Opinion
A157576
06-09-2021
In re the Marriage of ANNE and JAMES TEARSE. ANNE TEARSE, Appellant, v. JAMES TEARSE, Respondent.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. FAM-0122314
STREETER, ACTING P. J.
This is the fifth appeal in a marital dissolution proceeding between Anne and James Tearse. Anne appeals from the trial court's orders denying her requests for adult child support (Fam. Code, § 3910, subd. (a)) and attorney fees and costs (§ 2030 et seq.). Anne contends the court committed numerous legal errors and deprived her of an opportunity to be heard. Because Anne has not shown that any claimed error was prejudicial, we will affirm the orders.
We use first names for purposes of clarity. No disrespect is intended. (In re Marriage of Schu (2014) 231 Cal.App.4th 394, 396, fn. 1.)
All further undesignated statutory references are to the Family Code.
BACKGROUND
Anne's Request for Order
On October 11, 2018, Anne filed a request for order (RFO) seeking support from James for their adult child, “C.” (§ 3910, subd. (a)). Anne alleged the following: “Our daughter, C., has been affected by multiple medical conditions leading to her being disabled. She became seriously ill in Spring 2015, ultimately leading to her cutting back on her studies due to her disability. She is currently unable to work to provide for her basic living expenses. She also relies on me completely for all her out of pocked [sic] medical expenses that are not covered by insurance.”
The RFO also sought (1) attorney fees and costs in the amount of $16,080, based on $15,000 needed to retain a new attorney and $1,080 for fees incurred in preparing the RFO; (2) a stay of all proceedings until her appeal from the court's August 3, 2018 denial of a prior fee motion is decided; (3) the setting aside of the August 3, 2018 order; and (4) a finding that James committed perjury by failing to disclose in his final schedule of assets and debts and July 23, 2018 income and expense declaration an accounts receivable balance from his medical practice from April 2018.
Also on October 11, 2018, Anne's attorney, Ester Adut, filed a motion to be relieved as counsel. The record contains only the first page of the motion.
In support of her RFO, Anne submitted an income and expense declaration, supporting declarations, attachments, and financial documents, and the declaration of her attorney. Anne also attached a copy of a balance sheet from James's medical practice in April 2018 showing an accounts receivable balance of over $764,891.
In addition, Anne filed a request for judicial notice of James's July 23, 2018 declaration.
We granted Anne's motion to augment the record to include her request for judicial notice. In addition to James's income and expense declaration, Anne asked the trial court to take judicial notice of a notice of family law attorney's real property lien filed by James in August 2018, and a transcript of a February 27, 2017 hearing. The motion to augment includes the income and expense declaration but not the two other documents. The notice of attorney's lien is contained in the clerk's transcript, however, and attaches a copy of the accounts receivable balance from April 2018.
On December 7, 2018, James filed a responsive declaration to the RFO. He asserted “[t]here is no proof whatsoever that daughter C. is entitled to adult child support.” James also did not consent to the request for fees and costs, contending the request was unreasonable and that the issue “should have been litigated at the trial, as these issues were all then before the court.”
James also filed objections to the RFO. He asserted Anne “provides no evidence to support her Request for Order. [James] objects to [Anne']s mere conclusionary statements. [Anne] provides no evidence of any kind that our daughter C. is unable to find a job due to factors beyond the child's control. This is not simply that the child has looked for work and could not find one. There must be an underlying reason why the adult child has been unable to obtain employment. This standard is much more difficult to show than a mere mental or physical disability.”
James also filed objections to Ms. Adut's motion to be relieved as counsel based on Anne's failure to serve the motion on him.
In addition, James objected to the attorney fee request, stating it “is also unreasonable for the reasons set forth in [his] Responsive Declaration related to the Request for Order for fees set for August 3, 2018” that the court had denied, the order of which was on appeal in this court.
Anne filed a reply and objections to James's responsive declaration. She also submitted the names of two witnesses whom she intended to call regarding “health condition/disability of adult child.”
December 24, 2018: First Hearing on the RFO
Anne's RFO came on for hearing on December 24, 2018. Anne requested an evidentiary hearing on the adult child support request. In response, James's attorney argued: “I think we need to have some prima facie showing in the moving papers that she is entitled to the relief of which she requests. I don't think it's there. [¶] There's some conclusionary statement, but there's no evidence of anything.... [¶] I think one would expect a prima facie case before we ask for an evidentiary hearing. If that were to be the case, I would certainly ask that the Court open discovery since we have no information about disability whatsoever.”
Anne's attorney replied that “if the request for order is deficient in any way in not disclosing diagnosis specifically, then I do request a leave, a short leave to amend it, possibly 17 court days to give me time to file it on opposing counsel as a supplement to it.” She also requested the court issue a statement of decision on controverted issues raised in the RFO.
