Opinion
A150550
07-24-2018
In re the Marriage of MARIA DE JESUS RODRIGUEZ and LUIS RODRIGUEZ. MARIA DE JESUS RODRIGUEZ, Respondent, v. LUIS RODRIGUEZ, Appellant; MARIN COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Intervener and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. FL1204473)
In this marital dissolution proceeding, judgment was entered following a court trial on property issues and separate evidentiary hearings regarding child and spousal support. Luis Rodriguez appeals pro se. He presents no reasoned factual or legal arguments in support of his appeal, and we affirm. We also find the appeal to be wholly frivolous and pursued for purposes of harassment. Accordingly, we impose sanctions.
Marin County Department of Child Support Services (DCSS) intervened in the trial court with respect to support issues, at the request of respondent Maria De Jesus Rodriguez, and it has also intervened in this appeal.
Because the parties bear a common surname, we hereafter use first names to avoid confusion.
I. BACKGROUND AND PROCEDURAL HISTORY
Our determination of the relevant facts in this case is hampered by the fact Luis's appellate briefing is barely coherent and, as discussed post, almost entirely ignores the mandates of the California Rules of Court. This appeal arises from a judgment entered following a court trial (Hon. Beverly Wood) conducted over several sessions throughout 2016, and seeks to challenge separate child and spousal support orders. Our recitation of the relevant factual and procedural history is derived from what we can discern from Luis's disjointed record references and the more cogent detail provided by Maria and DCSS.
All rule references are to the California Rules of Court.
A proposed statement of decision was issued on December 29, 2016. The final statement of decision was filed on January 27, 2017. Luis filed his notice of appeal on February 8, 2017. The court entered a final judgment of dissolution on February 10, 2017. We discuss the chronology of separate support orders post.
Community Property Division
The trial court's statement of decision primarily addressed identification and allocation of community assets. An observation by the trial court conveys the tone of the proceedings below: "To say that Luis failed to disclose financial information to Maria is an understatement. From the onset, Luis has rejected the court's jurisdiction to adjudicate property division, support, or even custody issues. He has repeatedly filed documents, uniquely worded and formatted, which indicate his contempt of the process and a rejection of the concept that Maria has any rights to any asset." Making detailed factual findings on the evidence presented, the court found Luis had "essentially emptied all of the known community accounts" after Maria announced her intention to file for dissolution, and he "repeatedly, knowingly, and intentionally breached his fiduciary duties to Maria and has committed fraud by forging [Maria's] name, emptying accounts, and transferring money." The court awarded Maria a cash balance then held by the court, two residential properties, the balance in her retirement account, and her vehicle. Luis received his landscaping business, the balance in his retirement account, a conditional award of another residential property (contingent on removing Maria from the mortgage obligation by April 30, 2017), and his vehicles.
Luis was found guilty of seven counts of contempt on November 10, 2016, for violation of orders entered on December 10, 2015, December 16, 2015, and June 16, 2016. Luis was sentenced to a total of 35 days in custody after the court found he had made "repeated disingenuous, outright false and conflicting statements" to the court over the previous four years of litigation, while collaborating with his siblings to obfuscate and hide community assets from Maria and the court. He was earlier held in contempt, on August 17, 2015, for refusing a court order to deliver his children's passports to the court.
Support Orders
Following an evidentiary hearing, a "Judgment Regarding Parental Obligations" was filed on October 23, 2014, ordering Luis to pay guideline child support of $599 per month effective August 1, 2014, for two of his three children. The court attributed $5,000 monthly net income to Luis, deviating from presumptive tax return information "due to incomplete disclosures regarding expenses and costs of goods sold."
The third child had reached the age of 18.
Maria sought modification of child support and requested spousal support in April 2015. After a September 2015 hearing, at which Luis did not appear, the court ordered Luis to pay child support of $1,530 per month and temporary spousal support of $1,446 per month commencing May 1, 2015. Luis filed an ex parte request to vacate that order. The ex parte request was denied, and the matter was set for an evidentiary hearing in October 2015. After hearing, the court denied Luis's request to vacate the order. The following November, Luis sought modification of child and spousal support. On December 10, 2015, the court denied Luis's request finding "no substantial change of circumstances" warranted modification of support: Luis presented no new evidence of income or changed circumstance; the gravamen of Luis's request was an attempt to recalculate support based upon claims of previous court errors; and Luis was not in compliance with prior court orders for production of documents and evidence. Luis was ordered to pay Maria $5,800 in attorney fees, noting Luis's "established a pattern in this court and in other departments of resisting compliance with the court orders."
