Opinion
D080072
04-15-2024
In re the Marriage of MARY and KENNETH LOWE. v. KENNETH LOWE, Respondent. MARY EVANS WHITE, Appellant,
Law Offices of Bernard I. Segal, Bernard I. Segal; Spach, Capaldi &Waggaman and Madison S. Spach, Jr. for Appellant. Stephen Temko; English &Gloven and Mark Gloven for Respondent.
NOT TO BE PUBLISHED
Order Filed Date 5/6/24
APPEAL from postjudgment orders of the Superior Court of San Diego County, No. D530289 Matthew C. Braner and Marcella O. McLaughlin, Judges. Affirmed.
Law Offices of Bernard I. Segal, Bernard I. Segal; Spach, Capaldi &Waggaman and Madison S. Spach, Jr. for Appellant.
Stephen Temko; English &Gloven and Mark Gloven for Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT: It is ordered that the opinion filed herein on April 15, 2024, be modified as follows:
On page 23, the word "December" should be replaced with the word "August" so that the sentence reads: Instead, the court found, he acquired this right under the amended employment agreement he executed on August 30, 2016-more than five years after the date of separation.
Appellant's petition for rehearing is denied. There is no change in the judgment.
Copies to: All parties
McCONNELL, P. J.
I
INTRODUCTION
After more than 30 years of marriage, Mary Evans White (hereafter, Mary) and Kenneth Lowe (hereafter, Ken) separated from one another and entered into a marital settlement agreement (MSA) that was incorporated into a judgment of dissolution. Following the entry of judgment, Mary filed two requests for orders (RFOs) seeking to set aside the judgment and redetermine the community estate based on allegations that Ken concealed substantial unadjudicated community assets and breached his fiduciary duty of disclosure.
In a series of rulings, the family court denied Mary the opportunity to depose Ken. The court barred Mary from deposing Ken for several reasons, chiefly because she did not identify any omitted or impaired community asset entitling her to take Ken's deposition. Ultimately, the matter proceeded to a five-day long-cause hearing and the court denied Mary's RFOs.
Mary appeals the denial of her RFOs and challenges the rulings that barred her from deposing Ken. Finding no error, we affirm.
II
Mary's appellate briefs are replete with unsupported statements about the case. We disregard these unsubstantiated assertions and admonish Mary's legal counsel that" '[a]ny statement in a brief concerning matters in the appellate record-whether factual or procedural and no matter where in the brief the reference to the record occursmust be supported by a citation to the record.'" (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970; see also Cal. Rules of Court, rule 8.204(a)(1)(C) (further references to Rules are to the California Rules of Court).)
A. The Dissolution Proceedings
Ken and Mary married in 1980 and separated from one another in 2011. They had no children together.
For much of the marriage, Ken served as the president, chief executive officer, and chairman of the board of directors for Scripps Networks Interactive, Inc. (SNI), a publicly traded media company whose corporate predecessor launched the Home &Garden cable television network (HGTV). SNI compensated Ken generously, which permitted Ken and Mary to amass a vast community estate valued at approximately $70 million.
On June 20, 2011, Mary filed a petition for dissolution of marriage in the Superior Court for the County of San Diego. The petition identified the date of separation as June 17, 2011.
At the time of separation, SNI employed Ken under an employment agreement with an expiration date of June 30, 2013. The agreement guaranteed Ken a salary, a performance-based bonus, and equity grants. It also entitled him to severance (sometimes referred to as a golden parachute) in the event his employment was terminated for any one of multiple reasons, including a change in control of the company.
After the date of separation, SNI and Ken executed amended employment agreements to extend Ken's employment to December 31, 2015, and then to December 31, 2016. Ken disclosed these extensions to Mary, who at no point claimed the compensation earned by Ken after the date of separation constituted community property. On the contrary, she stated in her financial disclosures and elsewhere that his post-separation earnings were his separate property.
During the dissolution proceedings, Ken produced to Mary copious financial records showing that he received $65 million between the date of separation and the service of his final declaration of disclosure. He also provided Mary with SNI's annual proxy statements for the years after the date of separation. These proxy statements explained SNI's calculation of Ken's base salary, performance-based bonuses, and equity grants. At least some of them estimated the size of the golden parachute to which Ken would be entitled if he separated from the company due to a change of control.
In 2014, the family court entered a judgment of legal dissolution as to marital status only.
In 2015 and early 2016, Ken, Mary, and their respective attorneys and forensic accountants participated in multiple mediation sessions. The mediation culminated in a settlement, which the parties memorialized in a written mediated settlement agreement, effective February 25, 2016. The mediated settlement agreement states that each party waives its rights to spousal support and no court will have jurisdiction to award either party spousal support. It provides for the equal, in-kind division of the community's interest in SNI stock and other financial assets. It also states it is enforceable under Code of Civil Procedure section 664.6.
Code of Civil Procedure section 664.6, subdivision (a), states, "If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement."
In August 2016, the parties executed a long-form MSA, effective February 25, 2016, which restates the terms of the mediated settlement agreement. The key provisions of the MSA are as follows:
• Paragraph 3(B) states, except as otherwise provided, "any property acquired by either party on or after the date of separation shall be the sole and separate property of the party acquiring it. Each party waives any and all rights in or to the separate property of the other and confirms it to be the sole and separate property of the party acquiring it on or after the date of separation. The earnings from personal services of either party after the date of separation shall be the sole and separate property of the earning party."
• Paragraphs 4 and 5 state that each spouse "waives any and all rights to receive spousal support from [the other spouse] and understands that this waiver is final and that [he or she] may never in the future petition any court for spousal support as a result of this marriage."