The court then stated its findings. It cited In re Marriage of Cecilia and David W. (2015) 241 Cal.App.4th 1277 (Cecilia & David W.), which it explained, “sets forth some of the evidentiary determinations that the Court is required to make in deciding whether or not there has been a sufficient evidentiary basis to establish a need for adult child support, which is..., in looking at the initial declaration and not the reply declaration that was filed by Ms. Tearse, the factual allegations contained therein were, as Ms. Kral [James's attorney] points out, conclusory and... did not make out a prima facie case for disability as the statute states it and as the case that the Court just cited, makes clear are necessary for the Court to determine in rendering a decision on adult child support.”
The court granted Anne's request for leave to amend the RFO to include additional facts pertinent to C.'s conditions and continued the matter for a further hearing on March 22, 2019. However, the court explained that the purpose of the hearing is to “evaluate the sufficiency of the showing on the papers in the updated pleadings[;] then if at that point there's a prima facie case established by the pleadings that support the need for an evidentiary hearing, we can go forward from there.” Although the court initially found no good cause to refuse an evidentiary hearing based on the factors described in rule 5.113 of the California Rules of Court, it conditioned such a hearing on Anne's ability to make a prima facie showing she is entitled to adult child support in an amended RFO.
Anne's attorney then raised her concerns about disclosing private information concerning C. in the amended RFO. James's attorney did not object to Anne's “potentially requesting to have the documents, the declarations filed under seal.” The court responded, “By stipulation of the parties..., the Court will find there is an adequate basis to seal the pleadings within the meaning of the Rules of Court and will direct that any pleadings that reference or disclose any medical conditions of the [adult] be filed under seal.”
The court denied Anne's other requests for the court to stay all proceedings pending the outcome of her appeal of the court's August 3, 2018 order denying her prior fee motion and to vacate that order. The court found there was not sufficient evidence that James committed perjury in his financial documents. The court also reserved ruling on the request for attorney fees pending its decision on Ms. Adut's motion to withdraw as counsel, which was also continued to March 22, 2019. And the court took judicial notice of James's July 23, 2018 income and expense declaration.
The court issued a minute order on December 24, 2018, stating that Anne's request for adult child support is continued; discovery will remain open; the “parties agree to seal pleadings on medical condition of the [adult] child”; and it was reserving ruling on the request for attorney fees. The court's rulings were also contained in a findings and order after hearing, which was not filed until April 22, 2019.
While this appeal was pending, James moved to augment the record to include the court's April 22, 2019 findings and order after hearing. The motion is granted.
March 22, 2019: Continued Hearing on the RFO
On March 5, 2019, James filed a “notice regarding petitioner's failure to file amended request for order.” James explained he “ha[d] incurred substantial attorney's fees and costs with regard to discovery in this matter” and that “[a]ll of this work was apparently for nothing due to [Anne's] failure to file the Amended Request for Order.”
James subsequently filed a “reply declaration... and objection to Petitioner's memorandum” on March 15, 2019, which includes his arguments on the lack of evidence regarding C.'s claimed disability. But the referenced memorandum is not included in the record.
On March 22, 2019, the court called the matter on its calendar. Anne's attorney was present; James's attorney was not. The court stated it had issued a tentative ruling. It then explained, “Ms. Adut came to the courtroom yesterday at 4:20 to notify the Court of her intent to appear” and that Ms. Kral argued “she had not received appropriate notice of the intent to appear and did not intend to appear on [James's] behalf.” The court stated it therefore was adopting its tentative ruling.
Ms. Adut replied: “Yesterday, I checked the tentative rulings repeatedly between three o'clock and either 3:23 or 3:33. And the only... tentative rulings that appeared for this Court in those hours were the ones from March 15th. [¶] At 3:30 something, I had to leave the house because I had to file something here in the court. So, I left. I came here. I was on the fourth floor with the clerk until a little bit after 4:00, about 4:15. [¶]... [¶] When I stopped here a little before 4:20 and I knocked on the door, I was under the impression that the Court didn't put out any tentative rulings. [¶]... [¶] At that time, I had no idea that the Court issued a tentative ruling.”
Ms. Adut continued, stating: “The Court did not comply, from what I saw, with the Local Rule of posting... tentative rulings by three o'clock. And so, I could not comply based on the fact that I had to leave and be at the court before 4:00 to file my papers....”
The trial judge responded as follows: “I personally posted the tentative rulings and caused them to be transferred to the court's website at 3:10. I personally checked the court's website immediately after posting at 3:10 to ensure that the tentatives had been posted. They were posted and visible to the public from 3:10 forward. [¶] After that, I was sitting on the bench for the entirety of the time period between the time that the tentatives were posted until the time that you knocked on the door. At which point, the clerk did answer. And that was at 4:20. [¶] Had notice been appropriately given during the hour window between 3:10 and 4:10, the Court would have been inclined to notify Ms. Kral that notice by 4:10 was acceptable on the basis that the Court posted the tentatives ten minutes late. That didn't happen. [¶] And the tentatives were posted at 3:10. The tentatives are adopted.”
