Case Number: BC659260 Hearing Date: November 07, 2019 Dept: 24

Plaintiff Uknighted Clothing LLC and Laurie Lund’s motion to set aside dismissal is GRANTED.

On April 26, 2017, Plaintiff Uknighted Clothing LLC and Laurie Lund (“Plaintiffs”) filed the instant breach of contract/fraud suit against Defendants Global Apparel LLC and Simon Setton (“Defendants”). The operative Complaint alleges three causes of action for breach of contract, fraud and conversion.

On July 10, 2019, the Court dismissed the suit because Plaintiffs’ counsel failed to appear at an OSC Re: Dismissal for entry of default/default judgment.

On October 7, 2019, Plaintiffs filed the instant motion to set aside the dismissal. No opposition was filed.

Legal Standard

Relief under section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.)

Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

Discussion

Here, Plaintiffs demonstrate that mandatory relief is required. Counsel provides an affidavit of fault. (See Benincasa Decl.) He states that on July 10, 2019, he was scheduled to appear in this action by Courtcall at 8:30 a.m. (Id. ¶ 3.) He explains that he became distracted by other cases and did not notice his alarm to make the Courtcall until later in the morning. (Id. ¶ 4-5.) He immediately called, but was too late as the case was already dismissed. (Id. ¶ 6.) Based on these representations, relief is mandatory.

Further, Defendant has not appeared in the case. From this, there appears to be no prejudice (or fees/costs) to Defendants stemming from this dismissal.

Accordingly, Plaintiffs’ motion is GRANTED.

Case Number: BC700936 Hearing Date: November 07, 2019 Dept: 34

SUBJECT: Motion for Reconsideration

Moving Party: Plaintiff Jessica Gammalo

Resp. Party: None

The motion for reconsideration is DENIED.

PRELIMINARY COMMENTS:

This motion for reconsideration is allegedly filed on behalf of Plaintiff. (See Motion, p. 1:23.) The Court notes that the OSC re sanctions, to which this motion for reconsideration is directed, was for sanctions against Plaintiff’s counsel, not against plaintiff.

BACKGROUND:

Plaintiff commenced this action on April 14, 2018, against defendant for: (1) pregnancy discrimination; (2) retaliation; (3) violation of California Pregnancy Disability Leave Act; (4) wrongful termination in violation of Fair Employment and Housing Act; (5) wrongful termination in violation of public policy; (6) unpaid wages and waiting time penalty.

On January 25, 2019, during a motion to compel hearing, both parties’ counsels conferred with the Court in chambers and Plaintiff’s counsel allegedly recorded this in-chambers conversation on her cell phone. (01/25/2019 Minute Order, p. 2.)

During the January 25, 2019 hearing, “[t]he Court set an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (01/25/2019 Minute Order, p. 3.) The Court also told Plaintiff that if she “wishes to present any written argument or declaration prior to the hearing,” she may do so and defense counsel was also given an opportunity to respond if defense counsel wanted to. (Id.) The Court also told Plaintiff that “Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id.)

On March 1, 2019, after the hearing on the OSC re: Sanctions, the Court ordered sanctions of $1,000.00 against Plaintiff’s counsel, Jackie Rose Kruger, for the surreptitious and unauthorized recording of in-chambers conversation, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17. (Court Order re Sanctions, p. 3:13-17.)

On March 20, 2019, Plaintiff filed a motion for reconsideration. On April 2, 2019, Defendant filed a notice of no position re: Plaintiff’s motion for reconsideration.

This motion was originally scheduled to be heard on May 20, 2019. It was then rescheduled to be heard on September 11, 2019. At the 9/11/2019 hearing, the only appearance was by an appearance attorney for Ms. Kruger. The appearance attorney asked for another continuance, but stated that he did not know why Ms. Kruger was asking for the continuance.

The Court again continued the hearing, but stated that no further continuances would be allowed. (See 9/11/2019 Minute Order.)

ANALYSIS:

Plaintiff requests that the Court reconsider its “order dated March 1, 2019 in which the Court ordered Plaintiff’s Counsel to pay monetary sanctions of $1,000.00 to the Superior Court of California, County of Los Angeles, as well as report the monetary sanctions to the State Bar of California . . . on the grounds that new facts and circumstances exists that were not available to Plaintiff’s Counsel prior to the proceeding on February 28, 2019.” (Motion for Reconsideration, pp. 1:24-2:1.)

A. Legal Standard

Pursuant to Code of Civil Procedure Section 1008(a):

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.)

B. Discussion

1. Timeliness

Plaintiff may move for reconsideration within 10 days after service upon the party of written notice of entry. (Code of Civ. Proc., §1008(a).)

According to the eCourt filing system, Plaintiff filed her motion for reconsideration on March 20, 2019 which is more than 10 days after the order dated March 1, 2019. Plaintiff asserts that she filed her motion on March 11, 2019 and the Court received the electronic filing on March 11, 2019, but on March 15, 2019, the filing was rejected because Plaintiff had failed to follow the correct filing procedures – in particular, a CRS receipt was missing from the filing. (Medina Decl., ¶¶ 3-4; Ex. G; Motion for Reconsideration, p. 5, ¶¶ 8-9.)

The rejection of the filing of this motion for reconsideration was not based on the Court’s error, but rather was due to an error by Plaintiff’s counsel. Therefore, the Court could deny this motion because it was not timely filed.

Nonetheless, this motion is unopposed, and the Court believes that counsel deserves the courtesy of a ruling on the merits. Therefore, the Court will reach the merits of Plaintiff’s motion. (See Phelps v. Superior Court (1982) 136 Cal. App. 3d 802, 815 [the 10 day period within which a party can seek reconsideration of an order may not be conclusive, provided that the relief is sought within a reasonable time]; see also Medina Decl., ¶¶ 3-4; Ex. G.)

2. Merits

Plaintiff requests that the Court reconsider its March 1, 2019 order on the grounds that new facts and circumstances exist that were not available to Plaintiff’s Counsel prior to the proceeding on February 28, 2019.” (Motion for Reconsideration, pp. 1:24-2:1.)

First, Plaintiff argues that at the February 28, 2019 “hearing regarding sanctions, several pieces of evidence were offered that were entirely new[:] (1) The court’s judicial assistant, Reyna Navarro, testified in support of the imposition of sanctions[;] (2)Additional testimony that was elicited through the Court’s questioning of Plaintiff’s Counsel; (3) The additional testimony of Zachary Spear, Counsel for Defendant[;] and (4) the Court’s own statements used against Plaintiff’s counsel at the proceeding.” (Id. at p. 7:14-19.) Plaintiff asserts that her “[c]ounsel did not expect to rebut an evidentiary hearing . . . and [b]ecause of this new circumstance—the introduction of new pieces of evidence through an evidentiary hearing—Plaintiff Counsel was not given an opportunity to adequately brief the issue.” (Id. at p. 8:1-3.)

Second, Plaintiff’s counsel argues that the Court’s “verbal notice” [sic] to her on January 25, 2019 differed from the written notices later provided by the Court and “both notices failed to state to Plaintiff’s Counsel that the hearing on February 28, 2019 would be an evidentiary hearing, instead of one concerning Plaintiff’s Counsel’s declaration.” (Id. at p. 10:1-5.) Plaintiff’s counsel asserts that the Court’s verbal notice indicated that the upcoming hearing “concerned the ‘unauthorized recording in chambers’ only[;]” the Court did not state that the hearing “would cover both the alleged open-court and in-chambers recording[;]” and her counsel “was not on notice to argue or submit a declaration, a brief, nor evidence that covered any alleged in-court recording.” (Id. at p. 11:1-6 [referencing Hearing Transcript, dated 01/25/19, at 12:23-24].) Counsel maintains that “[t]he [C]ourt’s notices never stated an evidentiary hearing would occur on February 28, 2019, and the Court’s own statements that only ‘declarations or argument by counsel’ be submitted to the Court, supports Plaintiff Counsel’s content that only declarations and argument would occur at the Order to Show.” (Id. at p. 11:7-10 [citing Hearing Transcript, dated 01/25/19, at 14:5-9.)

The Court’s January 25, 2019 minute order explains that “[t]he Court set an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (01/25/2019 Minute Order, p. 3.) The Court, in its minute order, also told Plaintiff that if she “wishes to present any written argument or declaration prior to the hearing,” she may do so and defense counsel was also given an opportunity to respond if defense counsel wanted to. (Id.) The Court also told Plaintiff that “Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id. [emphasis added].)

The Court finds that Plaintiff’s counsel was specifically notified in writing that she would be given an opportunity to present any arguments in writing or any declarations prior to the hearing, as well as given an opportunity at the hearing to orally show cause why sanctions should not be imposed against her. (See Minute Order 01/25/2019, p. 3.) Additionally, the hearing transcript of January 25, 2019 demonstrates that the Court verbally told Plaintiff’s counsel that it “will allow counsel to present whatever information [she] wish[es].” (Motion for Reconsideration, Ex. A, Hearing Transcript, p. 12:24-25.)

It is true that the Court orally stated that it would set an “OSC re: Sanctions for unauthorized recording in chambers.” (Id. at p. 12:23-24.) But it was also clear from the transcript that this hearing would encompass the circumstances surrounding the unauthorized recording, which included any recordings made during the January 25, 2019 proceedings, in or out of chambers. The hearing transcript indicates that the discussion regarding the unauthorized recording included “something entitled Gammalo on [January 25, 2019], a recording of 15 minutes and 40 seconds and above that is something entitled, new recording, of 32 minutes and 20 seconds.” (Id. at p. 10:11-15.)

If there was any ambiguity, the Court’s written minute order of January 25, 2019 – issued after the oral, in-court hearing – clearly indicated that

“The Court set[s] an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (1/25/2019 Minute Order, p.3.)

In addition to allowing counsel to fully brief the issues presented and file and declarations she deemed appropriate, that same minute order stated that

“Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id.)

Plaintiff’s counsel was given ample opportunity – both prior to the OSC in written submissions and orally at the OSC – to present her defense to the OSC re sanctions for the “unauthorized recordings of the hearing and the in-chambers discussion.” (See 1/25/2019 Minute Order.)

There are no new facts and circumstances that would warrant reconsideration of the Court’s findings and order. (See Code of Civ. Proc., § 1008(a).) The Court has received no further briefs from Plaintiff since Ms. Kruger’s March 9, 2019 motion for reconsideration.

Plaintiff’s motion for reconsideration is DENIED.

Case Number: YC072653 Hearing Date: November 07, 2019 Dept: B

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

KENNETH L. CREAL, et al.,

Plaintiffs,

Case No.:

YC072653

vs.

[Tentative] RULING

AMITISS NASIRI,

Defendant.

Hearing Date: November 7, 2019

Moving Parties: Plaintiffs Kenneth L. Creal, et al.

Responding Party: None

Motion for Sanctions

The court considered the moving papers.

RULING

The motion is DENIED.

BACKGROUND

On February 1, 2018, plaintiffs Kenneth L. Creal and Kenneth L. Creal, an accountancy corporation filed a complaint against Amitiss Nasiri for libel based on a negative Yelp review.

On March 2, 2018, Nasiri (self-represented) filed a cross-complaint for IIED, invasion of privacy, intentional breach of fiduciary duty, negligence per se, and injunctive relief.

On June 10, 2019, plaintiffs filed a First Amended Complaint for (1) defamation per se, (2) defamation per quod, (3) trade libel, and (4) intentional infliction with prospective economic advantage.

On August 30, 2019, the court denied defendant Nasiri’s special motion to strike.

LEGAL AUTHORITY

CCP §128.7(b) states: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and the other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .”

CCP §128.7(c) states: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction under the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation . . . .”

CCP §128.7(d) states: “A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by other similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation. (1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b). . . .”

“’The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request.’” Liberty Mut. Fire Ins. Co. v. McKenzie (2001) 88 Cal. App. 4th 681, 692 (citation omitted). “It therefore follows that to avoid the sanctions sought pursuant to Code of Civil Procedure section 128.7, it is not sufficient for the offending party to simply take action to correct or withdraw the challenged pleading . . . . The offending party must also give notice to the moving party that it has taken that step. Absent that notice, the moving party has no knowledge that the problem has been resolved and consequently it will proceed (as it had warned the offending party it would do) with filing the sanctions motion with the court.” Id.

Sanctions under section 128.7 are discretionary. The court is not required to impose a monetary sanction or any sanction at all. See CCP §128.7(c); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal. App. 4th 408, 421.

“If warranted,” the court may award the prevailing party its reasonable expenses and attorney fees “incurred in presenting or opposing the motion.” CCP §128.7(c)(1).

“A trial court is to apply an objective standard in making its inquiry concerning the attorney’s for party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7.” Optimal Markets, Inc. v. Salant (2013) 221 Cal. App. 4th 912, 921. “A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute. However, the sanctions statute “must not be construed so as to conflict with the primary duty of an attorney to represent his or her client zealously. Forceful representation often requires that an attorney attempt to read a case or an agreement in an innovative through sensible way. . . .’” Peake v. Underwood (2014) 227 Cal. App. 4th 428, 441 (citation omitted).

DISCUSSION

Plaintiffs request sanctions and reasonable attorney’s fees and costs against defendant and cross-complainant Amitiss Nasiri and her attorney of record, Paul Carter of Bergkvist Bergkvist & Carter in the amount of $5,661.65. Plaintiffs argue that defendant’s motion for reconsideration is without factual or legal merit and was filed primarily for an improper purpose to harass plaintiffs, delay discovery, and delay the trial.

The court finds that in filing the motion for reconsideration, defendant did not violate §128.7(b).

The motion is DENIED.

Plaintiffs are ordered to give notice of the ruling.

Filed 11/7/19 710 and 712 Ardmore, LLC v. Roth CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

710 AND 712 ARDMORE, LLC,

Plaintiff and Respondent,

v.

MARK ROTH,

Defendant and Appellant. B293766

(Los Angeles County

Super. Ct. No. YC072628)

APPEAL from orders of the Superior Court of Los Angeles County, Robert Broadbelt, III, Judge. Affirmed in part, reversed in part, and remanded with directions.

The Law Office of Alda J. Shelton and Alda J. Shelton for Defendant and Appellant.

Spierer, Woodward, Corbalis & Goldberg, Stephen B. Goldberg and Meighan E. Leon for Plaintiff and Respondent.

_________________________

FACTUAL AND PROCEDURAL BACKGROUND

710 and 712 Ardmore, LLC (Ardmore) is the owner and developer of a two-unit townhouse (Property) located at 710-712 Ardmore Avenue in Hermosa Beach, California. Appellant Mark Roth (Roth) is the owner of real property located next door. Ardmore constructed an “exterior stairway to the second floor” on the north side of the Property, right next to Roth’s property. Roth asserts the stairway violated the Hermosa Beach Municipal Code and is thus illegal; he hired an architect who confirmed his hypothesis.

On November 30, 2017, Ardmore entered into a purchase agreement with a potential buyer of one unit of the Property and escrow was opened for $2,600,000. On December 18, 2017, the potential buyer cancelled the transaction.

While the sale was still pending, in early December 2017, Roth hired an attorney “to sue either the City of Hermosa Beach or [Ardmore]” regarding the stairway and its removal for “violating zoning ordinances.” He ultimately filed a claim with the City of Hermosa Beach on December 26, 2017.

A week later, on January 2, 2018, Roth placed a sign “viewable by a person standing on the landing of the Ardmore [Property] stairs,” which stated: “I have filed a complaint with the city to demolish the stairs at 712 Ardmore as an illegal intrusion into the required rear yard. If the city does not order them removed, I will sue the city and the property owner.”

On an unknown date in January 2018, a unit of the Property was listed for sale in the Multiple Listing Service and over 125 potential buyers viewed the Property.

On January 17, 2018, Roth contacted Ardmore’s real estate agent Lauren Forbes (Forbes) under the guise of being an interested buyer and asked Forbes why she “was steering people away from the front stairs during showings and open houses.” Roth later admitted to Forbes that he is “the neighbor” and forwarded an email that he had previously sent to her coworker, that said: “[I]f you do not advise any potential buyer of this alleged violation and potential lawsuit[,] you could be liable for [f]raudulent concealment and could be reported to the bureau of [real estate]. You could also get sued by the buyer if he gets substituted into the lawsuit should property be sold.”

Ardmore filed a civil complaint against Roth and served him on February 18, 2018. A few days later, on February 22, 2018, Roth replaced the first sign with a second sign which stated: “The owner of 712 Ardmore has sued me in Torrance Superior Court Case number YC072628, to have the court rule whether the exterior stairs to 2nd floor of 712 Ardmore are illegal. If the owner loses the case, the stairs will have to be torn down and the door sealed off. Have you been informed of the lawsuit and any consequences to you including becoming part of this lawsuit?”

Ardmore did not receive any purchase offers and, on March 6, 2018, it reduced the selling price by $60,000.

On April 2, 2018, Ardmore filed its First Amended Complaint (FAC)—the operative complaint in the underlying civil matter—against Roth; Ardmore alleged three causes of actions: 1) intentional interference with prospective economic relations/advantage; 2) preliminary and permanent injunction and damages; and 3) nuisance.

On May 17, 2018, Roth filed a special motion to strike portions of Ardmore’s FAC as a strategic lawsuit against public participation under the anti-SLAPP statute, citing Code of Civil Procedure section 425.16. Roth moved to strike the first and second causes of action of the FAC (for intentional interference with prospective economic relations and preliminary and permanent injunction and damages, respectively) and the first and second sentences of paragraph 31 in the third cause of action (for nuisance), which states: “[Roth] has placed an illegal sign on his property, in direct view of potential buyers of the project, for the purpose of interfering with [Ardmore]’s sale of the project. The sign violates the Hermosa Beach Municipal Code.” (Some capitalization omitted.)

Roth argued that his two signs are “communicative acts in furtherance of his right of petition or free speech” and are thus protected speech pursuant to section 425.16, subdivisions (e)(1) and (e)(2). Roth also argued that Ardmore cannot show a probability of prevailing on its three claims because (1) the FAC is legally insufficient; (2) Ardmore failed to provide admissible evidence in support of its claims; and (3) Ardmore could not satisfy its burden to demonstrate that all elements for the alleged causes of action were met. And finally, Roth argued that the statements on the signs are privileged pursuant to Civil Code section 47 (i.e., the litigation privilege), because they pertain to a claim made in an official proceeding before the Hermosa Beach City Council and about the claims in Ardmore’s FAC itself, respectively.

In support of its opposition filed June 5, 2018, Ardmore filed the declarations of its real estate agent Forbes and Patti Nernberg (Nernberg), who previously lived at the unit listed for sale and now resided at the other unit of the Property. Roth filed objections to portions of the declarations of Forbes and Nernberg.

Meanwhile, after a few more price reductions, the Property unit ultimately sold for $2,203,000.

On June 18, 2018, the hearing on Roth’s anti-SLAPP motion was held “and argued”, but no court reporter was present and no settled statement is part of the record on appeal. The court took the matter under submission.

On September 7, 2018, the court denied Roth’s special motion to strike the first and second causes of action of the FAC and the first two sentences of paragraph 31 of the third cause of action. As to the first prong, the court ruled Roth met his burden to establish that the statements on the signs constituted “ ‘an act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ ” per section 425.16, subdivision (e)(2), as the signs “raise the issue of the legality of the subject stairway which was under . . . review by the City of Hermosa Beach in connection with the claim filed by [Roth] and . . . in connection with the lawsuit filed by [Ardmore].” As to the second prong, the court found Ardmore demonstrated a probability of prevailing on each of the three claims of the FAC. The court further found the litigation privilege does not protect Roth’s statements on the signs.

And finally, the court ruled on Roth’s evidentiary objections to the declarations of Forbes and Nernberg. It sustained 5 of 25 objections and overruled the rest.

Roth timely appealed.

DISCUSSION

A. Standard of Review
B.
We review a trial court’s ruling on a special motion to strike pursuant to section 425.16 under the de novo standard. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) “In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted.” (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652.) As always, “our job is to review the trial court’s ruling, not its reasoning.” (People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 386.)

We review a trial court’s rulings on evidentiary objections by applying an abuse of discretion standard. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) As the party challenging the court’s decision, it is Roth’s burden to establish such abuse, which we will find only if the trial court’s order “exceeds the bounds of reason.” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)

B. The Absence of a Reporter’s Transcript Dooms Review of the Trial Court’s Rulings on the Evidentiary Objections

Roth challenges orders made after a hearing at which no court reporter was present. The record on appeal does not include a settled statement or agreed statement as authorized by California Rules of Court, rules 8.163 and 8.137. The June 18, 2018 minute order does specify that Roth’s anti-SLAPP motion was called for hearing “and argued” before the court took the matter under submission.

Affirmance of the order appealed from may be warranted in the absence of a reporter’s transcript when such a transcript is necessary for meaningful review. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187 [appeal requiring consideration of testimony could not proceed in the absence of a reporter’s transcript or a settled statement].) As a result, Roth cannot rely on errors at the June 18, 2018 hearing unless the claimed error appears on the face of the record before us. (Cal. Rules of Court, rule 8.163; see, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to review the adequacy of an award of damages absent a reporter’s transcript or settled statement of the damages portion]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447–448 [“The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion”].)

Because we review the denial of an anti-SLAPP motion de novo and must conduct an independent analysis of our own, we can resolve the appeal from the ruling on Roth’s special motion to strike in the absence of a reporter’s transcript. “While a record of the hearing would have been helpful to understand the trial court’s reasoning, it is not necessary here where our review is de novo and the appellate record includes the trial court’s written orders and all . . . materials germane to Appellant[’s] motion.” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933 934; Chodos v. Cole (2012) 210 Cal.App.4th 692, 696.) The absence of a reporter’s transcript is not fatal to Roth’s appeal of the court’s denial of his anti-SLAPP motion.

The same, however, cannot be said for Roth’s appeal of the trial court’s order overruling his evidentiary objections, which, he contends, was “an abuse of discretion.” The cardinal rule of appellate review is judgments and orders of the trial court are presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of providing an adequate record, and the failure to provide an adequate record for meaningful review requires the issue to be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.)

We do not know what took place at the June 18, 2018 hearing where Roth’s motions “were argued” before the court took the matter under submission. There is no indication whether certain exhibits were authenticated, or if either of the declarants (Forbes or Nernberg) were present and testified. For instance, Roth contends the court’s order overruling his objection—on the grounds of hearsay and no foundation—to Nernberg’s statement in her declaration about the City’s issuance of a Certificate of Occupancy for the Property unit on January 11, 2018, was an abuse of discretion. But without more, we cannot undertake a meaningful review of the basis of the trial court’s decision. We do not know what took place during the June 18, 2018 hearing, i.e., whether Nernberg provided testimony that laid the requisite foundation as to how she had personal knowledge of the facts surrounding the issuance of the Certificate of Occupancy for the Property unit listed for sale, or whether she provided any testimony at all… and therein lies the problem. Roth has not met his burden of affirmatively showing error by the court based on the record before us. We see no abuse of discretion; the rulings on Roth’s evidentiary objections are affirmed.

C. Applicable Law
D.
Section 425.16 provides, inter alia, that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has establishes that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ ” is defined in section 425.16 to include, in relevant part: “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” and “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subds. (e)(1) & (e)(2).) “[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) This includes statements made to “persons who are not parties or potential parties to litigation, provided such statements are made ‘in connection with’ pending or anticipated litigation.” (Id. at p. 1270.)

The Legislature enacted section 425.16 to prevent and deter “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Thus, the purpose of the anti-SLAPP law is “not [to] insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

When a party moves to strike a cause of action (or portion thereof) under the anti-SLAPP law, a trial court evaluates the special motion to strike by implementing a two-prong test: (1) has the moving party “made a threshold showing that the challenged cause of action arises from protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056); and if it has, (2) has the non-moving party demonstrated that the challenged cause(s) of action has “minimal merit” by making “a prima facie factual showing sufficient to sustain” a judgment in its favor? (Baral, supra, 1 Cal.5th at pp. 384–385; Navellier v. Sletten (2002) 29 Cal.4th 82, 93–94; see also § 425.16, subd. (b)(1)). Thus, after the first prong is satisfied by the moving party, “the burden [then] shifts to the [non-moving party] to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, at p. 396.)

D. Prong 1: Arising from Protected Activity

Roth’s initial burden is to show that Ardmore’s three causes of action arise from Roth’s protected activity. (Park, supra, 2 Cal.5th at p. 1061.)

In Roth’s statements communicated via the first sign (posted on January 2, 2018), he refers to his claim filed with the City of Hermosa Beach and warns of potential lawsuits against the City and the property owner. Thus, we find Roth’s first sign contained a written statement made in connection with the issue of whether the stairway of the Property is in violation of the Hermosa Beach Municipal Code. This issue formed part of Roth’s claim that was under review with the City of Hermosa Beach. Hermosa Beach’s city government is an “executive body” in satisfaction of section 425.16, subdivision (e)(2). Posting the sign is thus protected activity for purposes of the anti-SLAPP statute. (See City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 373.)

Roth’s statements in the second sign (posted in February 2018) specifically referred to the lawsuit initiated by Ardmore and warns future buyers that they may become a part of the lawsuit upon transfer of ownership. We find Roth’s second sign contains communication in connection with an issue that is part of pending litigation and was directed at “persons who are not parties or potential parties to litigation,” i.e., potential buyers who are likely to have an interest in the pending lawsuit if they considering purchasing the Property unit.

It was argued that because Roth’s communications were made via the two signs placed on an “illegal fence”, Roth’s conduct was illegal as a matter of law (per Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley)), precluding him from using the anti-SLAPP statute to strike Ardmore’s complaint. (Id. at p. 305.) We find this argument unavailing. Case authorities have found the Flatley rule applies “only to criminal conduct, not to conduct that is illegal because [it is] in violation of statute or common law.” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804–806.) Here, even if Roth’s fence was in violation of various sections of the Hermosa Beach Municipal Code, his conduct does not amount to criminal conduct; a “violation of any of the provisions of this chapter” of the Hermosa Beach Municipal Code amounts to “an infraction” punishable with a fine of $50 for the first violation and $100 for the second violation of the same condition within one year.

Ardmore refers to the signs’ placement on “the illegal fence” in the statement of facts section of respondent’s brief by citing to paragraph 14 of Nernberg’s declaration in support. We are astonished by this because the court sustained Roth’s objection to paragraph 14 of Nernberg’s declaration “as to the statement that the fence is illegal.” That part of Nernberg’s declaration was not admitted into evidence, a fact Ardmore neglected to recite to us.

Based on the foregoing, we find the first prong of the two-step anti-SLAPP analysis is satisfied.

E. Prong 2: Probability of Prevailing on the Causes of Action
F.
We conduct an inquiry into whether Ardmore has stated “legally sufficient” claims and made a “prima facie factual showing” with competent/admissible evidence sufficient to sustain a favorable judgment on each of the challenged causes of actions. (Baral, supra, 1 Cal.5th at pp. 384–385; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) In deciding the question of potential merit, we consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) In considering the pleadings and declarations, we do not make credibility determinations or compare the weight of the evidence; instead, we accept the opposing party’s evidence as true and evaluate the moving party’s evidence only to determine if it has defeated the opposing party’s evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

1. First Cause of Action: Intentional Interference with Prospective Economic Advantage
2.
Intentional interference with prospective economic advantage/relations has five elements: “(1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

We need not reach the question whether Ardmore has provided sufficient factual substantiation for the specific elements of this cause of action because, for the reasons discussed below, Ardmore failed to state a legally sufficient claim as to its cause of action for intentional interference of prospective economic advantage. (See Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31 [“If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the [anti-SLAPP] motion”].)

In the FAC, Ardmore alleged the following: Ardmore hired a real estate agent and “entered into a listing agreement in order to sell a unit”; Ardmore’s “and its agent’s efforts and intention to sell the [Property unit] constitutes an economic relationship that will result in economic benefit”; Roth was “aware of the probability of [Ardmore] entering into an agreement with a potential buyer, which would result in future economic benefit” to Ardmore; Roth’s conduct “has interfered with [Ardmore]’s sale of the [Property unit] and future economic benefit.” (Italics added.) Thus, the only economic benefit alleged is one that would arise from the sale of the property to a potential buyer.

However, the law is clear in that “an existing relationship with an identifiable buyer” (as opposed to potential buyer) must be alleged or else Ardmore’s expectation of a future sale was, at most, “ ‘a hope for an economic relationship and a desire for future benefit.’ ” (See Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 527 (Safeway).) The only identifiable buyer in the record before us was from the cancelled escrow of the unit, but that preceded Roth’s posting of the signs. All other buyers were potential and thus, Ardmore was precluded from pleading an existing economic relationship with them. By identifying its real estate agent as the third party with whom Ardmore has an existing economic relationship, Ardmore essentially attempts an end-run around this major defect in its pleading.