• Paragraph 22(A)(9) waives the right of either spouse to future compensation under a theory of "executive goodwill." • Paragraph 45 states, "Notwithstanding the duties imposed on the parties by the provisions of Family Code Section 2102[, subdivision] (a)(2), the parties agree that any investment opportunities, business opportunities, or other income producing opportunities that may accrue to either of them after the date of this Agreement shall be and remain their respective separate property," regardless of whether "the opportunity may be attributed to an asset or activity that accrued during the marriage."
On February 8, 2017, the family court entered a supplemental judgment on reserved issues. The parties stipulated to various court orders to implement the settlement as of the effective date of February 25, 2016. In total, Mary received about $35 million under the settlement.
B. Post-Settlement Proceedings
On August 30, 2016, five days after the MSA was executed, SNI and Ken signed an amended employment agreement extending his employment until December 31, 2019. Like the prior employment agreements, the amended agreement guaranteed Ken an annual salary, an annual performance-based bonus, and grants of equity. It also stated Ken would be entitled to an immediate cash severance and vesting of equity grants if his employment was terminated due to a change in control at the company.
On July 31, 2017, SNI announced a merger with another publicly traded media company, Discovery Communications, Inc. (Discovery), whereby Discovery would acquire SNI in a transaction valued at $14.6 billion. The merger was finalized on March 6, 2018, and Ken's employment with SNI was terminated. Upon termination, Ken received a golden parachute valued at more than $91 million.
C. Proceedings Before Judge Matthew C. Braner
i. Mary's RFOs
On August 8, 2017, Mary filed an RFO seeking to set aside the MSA and the judgment (hereafter, the First RFO). In the First RFO, Mary alleged Ken breached his fiduciary duty of disclosure under Family Code section 2102. In part, section 2102 states, "From the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to ... spousal support ..., each party is subject to the standards provided in Section 721 as to all issues relating to the support ..., including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party." (§ 2102, subd. (c).)
Further undesignated references are to the Family Code.
The First RFO did not identify the statutory basis on which Mary sought to set aside the MSA and the judgment, but the parties proceeded under the assumption she sought relief under section 2122, subdivision (f), which states, in pertinent part, "The grounds ... for a motion to set aside a judgment ... shall be one of the following: [¶] ... Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100)."
On February 6, 2018, Mary filed a second RFO similarly alleging that Ken breached his fiduciary duty of disclosure (hereafter, the Second RFO). In the Second RFO, Mary requested remedies under section 1101. In particular, she requested: (1) an award of 100% (§ 1101, subd. (h)) or 50% (id., subd. (g)) of any undisclosed or concealed community asset; (2) a redetermination of the community estate; and (3) attorney's fees and costs.
Mary based the First and Second RFOs on legal theories that evolved over time. Initially, she claimed that Ken breached his fiduciary duty of disclosure by falsely telling her that he intended to retire from SNI on December 31, 2016, and concealing the fact that he intended to extend his employment beyond that date. According to Mary, she waived her right to spousal support in reliance on these misrepresentations and omissions.
However, Mary pursued a different theory of recovery as the litigation progressed. As the case proceeded, she primarily claimed that the community had an interest in Ken's post-separation earnings. According to Mary, the community had an interest in Ken's post-separation earnings because Ken purportedly obtained his right to the golden parachute before the date of separation. Mary also claimed she developed the concept for HGTV during the marriage and SNI paid the golden parachute to Ken, at least in part, as compensation for the HGTV concept.
ii. Mary's Efforts to Depose Ken
In March 2018, Mary noticed Ken's deposition in Tennessee, where he resided. Soon after, Ken moved to quash the deposition notice or, in the alternative, for a protective order.
In his motion, Ken argued the discovery Mary sought in the deposition was unnecessary and irrelevant to any disputed fact of consequence because Ken's post-separation compensation was his separate property and the parties waived spousal support in the mediated settlement agreement. He also argued a deposition would invade his privacy interests and cause him undue harassment. Together with the motion, Ken filed a declaration in which he averred he was 65 years old when he executed the mediated settlement agreement and, at that time, he did not expect his employment to extend beyond its then-current termination date of December 31, 2016.
On July 27, 2018, Mary filed an RFO seeking to take Ken's deposition in Tennessee (hereafter, the Third RFO). Relying on section 217, Mary argued she had a statutory right to cross-examine Ken about the statements he made in his declaration-a right she claimed she could exercise at the motion to quash hearing or at a deposition. Because Ken did not intend to appear at the motion hearing voluntarily, and his Tennessee residency precluded him from being subpoenaed to attend the hearing, Mary sought permission from the court to take his deposition in Tennessee.
After a hearing, the family court tentatively denied the Third RFO. In its written minutes, the court stated it would strike Ken's declaration and refrain from relying on it when ruling on his motion to quash the deposition notice, thereby obviating Mary's claimed need to cross-examine him about the contents of the declaration.
Mary filed a motion for reconsideration of the denial of her request to depose Ken under section 217, which the family court denied.
Over the span of several months, the family court held multiple hearings concerning Ken's motion to quash the deposition notice, which the court tentatively granted at a hearing on December 6, 2018. Thereafter, Ken filed a proposed statement of decision, Mary filed objections to the proposed statement of decision, and the court ordered revisions to the proposed statement of decision. On February 28, 2019, the court adopted a final statement of decision, which both: (1) denied Mary's Third RFO; and (2) granted Ken's motion to quash the deposition notice.
In its statement of decision, the court denied the Third RFO for four independent reasons. First, it found section 217 did not apply to the hearing on Ken's motion to quash. In part, section 217 states, "At a hearing on any order to show cause or notice of motion brought pursuant to this code, ... the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties." (§ 217, subd. (a), italics added; see also Rule 5.113(a) ["Under Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing."], italics added.) According to the court, section 217 was inapplicable because it governs hearings for orders to show cause or motions brought under the Family Code, and Ken filed his motion to quash under a different statutory code (the Code of Civil Procedure).