5. Anne's March 22, 2019 Request for Order To Seal Documents
Also on March 22, 2019, Anne filed an RFO to file documents with protected information under seal and attorney fees and costs. In a memorandum of points and authorities, Anne argued that the court “did not yet enter an order to seal pleadings-an order that cannot be created by stipulation. For these reasons, Anne's filing of a further pleading has been delayed.” She explained her attorney “prepared Anne's supplemental declaration for filing and Anne presented her supplemental declaration to the Family Law clerk for filing. When asked, the clerk told Adut that the December 24, 2018 minute order was not an order that allowed the court to file the declaration under seal, and that an actual order for sealing was necessary. As the pleading could not be filed under seal, it was not filed on that day. [¶] Adut was not aware, until after the clerk's comments, that an agreement to seal pleadings, as stated in the court's minute order, was not sufficient [citations], or that an order after a noticed motion is mandatory [citations].” Anne did not present these statements in a declaration.
6. Denial of Anne's Requests for Adult Child Support and Attorney Fees and Costs
On March 22, 2019, the court issued a minute order denying the request for adult child support. It provided: “Tentative ruling is adopted below.... [¶]... [¶] Based on Petitioner's failure to file an amended Request for Order after Court granted leave to do so, Court denies the Request for Order filed 10/11/2018 seeking adult child support and the request for evidentiary hearing thereon based on the failure of filed motion to comply with California Rule of Court 5.92(b)(1) requirement to state sufficient facts to notify opposing party of moving party's contentions in support of requested relief.”
On that same day, the court granted Ms. Adut's motion to be relieved as counsel.
The court also found “that preparation of the 10/11/18 Findings and Order including proposed sealing order, was ordered to be done by Petitioner's counsel. No order was prepared or submitted, and the failure to prepare the sealing order does not excuse failure to cure the pleading defect in the 10/11/18 RFP when granted leave to do so. Had Petitioner wished to file a declaration under seal, she could have attempted to do so by applying under California Rule of Court 2.551.”
Finally, the court held that “[b]ased on failure to file a code-compliant pleading, the Court finds the request for $15,000 to retain counsel to represent Petitioner in proceedings regarding adult child support unreasonable and denieds [sic] the request for FC 2030 fees.”
On April 16, 2019, Anne filed objections to a proposed form of findings and order after hearing filed by James, which apparently repeated the orders contained in the March 22, 2019 minute order.
Also on April 16, 2019, the court filed its findings and order after hearing, which set forth the same orders as those stated in its March 22, 2019 minute order. James served Anne with a notice of entry of judgment on April 22, 2019. This appeal followed.
After briefing was completed, James requested that we consider additional evidence on appeal (Code Civ. Proc., § 909), which includes documents filed or served in the trial court after its April 16, 2019 orders. James also requests that we take judicial notice of the judgment in this case filed on June 13, 2019, which is the subject of another appeal pending in this court (No. A158068). We deny both requests. Additionally, we deny both of Anne's requests for judicial notice which she filed on March 29 and 30, 2021.
7. DISCUSSION
Anne challenges the denial of her requests for adult child support and attorney fees and costs, contending the court made numerous legal errors and deprived her of due process by declining to hear oral argument or live testimony concerning her requests. As explained below, because Anne cannot show that any asserted error resulted in a miscarriage of justice, we see no basis to reverse the orders.
In this appeal, Anne does not challenge the other orders sought in her October 11, 2018 RFO. Those orders include the denial of Anne's requests for the court to stay all proceedings pending this court's decision in the appeal from the August 3, 2018 order denying Anne's fee motion, vacate the August 3, 2018 order, and find that James committed perjury by failing to disclose certain financial information.
A. Adult Child Support
2. Applicable Law and Standards of Review
Section 3910, subdivision (a) provides: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” Section 3910, subdivision (a) thus requires proof of two elements: (1) the adult child lacks the capacity to earn a living; and (2) he or she is without sufficient means to be self-supporting. (Cecilia & David W., supra, 241 Cal.App.4th at pp. 1285, 1286.)
The first prong of section 3910, incapacity to earn a living, requires demonstration of “ ‘an inability to be self-supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child's control.' ” (Cecilia & David. W., supra, 241 Cal.App.4th at p. 1285.) The second prong, lacking sufficient means, is “ ‘resolved in terms of the likelihood a child will become a public charge.' ” (Id. at p. 1286.) Courts must not focus solely on the adult child's conditions; they must consider the child's ability to find work or become self-supporting in light of such conditions. (Ibid.) Further, “the required showing is not disability, without more, or possible difficulties in the workplace.” (Id. at p. 1285.) “Vocational evidence likely will be necessary to meet these standards.” (Id. at p. 1288.)
We review a trial court's denial of adult child support for abuse of discretion. (In re Marriage of Drake (2015) 241 Cal.App.4th 934, 939.) However, even if error is found, a reviewing court is prohibited “ ‘from setting aside a judgment due to trial court error unless it finds the error prejudicial.' ” (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108; Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) “An appellant... establishes an error was prejudicial by showing there is ‘a reasonable probability that in the absence of error, a result more favorable to the appealing party would have been reached.' ” (In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 (Morton).)
