cloud property contained in the family law judgment was not an issue on appeal and therefore that aspect of the judgment was not subject to the automatic stay. The appellate record, however, does not contain the documents filed in support of and opposition to Robinson's motion or a reporter's transcript of the hearing. Without the documents and a transcript of the hearing, we cannot review Martinez's claim of error. (Stasz v. Eisenberg, supra, 190 Cal.App.4th at p. 1039.)
Moreover, the trial court properly stayed either party's effort to dispose of the Rain Cloud property because that would directly seek to enforce the appealed judgment. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189-190 [a proceeding should be stayed under section 916 if the trial court proceeding "directly or indirectly seek[s] to 'enforce, vacate or modify [the] appealed judgment or order' "].)
D. Martinez's Motion for Inspection and Appraisal
The trial court found the value of the Rain Cloud property as of the trial date was $700,000 based on the report of Robinson's appraiser, Ed Moran. In reaching this decision, the trial court noted Martinez did not present expert testimony on the issue of value, although she "testified that based on her review of unidentified[] 'comparable sales' in the area, the property was worth approximately $800,000."
On appeal, Martinez contends the trial court erred when it denied her pretrial motion to permit an inspection and appraisal of the Rain Cloud property by a licensed appraiser she retained. Martinez asserts the trial court denied the motion because it was beyond the discovery deadline and argues access to her own property cannot be deemed discovery. We must reject Martinez's arguments, however, because she failed to provide an adequate record to review her claims of error since, as Martinez concedes, the record does contain the motion, order to show cause, or order denying her motion. Absent these documents, or a reporter's transcript of the hearing on this motion, we do not have a record upon which we may base our review. (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [error cannot be presumed from an incomplete record]; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 ["if it is not in the record, it did not happen"].)
E. Denial of Martinez's Request for Attorney Fees
Finally, Martinez contends the trial court erred when it denied her request for Robinson to pay her attorney fees in the family law action. As the basis of this request, she notes she checked the box in her 2011 petition for dissolution requesting the court to order Robinson to pay her attorney fees and costs, and she requested attorney fees and costs in her April 2017 request for order concerning the division of the Rain Cloud property, although she did not complete the section concerning the amount of fees and costs requested or attach evidence to support her request. While Martinez claims she submitted income and expense declarations in support of attorney fees, she fails to cite to any such documents in the record.
In ruling on Martinez's request for attorney fees and costs, the trial court stated it heard no evidence on the issue of attorney fees and Martinez's posttrial brief merely stated attorney fees should be awarded to her "because her income is less than [Robinson]'s based upon her Income and Expense Declaration and 'other available evidence.'" The trial court further stated there was no request for a specific amount of attorney fees nor a breakdown of the actual fees Martinez incurred other than what was set forth in her income and expense declaration. Accordingly, the trial court denied Martinez's request for attorney fees.
On appeal, Martinez asserts the trial court erred in denying her attorney fees request "[d]espite the information provided by the Income and Expense Declarations." Martinez complains the trial court awarded attorney fees to Robinson for work done in the family law action when it awarded attorney fees in the Contra Costa and Tuolumne civil actions even though he did not request such an award. She argues the question of attorney fees should be reconsidered and she should be allowed to submit evidence to support an award of attorney fees to herself.
Pursuant to Family Code sections 2030 and 2032, a trial court" 'may award attorney fees and costs "between the parties based on their relative circumstances in order to ensure parity of legal representation in the action." '" (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 272.) But before it grants an attorney fee request, the court "must have some evidence that the moving party needs the money." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824.)" 'The burden of establishing such necessity is upon the [moving party].'" (Ibid.) Moreover, the court cannot award attorney fees "[w]ithout ascertaining whether or at what hourly rate the work for which reimbursement was sought was actually done," and whether "the work was 'reasonably necessary' in light of the issues in the case." (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 867.) We review a decision to deny an attorney fee motion for abuse of discretion. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.)
Martinez has not shown the trial court abused its discretion in denying her request for attorney fees. Martinez does not point us to any evidence to contradict the trial court's findings that it heard no evidence on the issue of attorney fees and she failed to request a specific amount of fees or provide a breakdown of the actual fees incurred. Pursuant to California Rules of Court, rule 5.427(b)(2), "[t]he party requesting attorney's fees and costs must provide the court with sufficient information about the attorney's hourly billing rate; the nature of the litigation; the attorney's experience in the particular type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable." Martinez's conclusory request for attorney fees was insufficient to warrant an award of attorney fees and costs and she has failed to affirmatively demonstrate the trial court abused its discretion in denying her request for attorney fees.