Second, the court found Ken's deposition testimony would be irrelevant and unnecessary to the postjudgment proceeding because, as we will discuss, (1) Mary did not identify any undisclosed and unadjudicated community asset; and (2) by statute, Mary could obtain a set-aside of the MSA and judgment only by establishing that Ken's nondisclosure of information "materially affected" the outcome of the marital dissolution proceeding (§ 2121, subd. (b)), and Ken's alleged nondisclosure did not materially affect Mary's claimed entitlement to spousal support.
Third, the court found good cause existed to refuse Mary's demand for live testimony. In part, section 217 states, "In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing." (§ 217, subd. (b).) The court found good cause existed to refuse Mary's demand to elicit live testimony from Ken because the court struck Ken's declaration rather than relying on it, the material facts relevant to the motion to quash were undisputed, and Mary sought to elicit testimony about a mere discovery issue, not a substantive family law issue.
Fourth, the family court found the Third RFO was "moot" because the court struck Ken's declaration and did not rely on it when adjudicating Ken's motion to quash the deposition notice.
As noted, the court also granted Ken's motion to quash the deposition notice in its statement of decision. With respect to Mary's claims that a community asset was omitted from the judgment and Ken breached his fiduciary duty of disclosure, the court found a deposition would be unnecessary and irrelevant because Mary did not identify any community asset that was omitted from the judgment or impaired by Ken's alleged nondisclosure. In particular, the court found Ken's postseparation earnings and accumulations-including the golden parachute-were his separate property and not community property. In reaching this finding, the court determined that Ken's right to the golden parachute arose after the date of separation and Mary's claimed development of the HGTV concept did not transform his post-separation earnings into community property. iii. Business Records Subpoena to Nonparty Discovery
The court also considered whether Ken's deposition would be pertinent to Mary's spousal support waiver theory, even though her court filings "focused on property issues, not support." Preliminarily, the court found the mediated settlement agreement was an enforceable settlement agreement that fully resolved the issue of spousal support and, therefore, Ken's fiduciary duty to disclose changes in his income ended in February 2016, when the parties signed the mediated settlement agreement. The court then found that discovery limited in scope (prior to February 2016) would be irrelevant and unnecessary because the judgment-specifically, the waiver of spousal support-was not "materially affected" by Ken's alleged nondisclosure of his employment extension-a requirement to set aside the judgment. (§ 2121, subd. (b).)
In June 2018, while the parties were still litigating Mary's requests to depose Ken, Mary served nonparty Discovery with a subpoena to produce business records. She sought 42 categories of documents, including all communications between SNI and Discovery in the seven year period preceding the SNI-Discovery merger.
On July 6, 2018, Discovery moved to quash Mary's subpoena. It opposed the subpoena on grounds that any financial benefits Ken received from the extension of his employment and the SNI-Discovery merger were his separate property and, therefore, the discovery requests pertaining to those topics would not yield information relevant to the proceeding. Ken joined Discovery in requesting that the court quash Mary's subpoena.
On February 19, 2019-two months after the court tentatively granted Ken's motion to quash the deposition notice, and nine days before the court issued its statement of decision granting that motion-the court issued an order partially quashing the business records subpoena as to 36 categories of documents. Referencing its tentative order granting Ken's motion to quash the deposition notice, the court found Discovery's relevance objections had "substantial merit," the "bulk" of the requested documents were of "questionable relevance," and there was a "continuing absence of a viable theory" of recovery. Additionally, the court observed that "sanctions should strongly be considered in the event Mary continues to forage" for irrelevant information. However, the court permitted the limited production of six categories of documents to allow Mary to "paint a different picture than what presently exists," and because the "case at least in theory [would be] going to trial."
D. Proceedings Before Judge Marcella O. McLaughlin
After ruling on Discovery's motion to quash Mary's business records subpoena, Judge Matthew C. Braner rotated out of the family court and the matter was reassigned to Judge Marcella O. McLaughlin.
i. Motion to Reconsider the Prior Deposition Rulings
On July 19, 2019, Mary moved for reconsideration of the orders denying her Third RFO and granting Ken's motion to quash the deposition notice. The court denied reconsideration under Code of Civil Procedure section 1008, subdivision (a), finding that Mary's request for reconsideration was untimely. It also declined Mary's renewed request to take Ken's deposition under Code of Civil Procedure section 1008, subdivision (b), finding that Mary "advance[d] no new theory, fact or legal argument that was not available to her at the time of the hearing" on her prior request to depose Ken.
ii. Mary Abandons the Set-Aside Request
Shortly before the long-cause hearing on the First and Second RFOs, the parties filed pre-hearing briefs. In her pre-hearing brief, Mary withdrew the First RFO and indicated she no longer sought to set aside the MSA that was incorporated into the judgment; rather, she sought to enforce it.
In her reply, Mary states she did not abandon the First RFO. We reject this contention. The family court expressly found, in its statement of decision dated April 25, 2022 (post Section II(D)(iv)), that Mary withdrew her First RFO and, on that basis, it dismissed the First RFO. Mary forfeited any challenge she may have to the court's finding by failing to raise it in her opening brief. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 (Aptos Council) ["Issues not raised in the appellant's opening brief are deemed waived or abandoned."]; Crawley v. Alameda County Waste Management Authority (2015) 243 Cal.App.4th 396, 403, fn. 4 (Crawley) ["We do not address arguments [a party] raises for the first time in his reply brief."].) In any event, the record amply supports the court's finding that Mary withdrew the First RFO. In her pre-hearing brief, Mary stated, "Though Mary's initial RFO sought to set aside the MSA ... she does not now seek the remedy of setting aside the MSA[] [and] none of Mary's claims depend upon setting aside either the settlement memorandum or the MSA. Instead, Mary's claims depend upon enforcing the MSA." She further stated, "Mary will not request that the Court order the remedy of setting aside the MSA as requested in her first RFO, but will seek other remedies indicated in the RFOs."