In this case, Anne challenges the denial of her request for adult child support, contending the court erred in finding her request was not “code-compliant” and declining her request to present oral argument and testimony. Even if the court erred in any of those respects, Anne must show that the asserted error resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) As explained, Anne fails to meet this burden.
3. Denial Based on Noncompliance with California Rules of Court, Rule 5.92(b)(1)
In its April 16, 2019 findings and order after hearing, the court denied Anne's request for adult child support because it failed to comply with California Rules of Court, rule 5.92(b)(1) (rule 5.92(b)(1)) to state “sufficient facts to notify opposing party of moving party's contentions in support of requested relief.” The court's denial was also “[b]ased on [Anne's] failure to file an amended Request for Order after Court granted leave to do so.”
We first address the arguments related to the failure to comply with rule 5.92(b)(1). Anne contends that her RFO set forth sufficient facts to notify James of her contentions. We agree with the court that the RFO alleged “conclusory” statements. As explained in Cecilia & David W., supra, 241 Cal.App.4th 1277, “the required showing [of the first prong of section 3910(a), incapacity from working] is not disability, without more, or possible difficulties in the workplace.” (Id. at p. 1285.) Here, the allegations simply state that C. had a disability, without any other information. There is no explanation, much less evidentiary support, as to the nature of C.'s medical conditions, how such conditions rendered C. disabled, or whether the disability prevented C. from being self-supporting. Further, the allegation that C. had to “cut[] back on her studies” does not establish she was incapacitated from earning a living. For example, in Cecilia & David W., the court found insufficient evidence of incapacity even where the son “suffer[ed] from Tourette's syndrome and ADHD, conditions impacting his ability to manage stress and attention and requiring accommodation at college” and presenting “a major challenge for him in a job.” (Id. at pp. 1287-1288.) The court explained that the son's “conditions are disorders, not disabilities. Additionally, the record shows he is completing a degree at [a university], living on his own in a dormitory..., and independently handling other aspects of adult life, such as driving and seeing his psychologist.” (Id. at p. 1288.)
The bare allegation of C's disability based on unspecified “multiple medical conditions” and “serious illness” is insufficient to put James on notice of the nature of Anne's claim under section 3910(a) so that he could prepare to meet the claim at an evidentiary hearing. We see nothing in Anne's RFO that indicates how she proposed to make a showing on the second prong of section 3910(a) that C. was likely to become “ ‘a public charge.' ” (Cecilia & David W., supra, 241 Cal.App.4th at p. 1288.) Cecilia & David W. is again instructive. The court found insufficient evidence to show that the parties' adult son was likely to become a public charge to support a finding of insufficient means under section 3910(a), as the record showed he potentially could hold a minimum wage job. (Cecilia & David W., at p. 1288.) Here, the lack of evidence of insufficient means is much more apparent. As James notes, there is no information whether C. had looked for jobs; the types of positions she sought; whether she was able to potentially hold a minimum wage job; whether positions allowed her to work remotely; the length and results of any job search; and any accommodations that would be required to allow her to work any position due to her purported disability.
The parties devote much attention to whether Anne's RFO states a prima facie case and to what the burden of proof necessary to do that is, but we need not reach those issues. We agree that the policy of the law in the context of family law proceedings tends to favor pleading standards that are flexible enough to be manageable for those who are fortunate enough to have representation, as well as those who are not (see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354, 1366-1369, superseded by statute on another ground as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840), but the policy of the law in all judicial proceedings also discourages trial by surprise. Even though the pleading burden set up by rule 5.92(b)(1) is a modest one, we conclude that Anne failed to meet it here.
Anne's citation in her reply brief to certain evidence at trial concerning C.'s conditions does not compel a different conclusion. Because Anne did not present such evidence in her RFO or in her opening brief, we will not consider it. “ ‘ “Obvious considerations of fairness in argument demand that the appellant present all of [her] points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.”' ” (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.) Anne does not explain why she could not have presented the relevant evidence in any papers filed below or in her opening brief. We find Anne's belated recitation of such evidence even more problematic in light of the fact that she was granted leave to amend her RFO to include the evidence, but failed to do so. We therefore decline to consider the newly cited evidence.
4. Denial Based on the Failure To Amend the Request
Anne also challenges the court's denial of her RFO based on her failure to amend the RFO to address the deficiencies above after the court granted her leave to do so. Anne contends this was an improper basis for denying the request, arguing that the court's failure to issue a sealing order on its own initiative prevented her from filing an amended RFO. This contention lacks merit.
At the December 24, 2018 hearing, the court responded to Anne's concerns about disclosing protected information related to C.'s health in any amended pleading she would file. The court stated it found “there is an adequate basis to seal the pleadings within the meaning of the Rules of Court and will direct that any pleadings that reference or disclose any medical conditions of the [adult] child be filed under seal.” In its minute order of that date, the court stated that the “parties agree to seal pleadings on medical condition of the [adult] child.”