This “tort protects the expectation of an advantageous business relation even in the absence of an existing, legally binding agreement.” (Safeway, supra, 42 Cal.App.4th at pp. 520 521, italics omitted.) The only identifiable individual who stood to gain an economic benefit from the business relationship created by way of the listing agreement was actually the real estate agent (e.g., lost commission).

Additionally, in the FAC, Ardmore sought damages in an amount to be proven at trial. Section 425.10, subdivision (a)(2) states that “[i]f the recovery of money or damages is demanded, the amount demanded shall be stated.” (§ 425.10, subd. (a)(2).) An allegation of having suffered “damages according to proof” does not amount to a sufficient pleading of damages, especially because Ardmore did not allege or specify any damages arising from the alleged breakdown of its relationship with Forbes (but for the reduction of the listing price of the property, which—as already noted—would have been an economic benefit arising from Ardmore’s relationship with an identifiable buyer, not the broker). (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 475.)

Accordingly, we find that Ardmore’s first claim does not pass the second prong of the anti-SLAPP test.

3. Second Cause of Action: Preliminary and Permanent Injunction and Damages
4.
In its FAC, Ardmore pled “preliminary and permanent injunction and damages” as its second cause of action. “ ‘Injunctive relief is a remedy, not a cause of action. [Citation.] A cause of action must exist before a court may grant a request for injunctive relief.’ ” (Ivanoff v. Bank of America N.A. (2017) 9 Cal.App.5th 719, 734.) “ ‘A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.’ ” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Because Ardmore incorporates by reference the allegations from the first cause of action into what it refers to as its “second cause of action,” Ardmore’s second claim operates as a request for injunctive relief and damages based on the allegations set forth in the intentional interference of prospective economic relations cause of action. As set forth above, Ardmore failed to establish a probability of prevailing on its first cause of action. Accordingly, the second cause of action fails as well.

As for damages, Ardmore contends that where “an action is brought seeking punitive damages and an injunction, the plaintiff is not required to plead the amount demanded” and cites to section 425.10 in support. Ardmore miscites the statute, which states the amount demanded need not be stated where an action is brought to recover punitive damages for personal injury or wrongful death. (§ 425.10, subd. (b).)

5. Third Cause of Action: Nuisance
6.
Roth argues Ardmore cannot establish a probability of prevailing on the merits of the first and second sentences of paragraph 31 of the nuisance cause of action. Those sentences state: “[Roth] has placed an illegal sign on his property, in direct view of potential buyers of the [Property unit], for the purpose of interfering with [Ardmore’s] sale of the [Property unit]. The sign violates the Hermosa Beach Municipal Code.”

A nuisance is defined by statute as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .” (Civ. Code, § 3479.) “Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on [the] disturbance of rights in land. [Citation.] A nuisance may be both public and private, but to proceed on a private nuisance theory, the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041, italics added (Koll-Irvine).)

Here, Ardmore alleged that Roth placed the sign in direct view of potential buyers “for the purpose of interfering with” the sale of the unit. Ardmore provided evidence the unit was in escrow in December 2017 for $2.6 million and, after the posting of signs, Ardmore received minimal interest in the unit and the listing price was reduced multiple times. It was sold at a substantially reduced price of $2,203,000. We believe Ardmore has established a claim for nuisance.

Roth argues that a “diminution in value does not interfere with the present use of property and cannot alone constitute a nuisance,” citing the court’s holding in Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 533–534. However, the case before us is distinguishable from Oliver, where plaintiffs were not in the process of selling their property and a diminution in value did not interfere with their present use of the property. (Id. at pp. 529, 534.) Here, plaintiff Ardmore was in the process of selling the Property unit and so a diminution in value did interfere with its present use of the Property unit, i.e., having it listed for sale and profit.

Additionally, Ardmore’s failure to specify a dollar amount of damages suffered in the FAC does not defeat its nuisance claim, as we are required to consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based” in deciding whether Ardmore has demonstrated a probability of prevailing. (§ 425.16, subd. (b)(2).) Here, a review of Ardmore’s FAC in conjunction with Roth’s anti-SLAPP motion and the supporting/opposing papers, demonstrate that Ardmore made a prima facie showing that Roth’s signs interfered with Ardmore’s present use of the Property, i.e., the attempted sale of the Property unit, resulting in the substantial reduction of the selling price of the unit. While the court in Koll-Irvine held that a private nuisance action “cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury” (Koll-Irvine, supra, 24 Cal.App.4th at pp. 1041–1042, italics added), here, Ardmore did not allege fear of a future injury. Rather, Ardmore alleged Roth’s signs caused a diminution in the value of the Property (from $2.6 million to $2,203,000) as well as caused Ardmore to incur additional costs in connection with the sale of the Property (for e.g., additional staging fees, appraisal fees, etc.)—all of which are injuries already suffered by Ardmore.

Roth also argues that Ardmore’s nuisance claim fails because it “alleged no physical invasion from the sign,” quoting “a case” that was “cited [to] approvingly” by Koll-Irvine. However, the “case” Koll-Irvine relied on is no longer good law, a fact Roth neglects to tell us. (Id. at p. 1042.)

Finally Roth argues his signs are protected by the litigation privilege. Civil Code section 47, subdivision (b) provides an absolute privilege for communications made in any legislative, judicial or other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (Civ. Code § 47, subd. (b).) The litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley, supra, 39 Cal.4th at p. 323.) Thus, Ardmore cannot establish a probability of prevailing if the litigation privilege precludes a finding of liability on the nuisance cause of action.

The principal purpose of the litigation privilege is to afford litigants and witnesses the utmost freedom of access to the courts without fear of harassment in subsequent derivative actions. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege is “not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen, supra, 37 Cal.4th at p. 1057.) The connection or logical relation Roth’s communication must bear to the litigation in order for the privilege to apply must be a functional one. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146.) “[T]he communicative act—be it a document filed with the court, a letter between counsel or an oral statement—must function as a necessary or useful step in the litigation process and must serve its purposes. This is a very different thing from saying that the communication’s content need only be related in some way to the subject matter of the litigation[.]” (Ibid.)

We find the public policy underpinning the litigation privilege does not support barring Ardmore’s nuisance claim based on Roth’s statements on the signs. There is no evidence in the record supporting the notion that Roth’s communications via the sign were a “necessary or useful step in the litigation process.” Neither Roth’s first nor second sign were necessary or useful to his pending claim with the city or to the pending litigation initiated by Ardmore. There is no evidence in the record that Roth’s signs improved his position with pending litigation or helped achieve the object of the litigation.

Based on the foregoing, we find Ardmore has met its burden of showing a probability of prevailing on the merits of its nuisance cause of action.

DISPOSITION

The trial court’s order overruling Roth’s evidentiary objections is affirmed. The order denying Roth’s special motion to strike Ardmore’s third cause of action for nuisance is affirmed. The order denying Roth’s special motion to strike Ardmore’s first two causes of the FAC is reversed; we remand the matter to the trial court with instructions to strike the first and second causes of action from the FAC. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

GRIMES, J.

Filed 11/7/19 Mitchell v. Buehler Family Bakersfield, LLC CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DENNIS MITCHELL et al.,

Plaintiffs, Cross-defendants

and Appellants,

v.

BUEHLER FAMILY BAKERSFIELD,

LLC et al.,

Defendants, Cross-complainants

and Respondents;

DONNE RECOVERY, LLC,

Respondent.

F074897

(Super. Ct. No. S1500CV278034)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge.

Darling & Wilson, Joshua G. Wilson and David A. Cole for Plaintiffs, Cross-defendants and Appellants.

Jean M. Pledger for Defendants, Cross-complainants and Respondents Buehler Family Bakersfield, LLC and Florene Dix Blackwelder.

Chora Young, Paul P. Young, Joseph Chora and Armen Manasserian for Respondent Donne Recovery, LLC.

-ooOoo-

This matter comes before the court following this court’s order granting appellants Dennis and Antoinette Mitchell (the Mitchells) an opportunity to demonstrate they are in or have come into compliance with the requirements of the agreement they entered into with Donne Recovery, LLC (Donne) to settle several actions previously pending between the parties. This court’s December 12, 2018 order detailed the various actions between the parties and the Mitchells’ subsequent actions to thwart not only the initial claims, but also Donne’s efforts to collect the judgment ultimately entered against them. The factual and legal discussion from this court’s prior order is adopted and incorporated as if fully set forth herein.

FACTUAL AND PROCEDURAL BACKGROUND

Previously, this court concluded “that the Mitchells have, in fact, been engaging in obstructive tactics designed to thwart enforcement of what was previously a potential future and is now a pending judgment.” In line with that finding, this court concluded the pending matter was one of those rare instances where the disentitlement doctrine could be appropriately invoked against the Mitchells. While initially hesitant to grant such relief, because the Mitchells had entered into a settlement agreement with Donne that, on its face, provided adequate security for this appeal, this court noted that Donne had already alleged breach of that agreement and recognized that should “the Mitchells fail to demonstrate compliance [with the settlement agreement] their appeal shall be dismissed.”

On January 14, 2019, the Mitchells filed their “proof of compliance” with the settlement order. The Mitchells alleged they had made the monetary payments required by the settlement, all parties had dismissed the actions between them aside from the underlying appeal in this matter, and that nine deeds of trust had been recorded securing the balance of the judgment. The Mitchells attached numerous documents supporting their claim. However, the Mitchells also identified several ongoing disputes between the parties and wrote that their agent “signed all nine deeds of trust and delivered them to First American Title for recording on January 7, 2019.” The Mitchells also stated that their agent “has also pledge[d] to put up an additional $2 million from the sale of a separate piece of property to be deposited into escrow for Donne’s benefit … to satisfy any ongoing concerns about the adequacy of the security.”

Donne responded on January 25, 2019, submitting its own series of exhibits and declarations, a request for judicial notice, and objections to the Mitchells’ submissions. Donne raised a litany of complaints with the Mitchells’ compliance claim. These included assertions that the Mitchells were in complete breach under the express terms of the agreement as far back as July 22, 2018, evidence that the Mitchells admitted to being out of compliance with the agreement at a hearing occurring while this court was considering the motion to dismiss under the disentitlement doctrine, and a large number of factual disputes concerning the Mitchells’ calculations regarding the value of the properties now allegedly securing the judgment. Finally, Donne raised what it saw as additional misrepresentations and attempts at avoiding judgment.

DISCUSSION

This court has reviewed the submissions and arguments from both sides. Notably and unsurprisingly, there are many factual disputes between the parties regarding compliance. The Mitchells have clearly taken some steps toward satisfaction and securement of the judgment, but Donne is properly cautious that the various flaws uncovered and missteps along the way are consistent with the Mitchells’ well-documented practices of pursuing all avenues to avoid judgment. This court is cautious about delving into substantial factual disputes regarding compliance with a settlement agreement enforceable by a different court. Accordingly, this court will not attempt to resolve many of the factual disputes raised by Donne.

Looking at the evidence submitted, however, the court agrees with Donne that the Mitchells could not claim any form of compliance with the settlement agreement prior to the date they recorded the deeds called for in the agreement, January 7, 2019. The court further agrees the Mitchells failed to provide sufficient evidence regarding the appraised value of several of the properties offered to satisfy the judgment, evidence needed to demonstrate they had secured the more than $7 million required. Notably, in response, Donne submitted appraisal reports for seven properties where the Mitchells did not submit evidence. These documents show that the total value secured (exclusive of any remaining mortgages or liens, over which there are several disputes regarding validity) is $6,595,000, a number below that required by the settlement agreement. The Mitchells’ own briefing appears to recognize the nine properties do not adequately meet their obligations, as shown by their desire to include another $2 million in value from an undisclosed proposed property sale to satisfy their duty.

Accordingly, the Mitchells have failed to prove that they have provided sufficient security for the judgment against them. Donne’s response and the Mitchells’ own submissions show they were not in compliance by this court’s deadline. The Mitchells’ long standing and well-documented refusal to comply with the judicial process left them properly facing dismissal of their suit under the disentitlement doctrine. Only by demonstrating they had fully changed their course of conduct in the time between the filing of the motion to dismiss under the disentitlement doctrine and the deadline in this court’s prior order—a period in which the settlement agreement was entered into and should have been fully completed—could they potentially tip the equitable balance back toward hearing their appeal on the merits. Incomplete attempts at compliance only after being told by this court that their conduct warranted dismissal is not sufficient to return the equitable balance to their side.

The Mitchells have failed to demonstrate compliance with the terms of the settlement agreement from United States Bankruptcy Court, District of Nevada, case No. 17-12318, requiring them to pay certain funds and provide real estate as security for the judgment against them in the California trial court case No. S1500CV278034. For the reasons set forth in this court’s prior order, the disentitlement doctrine bars the Mitchells’ appeal.

DISPOSITION

IT IS HEREBY ORDERED that Donne’s March 1, 2018 motion to dismiss under the disentitlement doctrine is GRANTED with respect to appellants Dennis and Antoinette Mitchell and DENIED, without prejudice, with respect to appellants Mitchell Oil and Dennis Mitchell Oil. The previously ordered stay is lifted. Any opening brief shall be filed 30 days from the filing date of this opinion.

Filed 11/7/19 Glaser v. Mitchel CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

RUTH BONNIE GLASER, as Trustee, etc. et al.,

Plaintiffs, Cross-Defendants and

Appellants,

v.

KIRK MITCHEL,

Defendant, Cross-Complainant and

Appellant.

A155815

(Alameda County

Super. Ct. No. RG15774344)

In this dispute between neighbors living in the Berkeley Hills, plaintiffs Bonnie Glaser (via her living trust) and her son William Glaser (via a separate family trust) (collectively the Glasers), who live in a house located above that of defendant Kirk Mitchel, appeal from a judgment awarding damages and prevailing party attorney’s fees and costs against them, following a bench trial on the Glasers’ claim under Berkeley Municipal Code (the Views Ordinance, or the Ordinance) (Berkeley Mun. Code, §§ 12.45.010–12.45.080) together with Mitchel’s cross-claims for tort recovery. Mitchel cross-appeals from the fee award. We shall affirm.

I. BACKGROUND

The purpose of the Views Ordinance is to “[s]et forth a procedure for the resolution of disputes between private property owners relating to the resolution of sunlight or views lost due to tree growth.” (§ 12.45.010, subd. (A).) Among the various objectives of the Ordinance is “preserv[ing] and promot[ing] the aesthetic and practical benefits which trees provide for individuals and the entire community,” “discourag[ing] ill-considered harm to or destruction of trees,” and “restor[ing] access to light and views from the surrounding locale.” (§ 12.45.010, subd. (B).) Mediation is mandated under the Views Ordinance, but if that fails an aggrieved party may pursue arbitral or judicial resolution. (§ 12.45.030, subd. (A)(3)–(5).)

To state a “ ‘[t]ree claim’ ” under the Ordinance, the complaining party must set forth in writing “[t]he nature and extent of the alleged obstruction” with corroborating evidence, “[t]he location of all trees alleged to cause the obstruction,” and “[a]ny mitigating actions proposed by the parties involved to resolve the tree claim.” (§ 12.45.020, subd. (A)(13).) “In resolving the tree dispute, the tree mediator, tree arbitrator or court shall consider the benefits and burdens derived from the alleged obstruction within the framework of the objectives of [the Ordinance] . . . in determining what restorative actions, if any, are appropriate.” The complainant bears the burden of proof. (§ 12.45.040.)

The tree claim at issue here arises out of a view obstruction created by trees on Mitchel’s property. The alleged obstruction arose gradually, with the growth of the trees over the course of the years Bonnie Glaser has lived in the house since she and her then husband, Donald, bought it in 1964. According to Mrs. Glaser, in 1964, she and Donald enjoyed spectacular views from every east-facing window in her home, including views of the San Francisco skyline, the Golden Gate Bridge, the Bay Bridge, the Bay, and the Berkeley shore.

William Glaser, who was born in 1965, grew up in the house, moved out as a young adult, and then moved back in 2007, when he acquired an ownership interest in it. Bonnie Glaser testified at trial that she did not contact the prior owner of Mitchel’s home about the issue of tree obstruction, before Mitchel bought the home, because she was “ ‘too busy.’ ” William Glaser first approached Mitchel about the issue in 2012 during a party. A dispute ensued, and after a failed mediation, the Glasers brought suit. Mitchel cross-complained for invasion of privacy and trespass based on, among other things, various investigative activities undertaken by the Glasers’ experts in the course of the litigation.

The case proceeded to a bench trial, and Mitchel prevailed in all respects. In addition to defeating the Glasers’ affirmative claim on a successful motion for judgment under Code of Civil Procedure section 631.8, Mitchel prevailed on several of his cross-claims. The resulting damages award in his favor is included in the judgment. As the prevailing party, Mitchel recovered attorney’s fees of $255,782.25 and costs of $31,089.70 under a prevailing party provision in the Ordinance (§12.45.050, subd. (B)(1)), as well as approximately $39,200.54 in expert witness fees under Code of Civil Procedure section 998.

The trial court rendered two statements of decision, one addressing the tree obstruction claim alleged in the Glasers’ operative third amended complaint, and one addressing the tort claims alleged in Mitchel’s cross-complaint and the fees and costs issues.

As pertinent here, the court ruled that 1) the Glasers are barred by laches from asserting their tree obstruction claim under the Views Ordinance because Bonnie Glaser testified that obstructive trees on Mitchel’s property first became a serious problem 30 years ago, and yet she failed to take any steps to rectify the situation until 2012; and 2) even if the Glasers could assert their tree obstruction claim, it fails on the merits because, after considering all of the evidence bearing on benefits versus burdens, they failed to bear their burden of proof in showing that there is an appropriate restorative remedy. “At best,” the court concluded, “the evidence showed that it would be prudent for . . . Mitchel to trim his trees a bit, and perhaps to remove his tulip poplar for his own safety (though the evidence reflected that removing this tree alone would not help [the Glasers’] view).”

As to the cross claim, the trial court found 1) an invasion of privacy based on William Glaser’s surreptitious recording of Mitchel at a mediation session and 2) an invasion of privacy and a trespass based on the conduct of the Glasers’ retained experts in surreptitiously taking photographs of Mitchel’s property by using a ladder to look over a fence and sending a pre-programmed drone flying over Mitchel’s property. The court found that all parties to the mediation had a reasonable expectation of privacy, that William Glaser admitted making an unconsented recording of the mediation session, and that the secret recording was illegal. And as to the surreptitious photo-taking, the court found that Mitchel had a reasonable expectation of privacy in his yard and that the unconsented photo-taking was “ ‘highly offensive to a reasonable person,’ ” that Mr. Mitchel was harmed, and that Mr. Glaser’s authorization of the intrusions was the substantial factor in causing the harm.

Finally, as for attorney’s fees, the court awarded Mitchel most of his claimed fees, but for lack of detail in the billing records appears to have declined to award him recovery for any time claimed for his lead attorney’s support personnel, as billed by an associate, a law clerk, and a paralegal.

II. DISCUSSION

On appeal, the Glasers argue that the trial court 1) failed to conduct the required weighing of benefits and burdens under the Views Ordinance, 2) erroneously applied the doctrine of laches, and 3) on the cross-complaint, erroneously held the Glasers liable for the conduct of their experts and consultants. On cross-appeal, Mitchel argues that 1) the prevailing party fee provision in the Views Ordinance mandates an award of 100 percent of the attorney’s fees he incurred, 2) the court abused its discretion in eliminating his law clerk, associate and paralegal time via lodestar reduction, and 3) most of the eliminated time was incurred following his offer of compromise under Code of Civil Procedure section 998 and therefore he was entitled to recover that time as “costs” under that statute.

Turning first to the appeal, we need not address the laches issue because, on the merits, the trial court’s rejection of the Glasers’ claim is supported by substantial evidence. It is evident from the trial court’s statement of decision that it undertook the weighing of burdens and benefits that is required by the Ordinance. Though its weighing analysis is stated in general terms, the court quite clearly rejected the Glasers’ claim only after doing the requisite balancing of interests. Detailed findings of fact are not required in a statement of decision. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 [“ ‘Ultimate facts are distinguished from evidentiary facts and from legal conclusions.’ [Citation.] Thus, a court is not expected to make findings with regard to ‘detailed evidentiary facts or to make minute findings as to individual items of evidence.’ ”].)

The Glasers argue that the trial court refused to recognize the full scope of the relief available under the Ordinance by rejecting out of hand their request for restoration of the pristine sight lines that originally came with the home, without consideration of all of the evidence supporting their proposed remedy. On its face, the Glasers contend, the Views Ordinance authorizes relief designed to restore all views enjoyed by the complainant “during the time” he or she “has occupied the property” (§ 12.45.030, subd. (A)(1)), which in this case goes all the way back to 1964. We see nothing in the record indicating that the trial court ignored any of the Glasers’ evidence. Quite to the contrary, “[a]fter considering all” of their evidence, the court simply determined that the Glasers had not borne their burden of proving entitlement to the relief they requested.

Taking a slightly different tack, the Glasers argue that the court’s balancing analysis was flawed because it did not consider remedies short of restoration of their original views. The main problem with this version of their argument is that, to state a “ ‘[t]ree claim’ ” under the Ordinance, complainants must specify the “mitigating actions” they propose. (§ 12.45.020, subd. (A)(13)(c).) The tree claim at issue here, as stated by the Glasers themselves in their operative complaint, sought “restorative action, including trimming, thinning, topping, and removal of trees for the purpose of restoring [their] views to the views that [they] enjoyed when they first purchased the Glaser property in 1964.” While the Glasers now contend other remedies “Short of the Entire Restoration of [their] 1964 View” should have been considered, in accord with their trial expert’s testimony at trial, that was not their pleaded claim. The litigation strategy they pursued, as the trial court explained, was an all-or-nothing approach. We cannot fault the court for weighing the claim as pleaded, and nothing more.

With respect to the invasion of privacy and trespass claims asserted in Mitchel’s cross-complaint, we note that the Glasers do not contest some of what the trial court found. They say nothing about the invasion of privacy findings insofar as the court relied on the surreptitious mediation recording; any error in that aspect of the invasion of privacy findings is therefore waived. For purposes of this appeal, that leaves only the findings supporting tort liability for unconsented photo-taking of Mitchel’s yard. Here, we note that, as a legal matter, a client may be held liable for tortious conduct by experts and consultants in litigation under Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736 (Slesinger), so long as the offending conduct is known by the client (id. at pp. 768–771), which the trial court found was the case here. Upon a review of the record, we conclude that substantial evidence supports the court’s determinations of liability on these tort claims.

The thrust of the Glasers’ attack on the findings supporting tort liability for the unconsented photo-taking is that there is “not a shred of evidence” to show that the alleged torts were intentional or that William Glaser, who apparently oversaw the experts’ and consultants’ activities, was aware of any illegality in what they did or planned to do. These are all fact-bound matters of intent that the trial court resolved in Mitchel’s favor based on circumstantial evidence. (See Slesinger, supra, 155 Cal.App.4th at p. 769 [appellant SSI “overlook[ed] circumstantial evidence from which it may be inferred that SSI knew of Sands’ illegal conduct, or at the very least acted with deliberate indifference to whether it was legal”].) There is no basis for reversal. Substantial evidence supports the court’s findings.

Finally, as to the attorney’s fees issues raised in Mitchel’s cross-appeal, the Ordinance mandates an award of “reasonable” fees to prevailing parties. The term “reasonable”—which is typical of fee-shifting measures—gave the court discretion to discount claimed fees and costs that the court deemed to be excessive or inadequately documented. The trial court found Mitchel’s fee application to be wanting in some respects, noting that “[t]he Court has no information about who the associate was,” and that, “[l]ikewise, the Court has no information for time billed by an unidentified person labeled in the billing records as ‘asst.’ ”. We see no basis to second-guess the court’s exercise of discretion in its evaluation of the adequacy of these records, in its lodestar analysis, or its refusal to consider supplemental evidence offered by Mitchel to shore up his documented fees. As to Mitchel’s Code of Civil Procedure section 998 argument, the Glasers correctly point out that “section 998 does not grant greater rights to attorney’s fees than those provided by the underlying statute. Section 998 instead merely expands the group of those who are treated as prevailing parties and who therefore may be entitled to attorney’s fees as prevailing parties under the relevant statute.” (Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 951.)

III. DISPOSITION

Affirmed. The parties to bear their own costs.

_________________________

STREETER, J.

We concur:

_________________________

POLLAK, P.J.

_________________________

BROWN, J.

A155815

Filed 11/8/19 Jabbar v. Loy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MEERAS JABBAR,

Plaintiff and Appellant,

v.

PATRICIA LOY,

Defendant and Respondent.

D075200

(Super. Ct. No.

37-2018-00034348-CU-PT-CTL)

APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.

Meeras Jabbar, in pro. per., for Plaintiff and Appellant.

Christina A. Ciceron, APC, and Keith S. Ciceron for Defendant and Respondent.

Meeras Jabbar appeals an order awarding $5,000 in attorney fees to Patricia Loy as the prevailing party in a proceeding Jabbar initiated to obtain an elder abuse restraining order. (Welf. & Inst. Code, § 15657.03.) Jabbar’s sole appellate challenge is that Loy cited the wrong statute in her moving papers—that is, she cited the statute that governs general civil harassment restraining orders (Code Civ. Proc., § 527.6), whereas Jabbar’s petition was based on the statute that governs elder abuse restraining orders. However, because the elder abuse restraining order statute contains an attorney fee provision (§ 15657.03, subd. (t)) virtually identical to the one Loy cited, and because Jabbar has not explained how Loy’s citation error has prejudiced him, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2018, Jabbar filed a petition seeking an elder abuse restraining order against Loy. Jabbar based his request on section 15657.03, which authorizes “[a]n elder . . . who has suffered abuse . . . [to] seek [a] protective order[].” (§ 15657.03, subd. (a)(1).)

According to the trial court’s August 3, 2018 minute order for the noticed hearing on Jabbar’s petition, Jabbar “ma[de] a request to dismiss” the action. The trial court granted the request and “order[ed] the entire action dismissed with prejudice.” The order indicates this hearing was not reported by a court reporter.

Loy then moved to recover her attorney fees as the prevailing party on Jabbar’s petition. Loy’s notice and motion stated it was “based on . . . [¶] . . . [¶] . . . Code of Civil Procedure Section 527.6(i)[, which] provides for an award of attorneys’ fees and related expenses to the prevailing party in a lawsuit such as the present one . . . .” Loy’s supporting memorandum of points and authorities also cited this provision, as well as “Civil Code § 527.6(h),” which she asserted “specifically provides for [attorney fees], in the Court’s discretion, to a prevailing party.”

In fact, when Loy filed her motion, neither statutory provision she cited authorized an award of attorney fees. Code of Civil Procedure section 527.6, subdivision (i) addressed the procedure for the restraining order hearing, and Civil Code section 527.6 did not exist. However, subdivision (s) of Code of Civil Procedure section 527.6 did (and still does) authorize an award of attorney fees to the prevailing party. (Code Civ. Proc., § 527.6, subd. (s) [“The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.”].)

Jabbar opposed Loy’s attorney fee motion. As relevant here, he noted Loy cited to “Civil Code section 527.6(h) WRONGFULLY.”

The hearing on Loy’s attorney fee motion was not reported. The substance of the court’s minute order states: “The Court having fully considered the arguments of all parties, both written and oral[,] now rules as follows: [¶] Respondent is awarded attorney fees in the amount of $5,000.00.” In its order after hearing, the court found that “Loy is the prevailing party and that an award of attorneys’ fees and related expenses in the amount of $5,000 is reasonable . . . .”

Jabbar appeals.

DISCUSSION

I. Appellate Principles
II.
“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ‘ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ‘ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) These appellate principles apply with equal force to an appellant who is not represented by counsel on appeal. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

Jabbar did not include in the appellate record several documents necessary to provide us with the relevant context in which to evaluate his claims. As noted (see fns. 3-4, ante), we augmented the record on our own motion so that we could evaluate his claim on the merits.

III. The Trial Court Did Not Err By Awarding Attorney Fees to Loy
IV.
Jabbar’s sole appellate contention is that the trial court erred in awarding attorney fees to Loy because “Civil Code 527.6(h) referred to by [Loy] [¶] . . . [¶] does not refer to [a]ttorney [f]ees at all,” and “[t]his fact was brought to the attention of the Court by [Jabbar].” Jabbar has not met his burden as the appellant to show reversible error.

It is clear that Loy moved for attorney fees under the wrong statute. Jabbar sought a restraining order under the elder abuse restraining order statute (§ 15657.03), yet Loy moved for attorney fees under the general civil harassment restraining order statute (Code Civ. Proc., 527.6). And even if Loy had cited the correct statute, she cited the wrong subdivisions. (See fns. 5-6, ante.) Yet, Jabbar has not explained how these errors prejudiced him. We conclude they did not.