In July 2016, Luis filed an ex parte request for modification of child and spousal support. In support of his request, Luis declared he was unable to attend the September 2015 hearing, due to illness; he was improperly attributed income; and Maria earned more income than she disclosed. The matter was set for an evidentiary hearing in September 2016, which was continued and ultimately heard after completion of the property trial before Judge Wood on January 19, 2017. Luis's request to modify child support was denied, and the request to modify spousal support was continued.
On January 26 and 31, 2017, Luis filed pleadings demanding recusal of DCSS Commissioner Mark Talamantes. Luis filed a similar pleading against Judge Wood on January 18, 2017 ("Recusal of the Judge For Bad Conduct Breach of Ethics"). Luis appears to complain of the denial of these demands in his opening brief, at least as to Judge Wood. Aside from Luis's failure to present any legal argument, rulings on statutory motions to disqualify are not appealable orders and may be reviewed only by a writ of mandate. (Code Civ. Proc., § 170.3, subd. (d) ["determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision"]; People v. Brown (1993) 6 Cal.4th 322, 340.)
DCSS represents that on April 25, 2017, after a number of continuances, the court dropped the matter from calendar for failure to proceed.
Even if we were to assume the support orders are properly encompassed in Luis's notice of appeal—an issue we need not decide—the only timely appeal from any support order is the January 19, 2017 order denying Luis's modification requests. (See rule 8.104 [appeals must be taken 60 days after service of notice of entry of judgment or filed copy of judgment showing the date served, 60 days after appealing party serves or is served a filed copy of the judgment with proof of service, or 180 days after entry of judgment].) "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' " (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
II. DISCUSSION
A. Luis Has Forfeited Any Claim of Error
In his "factual" summary, Luis presents a disjointed and barely coherent chronology of events, with editorial characterizations of trial court rulings and his conclusion that each demonstrates denial of "due process." He recites a litany of vituperative complaints against Maria, Maria's counsel, the court, and his own attorneys. Luis fails, however, to demonstrate error.
An opening brief must coherently state "the nature of the action, the relief sought in the trial court, and the judgment or order appealed from." (Rule 8.204(a)(2).) He provides record citations to some, but not all, of the court's rulings, but then fails to distinguish which are the subject of this appeal (or even which are appealable). An appellant must identify each order he asserts is erroneous, cite to the particular portion of the record wherein that ruling is contained, and identify what legal authorities show error with respect to the challenged ruling. (County of Orange v Smith (2005) 132 Cal.App.4th 1434, 1443-1444; rule 8.204(a)(1)(C).)
Luis's brief contains no table of contents and no separate headings addressing any points of argument. Rule 8.204(a) requires each brief to "[s]tate each point under a separate heading or subheading summarizing the point." "This is not a mere technical requirement; it is 'designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.) We do not consider loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)
Luis's legal presentation fares no better. He acknowledges the substantial evidence standard of review in a single paragraph, but then fails to address anywhere in his brief any of the evidence presented in support of the court's orders, presenting only a conclusory summary of his own evidence. A party who challenges sufficiency of the evidence to support a finding must set forth, discuss, and analyze all evidence on that point, both favorable and unfavorable. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.) " 'Unless this is done the error is deemed waived.' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Luis's entire legal argument is presented in a two-paragraph quotation from a completely unidentified case—which in turn quotes from a New Jersey Supreme Court case addressing judicial disqualification—without any discussion or analysis of relevance or application. It is the appellant's responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on his behalf. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Luis is not exempt from the rules because he is representing himself on appeal. Pro se litigants must comply with the same procedural rules as an attorney. (Nwosu, at pp. 1246-1247.)
While Luis cannot shift his burden to identify and establish deficiencies in the evidence, we find the record evidence cited by Maria and DCSS demonstrates more than substantial evidence in support of the trial court findings.
Luis describes himself as an "idiot to your legal/legalese customs . . . ." We offer no comment on this self-assessment, other than noting it presents no excuse. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 ["[a] doctrine . . . permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation"].)