Mary's pre-hearing brief partially clarified the statutory provisions on which her RFO relied. She stated she was now proceeding with the Second RFO under section 2556. According to Mary, there were two omitted community assets-(1) Ken's right to a golden parachute, which allegedly came into existence during the marriage, before separation; and (2) the postseparation compensation Ken allegedly received from SNI for the HGTV concept.
Further, although Mary abandoned her request to set aside the judgment, she still purported to pursue a postjudgment claim against Ken for breach of his fiduciary duty of disclosure (presumably under § 1101, subd. (a)), and in connection with that claim, she requested an accounting of the parties' property (§ 1101, subd. (b)), and 100% of any asset that Ken failed to disclose in breach of his fiduciary duty (§ 1101, subd. (h)).
iii. The Long-Cause Hearing
Prior to the long-cause hearing, Mary served Ken's legal counsel with notices demanding Ken's personal attendance at the long-cause hearing under Code of Civil Procedure section 1987, subdivision (b). Ken-who had become a resident of Georgia during the proceeding-objected to Mary's notices on grounds that he remained a non-California resident and therefore could not be compelled to attend the hearing. (Code Civ. Proc., § 1989.) Consistent with his objection, Ken did not appear at the hearing.
The court conducted the long-cause hearing over five days- December 9-10, 2020, August 18-19, 2021, and September 1, 2021. During the hearing, the parties elicited testimony from three witnesses: (1) Mary; (2) Sharon Blanchet, Mary's family law counsel from the dissolution proceedings; and (3) James Shaefer, Ken's forensic accountant from the dissolution proceedings.
On September 25, 2023, Mary filed an unopposed motion to augment the record on appeal with the reporter's transcript from the long-cause hearing conducted on August 18, 2021. Mary's motion to augment the record is granted. The document attached to the motion to augment is hereby deemed a part of the record on appeal.
On August 18, 2021, the third day of the long-cause hearing, Mary filed two additional RFOs: (1) an RFO to vacate the court's prior ruling on Ken's motion to quash the deposition notice (hereafter, the Fourth RFO); and (2) an RFO to compel Ken to testify at the hearing (hereafter, the Fifth RFO), both of which reiterated Mary's previous arguments concerning these topics. Mary also filed an ex parte application to have the RFOs heard prior to the resumption of the long-cause hearing. The court denied ex parte relief and scheduled the Fourth and Fifth RFOs for hearing on January 12, 2022. Later, the hearing was continued to April 13, 2022.
On October 29, 2021, Mary filed yet another ex parte application, this time requesting that the court defer issuance of a statement of decision on the First and Second RFOs until it decided the Fourth and Fifth RFOs. The court found the application failed to state sufficient facts to warrant emergency relief, and denied the application.
iv. The Statement of Decision Resolving the First and Second RFOs
After the long-cause hearing, the parties filed closing briefs. In her brief, Mary again argued the community had an interest in Ken's right to his golden parachute and the HGTV concept. She did not pursue her original spousal support waiver theory.
On December 21, 2021, the family court issued an order dismissing the First RFO (as previously withdrawn), denying the Second RFO with prejudice, and ordering Ken to prepare a proposed statement of decision. Thereafter, Ken filed a proposed statement of decision, Mary filed untimely objections to the proposed statement of decision, and Ken filed a response to the objections.
On April 13, 2022, the family court held a hearing on the Fourth RFO (to vacate the ruling on Ken's motion to quash), the Fifth RFO (to compel Ken to testify), and Mary's objections to the proposed statement of decision. At the hearing, the court denied the Fourth and Fifth RFOs-a ruling the court memorialized in a written order issued the same day.
On April 25, 2022, the court issued its final statement of decision dismissing the First RFO as withdrawn, and denying the Second RFO with prejudice. With respect to Mary's omitted asset claim, the court found that Mary failed to identify any omitted or unadjudicated community asset. The court determined that Ken's golden parachute-which he received seven years after the date of separation-was not a community asset because it was not a backward-looking form of deferred compensation; rather, it was a forward-looking benefit for Ken's loss of future earnings resulting from his termination. The court also found the community did not have an interest in Ken's golden parachute based on Mary's alleged development of the HGTV concept. The court found the HGTV concept was a corporate asset and SNI already compensated Ken for the concept through stock-community assets that were divided equally between the spouses.
As for the breach of fiduciary duty contention, the court found that Mary failed to establish either a breach of the fiduciary duty of disclosure or impairment to the value of a community asset.
Mary filed timely notices of appeal from the order dismissing the First RFO and denying the Second RFO, dated December 21, 2021, as well as the final statement of decision explaining the court's rulings on the First and Second RFOs, dated April 25, 2022.
III DISCUSSION
A. Appealability
Our initial task on appeal is to determine whether Mary has timely appealed from an appealable judgment or order, thus vesting us with appellate jurisdiction to hear her case." 'The existence of an appealable judgment [or order] is a jurisdictional prerequisite to an appeal.'" (In re Marriage of Tim &Wong (2019) 32 Cal.App.5th 1049, 1052 (Tim &Wong).)
In an unusual turn of events, Mary argues-seemingly against her own interests-that the statement of decision, dated April 25, 2022, was not appealable because it was not a final judgment. She asserts it was not an appealable final judgment because, according to Mary, the family court entered the statement of decision before it definitively ruled on disputed issues that were presented in her Fourth and Fifth RFOs.
Fortunately for Mary, we disagree with her that she has appealed from a nonappealable judgment. Although she frames her appealability discussion in terms of whether an appealable final judgment exists, she overlooks a key fact-this is a postjudgment proceeding. Thus, the proper inquiry is not whether an appealable final judgment exists; rather, the relevant question is whether the statement of decision constitutes an appealable postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2).