To begin with, we presume the trial court’s order is correct. (Jameson, supra, 5 Cal.5th at pp. 608-609.) And, although Loy cited the wrong statute, the trial court nonetheless had the authority under the correct statute to award attorney fees to Loy as the prevailing party. (§ 15657.03, subd. (t) [“The prevailing party in an action brought under this section may be awarded court costs and attorney’s fees, if any.”].)

Jabbar does not claim that Loy’s citation to the wrong statute deprived him of adequate notice to oppose the attorney fees motion. Nor could he persuasively do so because the attorney fees language in the elder abuse and civil harassment restraining order statutes is virtually identical.

Finally, the trial court’s order granting Loy’s motion states the court’s ruling was based on “the arguments of all parties, both written and oral.” (Italics added.) But the hearing was unreported and, thus, we have no transcript to facilitate our review. Without a transcript, we must presume Loy’s citation error was brought to the trial court’s attention—as Jabbar acknowledges occurred—and that the trial court satisfactorily resolved the issue. (See Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [absent a reporter’s transcript, “[w]e must . . . presume that what occurred at that hearing supports the judgment”]; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [“in the absence of a required reporter’s transcript and other documents, we presume the judgment is correct”].)

In sum, Jabbar has not met his burden of showing that the trial court erred by awarding Loy $5,000 in attorney fees.

DISPOSITION

The order is affirmed. Loy is entitled to her costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Filed 11/8/19 Marriage of Wantz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of MARIAM and DONALD WANTZ.

MARIAM WANTZ,

Respondent,

v.

DONALD WANTZ,

Appellant.

E069846

(Super.Ct.No. SWD022822)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Warren, Judge. (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Zeiler Law Group, Kerry P. Zeiler for Appellant.

Mariam Wantz, in pro. per., for Respondent.

This appeal arises from a trial on reserved issues regarding division of real property following the 2011 dissolution of the marriage of appellant Donald Wantz and respondent Mariam Wantz. Donald contends that the trial court erred in its calculation of the parties’ respective community property interests in a house located in Murrieta, California. The trial court concluded Donald must pay Mariam $8,205.29 out of proceeds from selling the house, otherwise to be divided equally (unless the parties reach an agreement for one of them to buy out the other’s interest). Donald contends that the trial court’s calculations (1) failed to give him credit for his post-separation efforts to modify the mortgage on the property, which resulted in a “significant reduction in principal,” (2) failed to take into account the effect of Mariam’s post-separation chapter 7 bankruptcy, and (3) improperly calculated the amount Mariam should be compensated for Donald’s exclusive use of the property after separation. We conclude that, for the most part, the trial court properly and equitably achieved the statutorily mandated goal of “divid[ing] the community estate of the parties equally.” (Fam. Code, § 2550.) We agree with Donald’s third point, however, in that the trial court’s calculations require adjustment to account properly for the parties’ actual date of separation. We therefore modify the judgment to correct that error, and otherwise affirm the judgment.

I. FACTS

Donald and Mariam were married on July 20, 2000. On August 1, 2010, they separated. They entered into a stipulated judgment of divorce, granted by the trial court on June 9, 2011, that reserved issues regarding two parcels of real property, one located in the Philippines, the other located in Murrieta, California. Only the Murrieta property is at issue in this appeal.

In May 2010, before Donald and Mariam separated, they filed a chapter 13 bankruptcy petition. A payment plan for their creditors was confirmed, requiring payment of $1,400 per month. In 2011, Mariam was dismissed from the joint bankruptcy on her own motion. However, she continued paying her half of the $1,400 payment through a reduction in the spousal support she received from Donald, as contemplated by their stipulated judgment of divorce.

In 2013, Mariam filed a personal chapter 7 bankruptcy petition. Mariam ultimately obtained a discharge of her debts, including her personal obligation on the Murrieta property’s mortgage.

In 2013, Donald obtained a loan modification that reduced the principal on the Murrieta property’s mortgage by $196,922.85. Donald contended at trial that Mariam did not cooperate in obtaining the loan modification, and indeed was “against it.” Mariam contended that she did not know that Donald was getting a loan modification, and that he never contacted her about it.

The trial on reserved issues was conducted in May 2017. The trial court’s written decision, initially issued in August 2017, was entered as a judgment in November 2017. The trial court ruled that the property was a community asset and that “the equity needs to be divided accordingly.” It found that Mariam’s “bankruptcy discharge under Chapter 7 of the United States Bankruptcy laws had no effect upon her community property interest” in the Murrieta property, and that Mariam was entitled to benefit from the reduction in principal owed on the property achieved by the loan modification, rejecting Donald’s arguments to the contrary. It found Donald should be awarded Epstein “credits” for payments he made on the property’s mortgage in the amount of $188,730.71. That amount was balanced by Watts “credits” awarded to Mariam to account for Donald’s exclusive use of the Murrieta property in the amount of $196,936, leaving a balance of $8,205.29 owed to Mariam. The judgment orders that either (1) the property be sold and the proceeds split equally, except that Donald would be required to pay $8,205.29 to Mariam out of his share; or (2) one of the parties buy out the other’s half-interest in the property at a price based on an appraisal by a stipulated appraiser, and adjusted to account for the $8,205.29 Donald owes to Mariam.

II. DISCUSSION

A. Applicable Law

“‘Where one spouse has the exclusive use of a community asset during the period between separation and trial [on distribution of marital property], that spouse may be required to compensate the community for the reasonable value of that use.’” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978.) “The right to such compensation is commonly known as a ‘Watts charge.’” (Ibid.; see Watts, supra, 171 Cal.App.3d at pp. 373-374.) Conversely, when a spouse uses separate property funds after separation to pay a preexisting community obligation, the paying spouse may seek an “‘Epstein credit’” for those payments upon division of the community estate. (In re Marriage of Jeffries (1991) 228 Cal.App.3d 548, 553 (Jeffries); see Epstein, supra, 24 Cal.3d at pp. 84-85.) “Watts charges” are in essence “‘usage charges,’” and Epstein credits are “‘payment credits.’” (Jeffries, supra, at p. 552.)

Technically, “both ‘Epstein credits’ and ‘Watts charges’ are, respectively, to be paid from or paid to the community,” and shared equally by both spouses. (Jeffries, supra, 228 Cal.App.3d at p. 553.) The same net fiscal impact, however, can be accomplished by allocating Epstein credits and Watts charges to one spouse or the other, as the trial court did here. (See Jeffries, supra, at pp. 553-555.)

The trial court has discretion, based on equitable considerations, whether to allow Epstein credits or Watts charges. (Epstein, supra, 24 Cal.3d at pp. 83-85; Watts, supra, 171 Cal.App.3d at p. 374; see In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.) We generally review orders dividing marital property for abuse of discretion. (In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201.) Family Code section 2555 permits us to revise the disposition of the community estate “in all particulars, including those which are stated to be in the discretion of the court.”

B. Analysis

Underlying many of Donald’s arguments in this appeal is the notion that Mariam disclaimed her community property interest in the Murrieta property by discharging her debts, including her personal obligation on the Murrieta property’s mortgage, in chapter 7 bankruptcy. He contends, for example, that Mariam should be judicially estopped from disclaiming an interest in the property in bankruptcy court, but then asserting the interest in family court. Donald’s premise, however, is false, and demonstrates a fundamental misunderstanding of what it means to discharge debt, and specifically secured debt, through chapter 7 bankruptcy.

When a “‘debtor’” (11 U.S.C. § 101 (13)) petitions for bankruptcy, she is required to file “a list of creditors” (11 U.S.C. § 521(a)(1)(A)) and “a schedule of assets and liabilities” (11 U.S.C. § 521(a)(1)(B)(i)). All community property is deemed to be property of the bankruptcy “estate,” even if only one spouse files for bankruptcy. (See 11 U.S.C. § 541(a)(2).) In a chapter 7 bankruptcy, a trustee is tasked with collecting “property of the estate” and converting it to money to pay claims on the estate. (11 U.S.C. § 704(a)(1).)

“An eligible debtor who petitions for relief under chapter 7 of the Bankruptcy Code and complies with his or her obligations is generally entitled to ‘a discharge.’” (In re Marriage of Walker (2015) 240 Cal.App.4th 986, 992 (Walker) [citing 11 U.S.C. § 727(a)].) “Among other things, a discharge ‘operates as an injunction against the commencement or continuation of an action . . . or an act . . . to collect, recover or offset any such debt as a personal liability of the debtor . . . .” (Walker, supra, at p. 992 [citing 11 U.S.C. § 524(a)(2)].) Nevertheless, “‘it is well settled that valid, perfected liens and other secured interests pass through bankruptcy unaffected.’” (Walker, supra, at p. 994.) The bankruptcy discharge “‘extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another—namely, an action against the debtor in rem.’” (Ibid. [quoting Johnson v. Home State Bank (1991) 501 U.S. 78, 84].)

Thus, Mariam retained her community property interest in the Murrieta property (including both any equity and the mortgage debt) and the bank retained its security interest in the property, regardless of her bankruptcy discharge. Indeed, even if both Mariam and Donald had discharged their debts in chapter 7 bankruptcy, they still would be required to pay off the mortgage before closing a sale on the Murrieta property, and “[c]ommunity property principles would generally require them to absorb this burden equally,” before dividing any remaining proceeds between them. (Walker, supra, 240 Cal.App.4th at p. 995.) Donald is simply incorrect that Mariam’s chapter 7 bankruptcy should be viewed as disclaiming in any way her community property interest in the Murrieta property.

We also reject Donald’s contention that he alone should benefit from the reduction in principal that resulted from the loan modification. He argues that he should have been given Epstein credits in the amount of the principal reduction, since the loan modification was achieved exclusively through his own efforts. But an Epstein credit is fundamentally a “‘reimbursement’” for a payment that one spouse has made from separate funds on a community obligation. (Epstein, supra, 24 Cal.3d at p. 84.) The reduction in principal achieved by the loan modification does not reflect an investment of Donald’s separate funds, but only the results of a negotiation between Donald and the lender regarding a community debt. Allocating the benefits of the reduction in principal solely to Donald would not be a reimbursement, but rather a windfall.

Donald is correct, however, that the trial court erred in calculating the Watts charges relating to his exclusive use of the Murrieta property in one respect. The trial court’s calculation includes usage charges for the entirety of 2010. The parties’ date of separation, however, was August 1, 2010. Mariam has offered no argument as to why it might be appropriate for Donald to be charged for exclusive use of the property prior to the parties’ separation, and we discern none. The trial court’s calculations, therefore, must be adjusted by the sum of the extraneous seven months of charges, $15,050 ($2,150 x 7). Thus, instead of Donald owing Mariam $8,205.29, as stated in the judgment, the trial court should have found Mariam owed Donald $6,844.71.

III. DISPOSITION

The judgment is ordered modified to subtract out the $15,050 in Watts charges erroneously credited in favor of Mariam, with the result that Mariam owes Donald $6,844.71, instead of Donald owing Mariam $8,205.29 as stated in the original judgment. As modified, the judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.

Filed 11/8/19 Boone v. Salcedo CA5

Opinion following vacating of 8/12/19 opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JAMES BOONE,

Plaintiff and Appellant,

v.

PETER SALCEDO et al.,

Defendants and Respondents.

F078463

(Super. Ct. No. 16C0396)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Valerie R. Chrissakis, Judge.

James Boone, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Danielle F. O’Bannon, Assistant Attorney General, Alberto L. Gonzalez and Matthew W. Roman, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

Plaintiff James Boone injured his knee when he fell into a trench at a construction site at the Corcoran State Prison while working under the Inmate Ward Labor (IWL) program. He brought a negligence action against correctional officers, a construction supervisor, electricians, and a plumber. Plaintiff alleged they failed to properly maintain and mark the open trenches at the worksite, failed to properly oversee or supervise worker safety, failed to summon or immediately get him medical attention upon learning of his injury, and required him to walk on the injured leg from the worksite back to his yard. Defendants moved for summary judgment, contending plaintiff was eligible for workers’ compensation benefits and his claims were barred under the workers’ compensation exclusive remedy rule. (See Lab. Code, §§ 3600, 3601, 3602, 3351.) The trial court granted summary judgment. Plaintiff appealed.

We reach the following conclusions. First, plaintiff qualifies as an “employee” under the definition contained in section 3351 and, therefore, is subject to the workers’ compensation statute and its exclusive remedy rule. Second, on a question of statutory interpretation, section 3852 does not authorize plaintiff to sue individuals who qualify as coemployees. Instead, persons who qualify as plaintiff’s coemployees are protected by the limited immunity provided by section 3601, subdivision (a). Third, the correctional officers and other defendants were plaintiff’s coemployees under the IWL program and, therefore, are entitled to the immunity provided by the exclusive remedy rule. Fourth, plaintiff’s contention that the defendants willfully violated state occupational safety regulations relating to worksite excavations does not fit into one of the statutory exceptions to the exclusive remedy rule. Fifth, on another question of statutory interpretation, the medical treatment plaintiff has received for the knee injury constitutes a workers’ compensation benefit and the fact he has not been paid cash benefits for his injuries does not mean he was “not compensated by this division” for purposes of section 3370, subdivision (a)(9). Sixth, the injuries arising from the second type of wrong alleged—that is, the failure to summon medical attention—are covered by the workers’ compensation statute and its exclusive remedy rule. The scope of this coverage is determined in part by the broad test for industrial causation, which covers new or aggravated injuries that would not have occurred without the initial workplace injury. Under the test for industrial causation, all the injuries alleged arose out of the assigned employment. Consequently, the exclusive remedy rule bars plaintiff from recovering under a cause of action alleging the defendants failed to summon medical attention.

We therefore affirm the judgment.

FACTS

Defendants’ view of the facts essential to their motion for summary judgment is contained in their separate statement of undisputed material facts, which was limited to the following six paragraphs:

“1. Under the Inmate Ward Labor (‘IWL’) program, inmates are employed by the California Department of Corrections and Rehabilitation (‘CDCR’) to work with, and under the supervision of, CDCR staff employees. The IWL program allows inmates to earn pre-apprenticeship and other construction-related certificates. [Citation.]

“2. In 2015, Plaintiff James Boone was an inmate incarcerated by CDCR at Corcoran State Prison. [Citation.]

“3. On November 24, 2015, Plaintiff was working within the course and scope of his duties as an employee of CDCR through the IWL program. [Citation.]

“4. On November 24, 2015, Peter Salcedo, Jose Rios, Sergio Munoz, Joseph Westcott, Juan Gamboa, Daniel Sorenson, and Juan Rodriguez were employees of CDCR, working with and supervising inmates through the IWL program. [Citation.]

“5. On November 24, 2015, Plaintiff was instructed to work at construction site 3-A. [Citation.]

“6. Plaintiff alleges that, while working at site 3-A, he fell into a hole or trench resulting in injury to his right knee. [Citation.]”

In his opposition papers, plaintiff asserted he was not participating in the IWL program as a matter of free choice, but he was forced to work or face disciplinary action for refusing to work. Plaintiff characterized his situation as “being slaved by being ordered to perform back breaking labor” and, thus, he never was employed as defendants claim. Plaintiff also asserted that at no time was he ever afforded the opportunity to earn pre-apprenticeship or other construction-related certificates and he was not properly trained to do the tasks he was performing at the site.

With respect to defendants’ conduct, plaintiff contended CDCR staff were not working with the inmate laborers on November 24, 2015, and failed to supervise them, which could have prevented his injury. Plaintiff contended defendants were not doing their jobs or ensuring the safety of the worksite as mandated by sections 1541 and 1541.1 of title 8 of the California Code of Regulations, which imposes safety requirements on worksite excavations. He also cited section 3271 of title 15 of the California Code of Regulations, which states: “Every employee, regardless of his or her assignment, is responsible for the safe custody of the inmates confined in the institutions of [CDCR].”

Plaintiff addressed the subject of workers’ compensation benefits by attaching to his complaint a copy of a December 8, 2015, “NOTICE REGARDING TEMPORARY DISABILITY BENEFITS” from the State Compensation Insurance Fund. The notice advised plaintiff of “the status of temporary disability payments for your workers’ compensation knee (right) injury of November 24, 2015.” The notice stated:

“We are advising you that liability for this injury has been accepted. While there are no cash benefits due at this present time per [section] 3370(a)(3), you are entitled to medical treatment to cure or relieve the effects of the injury, which will be provided to your through your institution’s medical unit. If you wish any further information about your benefits while you are incarcerated, you may call your facility’s workers’ compensation inmate coordinator.

“You have up to one year after your release from the institution to request workers’ compensation benefits by notifying State Compensation Insurance Fund and/or to file an application for adjudication of claim with the Workers’ Compensation Appeals Board.”

Details relating to the subsequent medical treatment plaintiff received are contained in the “Health Care Services Request Form[s]” that plaintiff attached to his complaint. Those details are not relevant to the legal issue addressed and decided in this appeal and, therefore, are not included in this opinion.

PROCEEDINGS

Administrative Remedies

After his injury, plaintiff submitted a claim to the Victim Compensation and Government Claims Board under the Government Claims Act (Gov. Code, § 810 et seq.) and pursued an inmate grievance with the CDCR. In April 2016, the claims board denied plaintiff’s claim. In September 2016, CDCR issued a third level appeal decision denying plaintiff’s appeal, which exhausted plaintiff’s administrative remedies. The written decision described plaintiff’s assertion that staff, not being aware of the seriousness of the injury, directed him to walk from the construction site to the Facility 3C clinic. The decision also noted a workers’ compensation claim had been filed on plaintiff’s behalf. CDCR’s denial of the appeal was explained as follows: “The appellant is advised that monetary compensation for issues other than property appeals is outside of the scope of the appeals process. Therefore, no relief is deemed appropriate at the [Third Level of Review].”

The Lawsuit

In 2016, plaintiff filed a complaint in Kings County Superior Court. The operative pleading is plaintiff’s first amended complaint filed in April 2017. Plaintiff brought a general negligence action against (1) Peter Salcedo, correctional officer; (2) Jose Rios, correctional officer; (3) Sergio Munoz, correctional officer; (4) Joseph Westcott, construction supervisor one; (5) Daniel Sorenson, plumber; (6) Juan Rodriguez, electrician-foreman; and (7) Juan Gamboa, electrician. Plaintiff alleged the defendants were “the legal (proximate) cause of damage to plaintiff” and set forth the acts or omissions by which defendants negligently caused the damage to plaintiff. The negligent acts or omissions alleged were the failure to properly maintain and mark the open trenches at the worksite; the failure to properly oversee or supervise worker safety at the site; the failure to “take reasonable actions to summon[], or immediately get[,] plaintiff the care needed” after plaintiff requested medical attention; and requiring plaintiff to walk on the injured leg from the worksite back to his yard and then to see medical staff.

Plaintiff’s allegations of damages were, for the most part, general in nature and did not specifically attribute particular items of damage to particular negligent acts or omissions. Thus, plaintiff did not specifically allege some injuries were the result of the fall into the trench and other injuries were the result of being forced to walk on the injured knee after the fall. Based on our review of the record, it appears plaintiff’s reply brief filed with this court is the first place he specifically argued the negligent lack of care after the fall aggravated the preexisting injury caused by the fall. Also, plaintiff’s complaint did not anticipate the defense that workers’ compensation provided his exclusive remedy. As a result, the complaint did not make specific allegations about his status as an employee and did not allege he reverted to the status of prisoner and was no longer an employee when some of the post-fall negligence occurred.

Motion for Summary Judgment

In July 2018, defendants filed a motion for summary judgment on the ground that plaintiff’s complaint was “barred under the workers’ compensation exclusive remedy rule.” In September 2018, plaintiff submitted his opposition to the motion. Plaintiff argued he had not received any workers’ compensation benefits and his claims against the so-called coemployees were authorized by section 3852, which states that a claim for workers’ “compensation does not affect [an employee’s] claim or right of action for all damages proximately resulting from the injury … against any person other than the employer.” In plaintiff’s view, he is suing “person[s] other than the employer” and, therefore, section 3852 allows him to proceed with the lawsuit against defendants. In October 2018, defendants filed a reply, arguing the immunity provided to coemployees by section 3601 was the controlling statute.

On October 10, 2018, the trial court held a hearing on the motion for summary judgment. Plaintiff appeared telephonically. After hearing arguments, the court took the matter under submission.

Trial Court’s Decision

On October 11, 2018, the trial court filed a written order granting summary judgment in favor of defendants. The court concluded workers’ compensation benefits were plaintiff’s exclusive avenue for relief relating to his negligence claim against coemployees for injuries sustained when he fell into the trench. The court concluded section 3852 did not apply because the current version of section 3601 was controlling as the defendants were “any other employee of the employer acting within the scope of his or her employment .…” (§ 3601, subd. (a).)

In completing the first step of the three-step analysis applied to motions for summary judgment (i.e., identifying the issues framed by the pleading), the trial court recognized that plaintiff’s allegations of negligent conduct went beyond the acts and omissions that caused him to fall into the trench. The court concluded plaintiff’s complaint also alleged defendants failed to take reasonable actions to summon or immediately get plaintiff the medical care needed. Consequently, the court addressed whether plaintiff could pursue a claim for damages based on failing to summon immediate medical care or requiring plaintiff to walk on the injured leg. The court concluded defendants still were acting within the scope of employment when the post-fall negligence was alleged to have occurred and they had not stepped out of their coemployee or supervisorial roles. Thus, the court determined the exclusive remedy provision of section 3601 applied to all of the negligence claims alleged in the complaint, regardless of whether that negligence caused plaintiff to fall into the trench or caused additional pain, suffering or injuries to his knee after the fall. In November 2018, plaintiff filed a notice of appeal.

DISCUSSION

I. STANDARD OF REVIEW

A defendant asserting that the action has no merit may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) The court shall grant a motion for summary judgment, “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To determine whether a triable issue of material fact exists, the court must consider all evidence set forth in the moving papers and all inferences reasonably deducible from the evidence. (Ibid.) A triable issue of material fact exists if, “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

Appellate courts conduct an independent (i.e., de novo) review to determine whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) Appellate courts apply the same three-step analysis required of the trial court. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858 (Serri).) First, we identify the issues framed by the pleadings. (Ibid.) When a defendant moves for summary judgment, the causes of action or theories of recovery set forth in the complaint provide the foundation for the issues addressed in the defendant’s motion. Second, we determine whether the moving party’s showing has established facts justifying judgment in its favor. (Ibid.) Third, when the moving party has carried its initial burden, we address whether the opposing party has demonstrated the existence of a triable issue of material fact. (Ibid.) Appellate courts “view the evidence in a light favorable to plaintiff as the losing party.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Consequently, a losing plaintiff’s evidentiary submission is liberally construed, and the moving party’s showing is strictly scrutinized with any evidentiary doubts or ambiguities resolved in plaintiff’s favor. (Ibid.) In accordance with this principle, when conflicting inferences can be reasonably drawn from the evidence, a triable issue of fact is deemed to exist. (Code Civ. Proc., § 437c, subd. (c).)

II. PLAINTIFF’S STATUS AS AN EMPLOYEE

Plaintiff’s first claim of trial court error asserts workers’ compensation cannot be his exclusive remedy against defendants because he was not an “employee.” He contends the facts show he is more aptly considered a slave, servant or inmate rather than an employee because employees are entitled to unionize, to strike and to receive minimum wage, none of which were available to him. Plaintiff also asserts he could not refuse the assignment without suffering severe, adverse consequences and, therefore, he was not a true employee.

We recognize that plaintiff’s argument might have some merit if the common law test for “employee” or the ordinary meaning of that word applied. However, in this case, neither the common law test nor the ordinary meaning determine the reach of the workers’ compensation statute and its exclusive remedy provisions. Instead, plaintiff’s status as an “employee” is determined by the way the Legislature defined that term in the Labor Code. The technical definition of “employee” adopted in section 3351 states an employee is “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: [¶] … [¶] (e) All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment .…” Thus, whether plaintiff was an “employee” for purposes of the workers’ compensation statute depends on the application of the elements of this definition to the facts of this case.

Here, the undisputed facts establish that plaintiff was an inmate incarcerated at the Corcoran State Prison in November 2015. The undisputed facts also establish that on November 24, 2015, plaintiff was assigned to work in the IWL program and fell into the trench while working within the course and scope of that assignment. Consequently, the undisputed facts establish (1) plaintiff was a “person incarcerated in a state … correctional institution” and (2) he fell into the trench “while engaged in assigned work.” (§ 3351, subd. (e).) Based on these two elements, we conclude plaintiff met the statutory definition of “employee” when he fell into the trench. In short, the facts raised by plaintiff to argue he was not an employee are not material to the application of the statutory definition. Consequently, those factual assertions do not create a triable issue of material fact relating to his status as an “employee” under section 3351’s definition.

III. SECTION 3852 AND ACTIONS AGAINST THIRD PARTIES

Plaintiff’s second claim of trial court error asserts his negligence claims against the correctional officers, construction supervisor, plumber, and electricians are allowed by section 3852, which provides in part: “The claim of an employee … for [workers’] compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury … against any person other than the employer.” (Italics added.) Plaintiff contends defendants qualify as “person[s] other than the employer” for purposes of section 3582 and, therefore, he may pursue a negligence action against them.

The liability of an employee for negligently injuring another employee is addressed in section 3601, subdivision (a):

“Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment.” (Italics added.)

The Supreme Court described section 3601, subdivision (a) as providing immunity to coworkers and stated the Legislature added the provision to “prevent employees from circumventing the exclusivity rule by bringing lawsuits for work-related injuries against coemployees, who in turn would seek indemnity from their employers.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1002 (Torres).) Thus, “[f]or conduct committed within the scope of employment, employees, like their employers, should not be held subject to suit.” (Ibid.) Compared to prior law, the enactment of subdivision (a) of section 3601 “ ‘severely limited a preexisting right to freely sue a fellow employee for damages.’ ” (Torres, supra, at p. 1002.)

Having set forth the text of sections 3852 and 3601, subdivision (a), we turn to the question of how those provisions fit together. This question is a legal issue involving the interpretation of statutes and is subject to our independent review. (Mikkelsen v. Hansen (2019) 31 Cal.App.5th 170, 178 [interpretation of a statute is a question of law subject to de novo review].) Plaintiff argues section 3852 controls and authorizes his action for damages.

First, we conclude there is no explicit or literal conflict between the statutory text of section 3852 and the coworker immunity provision of section 3601, subdivision (a). Section 3852 simply states that a claim for workers’ compensation benefits “does not affect” the employee’s right of action for damages “against any person other than the employer.” This language does not address, one way or the other, whether an employee has a right of action against coworkers. If such a right of action exists, then section 3852 tells us that the right of action will continue to exist even if the injured employee claims workers’ compensation benefits. If no right of action exists, then section 3852 has no application. Stated another way, section 3852 does not guarantee that no other statutory provision affects the employee’s rights against coworkers or other nonemployers.

Second, we conclude the coworker immunity provision of section 3601, subdivision (a) addresses the circumstances in which an injured employee may sue a coworker—that is, has a right of action against a coworker. It explicitly grants coworkers immunity for injuries caused by acts within the scope of employment, subject to two exceptions. The first exception to the immunity refers to injury or death “proximately caused by the willful and unprovoked physical act of aggression of the other employee.” (§ 3601, subd. (a)(1).) The second exception refers to injury or death “proximately caused by the intoxication of the other employee.” (§ 3601, subd. (a)(2).) Because section 3601, subdivision (a) explicitly addresses an employee’s right of action against coworkers, we reject plaintiff’s contention that section 3852 controls and authorizes him to sue defendants.

This interpretation of the statutes is required by decisions of the Supreme Court, which include Torres and Hendy v. Losse (1991) 54 Cal.3d 723 (Hendy). In Hendy, the court discussed the 1937 enactment of section 3852 and the 1959 amendment of section 3601 to include a limited immunity for coemployees. (Hendy, supra, at pp. 733–734.) When section 3852 was enacted, lawsuits against coemployees were permitted. (Hendy, supra, at p. 733) That changed in 1959 when section 3601 was amended to grant “a limited immunity to employees. That immunity protects employees from damage actions by coemployees, but only if the defendant was acting within the scope of employment when that defendant’s conduct injured the plaintiff.” (Hendy, supra, at p. 734.) Thus, section 3601 determines the extent a coworker is immune from liability for injuries caused to other workers and that immunity is not altered by section 3852.

The reach of the immunity provided to coworkers by section 3601 is illustrated by various cases that discuss and apply California’s horseplay doctrine. “In general, if an employer condones what courts have described as ‘horseplay’ among its employees, an employee who engages in it is within the scope of employment under section 3601, subdivision (a), and is thus immune from suit, unless [the statutory] exceptions apply.” (Torres, supra, 26 Cal.4th at p. 1006, citing Oliva v. Heath (1995) 35 Cal.App.4th 926, 933.)

