Opinion
E073891
02-23-2021
In re the Marriage of SUSAN AND HENRY RANDAZZO. SUSAN RANDAZZO, Appellant, v. HENRY RANDAZZO, an Incompetent Person, etc., Respondent.
La Quinta Law Group and Timothy L. Ewanyshyn for Appellant. Sheila A. Williams, Laura J. Fuller and Anthony J. Prieto for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. IND1700251) OPINION APPEAL from the Superior Court of Riverside County. Kristi Hester, Commissioner. Affirmed. La Quinta Law Group and Timothy L. Ewanyshyn for Appellant. Sheila A. Williams, Laura J. Fuller and Anthony J. Prieto for Respondent.
After almost nine years of marriage, Susan Randazzo petitioned to dissolve her marriage to Henry Randazzo. Nearly two years later, Susan and Henry attended mediation and executed a settlement agreement pursuant to Code of Civil Procedure section 664.6. Susan refused to sign a stipulated judgment thereafter, so Henry moved to enforce the parties' settlement agreement. The trial court granted the motion over Susan's objection and entered judgment. Susan then unsuccessfully moved to set aside the judgment largely on the basis of the same arguments she had made in opposition to enforcing the agreement. The trial court ordered sanctions against her.
Because the parties have the same last name, we refer to them by their first names only. No disrespect is intended.
On appeal, Susan contends that the trial court erred by entering judgment based on the parties' settlement agreement and by denying her subsequent motion to set aside the judgment. She further challenges the trial court's order of sanctions. Because none of Susan's contentions has merit, we affirm.
BACKGROUND
In March 2019, Henry requested that the trial court enter judgment pursuant to Code of Civil Procedure section 664.6 based on the parties' settlement agreement entered on January 2, 2019. The settlement agreement was entered after an approximately 12-hour mediation. In attendance at the mediation were Susan, Henry, Park Randazzo (Henry's son and guardian-ad-litem), the parties' attorneys, and the parties' forensic accountants. Susan, Park, and their respective attorneys all signed the agreement, and the agreement expressly stated that it was enforceable pursuant to Code of Civil Procedure section 664.6. The agreement provided that Henry's attorney would prepare the judgment and any related documents.
In her opening brief, Susan falsely claims, without citation to the record, that "the Marital Settlement Agreement (herein 'MSA') drafted to memorialize the parties' agreement was not signed by both parties." (Italics added.)
Henry's attorney prepared a stipulated judgment on reserved issues and forwarded that document to Susan's attorney. Susan's attorney requested some changes, and Henry's attorney made them. Susan did not sign the amended version of the stipulated judgment. In early March 2019, Susan's attorney who attended the mediation informed Henry's attorney that Susan had fired her and hired a new attorney.
Susan opposed entry of judgment on the settlement agreement. She claimed that "there remained substantial marital assets in the possession and control of [Henry] that had been omitted from [their] settlement agreement." She listed those assets as including (1) accounts from SEG, Scottrade, Charles Schwab, and Fidelity Investment; (2) settlement proceeds from Accounts Receivable Technologies; (3) airline miles; and (4) a 25 percent interest in DDAH, a company owned by Henry, that purportedly was sold during the dissolution proceedings. Susan additionally claimed that Henry had concealed "much more" but concluded that the list of purportedly undisclosed assets "should demonstrate that the concealment of assets has been substantial." The only evidence Susan submitted in support of her claim, aside from counsels' postsettlement letters to one another, was a three-page summary of brokerage accounts Henry's counsel had provided Susan's counsel in an attempt to demonstrate that there were not any undisclosed accounts.
Park submitted a reply declaration with 100 pages of attached documentary exhibits. In his reply, Park detailed, along with accompanying evidence, the tracing of the funds from the accounts identified by Susan, and he explained how those assets actually had been included in the settlement agreement. Park claimed to be unaware of any settlement received from Accounts Receivable Technologies, and he explained what had happened with the airline miles. With respect to Henry's ownership interest in DDAH, Park claimed that when Susan and Henry separated Henry had already sold a 25 percent interest in DDAH and owned only a 75 percent interest.