Luis further ignores the well-settled rule of appellate review that " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of demonstrating error on the part of the trial court. (People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Luis fails to meet that burden, and we would affirm on this basis alone. B. Motion to Dismiss/Sanctions Request
1. Disentitlement
Maria separately requests dismissal of this appeal and imposition of sanctions on Luis. (Rule 8.276(a)(1); Code of Civ. Proc. § 907.) She urges application of the disentitlement doctrine due to Luis's persistent and contumacious violation of trial court orders in this matter, and his pursuit of a frivolous appeal. Under the disentitlement doctrine, "[a]n appellate court may dismiss an appeal where the appellant has willfully disobeyed the lower court's orders or engaged in obstructive tactics." (Gwartz v. Weilert (2014) 231 Cal.App.4th 750, 757-758.) An appellate court has the inherent power to dismiss an appeal by a party that refuses to comply with a lower court order. (Stoltenberg v. Ampton Investments Inc. (2013) 215 Cal.App.4th 1225, 1229.) The doctrine of disentitlement is a discretionary tool that may be used to dismiss an appeal when the balance of the equitable concerns makes dismissal an appropriate sanction. (Id. at p. 1230.) The rationale underlying the doctrine is that a party to an action cannot seek the aid and assistance of an appellate court while standing in an attitude of contempt to the legal orders and processes of the courts of this state. (Ibid.)
We also have inherent authority to dismiss an appeal that is frivolous or taken solely for delay. (In Re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.)
Maria presents a compelling case that Luis has demonstrated, as the trial court found, "a history of blatant noncompliance with court proceedings, discovery, and disclosures." But we need not invoke our discretionary authority to dismiss the appeal, having already rejected it on the merits. We do, however, consider Luis's extensive history of misconduct in the proceedings below in our assessment of whether this appeal is not only frivolous, but is being pursued for purposes of harassment and delay, thus warranting imposition of sanctions.
2. Sanctions
"[R]ule 8.276(e)(1) allows the court to impose sanctions on a party or an attorney for the taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous 'only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]' [Citation.] The first standard is tested subjectively. The focus is on the good faith of appellant and counsel. The second is tested objectively. [Citation.] 'While each of the above standards provides independent authority for a sanctions award, in practice the two standards usually are used together "with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." ' " (In re Marriage of Gong and Kwong, supra, 163 Cal.App.4th at p. 516.)
It is unnecessary to recite the entire litany of Luis's disobedience and defiance of court orders below. We have already discussed the multiple contempt adjudications against Luis for violation of court orders. The findings of the trial court in the statement of decision further demonstrate Luis's efforts to evade or defy court process. In addition to failing to disclose required financial information to Maria, Luis, among other things, (1) misappropriated funds in community accounts, and "had no compunction about raiding these accounts and transferring the funds to his sister . . . [and] repeatedly forg[ing] Maria's name on checks to cash them"; (2) diverted approximately $50,000 in rental income from one community asset over the course of several years; (3) continued even after trial had begun to "divert monies away from the community (including [his] children's accounts" and to be "in violation of various court orders regarding deposit of rental income"; and (4) refused to vacate a residential property awarded to Maria, requiring the court to issue an order for the Marin County Sheriff to remove him.
We also grant Maria's request for judicial notice of documents filed in the court below subsequent to entry of judgment that reflect Luis filed, through a Wyoming limited liability company, fraudulent mechanics liens against two of the properties awarded to Maria in the final judgment—one in the amount of $1,787,660 and the other in the amount of $4,123,050. The court granted Maria's motions to expunge both liens, and awarded Maria fees and costs of $3,500. We find this conduct, consistent with Luis's demonstrated attitude throughout the litigation, highly probative of Luis's true purpose in pursuing this appeal. (See Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 192.)
This appeal is meritless, and it is frivolous under any objective standard. Under the subjective standard, an appeal is frivolous if it was brought in bad faith solely for the purposes of delay or harassment as opposed to the assertion of the appellant's legitimate rights. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) We have no difficulty in concluding, in light of Luis's well-documented (and apparently continuing) behavior, that his purpose here is only to continue his pattern of harassment of Maria, and that sanctions are clearly warranted.
In determining the amount of sanctions to award we may consider the amount of attorney fees on appeal, the amount of the judgment against the appellant, the degree of objective frivolousness and delay, and the need to discourage similar conduct in the future. (Bucur v. Ahmad, supra, 244 Cal.App.4th at p. 194.) We therefore award, in addition to any other recoverable costs, Maria's full attorney fees incurred in responding to this appeal, including any fees incurred in presentation of her request for sanctions, in an amount to be determined by the trial court on remand.
III. DISPOSITION
The judgment and all related support orders are affirmed. Respondents shall recover their costs on appeal (rule 8.278(a)(1), (2)), and respondent Maria De Jesus Rodriguez is awarded her attorney fees incurred in connection with this appeal in an amount to be determined by the trial court.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.