Plaintiff contends the immunity for coworkers should not extend to willful violations of the state occupational safety regulations. In particular, plaintiff contends defendants willfully violated sections 1541 and 1541.1 of title 8 of the California Code of Regulations, which require certain protective measures for employees working in and near excavations. (See People v. Luo (2017) 16 Cal.App.5th 663, 675 [general contractor’s conviction for involuntary manslaughter based on violations of excavations safety measures affirmed]). Under section 6425, subdivision (a), any employer or supervisory employee “who willfully violates any occupational safety or health standard, order, or special order … and that violation … cause[s] permanent or prolonged impairment of the body of any employee, is guilty of a public offense punishable by … imprisonment in the state prison for 16 months, or two or three years.” The term “willfully” is defined by Penal Code section 7. (§ 6425, subd. (e).) “[W]hen applied to the intent with which an act is done or omitted, [willfully means] simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Pen. Code, § 7, subd. (1).) Plaintiff has cited, and we have located, no judicial decision stating a willful violation of state occupational safety regulations precludes the employee who is alleged to have violated those rules from relying on the immunity provided coemployees by the exclusive remedy rule. Furthermore, as a matter of statutory interpretation, the violations of safety regulations asserted in this case do not fall within one of the two statutory exceptions to coemployee immunity. The exception relating to intoxication does not apply. Also, the exception relating to an injury “proximately caused by the willful and unprovoked physical act of aggression of the other employee” (§ 3601, subd. (a)(1)) does not apply because there was no “unprovoked physical act of aggression” on the part of defendants. Both willfulness and an unprovoked physical act of aggression are required for the coemployee to lose the immunity provided because those terms are joined by the word “and.” The ordinary and usual usage of “and” is as a conjunctive, meaning an additional thing, also or plus. (In re C.H. (2011) 53 Cal.4th 94, 101.) As a court interpreting a statute, we do not have the authority “to insert what has been omitted” by the Legislature. (Code Civ. Proc., § 1858.) Thus, the asserted violations of occupational safety regulations do not fall outside the statutory immunity provided to coemployees by section 3601.

To summarize, the trial court correctly interpreted the workers’ compensation statutes when it concluded coworkers were protected by section 3601, subdivision (a) and section 3852 did not eliminate that protection. (See Torres, supra, 26 Cal.4th at p. 1002; Hendy, supra, 54 Cal.3d at p. 730 [§ 3601 “prohibits actions against coemployees for injuries they cause when acting within the scope of their employment”].)

IV. DEFENDANTS’ STATUS AS THIRD PARTIES

Plaintiff’s third claim of trial court error asserts that defendants are not entitled to any protection under section 3601 because defendants are properly characterized as third parties and not as coemployees acting within the scope of their employment. Plaintiff argues defendants Salcedo, Munoz and Rios retained their status as correctional officers of CDCR and were not working with plaintiff on the construction project.

Like the trial court, we conclude the undisputed fact that on November 24, 2015, the defendants “were employees of CDCR, working with and supervising inmates through the IWL program” is sufficient to establish the correctional officers were coemployees of plaintiff for purposes of the workers’ compensation statute. The presence of correctional officers to oversee inmates working in the IWL program is essential to the program. Therefore, correctional officers are properly classified as employees of CDCR’s IWL program and are acting within the scope of their employment with the program while supervising inmates performing construction work. Similarly, the construction supervisor, plumber and electricians participating in the IWL program are properly classified as coemployees of plaintiff.

V. INJURIES NOT COMPENSATED BY WORKERS’ COMPENSATION

Despite the resolution of the foregoing issues, plaintiff’s fourth claim of trial court error asserts he still is entitled to file a suit for damages because section 3370, subdivision (a)(9) states: “Nothing in this division shall affect any right or remedy of an injured inmate for injuries not compensated by this division.” (Italics added.) Plaintiff contends this statutory text should be liberally construed to permit recovery of the damages sought in his complaint. He refers to the doctrine of lenity, arguing all doubt should be resolved in his favor.

As background, we note California’s doctrine of lenity applies to the construction of ambiguous penal statutes. “[I]t is an established rule of construction that ambiguities in penal statutes are to be construed most favorably to the accused.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1011.) The doctrine of lenity does not apply to the Labor Code in general or to the workers’ compensation statutes in particular. However, the Legislature addressed the construction of the workers’ compensation statutes in section 3202, which provides those provisions “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (§ 3202.) This general policy seems contrary to plaintiff’s current interests because he would prefer the workers’ compensation statute be interpreted so it does not cover the injuries alleged in his complaint.

Moving to the question of statutory interpretation presented by plaintiff’s arguments, we consider whether he has “injuries not compensated by this division” within the meaning of subdivision (a)(9) of section 3370. The term “this division” refers to division 4 of the Labor Code (§§ 3200–6002), which governs workers’ compensation and insurance. The verb “compensated” is not defined, but the term “[c]ompensation” is defined as including “every benefit or payment conferred by this division upon an injured employee … without regard to negligence.” (§ 3207.) We conclude the statutory definition of the noun “compensation” is relevant to determining the meaning of the verb “compensated.” Therefore, we conclude an injured inmate is compensated when a “benefit or payment [is] conferred.” (§ 3370, subd. (a)(9).) We further conclude the provision of medical treatment constitutes a benefit conferred. (See § 4600 [provision of treatment by employer].)

Applying the foregoing statutory interpretations to the facts of this case, we conclude plaintiff’s employer conferred a benefit on him and that benefit “compensated” him for purposes of subdivision (a)(9) of section 3370. Plaintiff received a notice regarding temporary disability benefits dated December 8, 2015, from the State Compensation Insurance Fund. The notice advised plaintiff “that liability for this injury has been accepted. While there are no cash benefits due at this present time per [section] 3370(a)(3), you are entitled to medical treatment to cure or relieve the effects of the injury, which will be provided to you through your institution’s medical unit.” Plaintiff’s complaint included the notice as an exhibit and also alleged: “When plaintiff returned to his yard he was then seen by medical staff [] by way of walking.” In addition, his complaint included as attachments many “Health Care Services Request Form[s]” submitted by plaintiff, which include notes and comments by medical staff.

The record before this court establishes that there is not a triable issue of material fact on the question of whether plaintiff was provided a workers’ compensation benefit—specifically, medical treatment—due to his injury. As a result, his injuries have been “compensated” in part pursuant to California’s workers’ compensation statutes. It follows that the last sentence in section 3370, subdivision (a)(9), which refers to “injuries not compensated,” does not apply to plaintiff and does not permit him to pursue the claims stated in his first amended complaint.

VI. NEGLIGENCE IN SUMMONING MEDICAL CARE

A. Scope of the First Amended Complaint

Here, we consider whether plaintiff’s first amended complaint sets forth a negligence claim based on the failure of defendants to summon medical care for plaintiff after he fell into the trench. If a failure-to-summon-medical-care claim was adequately pleaded, we must decide whether that claim is barred by the exclusive remedy rule of the workers’ compensation statute and, therefore, subject to summary judgment. Alternatively, if such a claim was not adequately pleaded, we must decide whether plaintiff should be allowed to amend his complaint to include such a claim.

In the procedural context presented in this appeal, the resolution of this issue constitutes the first step of the three-step analysis used to decide motions for summary judgment. In completing that step, we must “identify the issues framed by the pleadings.” (Serri, supra, 226 Cal.App.4th at p. 858; Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1602.) Earlier this decade, the Fourth District discussed the first step of the summary judgment analysis in a section of its opinion labeled “Specific Summary Judgment Issues About Scope of Pleadings.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 420–422 (Howard).) The principles set forth in Howard guide our resolution of the question about the scope of the issues (i.e., legal theories or claims) framed by plaintiff’s first amended complaint.

Generally, the scope of the issues properly addressed in a summary judgment motion is limited to the claims framed by the pleadings. (Howard, supra, 203 Cal.App.4th at p. 421.) Accordingly, a defendant moving for summary judgment or summary adjudication “is not required to go beyond the allegations of the pleading, with respect to new theories that could have been [pleaded], but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.” (Ibid.) When a complaint gives fair notice to the defendants of the theories on which relief is generally being sought, the trial court may read the pleadings broadly, in light of the facts adduced in the summary judgment proceeding. (Id. at p. 422.) “The test is whether such a particular theory … is one that the [defendant] could have reasonably anticipated would be pursued, and whether a request for leave to amend accordingly would likely have been granted ….” (Id. at p. 422.)

Here, the trial court correctly completed the first step of the summary judgment analysis. The court stated, “it must review all theories for liability set forth in the [first amended complaint].” The court then identified one theory of liability relating to the fall into the trench and another theory of liability pertaining to the failure “to take reasonable actions to summon or immediately ‘get plaintiff the care needed’ following his November 24, 2015 injury.”

Our independent review of the allegations of the first amended complaint shows that plaintiff explicitly alleged facts that would put an objectively reasonable defendant on notice of a claim based on the negligent failure to summon medical care. The first amended complaint alleged defendants failed to “take reasonable actions to summon, or immediately get[,] plaintiff the care needed” after plaintiff requested medical attention and also required plaintiff to walk on the injured leg from the worksite back to his yard and then to see medical staff. Therefore, we conclude one of the theories on which plaintiff sought relief was the negligent failure to summon medical care.

B. Scope of the Immunity under the Exclusive Remedy Rule

Based on our interpretation of the first amended complaint, we must decide whether plaintiff’s failure-to-summon-medical-care claim is barred by the exclusive remedy rule of the workers’ compensation statute.

1. Principles Defining Industrial Causation

One of the concepts that defines the scope of the workers’ compensation statutes and, thus, the scope of the exclusive remedy rule, is referred to as “industrial causation.”

“It is by now well established that the [workers’ compensation statute’s] exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ‘ “collateral to or derivative of” ’ such an injury.” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051 [injuries arising out of and in the course of the workers’ compensation claims process are within the scope of the exclusive remedy provision].)

“As we recently explained in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297, 188 Cal.Rptr.3d 46, 349 P.3d 141 (South Coast Framing), section 3600 provides a workers’ compensation remedy for an injury linked ‘ “ ‘in some causal fashion’ ” ’ to employment. This causation requirement differs markedly from ordinary tort principles, in that ‘ “ ‘ “[a]ll that is required is that the employment be one of the contributing causes without which the injury would not have occurred.” ’ [Citation.]” ’ (Id. at pp. 297–298, 188 Cal.Rptr.3d 46, 349 P.3d 141.) Because of this, ‘industrial causation has been shown in an array of scenarios where a work injury contributes to a subsequent nonindustrial injury.’ (Id. at p. 300, 188 Cal.Rptr.3d 46, 349 P.3d 141.) California courts have held, for example, that ‘[a]n employee is entitled to compensation if a new or aggravated injury results from medical or surgical treatment for an industrial injury.’ (Ibid. [citing cases]; see id. at p. 294, 188 Cal.Rptr.3d 46, 349 P.3d 141 [workers’ compensation remedy available to family of worker who died from the combination of drugs prescribed following a fall at work].) This is true regardless of ‘ “whether the treatment [was] provided by a physician selected by the employee or by the employer or the employer’s compensation carrier.” ’ (Id. at p. 306, 188 Cal.Rptr.3d 46, 349 P.3d 141.) And where the remedy is available as an element of the compensation bargain it is exclusive of any other remedy to which the worker might otherwise be entitled from the employer: ‘The employer’s compensation obligation is ‘in lieu of any other liability whatsoever to any person.” ’ [Citations.]” (King v. CompPartners, Inc., supra, 5 Cal.5th at p. 1052.)

Accordingly, the principle of industrial causation defines both the scope of the workers’ compensation remedy and the scope of the exclusive remedy rule. Here, the new or aggravated injuries plaintiff contends resulted from the failure to summon medical care and from requiring him to walk on the injured knee are linked in some causal fashion to his fall into the trench. Specifically, those additional injuries would not have occurred if plaintiff had not injured his knee in the first place.

Even plaintiff’s allegation that he has come to “depend on pain relief medication to help [him] through his days” refers to an injury or harm causally connected to the fall into the trench. In Ballard v. Workmen’s Comp. App. Bd. (1971) 3 Cal.3d 832, our Supreme Court concluded that if an employee’s “addiction [to painkillers] would not have materialized but for the [workplace] injury[,] she is entitled to a full recovery .…” (Id. at p. 839.) This broad view of causation also applies in cases where the worker commits suicide. “Recovery is proper if it is shown that without the injury there would have been no suicide.” (Id. at p. 837.)

Based on our Supreme Court’s decisions discussing industrial causation and the scope of the workers’ compensation statute, we conclude plaintiff’s claims relating to new or aggravated injuries are covered by the exclusive remedy provision of subdivision (a) of section 3601. These new or aggravated injuries include the harm resulting from defendants’ failure to summon medical care and plaintiff’s dependency on pain medication. It follows that defendants are entitled to summary judgment on the ground that all of plaintiff’s claims are barred by the exclusive remedy rule.

VII. PENDING PROCEDURAL MATTERS

A. Motion to Proceed on Second Amended Complaint

On May 8, 2019, this court filed plaintiff’s notice of motion and motion for leave to proceed on second amended complaint pursuant to Code of Civil Procedure sections 471.5 and 473, subdivision (a)(1). Plaintiff asserts the motion should be given a nunc pro tunc filing date of September 14, 2018, based on the prison mailbox rule and the repeated problems that have arisen with his legal mail. In an order filed on May 29, 2019, this court stated the motion was deferred pending consideration of the appeal on its merits.

We interpret plaintiff’s motion and arguments as a request for this court to direct the trial court to grant plaintiff leave to file a second amended complaint. (Code Civ. Proc., §§ 43 [appellate court may direct “further proceeding to be had”], 906 [powers of reviewing court].) Plaintiff states a purpose of the second amended complaint is to present the claim that the remaining defendants (1) possessed an independent duty to summon immediate medical care for plaintiff following his injury while on an IWL job site and (2) breached that duty. The conclusion of plaintiff’s motion states:

“The main consideration of the court is whether plaintiff/appellant has asserted an independent claim for damages against the defenda[n]ts to which the exclusive remedy provision of California Labor Code §[§] 3601-3602 may not apply. The plaintiff has amended his complaint, pleading that at the time plaintiff was told that ‘there was no one to transport him to medical at this time’, the defendants had knowledge and reason to know of the need of immediate medical care, and that the defendants breached their duties[] or stepped out of their coemployee[ or] IWL-Supervisorial role.”

We conclude there is no need to direct the trial court to grant plaintiff leave to file his second amended complaint because the claim (i.e., legal theory) that defendants committed a second and distinct wrong in failing to summon medical aid was alleged in the first amended complaint. As discussed above, we conclude the exclusive remedy provision extends to any injuries caused by the allegedly wrongful conduct of failing to summon medical care because the concept of industrial causation used to determine the scope of the workers’ compensation statute is quite broad. Accordingly, the motion will be denied.

B. Request for Judicial Notice

On June 20, 2019, this court filed plaintiff’s request for judicial notice, dated June 4, 2019. This third request by plaintiff relates to the reporter’s transcript for the hearing on the motion for summary judgment, defense counsel’s reference to an unpublished appellate decision at that hearing, and the diversion of the funds plaintiff sent to the trial court in an attempt to pay the estimated amount of $227.50 for the reporter’s fees.

First, we conclude the reporter’s transcript of the hearing is not necessary or useful to our resolution of the merits of the motion for summary judgment. As described in part I of this opinion, we conduct an independent review of the motion for summary judgment. The arguments presented at that hearing and the statements of the trial court play no role in our independent review of the merits. Stated another way, what the trial court and the parties said at that hearing does not change the merits of the motion for summary judgment or affect our analysis of the merits.

Second, footnote 12 of the trial court’s written order names the unpublished case referred to by defense counsel at the hearing, states it “is an unpublished case which cannot be relied upon by the court,” and cites California Rules of Court, “rule 8.115(a).” The trial court’s handling of the matter was appropriate and plaintiff does not contend the court’s action constitutes misconduct. Thus, the reporter’s transcript is not needed or useful to the resolution of any issues raised by defense counsel’s reference to an unpublished case. In addition, the reference to the unpublished opinion has not influenced the outcome of this appeal because we have not considered, much less relied upon, that opinion.

Therefore, the request for judicial notice of the reporter’s transcript and the documents relating to its preparation and cost is denied.

DISPOSITION

The judgment is affirmed. The parties shall bear their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

Appellant’s motion for leave to proceed on second amended complaint, filed on May 8, 2019, is denied.

Appellant’s request for judicial notice, dated June 4, 2019, and filed on June 20, 2019, is denied.

Filed 11/12/19 Marriage of Dodson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of ROY and DENISE DODSON.

ROY T. DODSON IV,

Appellant,

v.

DENISE L. DODSON,

Respondent.

E070719

(Super.Ct.No. FAMSS1600938)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steven J. Singley, Judge. Affirmed.

Roy T. Dodson IV, in pro. per., for Appellant.

Karen B. Miller for Respondent.

I. INTRODUCTION

In this marital dissolution proceeding, appellant, Roy T. Dodson IV (Roy), appeals from the May 3, 2018, order awarding his former spouse, respondent, Denise L. Dodson (Denise), $10,000 in attorney fees. (Fam. Code, §§ 2030, 4320.) Roy claims the court abused its discretion in making the award. We disagree and affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. The Parties

Roy and Denise were married on January 30, 2006, and separated on December 30, 2015, one month before what would have been their 10-year anniversary. In February 2016, Roy petitioned to dissolve the marriage. Roy initially represented himself in these proceedings. Roy and Denise have no children together, and Denise entered the marriage with no children, but Roy entered the marriage with four children. At the beginning of the marriage, Roy had sole legal and physical custody of his three youngest children (two daughters and one son) and joint legal and physical custody of his oldest son. When the parties separated in December 2015, Roy’s youngest two children were still minors.

B. Denise’s Request for Order (RFO) for Temporary Spousal Support and Attorney Fees (June 2016)

On June 3, 2016, Denise, represented by counsel, filed an RFO seeking $2,000 in temporary monthly spousal support, plus $7,750 in attorney fees, and an order requiring Roy to remove her from his health insurance. In her supporting declaration, Denise claimed she was disabled and had been unable to work since 2013. She had been diagnosed with several chronic illnesses, including lupus, which had been “the source of most of [her] health problems and [her] inability to work.” She had recently been approved to receive disability benefits. She had been employed as a private school teacher from 1996 to 2013 and was earning $1,700 per month before her employment ended. She has a bachelor’s degree in “liberal studies” but no teaching certificates. She left her residence with Roy in December 2015 and had since been living with her parents. She had less than $5 in each of two bank accounts, and significant out-of-pocket medical expenses, which her father was paying along with her living expenses. She needed to be removed from Roy’s health insurance so she could be covered solely by MediCal and reduce her out-of-pocket medical expenses.

The hearing on Denise’s RFO was initially set on July 14, 2016, but was twice continued, first to September 15 then to October 27, 2016. At the May 3, 2018, hearing on Denise’s motion for attorney fees, Denise’s counsel claimed that Roy’s refusal to agree to continue the hearing, and Roy’s failure to produce documentation of his income and assets at or before the continued July 14 and September 15 hearing dates, caused Denise to incur unnecessary attorney fees. On July 1, 2016, Roy filed and served a response to Denise’s RFO without including an income and expense declaration or paystubs documenting his income.

At the May 3, 2018, hearing, Denise’s counsel claimed she needed to ask the court to continue the July 14, 2016, hearing because she did not have an “accurate idea” of Roy’s income to calculate Roy’s spousal support obligation or of Roy’s assets for purposes of Denise’s request for attorney fees. Counsel claimed that Roy responded to Denise’s discovery in June 2016, but his responses omitted requested documentation of his income and assets. Counsel claimed Denise incurred $1,875 in “unnecessary” attorney fees just for having to appear in court on July 14, 2016, to continue the RFO hearing to September 15.

On September 15, 2016, the court held a status conference and continued the hearing on Denise’s RFO to October 27. As of September 15, Roy had not served Denise with a complete income and expense declaration or a complete schedule of assets and debts. On September 15, the court ordered Roy to file and serve a declaration regarding service of declaration of disclosure and income and expense declaration (Judicial Council form FL-141), a preliminary declaration of disclosure, Roy’s two most recent paystubs, and a new income and expense declaration if his income as shown on his paystubs was higher than he said it was at the status conference. Denise’s counsel then met with Roy outside the courtroom and gave him a list of the forms he needed to complete and produce.

On September 30, 2016, Roy filed a form FL-141, along with two paystubs showing his income for his pay periods ended August 28 and September 4. But Roy’s paystubs did not match the income shown on his most recent income and expense declaration, and Roy did not file or serve a preliminary declaration of disclosure, as he had been ordered to do on September 15.

On October 27, 2016, the court held the hearing on Denise’s RFO and ordered Roy to pay Denise temporary spousal support of $1,486 per month, retroactive to June 15, 2016. Roy’s spousal support arrearage totaled $6,687, and Roy was ordered to pay Denise an additional $100 per month for the arrearages, or $1,586 per month, until the arrearage was fully paid. The court based Denise’s temporary spousal support award on Roy’s paystubs.

C. The Parties’ Discovery Dispute, Additional RFO’s, and Other Proceedings

Also on September 30, 2016, Roy filed an RFO asking the court to order Denise to pay Roy 50 percent of a $24,300 lump-sum disability benefit that Denise had recently received from the California State Disability Department. The hearing on Roy’s RFO was initially set on October 27, with the hearing on Denise’s RFO for temporary spousal support, but Denise’s counsel claimed Roy’s RFO was untimely served, and the hearing on Roy’s RFO was continued to December 8.

On October 27, 2016, the hearing date on Denise’s RFO for temporary spousal support, Denise’s counsel filed an RFO to compel Roy to produce a preliminary declaration of disclosure (§ 2107, subd. (c)), and that Roy be ordered to pay Denise $2,500 in sanctions (§ 271), including $1,812.50 in attorney fees incurred in preparing the RFO and in appearing at the hearing on the RFO. Among other things, Denise’s counsel claimed Roy had failed to comply with the court’s September 15 orders by failing to provide his two most recent “full and complete” paystubs, an updated income and expense declaration, and a preliminary declaration of disclosure. Denise’s counsel argued that Roy’s failure to provide these documents was “delaying this case’s progress toward trial or settlement of the issue[s] of property division and permanent spousal support.”

On November 30, 2016, Roy hired counsel to represent him in the case, filed an updated income and expense declaration, and served a preliminary declaration of disclosure (§ 2104) without any attachments documenting his assets and debts. Through their counsel, the parties stipulated to continue the hearings on Denise’s RFO for discovery, attorney fees, and sanctions, and on Roy’s RFO for 50 percent of Denise’s $24,300 lump-sum disability payment, from December 8, 2016, to February 23, 2017. Roy’s and Denise’s counsel then met and conferred concerning Roy’s production of documentation to support Roy’s preliminary declaration of disclosure. According to Denise’s counsel, on February 22, 2017, Roy “finally” produced documents supporting his 401k assets, pension plan, and other assets.

At the February 23, 2017, hearing on the parties’ pending RFO’s, Roy stipulated to pay Denise’s counsel $2,000 in sanctions regarding Denise’s RFO to compel Roy to provide his preliminary declaration of disclosure and supporting documents, and the parties’ respective RFO’s were vacated. In April 2017, the court issued a status-only judgment ending the parties’ marriage. At a mandatory settlement conference in July 2017, the court set a trial on spousal support, property division, and attorney fees for December 11, 2017. On December 6, 2017, Roy’s counsel substituted out of the case, and Roy began representing himself again. Roy incurred a total of $6,500 in attorney fees, and he paid the fees by borrowing from his 401k. On December 11, 2017, the trial was continued at Denise’s request because her counsel was ill.

On December 26, 2017, Roy filed an RFO to modify (reduce) his temporary spousal support obligation. Roy claimed his net monthly income was $3,828 and his expenses were $3,375, leaving him with only $453 to pay temporary spousal support to Denise. Roy averred that his $1,586 monthly spousal support obligation had rendered him unable to afford his place of residence, his basic needs, the needs of his one minor child living in his household, AND the transportation costs of his 90-mile round trip commute to his place of employment.

On January 9, 2017, at Denise’s request, the court continued the hearing on Roy’s RFO from January 17 to February 28. At a trial setting conference on January 17, the court vacated Roy’s RFO to modify (reduce) his spousal support obligation, and determined that the issues to be resolved at trial were spousal support, property and debt division, and attorney fees.

D. The March 3, 2018, Trial on Spousal Support, Property, and Debt Issues

At trial on March 8, 2018, Denise was awarded $500 in monthly spousal support from April 1, 2018, until the earliest of (1) April 1, 2022 (48 months), (2) the death of either party, or (3) Denise’s remarriage. Roy’s community property portion of Denise’s $24,300 lump-sum disability benefit was applied toward Roy’s temporary spousal support arrearage, reducing the arrearage to $1,086. Denise was awarded a property/debt division equalization payment of $1,075. The court reserved jurisdiction to determine Denise’s request for attorney fees and sanctions (§§ 2030, 271), and set a May 3, 2018, hearing on Denise’s request.

E. Roy’s Motion and Supplemental Trial Brief Regarding Attorney Fees

On April 23, 2018, Roy filed a notice of intent to seek attorney fees and sanctions from Denise (§ 271) at the hearing or continued trial on May 3, 2018, based on Denise’s and her counsel’s alleged misconduct in delaying the proceedings. The record does not indicate that Roy’s motion was timely filed or served, or that it was set for hearing on May 3, 2018.

In his motion, Roy argued Denise and her counsel had “abused the Court’s process in repeatedly asking for continuances, thus prolonging the litigation process” and causing Roy to owe Denise $1,584 in monthly temporary spousal support “for an extended period.” Roy also claimed that Denise had purposefully delayed the proceedings in order to mitigate her obligation to pay Roy his community property share of Denise’s $24,300 lump-sum disability benefit, and that Denise had unlawfully spent Roy’s share of the benefit without Roy’s consent or a court order. Thus, in his motion, Roy asked the court to order Denise to pay Roy $11,214 in sanctions based on her breach of her fiduciary duty to Roy regarding her disability payment (§ 1101) plus attorney fees and costs, or an amount the court found “just and reasonable.” Roy additionally argued that Denise’s pending request for attorney fees and sanctions was based on her October 27, 2016, RFO, which had been resolved by his agreement to pay $2,000 in sanctions in December 2016. Roy claimed Denise’s October 27, 2016, RFO had no merit because he had timely provided Denise’s counsel with all of the discovery she had requested.

Four days later, on April 27, 2018, Roy filed a supplemental trial brief responding to Denise’s pending request for attorney fees and sanctions. In his supplemental trial brief, Roy argued it would be unjust to require him to pay any part of Denise’s attorney fees, given that he could not afford an attorney during most of the proceedings, that Denise had used her $24,300 disability payment to purchase a new vehicle rather than to pay her attorney fees, and that Denise should have been able to pay all of her own attorney’s fees with her $24,300 disability payment and his spousal support payments. Roy also argued that Denise’s counsel’s multiple requests for continuances were intended to exhaust Roy, both financially and emotionally, and that Denise’s counsel’s skills and efforts were not “wisely devoted to the expeditious disposition of the case.”

F. The Order Awarding Denise $10,000 of Denise’s Attorney Fees

At the continued trial on May 3, 2018, Denise’s counsel told the court that Denise had been seeking attorney fees under section 2030 since June 2016, and had been seeking sanctions under section 271 since October 2017, but the requests had been continued. The court noted that Roy’s motion for attorney fees was untimely, and was therefore not before the court, and limited the hearing to Denise’s request for attorney fees based on “need and ability” to pay under section 2030 and as sanctions under section 271. Denise’s counsel later told the court that Denise was seeking sanctions only as an alternative basis for awarding Denise attorney fees under section 2030.

In ruling on Denise’s request for attorney fees, the court took judicial notice of “all of the previous filings” in the case. It was undisputed that Roy incurred a total of $6,500 in attorney fees and that Denise incurred a (rounded down) total of $24,000, for a combined total of $30,500. Denise had paid approximately $8,140 toward her $24,000 in attorney fees, leaving an “exact balance” of $15,994.20.