At a hearing on the motion to enforce the settlement agreement in May 2019, the trial court granted Henry's request to enter judgment pursuant to the parties' agreement. The court found that all of the allegedly omitted assets "were addressed and included in the settlement negotiations."
Susan then moved to set aside the judgment under Family Code section 2122 (further unlabeled statutory references are to this code), claiming that Henry "fail[ed] to provide full and complete disclosure of assets and debts," as required under section 2107. She detailed the assets that she claimed were not disclosed, and she attached 18 pages of accompanying exhibits. Most of the claimed nondisclosed assets were the same ones that she had complained about before judgment was entered. Susan also claimed that Henry failed to disclose additional assets, including a Chase checking account, a DDAH savings account, stock from Apple, and income from the limited partnership of Blackstone Group, L.P. She further claimed to have never received a golf cart she was awarded in the settlement, which Henry claimed was stolen postsettlement. Susan requested that Henry be sanctioned under section 2107, subdivision (c).
Park filed a responsive declaration with over 250 pages of accompanying exhibits. Attached to the declaration was a copy of a police report dated January 28, 2019, detailing the theft of a golf cart reported by Park. Park also attached a June 4, 2019, email from Susan to Park about the golf cart in which, among other things, she stated: "I don't care what I have to spend to expose you and the immoral Randazzo's [sic]." As to all of the alleged undisclosed assets, Park claimed that "[t]he accounts that Susan claims were concealed or omitted have all been closed and moved to the still existing accounts that were divided at Mediation and included on the Propertizer attached to the Agreement." Henry requested sanctions under section 271 in the amount of $7,325. Susan filed a reply declaration with the "Propertizer" from the settlement agreement attached. In a later-filed supplemental declaration, she attached an email from someone claiming to have purchased the golf cart.
A Propertizer is a form that lists and values community property and shows how it will be divided.
At a hearing on the matter in July 2019, the trial judge indicated that, with the exception of the golf cart, she was "not of the opinion that there were assets that had been hidden and not disclosed," and she further explained: "I think all of the assets were disclosed. I think they were all addressed during the settlement negotiation and were included in the marital settlement agreement. [¶] But even above and beyond that, we're back at we have already litigated this." After hearing argument from both parties, the trial court took the matter under submission.
Approximately one week later, the trial court entered judgment as proposed by Henry. The next day, the trial court vacated its order taking under submission the motion to set aside the judgment and ordered both parties to submit proposed statements of decision.
In October 2019, the trial court issued a statement of decision on the motion to set aside the judgment. The trial court denied Susan's request to set aside the judgment, concluding that Henry did not violate any disclosure requirements and that "[e]ach party was fully aware of the assets that existed at the time of mediation, which was attended by each party's attorney and forensic accountant." The court also imposed sanctions of $7,325 against Susan under section 271, reasoning that she frustrated the policy promoting settlement by moving to set aside the judgment largely on the basis of the same arguments the trial court had previously rejected and that she had demonstrated, in her email to Park in June 2019, that she was "determined to preclude this matter from coming to a resolution, regardless of the cost."
DISCUSSION
A. Sufficiency of the Evidence
Susan challenges the factual findings underlying both the trial court's enforcement of the parties' settlement agreement under Code of Civil Procedure section 664.6 and the court's refusal to set aside the judgment. We reject both arguments.
"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." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) "'The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.'" (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 (Fink).) "The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment." (Raylii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)
We must affirm factual determinations made by a trial court on a motion to enforce the parties' settlement agreement under Code of Civil Procedure section 664.6 if the findings are supported by substantial evidence. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 815.) We review the trial court's decision in ruling on the motion to set aside the judgment under section 2122 for an abuse of discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) When, as here, the claimed abuse of discretion is that the ruling is not supported by substantial evidence, we must affirm the trial court's decision if it is supported by substantial evidence. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 686 [upholding trial court's refusal to set aside judgment on the basis of mistake or duress given the "strong evidence in support of the trial court's conclusion"].)