We consider the statement of decision an appealable postjudgment order. It decided issues different from the original judgment, it affected the original judgment, and it was not preliminary to a later judgment. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 497.) The statement of decision was signed by the family court, it constituted the court's final determination on the merits of the First and Second RFOs, and it contemplated no further action as to those RFOs. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 1114 ["Reviewing courts have discretion to treat statements of decision as appealable ... when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits."].) Further, there is no dispute that Mary filed her notice of appeal from the statement of decision in a timely manner. Thus, we have jurisdiction to consider the issues presented in the statement of decision under Code of Civil Procedure section 904.1, subdivision (a)(2).
Although not discussed by the parties, we note for the record that we have appellate jurisdiction to consider the family court's postjudgment discovery orders as part of our review of the rulings on the First and Second RFOs. (Tim & Wong, supra, 32 Cal.App.5th at pp. 1053-1054 [postjudgment discovery orders in family law cases "can be appealed as part of an appeal from the trial court's final ruling on [a spouse's] request for order"].)
B. The Family Court Did Not Err in Granting Ken's Motion to Quash
The main issue presented for our consideration is whether the family court erred in granting Ken's motion to quash the deposition subpoena. For reasons we shall explain, we discern no error in the family court's ruling.
i. Standard of Review
We review the family court's order precluding discovery for abuse of discretion. (Manela v. Superior Court (2009) 177 Cal.App.4th 1139, 1145.)" 'Abuse of discretion is a deferential standard of review.'" (Ibid.) "A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence [citation]." (People v. Moine (2021) 62 Cal.App.5th 440, 449.) The party attacking the lower court ruling as an abuse of discretion-here, Mary- bears the burden of establishing both an abuse of its discretion and a resulting miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; In re Marriage of Brewster &Clevenger (2020) 45 Cal.App.5th 481, 500.) ii. The Family Court Did Not Abuse Its Discretion in Precluding the Deposition Mary pursued her omitted asset claim under section 2556.
Section 2556 states, in part, "In a proceeding for dissolution of marriage, ... the court has continuing jurisdiction to award community estate assets ... to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability." (§ 2556.)
As noted, Mary also filed a postjudgment claim against Ken based on his alleged breach of his fiduciary duty of disclosure. She proceeded with her breach of fiduciary duty claim under section 1101, subdivision (a), which states, "A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate."
Thus, in order to prevail on the Second RFO, Mary was obligated to establish (among other requirements) there was a "community estate asset ... omitted or not adjudicated by the judgment" (in the case of her omitted asset claim under § 2556), or that Ken's purported nondisclosure of information had "a detrimental impact to [Mary's] undivided one-half interest in the community estate" (in the case of her breach of fiduciary duty claim under § 1101, subd. (a)). Relying predominately on In re Marriage of Hixson (2003) 111 Cal.App.4th 1116 (Hixson), the family court found that Ken's deposition was irrelevant and unnecessary because Mary could not identify a community asset that was either omitted from the judgment of dissolution or impaired by Ken's alleged breach of his fiduciary duty of nondisclosure. We agree with the family court that Hixson provides the proper framework to assess the propriety of the discovery Mary sought to elicit from Ken through deposition.
In Hixson, a husband and wife separated after more than thirty years of marriage. (Hixson, supra, 111 Cal.App.4th at pp. 1119-1120.) Their marital assets consisted primarily of stock and limited partnership interests held in a revocable trust. (Id. at p. 1120.) Most of the assets in the trust were distributed to the spouses as their separate property under a series of stipulated judgments. (Ibid.) However, four years later, the wife filed an order to show cause alleging that $34 million in stock transactions were unaccounted and the husband exploited for himself an investment opportunity he should have shared with the marital community. (Ibid.) The wife propounded discovery requests on the husband, who moved to quash the discovery. (Ibid.) The family court refused to allow the discovery to proceed and ultimately denied the wife's order to show cause. (Ibid.)
On appeal, the Court of Appeal determined the family court did not abuse its discretion in limiting postjudgment discovery. (Hixson, supra, 111 Cal.App.4th at p. 1121.) At the outset, the Hixson court rejected the wife's extreme claim she had an "absolute right to conduct discovery with respect to the allegations" in her order to show cause, and the husband's equally untenable position that there is "no right to any discovery" in a postjudgment proceeding. (Id. at pp. 1120-1121.) Rather, the court found that "family law litigants are entitled to all the discovery provided by the Civil Discovery Act," subject to the same restraints and restrictions applicable to such discovery. (Id. at p. 1122.) Specifically, it observed that" 'any discovery method, including depositions, may be restricted in the frequency or extent of its use if the trial court determines either that "(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive" or "(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation." '" (Id. at p. 1122; Code Civ. Proc., § 2019.030, subd. (a)(1)-(2).) Thus, a party in a postjudgment section 2556 proceeding "may obtain an order limiting or even preventing discovery if the proposed discovery exceeds the scope of the statute or is unnecessary under all the circumstances presented." (Hixson, at p. 1123.)
According to Hixson, "[t]he clearest limitation on the scope of any discovery under section 2556 is the nature of the assets over which the family court may exercise jurisdiction. Not only by its express terms, but also by virtue of the doctrines of res judicata and collateral estoppel, the family court's power under section 2556 is limited to assets which have not been previously adjudicated. The family court's power is also limited to community property and community liabilities; the statute gives the court no power to make an award with respect to a party's separate property or separate liabilities. Thus a family court can prevent discovery which is directed solely toward assets or liabilities which have already been adjudicated or are clearly the separate property or liability of one of the parties." (Hixson, supra, 111 Cal.App.4th at p. 1123.) Additionally, "there are obvious practical considerations which will govern the manner in which a section 2556 claim is litigated." (Id. at pp. 1123-1124.) "Plainly, where a thorough record [of the dissolution proceeding] exists, extensive new discovery on many issues may not be necessary." (Id. at p. 1124.)