Denise’s counsel submitted a DissoMaster report showing that Roy had 73 percent and Denise had 27 percent of the parties’ “net spendable income” after considering Roy’s $500 monthly spousal support obligation to Denise. Counsel asked the court to order Roy to pay $15,765, or nearly all, of Denise’s unpaid attorney fees, calculated as follows: 73 percent times $30,500 equals $22,265, less $6,500, equals $15,765. Thus, counsel asked the court to order Roy to pay 73 percent of the parties’ combined $30,500 in attorney fees. Counsel noted that Roy had a pension and a 401k account that he could use to pay the additional attorney fees. (§ 2030, subd. (c).) Counsel also noted that Roy had been represented by counsel for around one year, beginning in November 2016, but Denise had been represented by counsel throughout the proceedings, since February 2016. Counsel argued that, before Roy hired counsel in November 2016, “it took three hearings . . . to even get a spousal support award,” and that most of Denise’s fees were either incurred before Roy hired counsel or for trial when Roy was representing himself.

Denise’s counsel then asked the court to consider her requests for attorney fees and sanctions “cohesively,” or as alternative bases for awarding Denise $15,765 in attorney fees. Counsel explained that Denise’s attorney fee request was partly based on Denise’s June 3, 2016, RFO for temporary spousal support and the difficulties counsel had in prosecuting that RFO. Counsel recounted that Roy filed a late response to the RFO on July 1; his response did not include an income and expense declaration; and the July 14 hearing on the RFO was continued to September 15, then to October 27—all because Roy, unrepresented by counsel, would not produce documents necessary to support his preliminary declaration of disclosure, which Denise’s counsel needed in order to have an “accurate picture” of Roy’s income, assets, and debts, for purposes of Denise’s RFO for temporary spousal support and for apportioning attorney fees between the parties. Counsel told the court that her firm had been “fronting” a lot of attorney time for Denise to get her “through to the end of her trial.”

In response, Roy argued he had never been uncooperative with the court or with Denise’s counsel, and he did not like the “tone” that Denise’s counsel took with him during their first phone conversation, so he had insisted that they communicate only through e-mail. The court asked Roy whether he knew when he had produced the documents necessary to make his preliminary declaration of disclosure. But before Roy could explain, and just before the morning break, the court said that the “bigger issue” to the court was the “disparity in access to funds” between the parties, not whether Roy had been uncooperative or warranted sanctions. The court indicated it did not believe that Roy had done anything “deliberately” to warrant sanctions, although the court had the impression that Roy’s self-representation and misunderstanding of what he needed to produce and when had caused some delays. Still, the court said it was more concerned with the parties’ “pretty significant disparity in access to funds.”

In response, after the break, Roy argued: (1) counsel’s DissoMaster report, which showed his monthly income was $5,819, was incorrect, the correct number was $5,065; (2) Denise had kept her entire $24,300 lump-sum disability payment, without paying Roy his one-half share, and Denise should have used her share of the disability payment to pay her attorney fees; (3) Roy had to borrow $3,500 from his 401k account to pay his attorney, he still owed his attorney $3,000, and he did not know how he was going to pay his attorney the $3,000 balance; AND (4) Roy was still paying Denise’s attorney $100 per month for the $2,000 in sanctions he agreed to pay in 2016 on the advice of his attorney, but he now believed it was a mistake to agree to pay the sanctions. Roy also noted that his income and expense declaration was based on his actual expenses, while Denise’s was based on her “proposed needs.” Denise did not pay rent, but he paid rent; Denise was not working, but he was working; Denise had few living expenses, but he had many, including the cost of commuting to Los Angeles for work. Roy said he had only $13,000 in his 401k account, because he had not invested in it for 20 years. In sum, Roy argued he was unable to pay any of Denise’s attorney fees because he had been financially “in the hole” for almost two years, unable to pay his living expenses, his attorney fees, and Denise’s spousal support.

Denise’s counsel then clarified that the $2,000 in sanctions that Roy agreed to pay in 2016 was “to settle” Denise’s motion to compel Roy’s preliminary declaration of disclosure, which was to be heard on December 8, 2016. Counsel also reminded the court that (1) Roy’s share of Denise’s $24,300 disability payment was awarded to Denise to satisfy most of Roy’s temporary spousal support arrearage; (2) at trial on March 8, 2018, “it came out” that Roy’s fiancée was paying around one-half of Roy’s expenses, as shown on Roy’s most recent income and expense declaration; and (3) Roy was also covering expenses of his adult children, whom he did not have a financial obligation to support. Counsel argued that Denise’s attorney fees “probably could have been cut in half” if Roy had “read forms and followed the instructions.” Roy pointed out and the court acknowledged that Roy still had one minor child in his household whom he was obligated to support.

At the conclusion of the May 3, 2018, hearing, the court found that Roy had committed no “new” section 271 or sanctionable violations, and there was no basis for imposing sanctions on Roy apart from Roy’s 2016 agreement to pay Denise’s counsel $2,000 in sanctions. The court took the section 2030 issue—the question of Roy’s liability to pay part of Denise’s attorney fees—under submission. Then, on June 11, 2018, the court issued its findings and order after hearing, requiring Roy to pay $10,000 of Denise’s attorney fees directly to Denise’s counsel, at the rate of $150 per month, beginning on June 1, 2018. Roy timely appeals.

III. DISCUSSION

For multiple reasons, Roy claims the court abused its discretion in ordering Roy to pay $10,000 of Denise’s $24,000 in attorney fees, which effectively made Roy liable for $16,500, or just over one-half, of the parties’ combined $30,500 in attorney fees. We find no abuse of discretion in the making of the award, or its amount.

A. Applicable Legal Principles

In a marital dissolution proceeding, section 2030 requires the court to “ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering” one party to pay the other party’s attorney fees and costs, “if necessary based on the [parties’] income and needs assessments.” (§ 2030, subd. (a)(1).) When a party requests an award of attorney fees and costs under section 2030, the court is required to “make findings on whether an award of attorney’s fees and costs under [section 2030] is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” (§ 2030, subd. (a)(2).) The court is required to make an award of attorney fees and costs “[i]f the findings demonstrate disparity in access and ability to pay.” (Ibid.)

The making of an attorney fee and cost award under section 2030, and its amount, must be “just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) “In determining what is just and reasonable . . . the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).) The court may order payment of an award of attorney fees and costs from any type of property. (§ 2032, subd. (c).)

“[T]he proper legal standard for determining an attorney fee award requires the trial court to determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances. [Citation.] In making this determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order. [Citation.] However, ‘although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.’” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975; Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254-255.)

B. Analysis

Roy advances several arguments in support of his claim that the family court abused its discretion in ordering him to pay $10,000 of Denise’s attorney fees. Roy’s arguments fall into two broad categories: (1) Roy’s claims that the court failed to consider that Denise’s counsel incurred unnecessary fees through multiple continuances, and thus did not wisely devote her skill and effort to the expeditious disposition of the case; and (2) Roy’s claims that the court failed to consider Roy’s inability to pay, and Denise’s ability to pay, $10,000 of Denise’s attorney fees.

1. The Continuances

Roy claims the record does not show that the court considered whether Denise’s counsel’s skill and effort were “‘“wisely devoted to the expeditious disposition of the case.”’” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866-870.) Roy maintains that, “but for Denise’s own misconduct in the misappropriation of court time for repeated requests for continuances, the vast majority of the attorney’s fees incurred would be non-existent for both parties, as there were few legal issues in this matter justifying substantial litigation activity.” Roy specifically argues that Denise’s counsel caused five separate “delays” in the proceedings through continuances, and that these continuances caused Denise to incur unspecified amounts of unnecessary and unreasonable attorney fees.

The only continuances that were discussed at the May 3, 2018, hearing were the two continuances that Denise obtained, over Roy’s objection, of the hearing on Denise’s June 3, 2016, RFO for spousal support and attorney fees, first from July 14, 2016, to September 15, then from September 15 to October 27, 2016. The record shows that these continuances were reasonably necessary and that Roy, not Denise or her counsel, caused the need for these continuances.

At the May 3, 2018, hearing, Denise’s counsel explained in detail how Roy had delayed the proceedings and had caused Denise to incur attorney fees by failing to produce requested documents supporting his income, assets, and debts, which Denise needed in order to obtain orders for temporary spousal support and attorney fees, and as Denise was seeking in her June 3, 2016, RFO. The court reasonably credited Denise’s counsel’s statements concerning Roy’s failure to produce requested documents, because the record as described above amply supports it.

The court also observed that Roy had “caused some unnecessary delay” because he was self-represented and apparently did not understand what documents he needed to produce and when he needed to produce them. Thus, the court reasonably determined that Roy caused the need to continue the hearing on Denise’s June 3, 2016, RFO to September 15, then to October 27, 2016, and the attorney fees associated with these delays.

The record also shows that Denise’s counsel reasonably incurred fees in filing, on October 27, 2016, an RFO to compel Roy to produce a preliminary declaration of disclosure. (§ 2107, subd. (c).) This RFO was necessary because, as Denise’s counsel explained at the May 3, 2018, hearing, Roy failed to comply with the court’s September 15 order directing Roy to provide Denise’s counsel, by October 27, with Roy’s two most recent “full and complete” paystubs, an updated income and expense declaration, and a preliminary declaration of disclosure. Roy claims he produced these documents on September 30, 2016, but the record belies Roy’s claim because it shows that Roy agreed, through his counsel, whom he hired in November 2016, to continue the hearing on Denise’s October 27, 2016, RFO from December 8, 2016, to February 23, 2017. According to Denise’s counsel, Roy “finally” produced documents supporting his 401k assets, his pension plan, and his other assets on February 22, 2017. Roy stipulated, on the advice of his counsel, to pay Denise $2,000 in sanctions to “settle” Denise’s October 27, 2016, RFO, and the RFO was vacated.

Still, Roy maintains that Denise’s October 27, 2016, RFO constituted “Delay No. 2” because the RFO was unnecessary, given that he had previously produced the requested documents supporting his preliminary declaration of disclosure through his responses to Denise’s form interrogatories. Roy claims Denise’s counsel “inadvertently” admitted in her declaration supporting Denise’s October 27, 2016, RFO that Roy had already produced the requested documents. But the record contains no such admission. To the contrary, at the May 8, 2018, hearing, Denise’s counsel told the court that Denise’s attorney fees “probably could have been cut in half” had Roy “read forms and followed the instructions.” Thus, the record supports a reasonable inference and the court reasonably could have determined that around one-half of Denise’s attorney fees were necessarily incurred to obtain documents from Roy.

Roy also claims Denise’s counsel caused three additional delays and unspecified unnecessary fees by (1) refusing to take Denise’s October 27, 2016, RFO off calendar (“Delay No. 3”), (2) failing to show up for trial on December 11, 2017, “claiming illness/urgent care” (“Delay No. 4”), and (3) claiming that Roy’s RFO to modify (reduce) Roy’s temporary spousal support obligation was untimely filed, and requesting a continuance of the hearing on that RFO, which was ultimately heard at trial on March 8, 2016 (“Delay No. 5”). At the March 3, 2018, hearing, Roy did not claim that any of these continuances were unwarranted or caused Denise to incur any unnecessary fees. Nor, in this appeal, has Roy shown that they did.

2. Roy’s Ability to Pay Part of Denise’s Attorney Fees

In his remaining arguments, Roy claims the record does not show that the court, in ordering Roy to pay $10,000 of Denise’s $24,000 in attorney fees, properly considered or evaluated Roy’s inability to pay any part of Denise’s attorney fees, or Denise’s ability to pay all of her attorney fees with her temporary spousal support payments, her lump-sum disability payment, and her monthly disability payments.

Roy claims the court, in making the $10,000 fee award, improperly relied “solely” on the DissoMaster report submitted by Denise’s counsel at the May 3, 2018, hearing, which showed that the parties had a 73 percent to 27 percent disparity in access to their “net spendable funds,” rather than weighing all of the factors the court was required to weigh and consider in determining whether an attorney fee award was “just and reasonable” under all of the circumstances. (§§ 2030, 2032, subd. (b), 4320.) But the record belies Roy’s claim that the court relied solely on the DissoMaster report in making the $10,000 fee award. If the court had relied solely on the DissoMaster report in determining the fee award, it would have awarded Denise $15,765 in attorney fees (73 percent times $30,500 equals $22,265, less $6,500, equals $15,765), as Denise’s counsel requested at the May 3, 2018, hearing.

Roy principally claims that the court failed to consider that the $10,000 fee award left him with inadequate funds to pay for his own necessities, and with a “minimal share” of the parties’ net available funds. He claims the $10,000 fee award did not place the parties on equal parity; rather, it gave Denise almost all of the parties’ net spendable income, even though Denise has no children and lives rent-and utility-free with her parents, whereas Roy has “actual rent, expenses and sole physical and legal custody of a minor child.” The record shows, however, that the court thoroughly considered Roy’s financial circumstances, along with Denise’s, in ordering Roy to pay $10,000 of Denise’s $24,000 in attorney fees.

At the May 3, 2018, hearing, Denise’s counsel pointed out that, at trial on March 8, 2018, the court reviewed Roy’s expenses “line item by line item” and “it came out” that Roy’s fiancé was paying around one-half of Roy’s expenses, as shown on Roy’s most recent income and expense declaration. Thus, although Denise was living rent- and utility-free, Roy was also receiving substantial assistance with his living expenses. In addition, Roy’s one-half community property share of Denise’s $24,300 lump-sum disability payment was credited to Denise at the March 8, 2018, trial, in order to reduce Roy’s temporary spousal support arrearage. The record also shows that Roy was incurring expenses to support his adult children. And, as the court pointed out at the May 8, 2018, hearing, there was a substantial disparity in the parties’ access to funds. (§ 2030, subd. (a)(2).) Roy was earning taxable income of $5,065 per month. But apart from Roy’s spousal support payments, which were reduced from $1,486 per month to $500 per month at the March 3, 2018, trial, Denise had only $1,064.60 in monthly disability payments.

Lastly, Roy complains he was ordered to pay attorney fees “to protect the rights of DENISE” even though he represented himself throughout most of the proceedings and thus did not have the same legal protection as Denise. He points out that section 2030 requires the court to “ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights . . . .” (§ 2030, subd. (a).) The record shows, however, that Denise needed legal representation early in the proceedings to protect her rights to spousal support. Without legal representation, it appears that Roy would not have paid Denise any spousal support, leaving her with only her parents and her disability income to support her. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629 [the purpose of an attorney fee award, in a martial dissolution proceeding, is “to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy.”].) And, as noted, as much as one-half of Denise’s attorney fees were incurred due to Roy’s failure to timely document his assets early in the proceedings.

Contrary to Roy’s claims, the record shows that the $10,000 fee award to Denise was not the product of “a truncated process” in which the court merely determines which party has the higher income, but was, rather, the product of a deliberated process in which the court based the award on the total picture of the parties’ respective abilities to pay. (See Alan S. v. Superior Court, supra, 172 Cal.App.4th at pp. 254-255.)

We are mindful, and the record shows, that these dissolution proceedings were very stressful and difficult for Roy, both emotionally and financially. But Denise earned very little income throughout the parties’ marriage. She was only earning $1,700 per month before she stopped working as a private school teacher in 2013. We are hopeful that Roy will find a way to move past this very difficult and stressful period in his life and find a happier and brighter future for himself, his fiancé, and his adult children.

IV. DISPOSITION

The May 3, 2018, judgment awarding Denise $10,000 in attorney fees is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

Filed 11/12/19 Dufresne v. Gryphon Aircraft Services CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

NANCY MERRIS DUFRESNE et al.,

Plaintiffs and Appellants,

v.

GRYPHON AIRCRAFT SERVICES, LLC et al.,

Defendant;

GUIDEONE MUTUAL INSURANCE COMPANY,

Intervener and Respondent.

E071199

(Super.Ct.No. MCC1500414)

OPINION

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Reversed.

Bailey & Partners, Patrick E. Bailey, Keith A. Lovendosky; Nelson & Fraenkel and Stuart R. Fraenkel for Plaintiffs and Appellants.

No appearance for Defendant.

Burnham Brown, Paul Caleo, Robert M. Bodzin, Stephen P. Randall and Gerald K. Carroll for Intervenor and Respondent.

Edward Dufresne (Edward) and Mitchell Morgan (Mitchell) perished in an airplane crash while working for the Word of Life Outreach Church (the Church). Edward’s and Mitchell’s surviving wives and children, plaintiffs and appellants Nancy Merris Dufresne, Carole J. Dufresne De la Fuente, Steven Edward Dufresne, Grant Wesley Dufresne, Suzanne M. Penir, Stephanie J. Taylor, Sharon Morgan, Harrison L. Morgan and Alexander Morgan (collectively, plaintiffs), sued various entities, including defendant Gryphon Aircraft Services (Gryphon). Plaintiffs settled with Gryphon.

The Church’s worker’s compensation insurance was provided through intervener and respondent GuideOne Mutual Insurance Company (Insurer). Insurer paid “workers’ compensation medical and death benefits totaling $582,148.38 for both decedents.” After plaintiffs’ and Gryphon’s settlement, Insurer applied, in the trial court, for a 60 percent reimbursement, i.e., $349,289, from the Gryphon settlement funds. (Labor Code, § 3860, subd. (b).) The trial court ordered Insurer receive a reimbursement of $291,074.

Plaintiffs raise four issues on appeal. One of the issues raised by plaintiffs is that the trial court erred by not conducting a trial to assign percentages of fault and allocate damages. Insurer contends the appeal should be dismissed. We reverse the order.

FACTUAL AND PROCEDURAL HISTORY

A. PLEADINGS

Edward and Mitchell were employed by the Church. Dufresne, Inc. owned “a Cessna 500 fixed-wing, multi-engine, jet aircraft” (the plane), which it used for “traveling ministries nationwide and abroad.” On the morning of October 18, 2013, Mitchell piloted the plane, and Edward was a passenger on the plane. The plane took off from Wichita, Kansas bound for New Braunfels, Texas.

In plaintiffs’ complaint, they alleged, “[S]hortly after take-off, during the climb, a portion of the left wing, among other parts, separated from the [plane], causing the [plane] to depart controlled flight and crash.” Gryphon, which is located in California, provided inspection, repair, and maintenance for the plane. In Gryphon’s first amended answer, it alleged “[T]he National Transportation Safety Board (‘NTSB’) found no evidence of a mechanical problem with the [plane].”

Gryphon further alleged, “[T]he NTSB found, ‘Following the previous flight, the pilot reported to a maintenance person in another state that he had several malfunctioning flight instruments, including the autopilot, the horizontal situation indicator, and the artificial horizon gyros. The pilot, who was not a mechanic, had maintenance personnel replace the right side artificial horizon gyro but did not have any other maintenance performed at that time. The pilot was approved under an FAA exemption to operate the [plane] as a single pilot; however the exemption required that all equipment must be operational, including a fully functioning autopilot, flight director, and gyroscopic flight instruments. Despite the malfunctioning instruments, the pilot chose to take off and fly in instrument meteorological conditions.’ ”

Gryphon asserted, “Further, the NTSB determined, ‘The [plane]’s encounter with severe icing conditions, which resulted in structural icing, and the pilot’s increased workload and subsequent disorientation while maneuvering in instrument flight rules (IFR) conditions with malfunctioning flight instruments, . . . led to the subsequent loss of [plane] control. Contributing to the accident was the pilot’s decision to takeoff in IFR conditions and fly a single-pilot operation without a functioning autopilot and with malfunctioning flight instruments.’ ”

In plaintiffs’ complaint, they brought one cause of action for negligence. Plaintiffs alleged Gryphon and the other defendants were negligent in inspecting, repairing, and maintaining the plane. In their prayer for relief, plaintiffs requested “wrongful death and survival general damages and special damages according to proof.” Insurer intervened in the lawsuit.

B. SETTLEMENT

Plaintiffs and Gryphon agreed to settle the lawsuit. In the redacted settlement agreement, Gryphon agreed to pay a redacted sum of money in exchange for dismissal of the case and a full release of all claims. The settlement agreement reflects, “[T]he settling claimants will allocate the settlement payment among themselves and that they will have no recourse against Gryphon . . . in the event they are unable to reach an agreement as to allocation.” The settlement agreement further provides, “The Dufresne [and] Morgan plaintiffs will satisfy all liens, including the lien of [Insurer,] for payment of workers compensation benefits. The Morgan and Dufresne plaintiffs will defend and indemnify Gryphon . . . for any claims asserted by lienholders including [Insurer].”

C. APPLICATION FOR REIMBURSEMENT

Insurer filed an application for reimbursement in the trial court. Insurer requested “a minimum of $349,289, which represents 60% of the total workers compensation benefits it paid relative to the subject loss.” Insurer provided the declaration of Joe Pitts, a claims director, who declared (1) Insurer paid $315,135 to Mitchell’s family, and (2) Insurer paid $267,013.38 to Edward’s family. The total amount paid by Insurer was $582,148.38. It appears Insurer’s points and authorities were filed under seal and are not part of the record on appeal.

D. OPPOSITION

Plaintiffs opposed Insurer’s application for reimbursement. Plaintiffs asserted that Insurer was seeking “reimbursement of incurred attorneys’ fees and litigation costs in the total sum of $52,673.78.” Plaintiffs argued, “Because a wrongful death action is not an asset in the estate of a decedent [citation], [Insurer] is not entitled to any attorneys’ fees and costs from any of the settlement proceeds.” Further, plaintiffs asserted, “Because [Insurer’s] counsel did not assist in any meaningful manner in effecting settlements in this case, [Insurer] is a mere passive beneficiary which has no legal right to make any claim under any common fund doctrine as established by case law or referenced in Labor Code section 3860. Therefore, any claim by [Insurer] for reimbursement of attorneys’ fees or costs should be denied in its entirety.” Plaintiffs concluded, “Like the plaintiffs, [Insurer] must bear its own costs of litigation.”

E. REPLY

Insurer replied to plaintiffs’ opposition. Insurer asserted plaintiffs’ settlement did not solely concern a wrongful death cause of action because, in the complaint, plaintiffs sought damages in their individual and successor-in-interest capacities. Insurer contended the settlement made no apportionment between the settlement funds paid for the wrongful death claims and the settlement funds paid for the survivor claims.

Insurer asserted it “meaningfully participated in this lawsuit to achieve the settlements.” Insurer explained that it intervened in the lawsuit, attended a deposition, attended mediation, and attended case management and trial setting conferences, as well as completing other pretrial tasks.

F. FIRST HEARING

On May 11, 2018, the trial court held a hearing on Insurer’s application for reimbursement. Plaintiffs’ attorney asserted there was not a settlement agreement because Insurer did not sign the settlement agreement and Insurer advised Gryphon that it would not sign the settlement agreement until it was informed of the amount of reimbursement. Plaintiffs asserted that because there was not a settlement agreement, there was nothing for the trial court to rule upon.

The attorney for Insurer who attended the trial court hearing was not the same attorney who participated in the mediation that resulted in the settlement. Insurer said that it believed there was an agreement that a lump sum of $472,000 would be shared by Insurer and plaintiffs, but the precise apportionment could not be agreed upon. The trial court said it did not want to go forward if there were doubt as to whether a settlement agreement had been reached. The trial court continued the matter and asked the parties to provide briefing “as to whether there is authority for the court to go forward if we have—we don’t have a complete settlement, if it’s just the case that allocation needs to be resolved.”

Plaintiffs’ attorney then apologized to the trial court for failing to cite a case in his papers that was directly on point: Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 829 (Associated Construction). Plaintiffs asserted that, pursuant to Associated Construction, the trial court needed to conduct an “an evidentiary hearing on the total valuing of damages and the pro rata allocation of the settlement amongst the plaintiffs.”

Plaintiffs asserted the evidentiary hearing needed to address “the degree of fault of the employer.” Plaintiffs contended the purpose of the evidentiary hearing was to prevent an employer from benefitting from “its own malfeasance.” Plaintiffs requested to include argument about Associated Construction in their supplemental brief, and the court permitted them to do so.

G. PLAINTIFFS’ SUPPLEMENTAL BRIEF

Plaintiffs submitted a supplemental brief. Plaintiffs asserted the plane was “operated by and on behalf of [the Church]. The accident flight was an extended business trip around the country for purposes of [the Church’s] ministry work.” Plaintiffs contended the trial court needed to determine the Church’s percentage of fault for the crash. Plaintiffs wrote, “[A]n employer’s recovery of workers’ compensation benefits paid is reduced when the employer is negligent. Plaintiffs explained, “[W]hen the employer’s percentage share of responsibility for the employee’s total recovery is greater than the compensation benefits paid, then it is not entitled to collect anything, and its claim for reimbursement will be denied.” Plaintiffs asserted, “The court in the instant action is required to conduct an evidentiary hearing to determine the percentage of fault attributable to all the parties to the action [citation].”

Plaintiffs contended, “It is undisputed that [the Church], the operator of the [plane], is primarily responsible for maintaining the [plane] i[n] an airworthy condition and hired incompetent maintainers [citation] and is required to ensure that proper maintenance is conducted [citation].” Plaintiffs continued, “In determining the fault of [the Church], the court will have to review the facts and law based upon two separate and distinct wrongful death cases: the Dufresne case and the Morgan case.” Plaintiffs wrote, “For example, assume the court found that Nancy Dufresne’s total damages were $4,000,000. [Insurer] paid Nancy Dufresne $23,101.63. If the [Church] is found to be 0.57 percent at fault or more, [Insurer] will recover nothing.” Plaintiffs concluded, “The wealth of evidence implicating [the Church] . . . indicates that [the Church] will likely be found to be at least 50% liable for the crash and deaths of [Edward and Mitchell].”

H. INSURER’S SUPPLEMENTAL BRIEF

Insurer submitted a supplemental brief. Insurer wrote, “[Insurer] has submitted the Declaration of Kenneth Slomski, along with an executed copy of the Gryphon Release and Settlement Agreement to confirm that [Insurer] agrees with the settlement amount, subject to allocation . . . by the Court.” Insurer asserted the issue of the Church’s liability had been briefed prior to the first hearing. Insurer contended, “In their Opposition, Plaintiffs did not dispute the contention made by [Insurer] that despite exhaustive discovery and investigation in this case, there is no evidence to suggest, let alone establish, that the Church was in any way responsible for this loss. [Citation.] Rather, the NTSB concluded, that pilot error was the cause of the crash and the pilot’s comparative negligence cannot be imputed to the Church, as a matter of law. [Citation.] Their supplemental brief is similarly devoid of any evidence of negligence or liability on the part of the Church.”

Insurer asserted the Church did not own or operate the plane. Insurer contended, “The owner of the [plane] was Dufresne, Inc., a wholly separate legal entity from the Church. [Citation.] Both the [plane’s] registration and the NTSB accident report confirm that Dufresne, Inc., not the Church, was both the owner and operator of the [plane].” Insurer contended the trial court could decide the reimbursement issue on the briefs and evidence already submitted.

I. TENTATIVE RULING

The trial court issued a tentative ruling. The trial court explained, “[Insurer] has not established that it solely effected the recovery in this action. Therefore, the request for attorneys’ fees and litigation expenses to [Insurer] is denied.” The trial court granted insurer “a 50% reimbursement in the amount of $291,074.00.” The trial court explained that the settlement agreement made no distinction between wrongful death and survivor claims. The trial court reasoned, “[P]resuming both types of claims were resolved, only the survival claims derived from the Decedents would be subject to [Insurer’s] claim of reimbursement. Presuming the survival claims represent 50% of Plaintiffs[’] total claims as suggested by [Insurer], the most that [Insurer] would be entitled to reimbursement of is $291,074.00.”

The trial court tentatively ruled that an evidentiary hearing was not required “because there is no evidence that the decedents’ employer was negligent.” The trial court continued, “As [Insurer] points out, the [plane] was owned by Dufresne, Inc., a separate entity, and the NTSB report identifies the [plane’s] ownership as Dufresne, Inc., and not [the Church]. Moreover, the evidence indicates that pilot error has been cited as the cause of the accident and not [the Church]. The negligence of the employee here cannot be imputed to [the Church].”

J. SECOND HEARING

On June 5, 2018, the trial court held a second hearing concerning Insurer’s application for reimbursement. Plaintiffs asserted the NTSB report “cannot be used for any purpose in a civil action.” Plaintiffs moved to exclude the NTSB report. Plaintiffs argued that an evidentiary hearing was needed to determine “the liability of the employer.” Plaintiffs argued, “[T]he court can’t rule at this juncture because there is no evidence. [Insurer] has not produced any evidence. We haven’t produced any evidence. [¶] The plaintiffs claim that it was improper maintenance that caused the crash. The defendants claim that [the Church] had liability for the crash, separate and distinct from pilot error. The Court doesn’t know one way or the other.”

Plaintiffs conceded that, in Mitchell’s case, any negligence by Mitchell could not be imputed to the Church. Plaintiffs asserted that if Edward or the Church had been negligent in maintaining the plane, then “that negligence is imputed to the [Church], and [Mitchell] then, in his case, can use that to reduce the comp benefit.” Plaintiffs explained that in aviation cases, ownership of the plane “is not the issue.” Instead, “[t]he real issue relating to liability in an aviation case is who was the, quote, ‘operator,’ end quote of the [plane] . . . . The operator, who is [the Church], has the duties and responsibilities.” The trial court adopted its tentative ruling as its ruling.