In challenging the trial court's rulings on Henry's motion to enforce the parties' settlement agreement and on her motion to set aside the judgment, Susan has failed to address all of the material evidence that is both favorable and unfavorable to the trial court's entry of judgment on the settlement agreement. Cumulatively, Park submitted over 300 pages of documentation tracing how the allegedly omitted or nondisclosed assets and accounts were actually considered by the parties in reaching the settlement and were otherwise properly disclosed by Henry. But in challenging the trial court's rulings, Susan cites only three pages of the accompanying documentation in her argument section challenging the trial court's enforcement of the parties' settlement agreement.
With respect to her motion to set aside the judgment, Susan fails to cite any of the evidence accompanying Park's declaration. Instead, she cites Park's declaration explaining what happened to the asset and then cites Henry's final disclosure. Her analysis omits the evidence submitted about the assets, including financial transactions demonstrating how assets from allegedly omitted accounts were transferred into accounts that were included in and disposed of in the parties' settlement. Susan also fails to cite either the judgment or the statement of decision on the motion to set aside the judgment. Given the deficiency in briefing on these issues, we are compelled to reject Susan's challenges to the trial court's enforcement of the parties' settlement agreement and refusal to set aside the judgment. (Fink, supra, 25 Cal.3d at pp. 887-888.) B. Sanctions
At the hearing on the motion to set aside the judgment, the trial judge indicated that Susan's prior counsel (the one who represented Susan at the mediation) appeared telephonically at the hearing on the motion to enforcement the parties' settlement agreement and represented "that all of these accounts, all of these monies were addressed, and that it was all accounted for in the Propertizer." Although Susan's counsel had appeared telephonically at the prior hearing on the separate issue of attorney fees, she did not provide any information on the record about the settlement agreement. Susan now claims that the trial judge's error in part influenced her decision to refuse to set aside the judgment. We disagree, because the record contains no evidence that the error influenced the trial judge's decision. The statement of decision includes a detailed discussion of all of the allegedly omitted assets, and there is no indication that the trial court relied on an admission it erroneously attributed to Susan's prior counsel. Susan thus has not carried her burden of demonstrating that the error was prejudicial. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601 ["The burden is on the appellant in every case affirmatively to show error and to show further that the error is prejudicial"].)
Susan claims that the trial court did not have jurisdiction to sanction her, because the trial court failed to reserve jurisdiction of sanctions under section 271. Susan also contends that the trial court abused its discretion by awarding Henry sanctions because Susan did not engage in any conduct frustrating the policy of promoting settlement. We reject both contentions.
Section 271 allows the trial court to award attorney fees and costs as a sanction on the basis of conduct of each party or their attorney that "furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).) "In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed." (§ 271, subd. (a).)
"A sanction order under [section 271] is reviewed under the abuse of discretion standard. '"The trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order."'" (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) "In reviewing such an award, we must indulge all reasonable inferences to uphold the court's order." (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991, disapproved on another ground in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.)
Relying on In re Marriage of Perow & Uzelac (2019) 31 Cal.App.5th 984 (Perow), Susan claims that the trial court was without jurisdiction to award sanctions postjudgment because the trial court did not reserve jurisdiction to do so in the judgment. Perow is inapposite. Perow involved the award of sanctions related to the judgment (id. at p. 992), not sanctions awarded on the basis of a motion to set aside the judgment under section 2122, as was the case here. Susan does not identify any provision of section 271 that makes it inapplicable to postjudgment proceedings unless the court previously reserved jurisdiction to award future sanctions in the judgment. We see no such limitation in the statutory language. We therefore reject Susan's argument that the trial court was without jurisdiction to award sanctions.