According to Anne, the court was directing itself to order that future pleadings containing private information of C. will be filed under seal. Anne explains that it was not until she attempted to file an amended RFO (on an unspecified date), when the court clerk informed her that the court's minute order “was not an order that allowed filing the pleading under seal.” At that point, Anne claims she realized she had to file a formal motion for an order to seal the pleadings. Anne argues that “[u]ntil the court actually directed that ‘any pleadings that reference or disclose any medical conditions of [C.]... be filed under seal,' ” Anne could not file her amended pleading. We reject these assertions.
First, the record undermines Anne's claimed ignorance of the absence of a standing order sealing any future pleadings containing protected information. In an email dated January 25, 2019, Anne's attorney wrote to James's attorney, “Presently, there is no order for filing documents under seal and there is no agreement to protect [C.'s] privacy.”
Second, we agree with James that Anne's characterization of the court's statements is untenable. A reasonable reading of those statements is that “the family court judge was not directing herself to prepare an order for sealing, ” but rather “directing the parties to file pleadings under seal if they referenced or disclosed any medical conditions of the [adult] child.”
Third, Anne's position is unpersuasive since specific California Rules of Court govern the sealing of records (Cal. Rules of Court, rules 2.550 & 2.551), which Anne was presumed to know. (Strong v. Sutter County Board of Supervisors (2010) 188 Cal.App.4th 482, 498 [“[A]n attorney is ‘ “presumed to know the laws and rules of procedure which govern the forms of litigation, the legal remedies, which he [or she] selects and pursues ”' ”].) As Anne acknowledges, a court may not “permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) No record may be sealed without a court order; it must be sought by written motion or application. (Id., rule 2.551(a), (b)(1).) As such, we are unpersuaded by Anne's attempt to impute her failure to file an amended RFO to the court.
Even accepting Anne's understanding of the court's statements, Anne does not explain why her motion to seal was filed so late. Anne asserted it was not until she attempted to file an amended RFO when the court clerk informed her there was no standing sealing order and she then realized she had to file a motion to seal herself. However, she does not provide the date on which she attempted to file the amended RFO. As James explains, “[i]f the date [Anne's] counsel saw the clerk was on the eve of the March 22nd hearing, there was no explanation why Anne (or her counsel) waited so long to comply with the December 24th order.” “The other alternative is counsel tried to file the documents [earlier], ” but “[n]o explanation is given why Anne's counsel did not appear ex parte between January and March 22, 2019 to obtain an order for sealing or at least an order shortening time. Anne certainly could have filed some facts after James filed his Notice on March 5th that no new facts had been plead.” In short, we see no indication in the record that Anne was reasonably diligent in presenting an amended pleading, such that her delay in doing so was excusable.
We therefore reject Anne's challenges to the court's denial of her request for adult child support based on her failure to file an amended pleading.
We are also unpersuaded by Anne's additional contention that even if her request was deficient, principles of equity required the court to either stay the proceedings or continue the hearing, rather than deny the request. Anne has forfeited the point by failing to request either a stay or continuance in the trial court in connection with her request for adult child support. (See Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 968-969 [“ ‘Appellants may be held to have waived a claim of error either by affirmative conduct or by failure to take proper steps in the trial court to avoid or cure the error”].) Anne's failure to support this assertion with reasoned argument and citation to pertinent authority doubly forfeits the point. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ “When an appellant... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”' ”].)
Anne requested a stay in connection with her fee request, not the request for adult child support. Additionally, although Anne requested a continuance on the adult child support matter, she did so after the court denied the request. This belated request does not overcome application of the forfeiture rule since it was not brought to the attention of the court in a timely manner. (See K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948-949 [“ ‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected' ”].)
5. Refusal To Hear Oral Argument
Next, Anne contends the court erred and violated her due process rights in refusing to hear oral argument on March 22, 2019, pursuant to San Mateo County Superior Court Local Rules, rule 5.7.1 (rule 5.7.1). We conclude the court's refusal to hear oral argument did not amount to prejudicial error or a due process violation.
Rule 5.7.1 provides that tentative rulings “on a Request for Order, Order to Show Cause, or Notice of Motion set for hearing shall be posted by 3:00 p.m. one court day prior to the hearing....” (Super. Ct. San Mateo County, Local Rules, rule 5.7.1.) It also provides: “Parties seeking to contest the tentative rulings and present oral argument at the hearing... shall notify all other parties and the Court by 4:00 p.m. on the court day before the hearing... of that party's intention to appear.” (Super. Ct. San Mateo County, Local Rules, rule 5.7.1.)
In this case, the trial court declined to hear oral argument on the continued hearing date because Anne's attorney did not give timely notice of her intent to appear. According to Anne, rule 5.7.1 is unlawful, the court lacked jurisdiction to enforce the rule against her attorney, and even if the court had jurisdiction, the trial judge was disqualified from making an order adopting the tentative ruling.