VI. MOTIONS ON APPEAL
During the pendency of these appeals, the parties filed several motions that we deferred ruling on. We address these in turn.
A. Robinson's Motions to Correct the Record
After the clerk's transcripts were prepared in the family law action and Tuolumne civil action, Robinson filed a motion in each action to correct the record on appeal pursuant to California Rule of Court, rule 8.155(c), which allows the appellate court to order correction of any part of the record.
In his "Amended Motion to Correct Record on Appeal," filed in the appeal from the family law action on October 4, 2019, and his "Motion to Correct Record on Appeal" filed in the appeal from the Tuolumne civil action on October 15, 2019, Robinson asks us to strike certain documents that were included in the clerk's transcripts in those appeals. Robinson contends documents were "erroneously included" because they failed to meet the requirements of California Rules of Court, rule 8.122(b)(2), as they either (1) were not filed or lodged in the family law action or the Tuolumne civil action, or not identified in Martinez's notice designating the record on appeal, or (2) were trial exhibits that were neither admitted, refused, nor lodged with the trial court in either action. Robinson asserts he filed written objections to Martinez's notices designating the record on appeal in the trial court before the clerk's transcripts were submitted to this court, which he asks us to take judicial notice of, but the trial court did not act on the objections.
We deny both motions to correct the clerk's transcripts, along with the accompanying requests for judicial notice, as we have consolidated the three actions. Moreover, Robinson has not shown any prejudice from the inclusion of these documents in the clerk's transcripts since we advised him that he could raise any of his arguments on the erroneous inclusion of documents in his respondent's briefs should Martinez rely on those documents. Finally, we note in her opening briefs in the Contra Costa and Tuolumne civil actions Martinez refers to documents that are not in the record of those appeals, but rather are in the family law action's clerk's transcript. Martinez asks us to take judicial notice of the record of the family law clerk's transcript in the civil actions. While Robinson objects, we grant the request to explain events pertinent to all the appeals. (Evid. Code, §§ 452, subd. (d), 453.)
B. The Motion for Partial Dismissal and Requests for Judicial Notice
On April 17, 2020, Robinson filed a "Motion for Partial Dismissal of Appeal" in the family law action in which he asks us to dismiss certain issues Martinez raised in her opening brief, arguing some are irrelevant to the family law action and others are unsupported by the record. In support of the motion, Robinson filed a request for judicial notice, in which he asks us to take judicial notice of a July 24, 2019 trial court order, which he asserts shows the three actions were consolidated only for trial. Nineteen days later, Martinez filed a late opposition (See Cal. Rules of Court, rule 8.54(a)(3) [any opposition must be filed within 15 days after motion is filed]) and his own request for judicial notice of the trial court's July 30, 2018 order granting Robinson's motion for transfer and consolidation of the Contra Costa civil action, which Robinson objects to.
Robinson concedes in his respondent's brief filed in the family law action our subsequent consolidation of the three appeals makes his motion moot to the extent he argues issues arising out of the two civil actions are not properly before this court on appeal of the family law action. As for Robinson's request to dismiss arguments Martinez raises because they are not supported by the record, we have addressed those contentions above. Accordingly, we deny Robinson's motion for partial dismissal, but we grant both Robinson's and Martinez's requests for judicial notice, as those documents are clearly relevant to these appeals.
C. The Motion for Sanctions
On June 15, 2020, Robinson filed a motion for sanctions in the appeal from the family law action in which he asks us to impose monetary sanctions against Martinez and her attorney for: (1) violating the provisions of California Rule of Court, rule 8.204(e)(2)(B) by increasing the length of Martinez's opening brief from 32 to 73 pages "in response to the Court's order allowing them to refile the AOB only to address their non-compliance with California Rules of Court (with sanctions sought under California Rule of Court 8.276(a) and 8.492)"; and (2) violating our order denying her motion for consolidation of the three appeals, yet briefing issues in the opening brief arising from all three matters (with sanctions sought under section 177.5).