DISCUSSION

A. TRIAL

Plaintiffs contend the trial court erred by failing to conduct a trial on the issues of the Church’s negligence and plaintiffs’ damages.

An employer may seek, from an allegedly negligent party, full reimbursement of workers’ compensation benefits paid to an employee. (Labor Code, § 3860, subd. (b).) However, “[a] concurrently negligent employer or its compensation carrier is entitled to reimbursement only for the amount by which its workers’ compensation liability exceeds its proportional share of responsibility for the employee’s total tort damages.” (Kemerer v. Challenge Milk Co. (1980) 105 Cal.App.3d 334, 337.) The purpose of this rule is that “the negligent employer (or its workers’ compensation insurer) should not profit from the employer’s wrongdoing and therefore would not be entitled to reimbursement out of the employee’s recovery.” (C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 386 (C.J.L.).)

Once the issue of the employer’s concurrent/comparative negligence is raised, “the trier of fact should determine the employer’s degree of fault according to the principles of American Motorcycle.” (C.J.L. Construction, Inc. v. Universal Plumbing, supra, 18 Cal.App.4th at p. 387.) In American Motorcycle, our high court held “that under the common law equitable indemnity doctrine a concurrent tortfeasor may obtain partial indemnity from cotortfeasors on a comparative fault basis.” (American Motorcycle Assn v. Superior Court (1978) 20 Cal.3d 578, 608.)

Our high court described the procedure as follows: “When the issue of an employer’s concurrent negligence arises in the context of his credit claim based on a third party settlement, the [trier of fact] must determine the appropriate contribution of the employer . . . . Specifically, the [trier of fact] must determine (1) the degree of fault of the employer, and (2) the total damages to which the employee is entitled. The [trier of fact] must then deny the employer credit until the ratio of his contribution to the employee’s damages corresponds to his proportional share of fault.” (Associated Construction, supra, 22 Cal.3d at p. 842.) The trier of fact should determine an employer’s negligence following “evidentiary presentations.” (Id. at p. 845.)

In sum, when a party raises the issue of an employer’s concurrent negligence, the trial court should conduct a trial wherein evidence is presented concerning (1) the alleged negligence that led to the injury, and (2) the employee’s damages. The trier of fact should then determine (A) the percentage of fault, if any, attributable to the employer, and (B) the total damages suffered by the employee. (Associated Construction, supra, 22 Cal.3d at p. 845.)

In the instant case, the parties’ settlement agreement was essentially an agreement pertaining only to Gryphon in that it settled Gryphon’s liability. The issues of negligence and damages are still outstanding and need to be tried as they pertain to plaintiffs and Insurer/Church. The trial court’s conclusion that Insurer is entitled to a 50 percent share of the settlement proceeds cannot be made without a trial on the issues of negligence and damages. (Associated Construction, supra, 22 Cal.3d at p. 845.)

The trial court concluded a trial on the issue of negligence was unnecessary “because there is no evidence that the decedents’ employer was negligent.” It is a procedural error to make this conclusion before a trial is conducted on the issue of negligence. If plaintiffs had been afforded a trial on the issue of the Church’s negligence, then it is possible plaintiffs would have presented evidence of the Church’s negligence. For example, there is dispute as to who operated the plane. Plaintiffs assert the Church operated the plane. Insurer contends Dufresne, Inc. operated the plane. A trial might produce evidence concerning who operated the plane, and who had liability, if any, as the operator. (See Boyd v. White (1954) 128 Cal.App.2d 641, 651 [operator liability]; see also Pub. Util. Code, § 21404 [pilot liability].)

We note that we cannot fault plaintiffs for not alleging the Church’s negligence in their complaint because “an employer cannot be sued in tort for the work-related injury of an employee. The employer’s sole liability is for benefits payable, regardless of fault, under the workers’ compensation law.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 598.) In other words, the Church’s negligence did not arise as an issue for plaintiffs until the Church sought reimbursement from the Gryphon settlement.

In its ruling, the trial court wrote, “Moreover, the evidence indicates that pilot error has been cited as the cause of the accident and not [the Church].” As set forth ante, it is premature to reach this conclusion because a trial has not yet been conducted on the issue of negligence. While pilot error may have been the sole cause of the crash, it is possible that a trial will produce evidence that other factors also contributed to the crash. In sum, findings concerning negligence and damages should be made following a trial on those issues.

In its ruling, the trial court concluded, “The parties do not dispute that [Insurer] is entitled to reimbursement.” Contrary to the trial court’s conclusion, plaintiffs did dispute that Insurer was entitled to reimbursement. Plaintiffs asserted, “The wealth of evidence implicating [the Church] . . . indicates that [the Church] will likely be found to be at least 50% liable for the crash and deaths of [Edward and Mitchell].” Plaintiffs assertion can be understood as contending Insurer is not entitled to a reimbursement because the Church has a high percentage of liability for the crash. We will reverse the order to permit a trial to occur on the issues of liability and damages.

Insurer contends, “The Court had everything it needed to render an allocation, including declarations from the decedents’ family members about their relationships with the decedents, photos of the families engaged in activities important to them, as well as jury instructions regarding the amount of damages to award. The Court was in possession of all of the facts, evidence and law it needed to allocate the settlement proceeds and determine the amount to which [Insurer] is entitled.” Insurer’s contention appears to focus on the issue of damages. Insurer does not explain in what respect the trial court had all the necessary evidence relevant to the issue of negligence, i.e., apportionment of fault, therefore, we are not persuaded that the trial court had all the relevant evidence at the time it rendered its ruling.

Insurer contends, “Without any evidence of employer fault, there was no need for a further evidentiary hearing under the Associated Construction case.” There was no evidence of the Church’s negligence because plaintiffs were asking for the opportunity to present evidence—the case was not yet at the trial stage. If the trial court had agreed with plaintiffs’ argument, then a trial would have occurred wherein plaintiffs presumably would have provided evidence of the Church’s alleged negligence. Because the proceedings had not yet reached the trial stage (wherein plaintiffs would be expected to present evidence of the Church’s negligence), plaintiffs cannot be faulted for failing to present such evidence.

B. DISMISSAL

Insurer contends the appeal should be dismissed because “no judgment was entered in the trial court and the Order upon which [plaintiffs] base their appeal is not one of specified [sic] in Rule 904.1 [sic].” “A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) “Generally, a judgment [or order] is final ‘ “where no issue is left for future consideration except the fact of compliance or noncompliance with” ’ the order.” (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 223.)

In the trial court’s ruling, it determined, “[T]here is no evidence that [the Church] was negligent.” The trial court also allocated 50 percent of the settlement funds to Insurer. Thus, the trial court determined liability and awarded the settlement funds. As a result, it appears the trial court’s order left nothing to be determined between plaintiffs and Insurer. Insurer does not explain what issues remain pending before the trial court in relation to Insurer’s claims against plaintiffs or in relation to plaintiffs’ claims against Insurer. As a result, we conclude the trial court’s order was a final determination concerning plaintiffs and Insurer. Therefore, the trial court’s order is appealable.

C. PLAINTIFFS’ REMAINING THREE ISSUES

1. WRONGFUL DEATH CLAIMS

Plaintiffs assert the settlement funds pertain only to the wrongful death claims because those were plaintiffs’ “only viable claims”—not the survivor claims. We infer plaintiffs are asserting that Insurer is not entitled to any of the settlement proceeds because all the settlement proceeds are for wrongful death damages.

Plaintiffs have requested a trial wherein damages will be determined by the trial court, and we are reversing the trial court’s order so that trial can occur. We will not preempt the trial court by assessing the wrongful death and survivor claims at this court. In other words, it is not for this court to determine, at this stage, whether there is merit to plaintiffs’ wrongful death and survivor claims.

The trial court can make findings concerning damages for the various claims after hearing the evidence. In sum, we will not address the merits of this issue because we cannot render advisory opinions. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [“The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court”].)

2. CESSNA SETTLEMENT

Plaintiffs assert Insurer had no right to funds from plaintiffs’ separate settlement with another defendant (Cessna). It is unclear why plaintiffs have included this section in their argument because the trial court did not rule that Insurer could collect from the Cessna settlement. Because the basis for the argument is unclear, we find the assertion to be unpersuasive.

3. NUMBER OF PLAINTIFFS

Plaintiffs assert only five of nine plaintiffs received workers’ compensation benefits from Insurer and therefore Insurer could not seek reimbursement from all nine plaintiffs’ settlement proceeds. Plaintiffs fail to explain in what portion of the ruling the trial court awarded Insurer a reimbursement from all nine plaintiffs’ settlement proceeds. Our review of the ruling reflects the trial court awarded Insurer 50 percent of the settlement funds because that represents half the damages sought by plaintiffs—half was for wrongful death and half was for survivor claims. The survivor claims belong to the respective estates of Edward and Mitchell (Code Civ. Proc., §§ 377.11, 377.30), so Insurer could be reimbursed from funds relating to those damages, but not from the funds related to the wrongful death damages (Eli v. Travelers Indemnity Co. (1987) 190 Cal.App.3d 901, 904-905). In other words, the trial court’s apportionment focused on the two types of damages claimed (wrongful death and survivor), not the number of plaintiffs. In sum, because plaintiffs fail to explain where, in the ruling, the trial court awarded Insurer money from all nine plaintiffs’ settlement proceeds, we find their assertion to be unpersuasive.

DISPOSITION

The order is reversed. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.

Filed 11/12/19 Jurupa Unified School Dist. v. Com. on Professional Competence CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JURUPA UNIFIED SCHOOL DISTRICT,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL COMPETENCE,

Defendant and Respondent;

CHARLES BAUGH,

Real Party in Interest and Respondent.

E071552

(Super.Ct.No. RIC1801174)

OPINION

APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed.

Adams Silva & McNally and Kerrie E. McNally for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Law Office of Carlos R. Perez, Carlos R. Perez and Alejandra Gonzalez-Bedoy for Real Party in Interest and Respondent.

Plaintiff and Appellant Jurupa Unified School District (District) petitioned for a writ of administrative mandate in the superior court pursuant to Code of Civil Procedure section 1094.5 (Petition) after defendant and respondent Commission on Professional Competence (Commission) refused to grant the termination of real party in interest and respondent Charles Baugh (Baugh), a teacher at one of their schools, who the District sought to terminate based on perceived racist comments posted on Facebook and an inappropriate Halloween costume.

Baugh was a science and drama teacher at Rubidoux High School (RHS). For Halloween in 2015, Baugh came to school dressed as Walter White, a character from the television show “Breaking Bad.” On the television show, Walter White was a chemistry teacher who made and sold methamphetamine. Baugh dressed as the character and also brought bags of rock candy, which looked like methamphetamine, that he handed out to other teachers and staff.

On February 16, 2017, “A Day Without Immigrants” was organized nationwide encouraging immigrants to stay home from work and school. Numerous RHS students were missing from school, including from Baugh’s classroom. Another teacher posted comments on Facebook that the school day was better and that those who missed classes were “lazy” and “drunk.” Several other teachers commented on the post. Baugh commented “I had 49. Quieter classrooms, more productive—let’s do this more often.”

The Facebook postings went viral and the District received over 250 emails from students, parents, community members and others who were upset about the Facebook thread. The next day, over 300 students staged a walkout, disrupting both the school and the surrounding community. The District placed Baugh on leave and sought his termination.

A termination hearing was conducted in front of the three-member Commission. The Commission concluded that Baugh was not unfit to teach and did not engage in immoral conduct within the meaning of Education Code section 44932. The District filed the Petition in the superior court seeking to overturn the Commission’s decision, but the Petition was denied. On appeal, the District contends that substantial evidence does not support the superior court’s decision that Baugh’s unfitness for service was not evident and that his conduct was not immoral.

FACTUAL AND PROCEDURAL HISTORY

A. INTENTION TO DISMISS

On June 22, 2017, the District filed its notice of intent to dismiss and immediately suspend without pay against Baugh. The District charged him with immoral conduct (Ed. Code, § 44932, subd. (a)(1)) and evident unfitness for service (Ed. Code, § 44932, subd. (a)(6)). Baugh requested a hearing. In addition to an administrative law judge from the State of California Office of Administrative Hearings, two teachers were appointed to sit on the Commission to hear evidence. A hearing was conducted starting on October 12, 2017.

B. HEARING BEFORE THE COMMISSION

1. DISTRICT EVIDENCE

Jose Araux was the principal of RHS. He had been the principal for five years at the time of the hearing. Approximately 1,575 students attended RHS during the 2016/2017 school year. Ninety percent of the students at RHS were Hispanic; Araux was aware that some of their parents were immigrants.

Baugh was a science teacher, Robin Riggle was an art teacher, Geoffrey Greer was a social science teacher, Patricia Crawford was a guidance counselor, Rhonda Fuller was an agriculture teacher, and Allen Umbarger was an AVID teacher at RHS. At the beginning of each school year, the District distributed its policies to employees (District Policy). Baugh acknowledged he saw the District Policy.

A Day Without Immigrants was held on February 16, 2017, and Principal Araux understood it to be a day to show the country the importance of immigrants. On that day, the attendance at RHS was significantly lower than usual attendance; 357 students were absent. In Baugh’s class, six to eight students were missing from each class.

That evening, Principal Araux found out about Facebook posts by RHS teachers. Greer posted, “Well. A day without immigrants. Perhaps all the missing workers in all the various industries out there had the intended impact and sent the desired message. I don’t know. As for the public school system, having my class size reduced by 50% all day long only served to SUPPORT Trump’s initiatives and prove how much better things might be without all this overcrowding. That’s want you get when you jump on some sort of bandwagon cause as an excuse to be lazy and/or get drunk. Best school day ever.” Riggle commented on the post, “I had fifty absences today.” Greer responded, “Yup. And I bet your class went a whole lot more smoothly as well.” Riggle responded, “Yes, it was a very pleasant day.” Umbarger then commented, “Unfortunately, statistically my cumulative GPA increased today. Mostly failing students were missing.”

After these comments, Baugh commented “I had 49. Quieter classes, more productive—let’s do this more often.” Crawford also posted, “Cafeteria was much cleaner after lunch, lunch, itself, went quicker, less traffic on the roads, and no discipline issues today. More, please.”

Principal Araux could not believe that the teachers and counselor could make such comments. He felt that Greer’s comments were racist. He interpreted Baugh’s comments as not wanting to have students in his class. A teacher should want his students in class.

In response to the Facebook posts, the District and Principal Araux received approximately 250 emails. Most of the emails complained about the teachers being racist. He responded to the emails.

On February 17, Principal Araux wanted to keep the RHS students safe. He communicated a message to the entire school regarding the Facebook posts. He provided counselors for the students if they needed to talk. When he arrived on that morning, he discovered graffiti in front of the classrooms belonging to Greer and Riggle that stated “Fuck You.” Principal Araux and his office staff were busy that day taking phone complaints from concerned parents and community members. RHS parents come to the office demanding to know what was going to be done about the Facebook posts. Some parents took their children out of school.

Principal Araux personally spoke with five or six of the callers, who asked what he was going to do about the Facebook posts and complained about the posts. He planned a school-wide forum to allow the students to discuss the Facebook posts but the students engaged in a walkout prior to the forum. A group of students first got together outside Riggle’s classroom, then moved to Greer’s classroom. The students pushed against the locked gates surrounding RHS and a student climbed over the gate. Principal Araux had to open the gate to keep anyone from getting hurt. Approximately 300 students walked out of campus. The students were crying, angry and upset. Students who remained on campus had to stay in one class and did not go to other classes. He had to draft an email advising teachers how to handle student questions and how to handle a walkout. Baugh was placed on administrative leave on February 17.

A staff meeting was held on February 21 with all of the teachers to discuss the Facebook posts. They all discussed working together to heal the students and regain their trust. Principal Araux was informed there was another walkout that was being planned by the students for February 21. RHS had extra assistance on that day from the District in order to prevent the walkout. The schedule for the day was modified to try to keep the students at school.

Principal Araux met with approximately six to eight parents at RHS the following week regarding the Facebook posts and he still received telephonic complaints. A student wrote a letter addressed to the teachers expressing her concerns and how she felt. Principal Araux was upset for the students; he was offended by the Facebook posts and the students did not deserve the comments. Principal Araux was contacted by the Anti-Defamation League regarding the Facebook posts and the organization offered assistance and services to RHS. Principal Araux decided to implement a program from the Museum of Tolerance.

In addition to the Facebook posts, Baugh dressed as the television character Walter White from the show Breaking Bad for Halloween in October 2015. The character was a science teacher who manufactured methamphetamine. Principal Araux believed it was inappropriate for Baugh to dress as a person who manufactured drugs. Principal Araux advised Baugh that the costume was inappropriate; Baugh did not think it was a problem and appeared to be proud of his costume. Baugh went home and changed his clothes. Baugh had candy that was supposed to represent methamphetamine that he handed out. Principal Araux never saw Baugh in the costume in front of students. Principal Araux never wrote a letter of discipline based on the incident because Baugh agreed to change.

Principal Araux acknowledged that teachers at RHS sent a letter of support of the teachers and counselor involved in the Facebook post to the District. Several students expressed to Principal Araux that they wanted to move on from the Facebook posts and forgive people. Baugh had not said or done anything prior to the Facebook post that made Principal Araux think he had trouble with immigrants. Principal Araux never spoke with Baugh as to what he meant in the Facebook post.

Gale Hammons was a communication support services provider employed by the District. She helped monitor social media for the District and disseminate information about the District. Hammons took screen shots of the Facebook posts before Greer deleted them. Greer’s Facebook page was public so anyone could read it. Hammons indicated the Facebook posts were transferred to a Twitter account, which had many followers, and the Facebook thread spread quickly on social media. Greer eventually apologized on his Facebook page and took down the post. He then deleted his Facebook account. She could not find a Facebook page for Baugh. She monitored a Jurupa community group that had a Facebook page. She acknowledged that there were differing opinions on the Facebook thread.

Daniel Brooks was the director of personnel for the District. He became aware of the Facebook posts on February 16 by looking at Twitter. It was clear to him that Baugh was referring to Hispanic students as being disruptive and unproductive. He returned approximately 24 phone calls from the community in regards to the Facebook posts; he did not normally respond to parent complaints; the majority of persons he spoke with were upset with the teachers. He did speak with one person who supported the teachers. He admitted that not one of the persons he spoke with expressed concern about Baugh’s comment in particular.

Josh Lewis was the director of technology at the District. RHS teachers were trained on the use of how to create a Twitter account and how to use it appropriately during two different sessions in 2016. He was unsure what was covered in the session as he did not teach the course. He obtained the numerous emails that were received by the District and the teachers about the Facebook posts.

Exhibit 17 contained the emails sent directly to Baugh’s district email. One email mentioned Baugh by name but was also sent to all of the teachers. It did not specifically address the comments by Baugh. There was one email sent directly to Baugh and referenced his Facebook comment. The other emails were sent to all the teachers involved.

Exhibit 14 contained the over 250 emails received by the District after the Facebook posts. Of those posts, only 35 specifically mentioned Baugh’s name but not by himself. Only one email mentioned just Baugh and Greer. The remainder in which Baugh was named or sent the emails, the emails were also sent to some combination of Crawford, Umbarger, Riggle, Greer and Fuller. The superintendent for the District responded to numerous emails; with few exceptions, he sent the same response to each email.

RHS teachers were responsible for delivering the District’s curriculum on appropriate use by students of social media and technology. It dealt with postings on social media and included the posting of inappropriate comments. Baugh had acknowledged delivering the curriculum to his students in the 2016/2017 school year. There was no similar training for teachers on posting on Facebook.

Tamara Elzig was the Deputy Superintendent of the District in charge of human resources, including labor relations and employee discipline investigations. An automatic call was sent to all parents about the Day Without Immigrants encouraging them to have the students attend school. Principal Araux notified her on February 16 regarding the Facebook posts. She felt that Baugh’s comments were discriminatory, interpreting his comment as a statement that Hispanic students were less productive and loud; she admitted he did not specifically reference Hispanic students. She contacted the Jurupa Valley Sheriff’s Station in order to have sheriff’s deputies at RHS the following day and also had administrators throughout the District plan to go to RHS to assist. She also increased private patrol officers.

Elzig went to RHS on February 17 and placed Baugh on administrative paid leave. She was present for the walkout. Students were yelling, crying and throwing bottles and food. They went to the flagpole and tried to take down the American flag and put up a Mexican flag. Students went to a gate that was around the school and began climbing over the fence. The gates were opened and sheriff’s deputies who were outside the school tried to manage the students who went out into the streets. There were over 300 students. Roads had to be closed. They walked to another high school but that school was locked down. The students walked back toward RHS and tried to block the freeway but were stopped. They chanted “Fuck Trump.”

The District sent out a press release that it did not agree with the Facebook posts. Elzig put in extra hours preparing a district-wide plan to prevent the second walkout planned for February 21. Extra staff was sent to RHS.

A District board meeting was conducted on February 21. Numerous news outlets were present. There was a very large group in the audience. Thirty seven members of the public spoke at the meeting. A majority were calling for the termination of the teachers. The group included students, parents and former students. No one supported the teachers. Several news channels and the Riverside Press Enterprise reached out to the District regarding the Facebook posts. Several news stories were printed about the posts. The District was contacted by the ACLU, the Anti-Defamation League and the Department of Justice expressing both concern about the Facebook thread and also concern about the administrators protecting the students’ rights to protest.

The District sought dismissal of Baugh based on the Walter White costume and the Facebook posts because they showed he had poor judgment. Elzig admitted there was no policy on the use of personal computers by teachers. Elzig acknowledged that Baugh had no formal discipline prior to the Facebook posts. She believed that the teachers and counselors were all equally culpable for the disruption of RHS school and other schools. She acknowledged the totality of the Facebook posts caused the walkouts.

Elzig admitted that Baugh had a good evaluation from the District in April 2016. He had either exceeded or met the District standards. He engaged with students and created a positive environment for his students. George Monge was a teacher at RHS and the union representative. He sent a letter to the District on behalf of all of the teachers and staff at RHS stating their support for Baugh and the other teachers.

Several RHS students testified regarding their reaction to the Facebook posts. M.G. was Hispanic and in the tenth grade at RHS. She had been in Baugh’s science class the 2016/2017 school year. Her parents were immigrants. She stayed home from school on the Day Without Immigrants to support the boycott. She had seen the Facebook posts by the RHS teachers on February 16. The comments by the teachers and counselors made her feel insecure. Greer’s post brought her down because she felt he was calling Hispanics lazy and drunk. M.G. also saw Baugh’s post. She never thought Baugh “would say that” because he was her teacher and she felt confident around him. She liked the way he taught her class. When she saw the Facebook post, she was disappointed because she liked him as a teacher. She interpreted Baugh’s comments to be that it was better in the class without immigrants because immigrants made too much noise and were not always paying attention. She did not want to be in his class because she felt “insecure” and “awkward.” She did not consider Baugh a role model for her after seeing the post. She had liked being in his class but after the post she “didn’t know what to think.”

M.G.’s first class on February 17 was Baugh’s science class. She felt awkward but “didn’t really mind.” The other students in the class did not pay attention to Baugh. Prior to the Facebook post, he never said anything negative about immigrants, or that he did not like Hispanics. She agreed Baugh did not state he was referring to immigrants or make any comments about them being lazy or drunk.

R.A. was a Senior at RHS. He was Hispanic and had Baugh as a teacher his Freshman year. The Facebook posts made him feel disappointed. Baugh’s post made him feel “weird” because he did not think that Baugh would say that school would be more productive if Hispanic students were not at school. R.A. went to school the day after the posts but he felt different. R.A. never heard Baugh say anything anti-immigrant while he had him as a teacher. R.A. played soccer and Baugh was an announcer. R.A. was offended by the post by Greer that Hispanics were lazy and drunk. Baugh did not use those terms. R.A. was offended by Baugh’s comment that classes were more quiet and productive. He interpreted it to mean the classes were better without the Hispanic students, but he admitted that most of RHS was Hispanic. He never talked to Baugh about the post.

B.M. was Hispanic and a Senior at RHS. She never had Baugh as teacher. She stayed home from school on the Day Without Immigrants in solidarity with immigrants. She saw the Facebook posts and was disappointed by all of the posts because a majority of the students who were absent were Hispanic. She was “disheartened” and “offended” by Greer’s post. The most offensive comment was that Hispanics were drunk and lazy. She thought Baugh was contributing to the sentiment that having the students absent from the class made the classes better and that he wanted to have them absent again. After reading Baugh’s post, she would not want to have him as a teacher because if he was biased against Hispanics he may grade them harder. She would not consider Baugh a role model because B.M. felt Baugh agreed with Greer’s comment and should have realized the consequences for being involved in the posts.

B.M. and fellow students discussed the posts the following day in class. A lot of students were upset and angry, especially the students who had classes with the teachers. She attended the District board meeting to complain. It was not just what Baugh said in his Facebook post; it was contributing to the racist comment by Greer.

2. BAUGH’S EVIDENCE

Juan Flores had been a student at RHS and graduated in 2010. Baugh had been his drama teacher. Baugh was a great teacher and never said anything to offend him or against immigrants. He cared about his students. He stayed in contact with Baugh after he graduated. Lisa Gonzales was an RHS student from 2009-2013. She had Baugh for both drama and science classes. Baugh was very supportive. He was very understanding about financial problems her family had and he offered to help her. She stayed in touch after graduating. He never made any racist or negative comments about immigrants. Baugh cared about his job and his students. Elyse Johnson attended RHS from 2006-2010 and took Baugh’s drama class. He was great teacher and cared about his students. He was never inappropriate or racist. She had stayed in touch with him. She believed he was a great teacher who should be in the classroom with students.

Doug Morrill was one of Baugh’s friends. He was a retired police officer. Baugh was an honest person and never had made any racist comments or expressed he did not like immigrants. He was very passionate about teaching and always volunteered for extra duties outside the classroom. He started the drama program at RHS and when he was put on leave no other teacher took over the program.

Terri Spencer had been the librarian at RHS since 2006 and her son was a Senior at RHS in February 2017. Right after the Facebook posts, the students wanted the teachers removed, but after several weeks, they commented they wanted the teachers back at school. She felt that the students would welcome back Baugh to RHS. Baugh engaged in activities with the students. The day after the Facebook posts, she had her son picked up early because she was afraid for his safety, because the student walkout was not peaceful and the administration did not do enough to control the students.

Baugh testified on his own behalf. During the school year 2016/2017, Baugh was teaching earth and space science. He no longer taught drama classes because he felt he did not get support from the RHS administration. He was given no rehearsal space and eventually had to discontinue teaching the drama classes in 2013. He had a master’s degree in earth science. He had been a teacher for 20 years. He taught in the District for 11 of those years.

One of the projects in his class was to do a walk through of the solar system on campus so the students could learn the expanse of space and the location of the planets. In the school year 2016/2017 he had a total of 168 students, with an average of 33 students in each class. He agreed that 90 percent were Hispanic. He also kept an updated earthquake map in his classroom so the students could visualize how often there were earthquakes and their magnitude. He loved teaching science to students.

Outside of the classes he taught at RHS, he also was involved in after-school activities with his students. He was an announcer for football games and soccer. He started an astronomy club. He brought his telescope to school for the students to use. He also started a chess club.

He first found out about the Day Without Immigrants the morning of February 16; there were noticeably less students on campus. There had been no notice from the administration. The Day Without Immigrants fell on a Thursday and he had planned to do an in-class presentation to prepare the students for a quiz that was going to be given on Friday. In each class, an average of 10 students were missing. Baugh believed that his syllabus, which he handed out at the beginning of the year, provided that if a student had an unexcused absence, that student would get a zero for any work that was assigned on that day. Rather than have the students study for the quiz, Baugh decided to give the students who were in the class a worksheet so those who missed class would not miss the quiz.

Baugh first saw Greer’s post at around 4:00 p.m. on February 16, 2017, after school, while at home. He responded to the thread, but intended to respond directly to Riggle’s comment. He testified “I liked what Robin Riggle was saying in reference to what Geoff Greer was saying as far as class size.” Riggle had commented that she had 50 students and he responded that he had 49. He did not dispute he posted that he had quieter and more productive classes, and “let’s do this more often.” Baugh explained that rather than having 33 students in each of his classes he had an average of 10 less students. Instead of 33 freshman, he had 23 and this made his classes quieter.

Baugh did not read any of the Facebook comments that followed his comment. He did not check Facebook again that night or the morning before school. He walked by Riggle’s classroom and saw the graffiti. He did not think it was anything unusual as graffiti happened several times each year at RHS. When he got to his classroom, another teacher advised him that the Facebook posts had gone viral. The story had been on major news networks. Baugh was surprised.