Applying these legal principles to the facts of the case before it, the Hixson court approved the order limiting discovery. It determined the family court did not abuse its discretion in "preventing unnecessary discovery" about purportedly omitted stock transactions, given that the parties' stipulated judgments already accounted for the parties' stock holdings and the wife made no "showing which either undermine[d] that record or demonstrate[d] that the record [did] not resolve the claim being asserted." (Hixson, supra, 111 Cal.App.4th at pp. 1124-1125.) The Hixson court also determined that the family court properly limited discovery as to an investment opportunity in a limited partnership that a venture capital firm offered to the husband shortly after the entry of the stipulated judgments. (Id. at pp. 1125-1126.) The court found no authority "which creates any duty of disclosure with respect to property which has been distributed as separate property. A duty to share business opportunities following separation is only imposed with respect to property which has not been distributed as separate property or otherwise adjudicated. [Citations.] Thus, there was no basis upon which [the wife] could assert any interest in the new partnership and no need to subject [the husband] ... to discovery with respect to it." (Id. at p. 1126.)
Applying these same legal principles to the case before us, we conclude the family court did not abuse its discretion in precluding Mary from deposing Ken about his golden parachute or the development of HGTV. In short, the family court properly limited unnecessary postjudgment discovery because Mary-like the wife in Hixson-did not identify a community asset that was omitted from the judgment, nor did she identify a community asset impaired by Ken's alleged nondisclosure of information.
With respect to the golden parachute, the family court issued unchallenged factual findings that Ken did not accrue a right to the golden parachute under the employment agreements that existed prior to the date of separation. Instead, the court found, he acquired this right under the amended employment agreement he executed on December 30, 2016-more than five years after the date of separation. Thus, the court properly determined that the golden parachute constituted Ken's separate property. (§ 771, subd. (a) ["The earnings and accumulations of a spouse ... after the date of separation of the spouses[] are the separate property of the spouse."]; see In re Marriage of Lawson (1989) 208 Cal.App.3d 446, 452-454 [community had no interest in severance payment made to employee spouse after dissolution of marriage, where the right to severance accrued after the marriage and the severance was intended to compensate for loss of future earnings].) And, because the golden parachute was Ken's separate property, the court did not err in finding that postjudgment discovery regarding the golden parachute was unnecessary and impermissible. (See Hixson, supra, 111 Cal.App.4th at pp. 1125-1126.)
In her opening brief, Mary generally asserts that the right to the golden parachute accrued during the marriage because it was derived from Ken's pre-separation employment contracts. However, she does not mount a cogent challenge to the sufficiency of the evidence supporting the family court's contrary factual finding by, for example, arguing that the finding is unsupported by substantial evidence. Nor does she set forth all of the material evidence pertinent to the court's finding in her opening brief; rather, she presents only the evidence supporting her position. For both of these reasons, any challenge to the sufficiency of the evidence supporting the court's findings is forfeited. (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 588.)
On this basis, the family court correctly distinguished this case from Marriage of Lehman (1998) 18 Cal.4th 169, where the Supreme Court held that a nonemployee spouse has a community interest in an employee spouse's enhanced retirement benefits, so long as the right to retirement benefits accrued, at least in part, during marriage before separation.
The family court also determined the community did not have an interest in Ken's post-separation earnings based on Mary's theory that the earnings were payment for the HGTV concept. The court based this determination on other unchallenged factual findings-that Ken's postseparation earnings were not payment for the HGTV concept because the couple already "sold the idea to SNI to their vast mutual enrichment," and the profits arising from the sale were "equally divided in the settlement." These findings further confirm the court's determination, as noted above, that Ken's post-separation earnings constituted his separate property, not an omitted community asset or a community asset impaired by Ken's alleged nondisclosure of information. (§ 771, subd. (a).) Thus, the court acted within the scope of its discretion when it precluded Mary from deposing Ken about the development of the HGTV concept.
In sum, we apply the legal principles set forth in Hixson, and conclude the family court did not abuse its discretion in precluding Mary from deposing Ken about his separate property and/or previously adjudicated community assets. Because the family court properly exercised its discretion to prevent unnecessary discovery about these matters, the court neither violated state law nor deprived Mary of her right to a fair trial.
Without analysis or citation to legal authority, Mary claims the Legislature "abrogated" the Hixson decision in 2014 when it enacted section 218, which states, "With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court." Mary forfeited this argument by failing to support it with pertinent legal authority or reasoned discussion. (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597 (Champir); United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (Malibu Hillbillies).) The argument also fails on the merits. Section 218 merely provides that a party may pursue postjudgment discovery in family law proceedings without obtaining prior approval from the family court. It does not constrain the family court's wide discretion in controlling and limiting discovery.
iii. The Family Court Did Not Violate Rule 5.74
Independent of whether the motion to quash ruling constituted a proper exercise of discretion, Mary contends the family court erred in granting Ken's motion to quash the deposition notice because the court's ruling purportedly violated Rule 5.74.
Rule 5.74 states, in relevant part, "Demurrers, motions for summary adjudication, and motions for summary judgment must not be used in family law actions." (Rule 5.74(b)(2).) Mary asserts the family court violated Rule 5.74 when it granted Ken's motion to quash because the court's order was "effectively a demurrer" ruling. She emphasizes that the order implicated the merits of her RFOs insofar as the court found that she failed to identify an omitted or impaired community asset that could be the proper subject of a deposition. We are not persuaded.