Robinson explains Martinez submitted her opening brief in the family law action on the last day it was due, March 18, 2020. The next day, on March 19, 2020, we returned the opening brief for non-conformance. Our docket states three separate documents were rejected through "TrueFiling (AOB)" as follows: the document needed to be bookmarked and numbered consecutively only using Arabic numbers; the table of contents would need to be corrected to reflect the correct pages; and separate documents could not be submitted that only included the table of contents. Thereafter, Martinez attempted to submit a new opening brief three times-on March 20, 23, and 24, 2020- but we rejected each brief through TrueFiling for non-conformance. Martinez's opening brief finally was filed on March 26, 2020.
On March 23, 2020, we received a letter from Robinson's attorney objecting that the opening brief submitted that day increased to 63 pages from the 32-page brief that was originally rejected, and it included new issues. Noting that the opening brief submitted that day also had been rejected for non-conformance, Robinson's attorney asked us to "order that any further iterations of the AOB submitted for filing mirror the original AOB submitted on March 18, 2020, save only for corrective measures undertaken to bring it into conformity with the Court's Rules and the California Rules of Court, as indicated by the Court in its rejection notice." On March 26, 2020, the deputy clerk sent Robinson's attorney a letter stating we were unable to grant his request as "[w]e do not retain copies of the briefs that we reject, so we have no means to compare the briefs."
On the first issue, Robinson asserts Martinez and her attorney violated California Rule of Court, rule 8.204(e)(2)(B), by "knowingly submitting iterations" of the first submitted brief "that were far more than technical corrections . . . in violation of the Court's Order" rejecting the original opening brief. Robinson further asserts that when a party violates the rules of court, sanctions may be imposed under California Rules of Court, rule 8.276(a)(4) for "[c]omitting any other unreasonable violation of these rules." Robinson argues the violation's unreasonableness is self-evident, as granting time to correct formatting issues does not give the appellant carte blanche to wholly rework and double in size the originally submitted brief. Robinson asks us to impose sanctions against Martinez and her attorney, jointly and severally, in the amount of $12,571.81, which includes the fees incurred in drafting the motion for sanctions and one-third of the fees incurred in drafting the motion for partial dismissal and the respondent's brief, as well as the fees incurred in drafting the motion for sanctions.
In support of his motion, Robinson asks us to take judicial notice of the opening brief Martinez's attorney submitted for filing on March 18, 2020, and the opening brief served on Robinson's attorney and submitted for filing on March 25, 2020, which is dated March 23, 2020. We grant the request.
While California Rules of Court, rule 8.276(a)(4) allows us to impose sanctions against a party or attorney for committing an unreasonable violation of the rules of court, Robinson does not point us to any rule of court or court order Martinez and her attorney violated when they filed a brief that differed from the brief they originally submitted. Robinson argues they violated California Rules of Court, rule 8.204(e)(2)(B), which provides that if a brief does not comply with California Rules of Court, rule 8.204, "[i]f the brief is filed, the reviewing court may, on its own or a party's motion, with or without notice: [¶] … [¶] (B) Strike the brief with leave to file a new brief within a specified time[.]"
This rule is inapplicable, however, because the non-conforming briefs were never filed or stricken. Instead, the briefs were rejected as provided in California Rules of Court, rule 8.204(e)(1): "If a brief does not comply with this rule: [¶] (1) The reviewing court clerk may decline to file it, but must a mark it 'received but not filed' and return it to the party." That is what occurred here. Neither this rule, nor our advisement to Martinez that the brief needed certain corrections before it could be accepted for filing, state that a brief that is not filed cannot be rewritten or added to before being resubmitted.
Robinson also urges us to impose sanctions payable to this court under section 177.5 because Martinez and her counsel disregarded our order denying Martinez's motion to consolidate the three appeals by briefing issues in the family law action's opening brief that pertained to the two civil actions. Section 177.5 allows a judicial officer to impose reasonably monetary sanctions not exceeding $1,500 payable to the court "for any violation of a lawful court order by a person, done without good cause or substantial justification." Since we have consolidated the cases on our own motion, we decline the invitation. Accordingly, we deny the motion for sanctions.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Robinson.
WE CONCUR: LEVY, ACTING P. J., DETJEN, J.