In challenging the sanctions order, Susan does not explain how the trial court abused its discretion by determining that her litigation tactics frustrated the policy promoting settlement of litigation. Instead, she makes the conclusory assertions, unaccompanied by any explanation, that "there was no underlying conduct by Susan that frustrated the policy of the law to promote settlement of litigation and significantly increased the costs of litigation," and that it was Henry's "conduct that frustrated the policy of the law to promote settlement of litigation and had significantly increased the costs of litigation." Because Susan does not articulate any reasoning in support of those conclusory assertions, we disregard them. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) In any event, given that Susan moved to set aside the judgment largely on the basis of the very same arguments that the trial court had previously rejected when enforcing the parties' settlement agreement, and given Susan's email to Park indicating that she would continue to litigate aggressively regardless of cost, we cannot say that the trial court abused its discretion by concluding that Susan's litigation tactics frustrated the policies of promoting settlement or reducing the costs of litigation. C. New Arguments on Appeal
Relying on California Rules of Court, rule 5.92(b)(2), Susan also argues that the trial court abused its discretion by imposing sanctions in the absence of any "current Income and Expense Declaration on file on which the court could rely in scaling the amount of sanctions." Susan forfeited the argument by failing to raise it in the trial court. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528 [considering procedural argument that section 271 sanction was not made on Judicial Council form forfeited because it was not made in the trial court].) In any event, "[a]ssuming, without deciding, that rule 5.92 [of the California Rules of Court] applies to motions under section 271 [Susan] do[es] not show, nor even attempt to show, that [she was] prejudiced by any alleged procedural deficiency. 'Absent an explicit argument that a procedural error caused prejudice, we are under no obligation to address the claim of error.'" (In re E.M. (2014) 228 Cal.App.4th 828, 851-852.) We also note that the amount of the sanctions award is minuscule in comparison to the value of the marital assets awarded to Susan in the judgment.
Susan raises numerous arguments for the first time on appeal, including that Henry improperly filed his final declaration with the court and that Henry's alleged "breaches of fiduciary duties and violations of [automatic temporary restraining orders] demonstrate [a] miscarriage of justice." (Boldface and capitalization omitted.) Susan has not articulated any reason for us to depart from our ordinary practice of not considering "new theories raised for the first time on appeal," so we decline to do so. (Orange County Water District v. Association of Cal. Water Etc. Authority (1997) 54 Cal.App.4th 772, 780; Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.) "'"This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal."'" (American Indian Health & Services Corp. v. Kent (2018) 24 Cal.App.5th 772, 789.)
We reject Susan's contention that she raised the argument regarding Henry's alleged breached of fiduciary duties in the trial court by including a section entitled "Fiduciary Duties and Automatic Temporary Restraining Orders" in her proposed statement of decision on the motion to set aside the judgment. (Boldface and underscoring omitted.) She does not demonstrate that she otherwise made these arguments in the trial court before submitting her proposed statement of decision. And the proposed statement of decision is not a proper filing in which to raise an argument for the first time before the trial court. The statement of decision is intended to "explain[] the factual and legal basis for [the trial court's] decision as to each of the principal controverted issues." (Code of Civ. Proc., § 632.) It follows that a party's proposed statement of decision should be limited to addressing arguments that are already before the court and that both parties already had an opportunity to address. Given that a party's proposed statement of decision is not sufficient to present an argument for the first time to the trial court, it follows that it is not sufficient to preserve an argument for appeal. That conclusion is further supported here because Susan did not object to the court's statement of decision and its failure to address the issues she now wishes to raise. (Arceneaux, supra, 51 Cal.3d at p. 1138 [it is "unproductive to deprive a trial court of the opportunity to correct" a purported defect in a statement of decision "by allowing a litigant to raise the claimed error for the first time on appeal"]; Cal. Rules of Court, rule 3.1590(g) ["Any party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment"].)
Because we reject all of Susan's arguments on appeal, we need not address Henry's argument that she waived her right to appeal by accepting the benefits of the judgment.
DISPOSITION
The judgment is affirmed. The order denying Susan's motion to set aside the judgment and awarding sanctions to Henry is also affirmed. Henry shall recover his costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. CODRINGTON
J.