Baugh had to walk to the front office before his class started. He noticed several additional administrators in the office. They did not say anything to him about the Facebook posts and he went back to his classroom. He taught his first class without incident; none of the students mentioned the Facebook posts. His second period was his “prep” period, so he had no students. He was in the middle of his third period class when Elzig came to his classroom and told him to leave the classroom. He was escorted to the office. Elzig told him he was being placed on administrative leave because of the Facebook posts and to turn over his keys. Baugh returned to the RHS campus only one day at the end of the school year to retrieve his personal belongings.

Baugh dressed up like Walter White for Halloween in 2015 because he had been told that he looked just like the character. He thought it would be fun to dress up like Walter White, since he looked so much like him. He had purchased a real Hazmat suit and then donated it to the school. RHS did not have a dress code for teachers for Halloween. He also bought rock candy that resembled methamphetamine and put it in small baggies. He did not show them to the students and only gave them to adults. He did not dispute that some of the students may have seen him offer the bags to teachers. Principal Araux called him to the office and told him that the costume was inappropriate because it was promoting drug use. Baugh disagreed that the costume was inappropriate and asked that the school union representative be present. The union representative agreed with Baugh that the costume was not inappropriate but Baugh agreed to change. Baugh’s students loved his costume, Baugh received no write up or discipline based on the incident.

During his time at RHS, Baugh never had a bad evaluation. He had done mission trips to Mexico and Peru to help build housing and outbuildings for those in need during his free time. Before the Facebook posts, he had never been accused of being racist by anyone. He believed immigrants were persons just trying to get a better life and had a right to be in school. He felt he was a role model. He was involved in mission trips and had served in the United States Army. He brought his love of science to the students and community. He believed that his Facebook post had been misinterpreted.

Riggle had sent an email to staff at RHS stating that she had 50 absences and asking if the other teachers were experiencing such absences. The registrar responded, “It’s a Day Without Immigrants Boycott today.” Baugh responded, “Unexcused absences are non-makeupable assignments in my class. Just sayin’.” It was his belief that this was stated in the syllabus he handed out to students in the beginning of the year. He did not intend to upset people with his Facebook post and would not post the same comment again. He only was agreeing with Riggle that smaller class sizes were better.

3. REBUTTAL BY DISTRICT

In rebuttal, Principal Araux explained that the teachers were required to turn in their syllabus each year. He identified Baugh’s syllabus for the 2016/2017 school year, which provided that makeup work for 50 percent credit was allowed for unexcused absences. Principal Araux did not recall any students complaining about not being able to make up work in Baugh’s class.

Elzig was recalled. Baugh had never apologized to the District about his post.

C. DECISION BY THE COMMISSION

On November 16, 2017, the Commission signed its order after hearing. The Commission framed the question “Did Mr. Baugh’s February 16, 2017, post on a Facebook thread or choice of Halloween costume on October 30, 2015, constitute immoral conduct or evident unfitness for service, warranting his dismissal?” Although the Commission concluded that Baugh could have used better judgment, neither incident constituted immoral conduct or evident unfitness for service, applicable law did not permit Baugh’s dismissal.

In reviewing the evidence presented by the District, it noted as to the students who testified, that one student did not address the specific comment by Baugh; another student found parts of the post more offensive than other parts; and one student found Baugh’s post was an agreement with Greer. The Commission also referred to evidence that there was no district-wide policy regarding the use of social media by teachers. Further, it noted that no student testified to seeing Baugh hand out the rock candy. In reviewing the evidence from Baugh, it emphasized the positive evaluations from his superiors.

The Commission referred to relevant case law including Morrison v. State Board of Education (1969) 1 Cal.3d 214, 235 (Morrison) regarding the factors relevant to a finding of unfitness for service and immoral conduct warranting dismissal of a teacher.

The Commission first noted that the District relied upon the viral nature of the post to support Baugh was unfit to serve as a teacher. However, the evidence established reasonable minds could differ as to the nature of Baugh’s post. Moreover, the Commission noted that the “impact” of the conduct alone—the Facebook thread that went viral and sparked protests—did not determine on its own that a teacher is unfit to teach. The Commission considered the Morrison factors to determine a nexus between the conduct and fitness to teach. There was nexus between the “overall Facebook thread,” which Baugh took part in. Baugh’s comment could be construed to adversely affect students and teachers to the extent it was included in a Facebook thread containing racist comments. Baugh should have expected some reaction, when commenting on Greer’s post, by his students and parents, since RHS was predominately Hispanic.

The Commission also noted that Baugh testified he did not intend his comments to be racist; he was only commenting on class size. Baugh showed he had learned from the incident. The Commission found a nexus between Baugh’s Facebook comment and fitness to teach.

However, the Commission also concluded that Baugh had been teaching for 20 years, he participated in after-school activities to help his students, he had no formal discipline in his career, none of the students who testified had heard Baugh be racist at school, and he had “glowing” evaluations. Further, although Baugh was part of a Facebook thread that contained racist comments, his comment was made on his personal computer on his own time. He did not agree with any inappropriate comments and “[h]is comment did not contain strong language or other questionable material that showed an inappropriate temperament, an undesirable character trait, corruption, depravity, moral indignation for any class of persons, or contain any material that suggest Mr. Baugh is unfit to teach science or drama.”

It concluded “[W]hile several of the factors set forth in Morrison . . . arguably may have been satisfied, thus establishing a nexus between the comments and the fitness to teach, ultimately, a preponderance of the evidence did not establish that Mr. Baugh’s single comment on the Facebook thread were attributable to a temperamental defect, inadequacy, or a fixed character trait not remediable merely on receipt of notice that one’s conduct fails to meet expectations of the school district. In other words, he was not shown to be unfit, not adapted to a purpose, unsuitable, incapable, incompetent, or physically or mentally unsound to continue teaching. Thus, his comment [on Facebook] did not constitute evident unfitness for service.”

The Commission also rejected that his Halloween costume showed he was unfit for service as a teacher. While it acknowledged that the costume “glorified a character that was known for illicit drug activity,” Baugh’s testimony showed no improper motive (he wore it because he was “spitting image” of the character); the students liked his costume and there was no testimony they witnessed him hand out the rock candy; his costume did not disrupt the education process; he did not violate any district policy; and he changed when asked by the administration.

The Commission further rejected that his single comment on the Facebook thread constituted immoral conduct as it was not “flagrant, shameless, inconsistent with public decency, or reflective of a moral indifference to the opinions of others.” Although wearing the Walter White costume was not in good judgment expected of a professional educator, it did not constitute immoral conduct.

The Commission concluded that the District only gave it the choice of dismissing Baugh from his employment or dismiss the charges entirely. It stated, “There was no room to choose a suspension or other remedial measure. Given that a preponderance of the evidence did not establish that Mr. Baugh’s conduct was either immoral or rendered him evidently unfit to serve, cause does not exist to dismiss Mr. Baugh pursuant to Education Code section 44932, subdivision (a)(1) or (a)(6).”

D. PETITION FOR WRIT OF MANDATE AND RULING

On January 12, 2018, the District filed its Petition. The District contended there were 21 reasons the Commission’s decision was invalid. Essentially, the District alleged that it did not receive a fair trial and the Commission committed a prejudicial abuse of discretion by ignoring the evidence against Baugh, and there was not substantial evidence supporting the findings of the Commission. The District sought to have the decision of the Commission reversed and order that Baugh be dismissed. The administrative record was lodged with the superior court.

Baugh filed opposition. The District filed a reply. A hearing was conducted on August 10, 2018, wherein the District argued that the Commission reached the wrong decision.

The superior court denied the Petition and provided a notice of ruling. The superior court first noted that its independent review and analysis of the Morrison factors suggests a nexus between Baugh’s conduct and his fitness to teach; however, there was no evidence that Baugh’s conduct was caused by a defect in temperament. The superior court found that “the District fails to meet its burden to convince the court that the Commission’s administrative findings were contrary to the weight of the evidence.”

The superior court noted that the District’s argument focused almost entirely on the impact of the Facebook thread; however, it was beyond dispute that the majority of the complaints were not directed to Baugh or his comments. His comment did not disparage immigrants, did not mention race or national origin, did not express agreement with Greer’s comments and did not show hostility toward the general public. Baugh’s record and history did not show he harbored racist or anti-immigrant sentiments and there was no evidence he ever discriminated against his students on the basis of race. It concluded, “The Commission’s determination that Baugh’s Facebook comment did not constitute ‘evident unfitness for service’ or ‘immoral conduct’ is not contrary to the weight of the evidence.” It further noted that although Baugh’s Halloween costume constituted an error in judgment, it did not amount to evident unfitness for service.

DISCUSSION

The District contends substantial evidence does not support the superior’s court’s decision that Baugh’s conduct does not render him unfit to serve nor constitute immoral conduct.

A. STANDARD OF REVIEW

“[I]n its review of the Commission’s findings, the trial court exercises its independent judgment in assessing the evidence.” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 378.) Independent review by the trial court is legislatively mandated. (Ed. Code, § 44945.) “Under the independent review standard, the trial court may weigh the credibility of witnesses.” (San Diego Unified School District v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461 (Lampedusa).)

“ ‘An appellate court must sustain the superior court’s findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (Pittsburg Unified School District v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 978 (Pittsburg); see also Governing Board v. Haar, supra, 28 Cal.App.4th at p. 378.) Since the trial court adopted the findings and conclusions of the Commission, “the issue in this appeal is whether the Commission’s finding, adopted by the trial court, is supported by substantial evidence. If there is substantial evidence, the judgment must be affirmed.” (Lampedusa, supra, 194 Cal.App.4th at p. 1461.) We are bound by the lower court’s resolution of conflicts in the evidence. (Pittsburg, at p. 978.) Once we find that substantial evidence supports the trial court’s findings, “it is of no further significance that evidence contrary to such findings may also exist.” (Id. at p. 979.)

Accordingly, on appeal, we determine whether there is substantial evidence in the record to support the superior court’s finding that Baugh’s conduct did not amount to immoral conduct or that he was not unfit for service as a teacher.

B. FITNESS TO SERVE AS A TEACHER

The District contends that the evidence relied upon by the superior court was not that which a reasonable mind would accept to support its conclusion. The District criticizes the findings by the superior court that (1) the community comments were not directed at Baugh’s Facebook comments; (2) Baugh’s comment did not mention race or national origin, express agreement with Greer or evince hostility toward the general public; and (3) his personal history did not demonstrate he harbored any racist or anti-immigrant sentiments and he had no prior student or staff complaints.

There is a conflict in authority on the definition “ ‘evident unfitness for service,’ as used in [Education Code] section 44932.” (Woodland Joint Unified School District v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1441.) Cases following Morrison have noted that the court stated that “evident unfitness for service” is synonymous with “unprofessional conduct.” (Woodland, at p. 1441.) Another line of appellate court cases states unfitness for services requires that the unfitness be attributable to a defect in temperament. (Id. at pp. 1442, 1444.) Woodland adopted the definition of evident unfitness for service to be “ ‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’ Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.” (Id., at p. 1444, fn. omitted.) We adopt that standard here.

In Morrison, supra, 1 Cal.3d 214, the California Supreme Court set forth factors to consider in determining whether a teacher’s conduct amounts to unfitness to teach including, “the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the reoccurrence of the questioned conduct, and the extent to which disciplinary action may inflict any adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.” (Id. at p. 229, fns. omitted.) It further noted, “These factors are relevant to the extent that they assist the board in determining whether the teacher’s fitness to teach, i.e., in determining whether the teacher’s future classroom performance and overall impact on his students are likely to meet the board’s standards.” (Id. at pp. 229-230.)

First, substantial evidence supported the superior court’s finding that the District’s reliance on the over 250 emails it received after the Facebook posts did not support Baugh’s unfitness for service, as the majority of the Facebook posts were not addressed to Baugh or his comment. Of the over 250 emails received by the District, only 35 of the emails were either sent to Baugh or mentioned his name. In these emails, Baugh was mentioned together with the other teachers involved in the Facebook thread; his comment was mentioned along with Greer and the other teachers. There was very little evidence that the community was outraged specifically by Baugh’s comment.

The District argues there were other emails that referred to “teachers,” “staff” or “colleagues.” However, none of these emails mentioned Baugh by name or mentioned that his comment was specifically hurtful. Additionally, phone calls made to Brooks at the District after the Facebook posts did not specifically mention Baugh by name nor his comment. The superior court properly determined that although there were a number of email and phone complaints, this was not evidence supporting that the community found Baugh’s specific comment particularly offensive to support his evident unfitness for service. There was a community outcry, but little evidence supported that Baugh’s comments were the cause of the adversity to the students and parents. (Morrison, supra, 1 Cal.3d at p. 229.)

Further, substantial evidence supported the superior court’s finding that Baugh’s own comment did not directly disparage students or immigrants, did not mention race or origin, did not express agreement with Greer’s comments and did not evince a hostility toward the general public. His comment did not show he was clearly unfit to teach. While it may not have been good judgment on Baugh’s part to comment in the same thread as Greer, Baugh himself testified that he only was responding to Riggle’s comment regarding class size. “When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ ” (Pittsburg, supra, 146 Cal.App.3d at p. 978.) We cannot second-guess the trial court’s finding that the comment did not directly agree with Greer’s sentiments and was itself not racist. The interpretation by the District that Baugh “celebrated the absences of immigrant students” is not the only interpretation of the evidence.

Moreover, although three RHS students testified they were offended by Baugh’s comment, one of the students returned to Baugh’s class the next morning and had no problems. Students had advised Principal Araux that they wanted to forgive the teachers and move on. Students later wanted the teachers to return.

Additionally, the fact that Baugh contacted the registrar to state that those with unexcused absences could not make up work does not support that he intended to discriminate against Hispanic students who missed school on the Day Without Immigrants. Baugh testified that he changed his class work specifically so those students would not be impacted. This was not evidence that his comments were intended to be racist or disparaging of Hispanic students.

Moreover, substantial evidence appears in the record to support the superior court’s conclusion that the conduct was unlikely to reoccur based on Baugh’s history as a respected teacher and his testimony he would not post these types of comments again. Baugh had glowing evaluations from the District, in which he either met or exceeded expectations. He provided a positive environment for his students. He had the support of all the teachers at RHS. Principal Araux testified that Baugh had no previous complaints that he was racist. All of the students who testified had never heard Baugh make any racist comments and he had not treated them differently because they were Hispanic. Baugh testified that he would not post these types of comments in the future. There was little likelihood of reoccurrence of the questioned conduct. (Morrison, supra, 1 Cal.3d at p. 229.)

Finally, Baugh’s wearing of the Walter White costume did not show an evident unfitness to serve. Baugh did not have an improper motive in wearing the costume. Baugh only wore it because he resembled the character and thought it would be funny. Further, there was no evidence presented that there was adverse student reaction. While he did not dispute that some students may have observed him handing out the rock candy to adults, there simply was no evidence to support that students had observed him. Finally, at the time of the incident, Baugh was not disciplined for the costume. This evidence did not support his unfitness for service and the superior court’s finding of no evident unfitness for service was supported by substantial evidence.

C. IMMORAL CONDUCT

“A teacher may also be dismissed for ‘[i]mmoral or unprofessional conduct.’ [Citation.] ‘ “The term ‘immoral’ has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.” ’ [Citation.] Moreover, the definition of immoral or unprofessional conduct must be considered in conjunction with the unique position of public school teachers, upon whom are imposed ‘responsibilities and limitations on freedom of action which do not exist in regard to other callings.’ ” (Lampedusa, supra, 194 Cal.App.4th at p. 1466.)

In Palo Verde Unified School District of Riverside County v. Hensey (1970) 9 Cal.App.3d 967, the teacher said to several Hispanic students in his classroom—who had been to a particular area in Mexico— that the area had “super-syphilis” and they should be careful when they were going to the area. (Id. at p. 969.) The appellate court found that the students could reasonably be found to have interpreted his comments as stating that sexual transmitted diseases were rampant in their culture. (Id. at pp. 973-974.) The appellate court found that the comment alone, while in bad taste, was not evidence of immorality.

We have outlined extensively the support for the superior court’s findings that no substantial evidence supported that Baugh was unfit for service as a teacher. Much of this same evidence is relevant to the determination that Baugh did not engage in immoral conduct. As noted, Baugh did not acquiesce in the comments made by Greer and his comments were not racist in themselves. As in Palo Verde, although Baugh exhibited bad judgment by commenting on the Facebook post, it did not amount to immoral conduct. Further, his motive was not to disparage Hispanic students, but to comment on the class size. Finally, Baugh dressed as Walter White only because he resembled the character and thought it would be funny, rather than based on an attempt to promote drug use. He was not disciplined for his behavior. This was not immoral conduct.

Substantial evidence supports the findings of the superior court that the District did not show that Baugh’s conduct in posting on Facebook and wearing the Walter White costume was immoral conduct.

DISPOSITION

The superior court’s order denying the District’s petition for writ of mandate is affirmed in full. Respondent Charles Baugh is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.

Filed 11/13/19 Viso v. Carey CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CLARE BON VISO et al.,

Plaintiffs and Appellants,

v.

JANISE CAREY,

Defendant and Respondent.

B291348

(Los Angeles County

Super. Ct. No. BC661563)

APPEAL from a judgment of the Superior Court of Los Angeles County. John J. Kralik, Judge. Affirmed.

Epport, Richman & Robbins, Christopher R. Nelson; Rodriguez Law and Steven L. Rodriguez, for Plaintiffs and Appellants.

Lowthorp Richards McMillan Miller & Templeman and Darin Marx, for Defendant and Respondent.

_________________________

Clare and William Bon Viso (collectively appellants) appeal from the dismissal of their retaliatory eviction and breach of contract case against Janise Carey (respondent). Appellants contend that the dismissal should be reversed because the trial court (1) improperly treated a motion to strike as a demurrer, and (2) misapplied the law when sustaining the demurrer. We affirm.

FACTS

The Operative Pleading

In their first amended complaint, appellants alleged that they leased a townhouse from respondent in 2013. On June 15, 2016, they renewed for a year. The lease specified that it would become a month-to-month tenancy at the end of the term absent notice to the contrary. Appellants lived in the townhouse with their two children, both of whom were in elementary school. At the time, Clare Bon Viso (Clare) was suffering from a neurological condition called trigeminal neuralgia and was permanently disabled.

In July 2016, Kip Miles (Miles) moved into an adjacent townhouse that shared a common wall with appellants. Miles frequently slammed the doors in his townhouse and caused the walls in appellants’ townhouse to shake. This exacerbated Clare’s neurological condition and caused her to suffer severe headaches, nerve pain, stress and depression. Appellants wrote to Miles over 40 times and asked him to change his conduct. It continued. Next, they advised respondent as well as her homeowners association and its manager of the situation.

Miles continued to slam his doors.

In February 2017, Clare underwent surgery to treat her neurological condition, and William Bon Viso (William) notified respondent, the homeowners association and its manager of this fact. He expressed concern that Clare would be in pain while recovering and would have to tolerate unreasonable door slamming by Miles.

After receiving notice, respondent wrote to the manager: “I just wanted to let you know that I’ve offered my tenants the opportunity to end their lease right now [i]f this situation is so unbearable to them. As of this date, they have not taken me up on the offer, but I’m not planning on renewing their lease, which expires in June 2017.”

On March 25, 2017, respondent sent appellants a 60-Day Notice To Vacate on June 15, 2017. Its purpose was to retaliate against appellants for complaining about the slamming doors and shaking walls.

Appellants sued respondent, the homeowners’ association, the manager and Miles. As to respondent, appellants asserted two causes of action: one for retaliatory eviction, and the other for breach of contract.

The Motion to Strike

Respondent filed a motion to strike paragraphs 17 and 47 and portions of paragraph 22 as well as the retaliatory eviction and breach of contract causes of action. In opposition, appellants argued that it is improper to strike a whole cause of action, and further that each of the causes of action was legally sufficient as alleged.

The trial court opted to treat the motion to strike as a demurrer to the retaliatory eviction and breach of contract causes of action and sustained it without leave to amend.

This appeal followed.

DISCUSSION

I. Preliminary Considerations.

Appellants contend that it was improper for the trial court to deem the motion to strike to be a demurrer. We disagree.

“The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. ‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. . . .’ [Citation.]” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) Even a reviewing court may look at form over substance. In Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal.App.3d 888, 891, the reviewing court overlooked the procedural irregularity of the trial court granting a motion to strike a cause of action and considered the matter as though judgment had been entered after a successful demurrer. In Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 343, the reviewing court deemed an order granting a motion to strike a cause of action as an order granting a motion for judgment on the pleadings.

Given the state of the law, the trial court was authorized to look at form over substance and deem the motion to strike as a demurrer and then rule on it as such.

II. Standard of Review.

When conducting de novo review of an order sustaining a demurrer without leave to amend, we examine whether the pleading states a cause of action under any possible legal theory. In this process, we give the pleading a reasonable interpretation but do not assume the truth of contentions, deductions or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.)

III. Retaliatory Eviction.

To prevail on their retaliatory eviction claim, appellants had to plead (1) that they were evicted, and (2) it was in retaliation for exercising their statutory rights under Civil Code section 1940 et. seq. (§ 1942.5; Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281.)

An eviction occurs “when a landlord takes direct action to physically expel the tenant from the premises.” (Cunningham v. Universal Underwriters (2002) 98 Cal.App.4th 1141, 1152.) An unlawfully motivated notice of eviction supports a retaliatory eviction claim if it forces tenants to vacate their premises. (Glaser v. Meyers (1982) 137 Cal.App.3d 770; Lindenberg v. MacDonald (1950) 34 Cal.2d 678, 690.)

Absent notice to the contrary, the year lease would have converted to a month-to-month lease in mid-June 2017. Based on reasonable inference from the allegations, appellants vacated the townhouse only because respondent served them with the 60-Day Notice To Vacate. Thus, they were evicted.

The question remains whether appellants sufficiently alleged that respondent sent the 60-Day Notice To Vacate to retaliate against them for exercising their statutory rights. Appellants contend that their complaints about Miles implicated sections 1941 and 1941.1.

Section 1941 requires a lessor to put a building into a condition fit for occupation. Section 1941.1, subdivision (a) provides that a dwelling is untenantable under section 1941 if it is a residential unit described in Health and Safety Code section 17920.3. That statute declares a building or any portion of it, including a dwelling unit, a substandard building if it is one “in which there exists” a nuisance, or in which there is “[i]nadequate structural resistance to horizontal forces.” (Health & Saf. Code, § 17920.3, subds. (c) & (o).)

A nuisance is anything that is “injurious to health, . . . or is . . . offensive to the senses . . . so as to interfere with the comfortable enjoyment of life or property[.]” (§ 3479.) Appellants argue that because excessive and inappropriate noise may in certain cases qualify as a private nuisance (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 264), they sufficiently alleged that there was a nuisance in the townhouse. This argument cannot be accepted. As alleged, Miles caused the noise and shaking, not respondent. Miles is not a nuisance in the townhome; rather, he is an external force. Consequently, the townhome is not a dwelling unit “in which there exists” a nuisance.

In their reply, appellants argue that the nuisance existed in the townhouse because that is where they experienced the noise and vibrations. They cite no law nor engage in statutory interpretation of Health and Safety Code section 17920.3, subdivision (c) to support the view that a nuisance exists inside a dwelling for purposes of that statute if it is caused externally by forces beyond the control of the owner of the dwelling but is experienced internally.

Next, appellants contend that their complaints about Miles causing their walls to shake indicated that they had inadequate structural resistance to horizontal forces. This contention lacks potency for several reasons. They have not interpreted Health and Safety Code section 17920.3, subdivision (o) to establish that a shared wall is one with inadequate structural resistance to horizontal forces if it shakes when a door is slammed. Further, appellants did not allege that such a defect existed or that they complained about it.

The trial court properly sustained respondent’s demurrer to the retaliatory eviction cause of action.

IV. Breach of Contract.

To sue for breach of contract, appellants had to allege a contract, breach of the contract, causation and damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Appellants maintain that they sufficiently alleged that respondent breached the covenant of quiet enjoyment and the covenant of habitability.

Absent language to the contrary, “‘every lease contains an implied covenant of quiet enjoyment. [Citations.] . . . [I]t insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]’ [Citations.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–292 (Nativi).)

Leases also contain an implied warranty of habitability. (Green v. Superior Court (1974) 10 Cal.3d 616, 631.)

Appellants contend that if respondent engaged in retaliatory eviction, then respondent breached the covenant of quiet enjoyment. In addition, they contend that if a nuisance existed in the townhouse, then respondent breached the implied warranty of habitability. As we have already explained, there was no retaliatory eviction, and there was no nuisance in the townhouse. Notably, appellants cannot establish the Nativi elements because the noise and wall shaking were caused by Miles, not respondent.

The trial court properly sustained the demurrer to the breach of contract cause of action.

V. Request for Leave to Amend.

Appellants contend that they should be allowed to amend their pleading. We cannot agree.

“If the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility amendment could cure the defect, a trial court abuses its discretion by denying leave to amend.” (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678.) A reviewing court can reverse and allow leave to amend even if the issue was not raised in the trial court. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.)

Appellants maintain that they can allege that respondent discriminated against Clare based on her neurological condition in violation of section 52, subdivision (a) in the Unruh Civil Rights Act. Section 52, subdivision (a), however, merely authorizes an action for damages for discrimination in violation of other statutes. In their opening brief, appellants failed to identify a provision in the Unruh Civil Rights Act that respondent violated. In their reply brief, they argue that the basis for their claim would be their eviction from the townhouse because they complained about the pain and suffering that “the nuisance and/or structural inadequacy [in the townhouse] was causing to Clare[].” Once again, they cite no supporting law. “It is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)

Alternatively, appellants posit that they can allege facts to support their existing causes of action because “it is possible that the slamming of the door by [Miles] is occurring because of a structural problem with [the townhouse] that causes every closure of the door in his adjoining unit to result in a violent vibration of [the townhouse], rendering it unsuitable for habitability. [Appellants] further maintain that their eviction was motivated by their complaints to [respondent] regarding the violent shaking of the [townhouse]. . . . Miles is likely to raise the soundness of the structure as a defense, and [appellants] should be permitted, at a minimum, to plead this alternative theory . . . against [respondent][] in the event that such a defense proves to be correct.”

The mere suggestion that it is possible that the townhouse has a structural problem is not sufficient. Appellants are engaging in speculation, and we are aware of no law establishing that a facially speculative theory is sufficient to allow a plaintiff to amend his or her pleading.

DISPOSITION

The judgment is affirmed. Respondent shall recover the costs of this appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

_______________________, J.

CHAVEZ

Filed 11/13/19 Marriage of Ghadimi CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re MARRIAGE of RAHMAN NADER GHADIMI and GUITY GHADIMI. B284298

RAHMAN NADER GHADIMI,

Respondent,

v.

GUITY GHADIMI,

Appellant. (Los Angeles County

(Super. Ct. No. BD483214)
APPEAL from orders of the Superior Court of Los Angeles County, Bruce G. Iwasaki, Judge. Affirmed.

Lopez Law Group and Eve Lopez for Appellant Guity Ghadimi.

Blank Rome and Glenn S. Buzard for Respondent Rahman Nader Ghadimi.

_________________________

This appeal arises out of a marital dissolution proceeding that has been pending for over 10 years. Appellant Guity Ghadimi appeals from an order denying her motion to set aside a judgment entered on reserved issues pursuant to a mediated settlement agreement. She also appeals from an order denying her postjudgment motions to compel further discovery responses from respondent Rahman Nader Ghadimi. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Marital Dissolution Proceeding
II.
Guity Ghadimi and Rahman Nader Ghadimi were married in 1994 and separated in 2008. During their marriage, Nader was involved in the commercial real estate business and Guity was a homemaker. The couple maintained an affluent standard of living. In April 2008, Nader filed a petition for dissolution of the marriage. The trial court entered a status-only judgment dissolving the marriage in November 2010. Following a nine-day trial in 2011, which addressed the character of real estate assets wholly or partially owned by Nader, the court entered a judgment on reserved issues in August 2013. The parties exchanged final declarations of disclosure prior to the 2011 trial.