Initially, Anne has forfeited all of these contentions because she did not raise them in the trial court. (See In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1130-1131 [“ ‘Appellate courts will not consider objections that were not presented to the trial court' ”]; see also People v. Farley (2009) 46 Cal.4th 1053, 1110 [failure to raise judicial bias during trial proceedings results in the forfeiture of such a claim on appeal].) We also do not consider Anne's statutory judicial bias claim, because Anne was required to raise it in a writ; it cannot be raised on appeal. (Code Civ. Proc., § 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 335-336; Roth v. Parker (1997) 57 Cal.App.4th 542, 547-549.)
Even if the claims were not forfeited, Anne cannot show that any trial court error requires reversal. As explained above, Anne's request for adult child support on its face lacked any evidentiary support. Accordingly, we do not see a reasonable probability that the court would have granted her request had it heard oral argument from the parties.
We also reject Anne's assertion that the refusal to hear oral argument deprived her of due process. “Due process requires the opportunity to be heard, rather than an actual hearing.” (Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1167; accord, In re Marriage of Spector (2018) 24 Cal.App.5th 201, 218.) “ ‘The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.” [Citation.] All that is necessary is that the procedures be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard” [citation], to insure that they are given a meaningful opportunity to present their case.' ” (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 392, quoting Mathews v. Eldrige (1976) 424 U.S. 319, 348-349.)
Here, the court gave Anne a reasonable opportunity to present her case for adult child support. The court allowed the parties to present oral argument on Anne's request on December 24, 2018, granted Anne's request for leave to amend the request to allow her to present supporting facts, and preliminarily granted her request for an evidentiary hearing on the condition that she file the amended request, a procedure to which Anne did not object. That Anne squandered this opportunity does not equate with a denial of due process. Indeed, as the Supreme Court has commented, “[c]ertainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.” (Federal Communications Commission v. WJR, The Goodwill Station (1949) 337 U.S. 265, 276.)
6. Lack of an Evidentiary Hearing
Anne further contends the court erred and violated due process in denying her request without holding an evidentiary hearing. As noted above, the court conditioned its decision to hear live testimony at the March 22, 2016 hearing on the filing of Anne's amended RFO and Anne's ability to set forth prima facie evidence to support her request for adult child support. Anne did not object to the court's finding that her original request did not set forth sufficient facts or to the procedure proposed by the court. Anne has therefore forfeited her challenge to the lack of an evidentiary hearing. (See K.C. Multimedia v. Bank of America Technology & Operations, Inc., supra, 171 Cal.App.4th at pp. 948-951 [plaintiff forfeited procedural challenges to court's sua sponte dismissal of its claims before trial by failing to object to the court's procedure].)
In any event, Anne does not show prejudice from her inability to present live testimony. Anne contends that she “never had the opportunity to present any testimony from the child's doctor, to present medical records, to present testimony from anyone who knew about the child's disability condition(s), or to supplement her RFO under seal so that the child's private information would be protected.” However, Anne did not give the trial court or this court any specific information about the substance of the testimony or documents, much less make an offer of proof, that would allow us to conclude that the court's consideration of such evidence would have led to a favorable ruling. (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1269 [“[W]e may not reverse a judgment unless an error was prejudicial and a different result was likely in the absence of the error. Prejudice is not presumed. And it is not our responsibility to comb through the record to locate possible errors”].)
Anne's due process challenge likewise fails. “ ‘ “[D]ue process is a flexible concept.... [Citations.] Thus, not every situation requires a formal hearing accompanied by the full rights of confrontation and cross- examination.”' ” (James v. City of Coronado (2003) 106 Cal.App.4th 905, 912.) What process is due must be tailored to the particular situation. (Ibid.) Further, “[t]he due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817, citing People v. Marshall (1996) 13 Cal.4th 799, 836.) Here, we see no due process violation in the court's decision to not hold a full evidentiary hearing under the circumstances, where Anne had not made a specific showing as to the evidence she intended to introduce, except to state generally she wished to call certain witnesses to testify about C.'s “health condition/disability.”
Anne's reliance on Spector v. Superior Court of San Mateo County (1961) 55 Cal.2d 839 is misplaced. In Spector, a petitioner filed a motion for modification of a preliminary injunction and supporting affidavits, but at the hearing on the motion, the court “refused to permit counsel for petitioner to present any evidence or argument in support of his client's position.” (Id. at p. 843.) The court reversed because that refusal deprived the litigant of his day in court. (Id. at pp. 843-844.) Spector is inapposite since it does not address the situation here where the court declines to hold an evidentiary hearing because the moving party had not submitted any evidence with the underlying motion after granting her an opportunity to do so.
Accordingly, we conclude that Anne has failed to establish the court committed reversible error in denying her request for adult child support.
7. Attorney Fees and Costs
Anne also challenges the denial of her request for attorney fees and costs in the amount of $16,080, which she claimed were needed to hire a new attorney to represent her in proceedings related to the request for adult child support and reimbursement for having prepared the request. She contends the court erred in basing its ruling on a “pleading defect, ” failing to expressly consider the factors set forth in section 2030, and failing to award her fees and costs without holding a hearing. We find no reversible error.