" 'The function of a demurrer is to test the sufficiency of a pleading by raising questions of law.'" (Kupiec v. American Internat. Adjustment Co. (1991) 235 Cal.App.3d 1326, 1330.) When a court sustains a demurrer for failure to state a viable cause of action, the court permits amendment to the pleading if there is a reasonable possibility the defect can be cured, or it dismisses the cause of action with prejudice if there is no reasonable possibility the defect can be cured through amendment. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437, fn. 4; see Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 299, fn. 2 ["One of the primary functions of the demurrer is to filter out actions which lack substantial basis without the time and labor of trial."].)
We agree with Mary that the order granting Ken's motion to quash shed light on the legal sufficiency of her RFOs-a trait bearing some superficial resemblance to a court's ruling on a general demurrer. However, we disagree with Mary that the order functioned as a demurrer ruling in violation of Rule 5.74. Unlike a ruling sustaining a general demurrer, the family court's order did not decide the merits of Mary's RFOs on assumed facts, thus requiring amendment to the RFOs or dismissal of them. It also did not afford Ken an avenue to avoid the time and labor of a trial on the RFOs. Rather, it simply precluded Mary from pursuing discovery that was not necessary when viewed in the context of these postjudgment proceedings. Indeed, even after the order, the court allowed Mary to continue pursuing other avenues of discovery to support her RFOs-under their original terms-and to present her case on the merits at a contested five-day long- cause hearing. Because the order granting the motion to quash did not function as a ruling on demurrer, it did not violate Rule 5.74.
iv. The Family Court Did Not Rescind Its Order Granting Ken's Motion to Quash the Deposition Notice
Additionally, Mary contends we must reverse the order granting Ken's motion to quash the deposition notice because, according to Mary, the family court itself "rescinded" the order. This argument requires a brief recap of the proceedings below. As noted, the chronology of key rulings prior to the long-cause hearing was as follows: on December 6, 2018, the court granted Ken's motion to quash; on February 19, 2019, the court issued its order partially granting Discovery's motion to quash the business records subpoena; and on February 28, 2019, the court issued its statement of decision granting Ken's motion to quash.
Mary contends the statement of decision (the one granting Ken's motion to quash) was "void" at its inception because the court "vitiated" and "rescinded" its order granting Ken's motion to quash when it adjudicated Discovery's motion to quash the business records subpoena. According to Mary, the fact the court allowed her to obtain any discovery from Discovery proves her legal theories were "viable" ones that entitled her to depose Ken.
Mary does not cogently explain how, in her view, the order granting Ken's motion to quash or the related statement of decision would be rendered "void" by an intervening order resolving a nonparty's motion involving completely different discovery requests. For that reason alone, the argument is forfeited. (Champir, supra, 66 Cal.App.5th at p. 597 [" 'In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.... [W]e may disregard conclusory arguments that are not supported by pertinent legal authority.' "]; Malibu Hillbillies, supra, 36 Cal.App.5th at p. 146 [" 'an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record' "].)
In any event, the record does not support Mary's claim that the court "vitiated" or "rescinded" its ruling on Ken's motion to quash. Indeed, the order quashing the vast majority of the business records subpoena served on nonparty Discovery does not in any way refute the ruling on Ken's motion to quash. On the contrary, it shows that the court viewed Mary's discovery requests and the theories underpinning her RFOs with considerable skepticism. Indeed, the court found Discovery's relevance objections had "substantial merit," the "bulk" of the requested documents were of "questionable relevance," and there was a "continuing absence of a viable theory" of recovery. It also stated "sanctions should strongly be considered in the event Mary continues to forage" for irrelevant information. Because the ruling on Discovery's motion did not rescind the ruling on Ken's motion to quash, we reject Mary's claim that the purported rescission rendered the statement of decision "void."
No party has challenged the ruling on Discovery's motion to quash the subpoena. Thus, we offer no opinion about the merits of that ruling.
C. The Family Court Did Not Err in Denying the Third RFO and Precluding Mary from Deposing Ken Under Section 217
When Ken moved to quash the deposition notice, he submitted an accompanying declaration in which he alleged that, at the time the parties executed the mediated settlement agreement, he was 65 years old and he did not expect his employment with SNI to extend beyond December 31, 2016. In response, Mary filed the Third RFO seeking permission to take Ken's deposition under section 217. In principal part, Mary argued she had a statutory right to cross-examine Ken about the statements from his declaration-a right she could purportedly exercise in a deposition or at the hearing on Ken's motion. Ultimately, the court denied the Third RFO, struck Ken's declaration, and decided Ken's motion to quash without relying on his stricken declaration.
Mary challenges the denial of the Third RFO. Her arguments are difficult to discern, but she claims-without explanation or citation to legal authorities-that section 217 granted her an "automatic" right to depose Ken about the statements in his declaration. On a related note, she argues that the court erred in striking the declaration because she did not ask the court to strike the declaration; instead, she hoped to depose him about the statements therein. Mary has not established prejudicial error warranting reversal.
The family court denied the Third RFO for multiple alternative reasons, only one of which was the fact the court struck Ken's declaration and decided his motion to quash without relying on the declaration. Specifically, the court found section 217 did not apply to Ken's motion because section 217 only requires live testimony when a motion or order to show cause is brought under the Family Code, and Ken brought his motion under the Code of Civil Procedure. (§ 217, subd. (a); Rule 5.113(a).) The court also found that, to the extent section 217 was relevant, there was good cause to refuse Ken's testimony under section 217, subdivision (b).
Mary has not challenged these alternative grounds for denying the Third RFO. "Because [these] ground[s] [were] ... independent bas[es] supporting the court's ruling, [Mary's] failure to discuss [them] forfeits [her] challenge to the ruling." (Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 133; see Robertson v. Saadat (2020) 48 Cal.App.5th 630, 650 [plaintiff's failure to challenge trial court's alternative grounds for striking pleading allegations forfeited challenge to court's ruling on motion to strike].)