1.Applicable Law and Standards of Review
Sections 2030 and 2032, as well as section 4320 (as incorporated by § 2032, subd. (b)) govern need-based awards for attorney fees and costs in dissolution proceedings. Under section 2030, subdivision (a)(1), “the court shall ensure that each party has access to legal representation... by ordering, if necessary based on... income and needs assessments, one party... to pay to the other party... whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding....” (Italics added.) In addition, “the court shall make findings on whether an award of attorney's fees and costs... is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for [the] legal representation of both parties.” (§ 2030, subd. (a)(2).)
Under section 2032, “[t]he court may make an award of attorney's fees... where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a), italics added.) “Financial resources are only one factor for the court to consider....” (§ 2032, subd. (b).) “The trial court may also consider the other party's trial tactics.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975 (Falcone & Fyke).) “Notwithstanding the parties' relative economic circumstances, an award under section 2030 et seq. is properly denied if a case has been overlitigated or if the fees otherwise were not ‘reasonably necessary.' ” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 112.)
We review a court's denial of a section 2030 motion for an abuse of discretion. (Falcone & Fyke, supra, 203 Cal.App.4th at p. 975.) Although the court has broad discretion in fashioning a need-based award, “ ‘the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.' ” (Ibid.) However, even if error is shown, we will not reverse unless the appellant establishes the error was prejudicial. (See Morton, supra, 27 Cal.App.5th at p. 1051; Cal. Const., art. VI, § 13.)
2. No Prejudice in the Denial of Fees and Costs
Anne argues that the court erred in failing to make the requisite, express findings of the factors set forth in section 2030, subdivision (a)(2). James does not dispute the court failed to make such findings, but argues that any such error was not prejudicial. We agree with James. Although the failure to make express findings constitutes “legal error” (Morton, supra, 27 Cal.App.5th at p. 1053), we will not reverse the order unless Anne can establish such failure was prejudicial (id. at p. 1051). Anne has failed to do so.
While the court's April 16, 2019 order does not expressly include findings on whether there was a disparity in parties' access to funds and James's ability to pay, the record elsewhere shows that the court considered those factors. As James points out, the court previously denied two separate fee motions filed by Anne in June and December 2018 and this court affirmed the orders of denial in two prior appeals. (In re Marriage of Tearse (Oct. 21, 2020, A155541, A156019) [nonpub. opn.] [affirming denial of June 2018 fee request]; In re Marriage of Tearse (Oct. 15, 2020, A156538) [nonpub. opn.] [affirming denial of December 2018 fee request].) James's July 23, 2018 income and expense declaration was also the basis for the other fee motions. (In re Marriage of Tearse, supra, A155541, A156019; In re Marriage of Tearse, supra, A156538.) With respect to Anne's June 2018 request, we found no abuse of discretion in the court's determination that while there was an income disparity between the parties, James's monthly expenses rendered him unable to pay for both parties' legal representation. (In re Marriage of Tearse, supra, A155541, A156019.) Specifically, the court found James's average monthly income of $30,007 as reported in his declaration was just enough to pay for his monthly expenses. (In re Marriage of Tearse, supra, A155541, A156019.) As for the denial of the December 2018 fee motion, we found no prejudice in the absence of express statutory findings because the motion used the same financial information as that in the June fee motion, and Anne had not shown the parties' relative financial circumstances had changed since then. (In re Marriage of Tearse, supra, A156538, citing Falcone & Fyke, supra, 203 Cal.App.4th at pp. 975-976 [held “ ‘[i]t is not irrational to deny a repetitive motion [for attorney fees] in unchanged circumstances' ”].)
On our own initiative, we take judicial notice of our prior opinions in In re Marriage of Tearse, supra, A155541, A156019 and In re Marriage Tearse, supra, A156538. (See Evid. Code, §§ 452, subd. (d), 459.)
Anne's October 2018 fee motion at issue here relies on the same July 23, 2018 income and expense declaration of James. Without a showing of a change of the parties' financial circumstances, we would apply the same reasoning in our earlier decisions and find that Anne cannot show prejudice from the court's denial of her fee motion at issue here. (See Falcone & Fyke, supra, 203 Cal.App.4th at pp. 975-976.) Anne, however, cites to another financial document not presented in connection with her other fee motions, specifically a balance sheet from James's medical practice showing it had an accounts receivable balance of over $764,891 in April 2018. Anne's reliance on this information is misplaced.
We first note that Anne cited this accounts receivable balance sheet in connection with her request for an order finding that James committed perjury by failing to previously disclose the balance. James refuted this claim, stating in a declaration he disclosed the information in various documents, including his July 2018 income and expense declaration. He also explained that the total of real and personal property assets he reported “includes the asset of the accounts receivable balance, minus the debts owed. The accounts receivable are part of the value of the practice. They are not earnings of the practice unless and until they are received.” The court found insufficient evidence to support Anne's claim of perjury and denied the request. Anne does not challenge that finding or otherwise question the accuracy of James's income and expense declaration here. Accordingly, Anne has abandoned any such challenges on appeal. (See Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9, fn. 2.)
In any event, it would be flawed to assume that that the accounts receivable balance from James's medical practice in April 2018 should be taken at face value and then turned over to James directly as income or earnings. Such an assumption is both oversimplistic and fallacious.
As a California family law treatise explains: “In the operation of a business, the balance sheet often lists accounts receivable as an asset of the business. Accounts receivable are funds that are owed to the business for work performed or goods sold. [Citation.] They do not represent income unless and until the funds have been received by the business entity to which they are owed.” (Burke et al., Cal. Child and Spousal Support: Establishing, Modifying, and Enforcing (Cont.Ed.Bar 2020) § 3:10.) While they are considered an asset of the business, accounts receivable are just one factor to consider when determining the overall value of a business or one's interest therein. (See, e.g., In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 110 [in determining value of law firm, courts should consider fixed assets, such as cash, furniture, equipment, and supplies; other assets, such as “properly aged accounts receivable”; goodwill; and liabilities], disapproved on another ground in In re Marriage of Morrison (1978) 20 Cal.3d 437, 453.) Further, when “valuing a business or practice, ” accounts receivable are “rarely included at face value. Rather, a reduction for bad debts is appropriate.” (Goodman et al., Practice Under the California Family Law Code: Dissolution, Legal Separation, Nullity (Cont.Ed.Bar 2021) § 5:60(1), citing In re Marriage of Lopez, supra, 38 Cal.App.3d at p. 110 [courts should determine existence and value of “properly aged” accounts receivable (italics added)]; In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 689, fn. 15 [expert reduced accounts receivable by percentage allowing for “uncollectable accounts”].)
Based on the foregoing, we are unable to assume, as Anne does, that the accounts receivable balance of James's business from April 2018 should be taken at face value. Anne fails to explain whether the business could collect any or all of the balance reported and/or the rate at which it could collect. Anne also fails to establish that we may rely on the accounts receivable as a standalone asset, rather than as one factor in the formula used to calculate the overall valuation of the business. In this vein, Anne also does not account for the debts and liabilities of the business. We therefore reject the notion that the accounts receivable balance should be taken at face value, treated as an asset of the business without considering it against other assets or debts of the business, or imputed to James directly as income. (See Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [“[W]e cannot presume prejudice and we will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial”].)
Notwithstanding the parties' relative economic circumstances, another limitation on Anne's ability to show prejudice is her failure to demonstrate the fees and costs were “just and reasonable” or “reasonably necessary.” (§§ 2030, subd. (a)(1), 2032, subd. (a).) “There are additional limitations on recovery of fees from the opposing spouse-including not only that the opposing spouse has the ability to pay, but also that the fees be ‘reasonably necessary,' and that payment of the fees by the opposing spouse is ‘just and reasonable' under the relative circumstances of the respective parties.” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870-871; §§ 2030, subd. (a)(1), 2032, subd. (a).) To that extent, a court may consider a party's trial tactics. (Falcone & Fyke, supra, 203 Cal.App.4th at p. 975.) A court may properly deny a request for fees “if a case has been overlitigated or if the fees otherwise were not ‘reasonably necessary.' ” (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 112.) “[S]ervices which have no apparent effect other than to prolong and to complicate domestic litigation cannot be deemed ‘reasonably necessary.' ” (In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 576.)
Here, the court found Anne's motion “unreasonable, ” highlighting Anne's failure to present any facts to support her request for adult child support, even after being granted leave to do so. Since the court denied her request for adult child support, Anne did not need funds to hire another attorney to represent her in proceedings related to that request. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824 [“Since the trial court refused her request for a continuance, Kathey did not need the funds to hire an attorney to represent her at the hearing”].)
The court also commented on Anne's failure to comply with the court's prior order for her to prepare a proposed findings and order after the December 24, 2018 hearing, as well as to file a timely motion for an order sealing pleadings. Instead, Anne allowed three months to pass before filing a motion to seal on March 22, 2019, the date of the second hearing on her request for adult child support. On top of that, Anne requested that the court again continue the matter to a later date. Such events had no apparent effect other than to prolong and complicate the litigation in this case, which, as explained above, Anne fails to reasonably justify. In light of Anne's patently deficient request for adult child support and overall handling of the matter, the court could reasonably conclude that the “expeditious disposition of the case” had been made impossible by Anne's litigation tactics. (In re Marriage of Behrens, supra, 137 Cal.App.3d at p. 576.)
Finally, Anne asserts that “[t]he court erred in denying [her] motion for Family Code section 2030 attorney fees without a hearing....” This statement is contained in a heading in her opening brief; beyond this, Anne presents no analysis on the assertion. Anne has therefore forfeited the contention. (See Cahill v. San Diego Gas & Electric Co., supra, 194 Cal.App.4th at p. 956.) In any event, for the reasons above, Anne cannot show that a hearing on the matter would have made a difference on the outcome.
DISPOSITION
The April 16, 2019 orders are affirmed. In the interests of justice, each side shall bear its own costs on appeal.
WE CONCUR: TUCHER, J.BROWN, J.