In her reply, Mary claims the court "crossed the line of impartiality" and acted as Ken's advocate when it struck his declaration Insofar as Mary purports to assert a judicial bias claim, she forfeited her argument by not presenting it in her opening brief. (Aptos Council, supra, 10 Cal.App.5th at p. 296, fn. 7; Crawley, supra, 243 Cal.App.4th at p. 403, fn. 4.)
D. The Family Court Did Not Commit Reversible Error During the Long-Cause Hearing or Thereafter
Finally, Mary challenges the dismissal of her First RFO and denial of her Second RFO, which the family court memorialized in a statement of decision issued after the long-cause hearing. She presents two arguments for reversal, neither of which has merit.
i. The Family Court Did Not Erroneously Decline to Compel Ken's Attendance at the Long-Cause Hearing
Mary's primary argument for reversal of the statement of decision is that the family court erred on the first day of the long-cause hearing by declining to compel Ken's attendance at the hearing. She claims the court erred because it relied solely on its own flawed pre-hearing orders (quashing the deposition notice and denying the Third RFO) as the basis for its decision not to compel Ken's attendance at the hearing. The appellate record does not support Mary's argument.
In her reply, Mary at times appears to challenge certain factual findings the family court made in its statement of decision dismissing the First RFO and denying the Second RFO. To the extent Mary attempts to mount a challenge to the sufficiency of the evidence underpinning the court's statement of decision, she forfeited the argument by failing to make the argument in her opening brief. (Aptos Council, supra, 10 Cal.App.5th at p. 296, fn. 7; Crawley, supra, 243 Cal.App.4th at p. 403, fn. 4.)
Before the long-cause hearing, Mary served Ken's counsel with a notice demanding Ken's appearance at the hearing under Code of Civil Procedure section 1987, subdivision (b). In response, Ken filed an objection to the notice, arguing it was ineffective because Ken was not a California resident and, therefore, he could not be compelled to attend the hearing. (Code Civ. Proc., § 1989.) In accordance with his objection, Ken did not appear at the hearing.
At the outset of the long-cause hearing, Mary's counsel argued that the court should preclude Ken from moving any documents into evidence based on his failure to appear. After a protracted conversation between the court and the parties, the court orally denied Mary's request to preclude Ken from introducing documents, and stated it would rule on specific requests to compel Ken's testimony if and when they arose during the hearing.
In light of this record, Mary has not established that the family court erroneously declined to compel Ken's attendance as a witness based on the court's prior rulings concerning Ken's motion to quash the deposition notice. As an initial matter, Mary did not present the family court with a prehearing motion, supported by points and authorities, seeking to compel Ken's attendance. Rather, her counsel made a rambling and unsubstantiated oral request for the court to exclude Ken's documentary evidence based on his failure to appear. Because Mary did not file a procedurally proper motion to compel Ken's attendance, and has not alerted us to any legal authority requiring the court to compel Ken's attendance sua sponte, she has not established that the court committed any error, let alone reversible error.
Nonetheless, we will consider the merits of Mary's argument because, midway through the long-cause hearing, she asked the family court to compel Ken's attendance through the Fifth RFO-a request the court ultimately denied on April 13, 2022. On the merits, the court did not commit prejudicial error.
Code of Civil Procedure section 1987, subdivision (b), states, "The giving of [a] notice [requesting the attendance of a party witness] shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court." Under this statute, "a notice to attend serves as a substitute for a subpoena when one party wants another party to appear at trial." (Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 559 (Amoco).) However, "the geographical reach of the notice to attend is explicitly limited by [Code of Civil Procedure] section 1989: 'A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court ... unless the witness is a resident within the state at the time of service.'" (Amoco, at p. 559.)
In the present case, there is no dispute between the parties that Ken was an out-of-state resident at the time Mary served him with a notice to appear at the long-cause hearing. Thus, "the notice to attend was void on its face," and it provided the family court no basis to compel Ken's attendance at the long-cause hearing. (Amoco, supra, 34 Cal.App.4th at p. 559 .) In the absence of an enforceable notice to compel Ken's attendance at the long-cause hearing, Mary has failed to establish that the family court committed reversible error.
ii. The Family Court Did Not Issue the Statement of Decision Before It Adjudicated the Fourth and Fifth RFOs
Mary also argues the court erred because it purportedly issued its statement of decision dismissing the First RFO and denying the Second RFO before it ruled on the Fourth RFO (seeking to vacate the prior rulings on the Third RFO and Ken's motion to quash) or the Fifth RFO (seeking to compel Ken's attendance at the long-cause hearing). In the Fourth and Fifth RFOs, Mary asserted, among other things, that the court acted in excess of its jurisdiction and lacked fundamental jurisdiction to hear the dispute based on its prior rulings. Mary claims the court denied her "due process of law" and "an impartial trial" by purportedly issuing the statement of decision before ruling on the Fourth and Fifth RFOs.
This argument is wholly without merit. As Ken correctly notes, the family court ruled from the bench and denied the Fourth and Fifth RFOs on April 13, 2022-before it issued the statement of decision on April 25, 2022.Further, the court memorialized its oral rulings on the Fourth and Fifth RFOs in its written minutes dated April 13, 2022. Thus, even if Mary's argument were viable on a record different than the one before us (an issue we do not decide), the present record unambiguously shows the court ruled on the Fourth and Fifth RFOs before it issued the statement of decision resolving the First and Second RFOs.
At the hearing on the Fourth and Fifth RFOs, the family court unambiguously ruled, "[T]he relief requested is denied as it related to [the Fourth] RFO," and "I do not find a basis to grant the relief requested, so I'm going to deny that request on the [Fifth] RFO. [¶] So, that decides those two RFOs before the Court today."
IV
DISPOSITION
The postjudgment orders are affirmed. Respondent is entitled to his costs on appeal.
WE CONCUR: DO, J. BUCHANAN, J.