III. Judgment Pursuant to a Settlement Agreement
IV.
On July 31, 2015, the parties, along with their respective attorneys and forensic accountants, participated in a mediation before retired Judge Aviva Bobb. At the close of the mediation, the parties and their counsel executed a 10-page document entitled “Deal Memorandum,” which stated that it resolved all remaining issues in the dissolution proceeding and would be incorporated into a stipulated further judgment to be filed with the court. As part of the Deal Memorandum, Guity was awarded, among other items, a $650,000 equalization payment, a $500,000 “buy out” payment in exchange for waiving her right to any further spousal support, a $350,000 transfer from Nader’s Individual Retirement Account (IRA) to an IRA designated by Guity, and a Beverly Hills condominium valued at $1.3 million (with Nader agreeing to assume encumbrances on the property totaling approximately $550,000). Nader was awarded all business and real estate investments, all bank and retirement accounts (apart from the $350,000 IRA transfer to be made to Guity), and all other assets held in his name. The parties agreed to be solely responsible for paying their respective attorney’s fees, expert fees, and costs incurred in the action, and Guity agreed to indemnify Nader and hold him harmless from a Borson motion filed by her former counsel. The parties further agreed to waive all claims for reimbursement.

The Deal Memorandum expressly stated that “[a]ll claims and issues that are resolved by this Agreement are enforceable pursuant to Code of Civil Procedure section 664.6,” and that the trial court “shall retain jurisdiction to enforce the terms of this Agreement.” It also stated that the parties had “served their respective preliminary and final Declarations of Disclosure (prior to the 2011 phase of trial),” and that “[t]he fact that the parties have not exchanged updated Declarations of Disclosure shall not be grounds to set aside this Deal Memorandum.” In addition, the Deal Memorandum provided that, in the event either party retained the services of counsel to enforce its terms or the resulting judgment, “the prevailing party shall be entitled to reasonable attorneys’ fees as determined by the [c]ourt.”

The Deal Memorandum included the following provisions regarding the parties’ knowing and voluntary execution of the agreement: “[¶] The parties each understand that if this case went to trial, either party could do better or worse and that the full impact of this Deal Memorandum will not be known for many years. Nevertheless, each party is entering into this Deal Memorandum freely and voluntarily and has had sufficient time to consider the terms of this Deal Memorandum, and each has had the opportunity to consult with attorneys and accountants in connection therewith. [¶] Petitioner and Respondent have each had the opportunity to retain separate counsel in connection with the negotiations for, and execution of, this Deal Memorandum. Petitioner has been represented by Glenn Buzard from Buter, Buzard, Fishbein & Royce, LLP and Respondent has been represented by Nick Cuneo from Cuneo & Hoover. [¶] Petitioner and Respondent each represent for themselves by their respective signatures below that they have carefully read this Deal Memorandum and that they are completely familiar with and understand each and every provision hereof, and that the provisions of this Deal Memorandum are fair and just in all of its particulars. [¶] Both parties have entered into, executed and accepted this Deal Memorandum of their free and voluntary will, with such express understanding and knowledge.” Directly above the signature line, the Deal Memorandum also included the following language in large, bold type: “By executing this agreement each of us understands that we are entering into a binding agreement that is enforceable pursuant to California Code of Civil Procedure section 664.6.” Both the parties and their attorneys signed the Deal Memorandum.

Guity subsequently refused to execute a stipulated judgment prepared by Nader. On October 23, 2015, Nader filed a request for entry of judgment under Code of Civil Procedure section 664.6. On December 4, 2015, the trial court granted the request on the condition that Nader serve an updated final declaration of disclosure, including an updated income and expense declaration, prior to submitting the proposed judgment. On December 23, 2015, Nader served his updated final declaration of disclosure on counsel for Guity. On January 22, 2016, over Guity’s objection, the trial court entered a further judgment on reserved issues pursuant to the terms of the Deal Memorandum. A notice of entry of judgment was served on the parties on that date. Guity did not file an appeal from the January 22, 2016 judgment.

V. Guity’s Motion for Relief from the Judgment
VI.
On July 20, 2016, Guity filed a motion to set aside the January 22, 2016 judgment pursuant to Code of Civil Procedure section 473 and Family Code sections 2102 and 2122. Guity argued that the judgment should be set aside because Nader did not comply with his statutory obligations to serve an updated final declaration of disclosure prior to the July 31, 2015 mediation session. Guity also asserted that she was “pressured” into signing the Deal Memorandum at the mediation without a full understanding of its terms; however, she did not identify any specific individual that had exerted such pressure. In addition, Guity claimed that the Deal Memorandum was unfair to her because it terminated her right to spousal support despite the parties’ long-term marriage and resulted in an unequal property division that left her with fewer assets than liabilities.

In his opposition to Guity’s motion, Nader contended that he had complied with his disclosure obligations by serving a final declaration of disclosure prior to the 2011 trial, and by serving an updated declaration of disclosure prior to entry of the January 22, 2016 judgment in accordance with the court’s order. Nader also argued that, under applicable case law and the terms of the Deal Memorandum, any failure to exchange updated declarations of disclosure prior to the mediation did not constitute grounds for setting aside the judgment. Nader further asserted that Guity was not entitled to the relief sought because she failed to provide any credible evidence to support her claim that she signed the Deal Memorandum under duress or that she was unable to understand its terms. Nader requested that Guity be ordered to pay his attorney’s fees pursuant to Family Code section 271 based on her conduct in frustrating the parties’ settlement.

On June 30, 2017, the trial court denied Guity’s motion to set aside the January 22, 2016 judgment. In a 35-page written ruling, the court explained that Guity was not entitled to relief from the judgment “[b]ecause (1) policies favoring resolution through mediation and the finality of judgments outweigh the interests in strict compliance with the rules for financial disclosure; (2) the parties expressly waived updated disclosures; (3) [Guity’s] claim that she had ‘no choice’ but to sign the Deal Memorandum lacks evidence; and (4) [Guity] offers no evidence of a miscarriage of justice.” The court also found that Nader was entitled to recover his attorney’s fees under both Family Code section 271 and the provision in the Deal Memorandum authorizing an award of reasonable attorney’s fees to the prevailing party in an action to enforce the terms of the agreement. The court ordered Guity to pay attorney’s fees to Nader in the sum of $77,500.

VII. Guity’s Postjudgment Discovery
VIII.
Prior to the entry of the January 22, 2016 judgment, the parties engaged in extensive discovery. Between 2008 and 2015, Guity served seven sets of document demands on Nader, and in response, Nader produced thousands of pages of documents. On August 23, 2016, while her motion to set aside the January 22, 2016 judgment was pending, Guity propounded an additional 106 document demands and 192 special interrogatories. In response to these discovery requests, Nader provided certain documents and information, but otherwise objected to the requests on various grounds, including that they were overly broad, unduly burdensome, and impermissible under Family Code section 218.

On February 10, 2017, Guity moved to compel further responses to her postjudgment document demands and special interrogatories. Her two motions were accompanied by separate statements that totaled 715 pages and 875 pages, respectively. Guity asserted that she was entitled to the discovery sought to enable her to adequately prepare for the hearing on her request to set aside the judgment. Guity also asked the court to impose monetary sanctions against Nader in the sum of $18,345 based on his alleged failure to comply with his discovery obligations.

Nader filed opposition to Guity’s discovery motions. He argued that the requests propounded by Guity far exceeded the scope of permissible discovery under Family Code section 218 and were unduly burdensome. In support of his argument, Nader noted the parties had already conducted a substantial amount of discovery and had participated in a lengthy trial addressing the proper characterization of various assets. Nader also asserted that the only relevant proceeding pending before the court was Guity’s motion to set aside the January 22, 2016 judgment and the parties’ related requests for attorney’s fees, and that Nader had produced documents reflecting his current income and assets for purposes of that proceeding. In opposing Guity’s motions, Nader sought monetary sanctions against Guity in the sum of $32,425 based on her alleged misuse of the discovery process.

On June 9, 2017, the trial court denied each of Guity’s motions to compel and imposed monetary sanctions against her. In an eight-page written ruling, the court addressed the specific interrogatories and document demands that formed the basis for Guity’s two motions, and explained why Guity was not entitled to the discovery sought. With respect to Guity’s motion to compel further responses to her special interrogatories, the court further concluded: “Overall, many of [Guity’s] interrogatories would be unduly burdensome in most civil litigation in a pretrial setting. When propounded for a postjudgment motion on unrelated issues they exceed the limited grounds for discovery permitted by Family Code section 218.” With respect to Guity’s motion to compel further responses to her document demands, the court similarly concluded: “[Guity’s] motion fails to offer evidence showing good cause for production, and fails to demonstrate how the documents sought have any tendency in reason to prove or disprove why [Guity] claims that she ‘had no choice’ but to sign the Deal Memorandum. Her legal theory ignores the language of Family Code section 218.” The court also found that monetary sanctions against Guity were warranted because her “voluminous discovery requests and motions to compel lacked merit and were made without substantial justification.” The court sanctioned Guity, ordering her to pay Nader $30,000.

IX. Guity’s Notice of Appeal
X.
On August 1, 2017, Guity filed a notice of appeal from the trial court’s June 9, 2017 order denying her discovery motions and imposing monetary sanctions, and the court’s June 30, 2017 order denying her motion to set aside the January 22, 2016 judgment and awarding Nader attorney’s fees.

DISCUSSION

On appeal, Guity argues the January 22, 2016 judgment, entered pursuant to the terms of the parties’ Deal Memorandum, must be set aside because, among other reasons, Nader signed the agreement without serving an updated final declaration of disclosure and without complying with a court order requiring that notice of any settlement be provided to Guity’s former counsel. Guity also argues the June 9, 2017 order denying her discovery motions and imposing monetary sanctions against her must be reversed because the discovery sought was necessary to support her motion to set aside the judgment.

I. Scope of Appellate Review
II.
As a preliminary matter, we address Nader’s contention that Guity has forfeited a number of her claims on appeal by failing to timely appeal from the January 22, 2016 judgment, and by failing to raise those claims before the trial court in her motion to set aside the judgment. Nader is correct that several of the arguments raised by Guity are not cognizable on appeal.

First, in her opening appellate brief, Guity asserts that she is challenging the trial court’s January 22, 2016 entry of judgment pursuant to Code of Civil Procedure section 664.6. However, Guity never filed an appeal from the January 22, 2016 judgment, and the time for doing so has long since expired. The deadline for filing an appeal from a judgment is typically 60 days after service of a notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1) [notice of appeal from a judgment must be filed within 60 days of the notice of entry of judgment or 180 days after entry of judgment, whichever is earlier].) In this case, the notice of entry of judgment was served by the superior court clerk on January 22, 2016, the same date the judgment was entered. The time for filing an appeal from that judgment thus expired on March 22, 2016. Because Guity failed to timely appeal the January 22, 2016 judgment, her challenge to the trial court’s entry of judgment is jurisdictionally barred. (See Starpoint Properties, LLC v. Namvar, supra, 201 Cal.App.4th at p. 1107 [“‘[c]ompliance with the requirements for filing a notice of appeal is mandatory and jurisdictional’”]; In re Marriage of Eben-King & King, supra, 80 Cal.App.4th at p. 109 [where appellant filed a motion to set aside a judgment more than 60 days after the notice of entry of judgment was served, the appellate court had “no jurisdiction to review the merits of the judgment”].)

Second, although Guity’s appeal from the June 30, 2017 order denying her motion set aside the judgment was timely filed, she seeks to raise a number of arguments on appeal that were never made in her motion before the trial court. It is well-established that “an appellate court ordinarily will not consider an alleged erroneous ruling where an objection could have been, but was not, raised before the trial court.” (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700; see also In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1130 [“[i]t is . . . a fundamental principle of appellate review that objections must be raised in the trial court to preserve questions for review”].) Guity’s written motion to set aside the judgment was based solely on her claims of duress, inequitable property division, and lack of compliance with financial disclosure requirements. At the hearing on the motion, Guity also raised the alleged failure to provide prior notice of the settlement to her former counsel as an alternative ground for relief. Guity did not argue as part of her motion that the judgment should be set aside because (1) there was no express finding that the parties had entered into a valid and binding settlement; (2) the terms of the Deal Memorandum were not sufficiently certain to be enforceable; (3) the trial court imposed new terms in the judgment that were not included in the Deal Memorandum; or (4) the trial court had prejudged the case when it heard Nader’s request for entry of judgment pursuant to the Deal Memorandum. Because these issues were not brought before the trial court in the motion to set aside the judgment, Guity has forfeited them on appeal. (In re Marriage of Eben-King & King, supra, 80 Cal.App.4th at pp. 116-117 [where appellant failed to raise certain contentions in her motion to set aside the judgment, she was precluded from asserting them for the first time on appeal].)

III. Motion to Set Aside the Judgment
IV.
In denying Guity’s motion to set aside the January 22, 2016 judgment, the trial court found that Guity had failed to establish any of the statutory grounds for relief under Code of Civil Procedure section 473 or Family Code section 2122, or to show she suffered prejudice from the claimed errors. On appeal, Guity contends her motion should have been granted because Nader failed to comply with a court order requiring prior notice of the Deal Memorandum to Guity’s former counsel; Nader failed to serve an updated final declaration of disclosure and a current income and expense declaration prior to signing the Deal Memorandum; and the Deal Memorandum must be presumed to be the product of undue influence and therefore unenforceable. None of these claims has merit.

A. Overview of Governing Law
B.
Code of Civil Procedure section 473 and Family Code section 2122 provide alternative bases for relief from a marital dissolution judgment, depending upon when the relief is sought. (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 499; In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 33.) Within the first six months after entry of judgment, the court has discretion to set aside a judgment under Code of Civil Procedure section 473 on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); see In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 570.) After six months have passed, Family Code section 2122 “‘sets out the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment.’” (In re Marriage of Georgiou & Leslie, supra, at p. 571, italics omitted.) Under this statute, there are six grounds to set aside a judgment: actual fraud; perjury; duress; mental incapacity; mistake; or failure to comply with financial disclosure requirements. (Fam. Code, § 2122, subds. (a)-(f); see In re Marriage of Binette, supra, 24 Cal.App.5th at p. 1125.) However, before granting relief under Family Code section 2122, the court must “find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” (Fam. Code, § 2121, subd. (b).)

We review a trial court’s ruling on a motion to set aside a marital dissolution judgment for abuse of discretion. (In re Marriage of Walker (2012) 203 Cal.App.4th 137, 146; In re Marriage of Eben-King & King, supra, 80 Cal.App.4th at p. 118.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.] The burden is on the complaining party to establish abuse of discretion. [Citation.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

C. The Trial Court Did Not Abuse Its Discretion In Denying Relief Under Code of Civil Procedure Section 473
D.
Section 473, subdivision (b) states in pertinent part: “The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) As reflected in the language of the statute, a motion for relief brought within the six-month jurisdictional period is not necessarily timely. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) Because the statute also requires that the motion be made “within a reasonable time” after entry of the challenged order, “a threshold requirement for relief is the moving party’s diligence.” (Huh v. Wang, supra, at p. 1420.) “What constitutes ‘“a reasonable time in any case depends upon the circumstances of that particular case”’ [citation] and is a question of fact for the trial court [citation].” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 33.) In general, however, a delay is considered unreasonable and a proper basis for denying relief “when it exceeds three months and there is no evidence to explain the delay.” (Id. at p. 34; see Benjamin v. Dalmo Mfg. Co., supra, at pp. 531-532 [three-month delay]; Huh v. Wang, supra, pp. 1420-1421 [three-and-a-half-month delay]; Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1185-1187 [four-month delay].)

In this case, Guity filed her motion to set aside the January 22, 2016 judgment on July 20, 2016, only two days before the six-month jurisdictional period was set to expire. She offered no explanation for the extended delay in bringing her motion. In concluding that Guity was not entitled to relief under Code of Civil Procedure section 473, the trial court noted that “the factual bases for [Guity’s] position were known as of July 2015 – when the mediation ended,” and that “[n]o good reason exists why [Guity] waited a year after the mediation and nearly six months after entry of [j]udgment to vacate it.” On appeal, Guity does not contend that she exercised diligence in moving to set aside the judgment, nor does she claim that the trial court erred in finding that she had failed to seek relief within a reasonable time under the statute. Guity also makes no attempt to argue on appeal that she satisfied any of the statutorily-enumerated grounds of mistake, inadvertence, surprise, or excusable neglect. Under these circumstances, Guity has failed to show the trial court abused its discretion in denying her relief from the judgment under Code of Civil Procedure section 473.

E. The Trial Court Did Not Abuse Its Discretion In Denying Relief Under Family Code Section 2122
F.
1. Alleged Failure to Comply With the Trial Court’s Prior Borson Order
2.
Guity asserts the trial court erred in denying her motion to set aside the judgment because Nader’s alleged failure to comply with the court’s prior order on a Borson motion rendered the Deal Memorandum unenforceable as a matter of law. In Borson, the court held that attorneys who have been discharged while a marital dissolution action is pending may, with the former client’s consent, file a motion on the client’s behalf to recover their attorney’s fees. (Borson, supra, 37 Cal.App.3d at p. 637.) Here, the record reflects that, on October 19, 2009, the trial court heard a Borson motion filed by Guity’s former counsel, the firm of Meyer, Olson, Lowy & Meyers (MOLM), and issued an order reserving jurisdiction over the issue of attorney’s fees owed to the firm. The order also provided that MOLM “shall be given advance written notice by new counsel for Respondent or Respondent and counsel for Petitioner or Petitioner, at least (15) days prior to the execution of any deal memo, agreement entered pursuant California Code of Civil Procedure [s]ection 664.6, Marital Settlement Agreement, . . . or any agreement, Stipulation or Court Order, resolving any issues regarding payment of attorneys’ fees and costs.”

Prior to the July 31, 2015 mediation, Guity’s counsel at the time provided written notice to MOLM that a mediation would be taking place, and thereafter received a response asking counsel to contact MOLM by telephone if the mediation addressed the issue of attorney’s fees. The Deal Memorandum signed by the parties at the conclusion of the mediation included the following provision regarding MOLM’s pending Borson motion: “[Guity] shall indemnify and hold [Nader] harmless from the Borson Motion filed by MOLM. [Guity] shall forthwith file a notice of withdrawal of her consent to said Borson Motion. If, notwithstanding the withdrawal of consent, MOLM proceeds with the Motion and prevails, [Nader] has the right to deduct the amount of the award from the $440,000 balloon payment due on February 1, 2016. . . .” According to Guity, neither the parties nor their respective counsel ever gave MOLM notice of the Deal Memorandum prior to signing it.

On appeal, Guity contends the failure to provide MOLM with prior notice of the Deal Memorandum in accordance with the trial court’s October 19, 2009 Borson order requires that the entirety of the January 22, 2016 judgement be set aside. She cites no legal authority to support this contention. A party seeking to set aside a judgment under Family Code section 2122 must establish the existence of at least one of the six exclusive grounds for relief enumerated in the statute (Fam. Code, § 2122, subds. (a)-(f)), and also must show this ground affected the original outcome of the proceedings in such a way that he or she would materially benefit from the granting of relief (Fam. Code, § 2121). “‘In other words, the moving party must establish both the presence of at least one of the [six] factors listed in [Family Code] section 2122, and that this resulted in material disadvantage to the moving party.’ [Citation.]” (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 89 (Kieturakis).) While Guity broadly asserts that she was entitled to relief under Family Code section 2122, she does not suggest that the lack of compliance with a Borson order requiring prior notice of a settlement to her former counsel in any way constituted actual fraud, perjury, duress, mental incapacity, mistake, or a failure to disclose assets and liabilities. Guity also has not shown that she was materially disadvantaged by the parties’ mutual failure to inform her former counsel that a settlement involving attorney’s fees had been reached. Guity merely claims that MOLM may be “aggrieved” by the parties’ agreement on attorney’s fees, but she fails to demonstrate how the firm’s lack of prior notice of that agreement caused any detriment to her. Guity had notice of the proceedings, participated in the mediation along with her then current counsel, and agreed to the terms of the Deal Memorandum, including the provision regarding the fees owed to MOLM. The parties’ failure to provide her former counsel with prior notice of Deal Memorandum is not a ground on which to grant Guity relief from the resulting judgment.

3. Alleged Failure to Comply With Statutory Disclosure Requirements
4.
Guity also argues her motion to set aside the January 22, 2016 judgment should have been granted because Nader failed to comply with his statutory disclosure obligations by serving Guity with an updated final declaration of disclosure prior to signing the Deal Memorandum. The Family Code requires the parties to a marital dissolution proceeding to serve each other with a preliminary declaration of disclosure identifying all assets and liabilities. (Fam. Code, § 2104, subd. (a).) Before entering into an agreement for the resolution of property or support issues, or before any trial, each party also must serve the other with “a final declaration of disclosure and a current income and expense declaration.” (Fam. Code, § 2105, subd. (a).) Absent good cause, “no judgment shall be entered with respect to the parties’ property rights without each party . . . having executed and served a copy of the final declaration of disclosure and current income and expense declaration.” (Fam. Code, § 2106.) Subject to certain statutory exceptions, “if a court enters a judgment when the parties have failed to comply with all disclosure requirements . . ., the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error.” (Fam. Code, § 2107, subd. (d).)

Notwithstanding these disclosure provisions, California courts “have recognized that when parties to a marital dissolution agree to settle their property or support issues by nonjudicial arbitration or mediation, they may do so without strictly complying with the technical requirements of Family Code section 2104 or 2105.” (Lappe v. Superior Court (2014) 232 Cal.App.4th 774, 782 (Lappe); see Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1508 (Elden) [“parties to a dissolution who have agreed to engage in private arbitration of their property issues are entitled to adopt other, more summary procedures for financial disclosure”]; In re Marriage of Woolsey (2013) 220 Cal.App.4th 881, 892 (Woolsey) [“[p]arties who agree to settle their dispute by private mediation may also agree to make financial disclosures that do not meet the technical procedural requirements of sections 2104 and 2105”].) As the Woolsey court explained: “Private mediation, like nonjudicial arbitration, offers an alternate approach to resolve disputed issues arising from a marital dissolution. Requiring technical compliance with disclosure rules designed for adversarial litigation would undermine the strong public policy of allowing parties to choose speedy and less costly avenues for resolving their disputes. . . . Thus, strict compliance with [Family Code] sections 2104 and 2105 is not required for private mediations that address issues arising out of a marital dissolution.” (Woolsey, supra, at p. 892.)

After a private mediation or arbitration, “the parties are nonetheless required to execute and serve final declarations of disclosure before the court may enter judgment.” (Lappe, supra, 232 Cal.App.4th at p. 782; see Elden, supra, 53 Cal.App.4th at p. 1510 [the parties “were obligated after arbitration to serve final declarations . . . pursuant to section 2106 if they were to achieve a final judgment as to their property rights”]; Woolsey, supra, 220 Cal.App.4th at p. 892 [“[a]fter a mediation in a marital dissolution case, parties must nonetheless comply with section 2106 prior to entry of judgment by the trial court”].) However, a failure to comply with the disclosure requirements prior to entry of judgment does not, by itself, compel the reversal of the judgment on appeal. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 526-528 (Steiner); Woolsey, supra, at p. 894; Kieturakis, supra, 138 Cal.App.4th at p. 92.) Notwithstanding the language of Family Code section 2107, subdivision (d), nondisclosure is a legitimate basis for setting aside a judgment only if the party seeking relief demonstrates that he or she was prejudiced by the nondisclosure. (Steiner, supra, at pp. 527-528; see also In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 205.) Requiring a showing of prejudice is consistent with the “constitutional mandate embodied in article VI, section 13 of our state Constitution that no judgment may be set aside or new trial granted unless there has been a miscarriage of justice.” (Steiner, supra, at p. 526.)

In this case, Guity has failed to show any nondisclosure that caused her to suffer prejudice. It is undisputed that the parties exchanged both preliminary and final declarations of disclosure prior to the 2011 trial. In the Deal Memorandum signed at the July 31, 2015 mediation, the parties expressly acknowledged that they had made these prior financial disclosures, and agreed that the fact that they had “not exchanged updated Declarations of Disclosure shall not be grounds to set aside this Deal Memorandum.” Although Guity is correct that she and Nader did not exchange current income and expense declarations before signing the Deal Memorandum in accordance with Family Code section 2105, such “strict compliance” with the statute was not required for the parties to enter into a binding settlement agreement at their private mediation. (Woolsey, supra, 220 Cal.App.4th at p. 892.)

It is also undisputed that, prior to entering a judgment pursuant to the Deal Memorandum, the trial court ordered Nader to serve an updated final declaration of disclosure, including an updated income and expense declaration. Nader served these documents on Guity on December 23, 2015, and filed a declaration regarding his service thereof with the court. Thus, contrary to Guity’s claim, Nader complied with his disclosure obligations by serving both a final declaration of disclosure and a current income and expense declaration prior to entry of the January 22, 2016 judgment. While it appears Guity did not serve Nader with a current income and expense declaration before the judgment was entered, her own lack of compliance with Family Code section 2105 cannot serve as a basis for setting aside the judgment. (Steiner, supra, 117 Cal.App.4th at pp. 527-528; Woolsey, supra, 220 Cal.App.4th at pp. 893-894.) As the Steiner court observed in the context of a motion for new trial: Allowing “a non-complying party [to] unilaterally undo a judgment after trial . . . [would] create[] a most perverse set of incentives. . . . [A] party could deliberately not comply with disclosure requirements, keep mum, see if the trial results in an acceptable judgment, and then have the opportunity to obtain a better result by pulling the non-disclosure card out of his or her sleeve on appeal or new trial motion. That is the sort of absurdity of statutory result that courts simply do not countenance.” (Steiner, supra, at p. 528; see also Woolsey, supra, at p. 894 [where wife served preliminary and final declarations of disclosure prior to entry of judgment, husband could “not be heard to complain about his own failure to serve the final financial disclosure”].)

Moreover, Guity has not identified any part of the January 22, 2016 judgment that was materially affected by the alleged nondisclosures. Instead, she asserts, contrary to settled law, that the parties’ failure to strictly comply with Family Code section 2105 prior to signing the Deal Memorandum is sufficient, by itself, to require that the judgment be set aside. Because Guity has failed to demonstrate she was prejudiced by any purported lack of compliance with the statutory disclosure requirements, she was not entitled to relief under Family Code section 2122.

G. Alleged Undue Influence in the Marital Settlement Agreement
H.
Guity further contends the trial court erred in denying her motion to set aside the judgment because the settlement agreement signed by the parties resulted in an inequitable property division, giving rise to a presumption of undue influence. In support of this contention, Guity asserts that the Deal Memorandum was patently unfair to her because, among other things, it did not provide her with an adequate security interest in the event that Nader failed to make the payments due under the agreement, and waived her right to spousal support in exchange for $500,000 despite the parties’ long-term marriage and Nader’s substantial income. In essence, Guity’s claim is that the parties’ mediated settlement agreement must be presumed to be the product of undue influence and unenforceable because Nader got a better deal. This is contrary to the law.

California courts have held that martial settlement agreements reached in mediation cannot be presumed to be the product of undue influence. (Woolsey, supra, 220 Cal.App.4th at p. 902; Kieturakis, supra, 138 Cal.App.4th at p. 85.) As the Kieturakis court explained, “‘[v]oluntary participation and self-determination are fundamental principles of mediation. . . .’” (Kieturakis, supra, at p. 85.) Because “‘[p]ower imbalance[s] between spouses’ are a recognized concern when family matters are mediated, . . . ‘[d]ivorce mediators generally work to balance the negotiating power between the parties. This tends to produce agreements that are more fair and voluntary, rather than coerced.’” (Ibid.) Further, if a presumption of undue influence were to apply, “[a]ll unequal mediated agreements would, in effect, be conclusively presumed to be invalid,” and subject to “set aside at the option of the disappointed party.” (Id. at p. 86.) “[T]he effectiveness of mediation as a method of settling marital property disputes would be greatly impaired.” (Ibid.)

Guity had the burden of proving that she was entitled to relief from the judgment by establishing one of the six grounds enumerated in Family Code section 2122. (Kieturakis, supra, 138 Cal.App.4th at pp. 88-89.) In moving to set aside the judgment, Guity argued the Deal Memorandum was the product of duress because she was pressured into signing the agreement without a full understanding of its terms. Duress “‘is shown where a party “intentionally used threats or pressure to induce action or nonaction to the other party’s detriment. [Citation.]” [Citations.] The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing. [Citation.]’ [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1523.) Other than broadly asserting that she was under duress when she signed the Deal Memorandum, Guity offered no evidence of any threats made, or pressure exerted, by Nader or anyone else. Rather, in her supporting declaration, Guity vaguely referred to a dispute with her own attorney, and stated that he failed to explain the agreement to her. Attorney negligence, however, is not a ground for setting aside a judgment under Family Code section 2122. (In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 686.) Further, the record reflects that the mediation took place before a retired family law judge, that Guity attended the mediation with both her attorney and her forensic accountant, and that her attorney was the same one who had represented her at trial. The Deal Memorandum signed by the parties also expressly stated that they had carefully read and understood the agreement and were voluntarily entering into it of their own free will. In light of this evidence, the trial court reasonably could find that Guity’s self-serving statement that she was pressured into signing the Deal Memorandum did not constitute a basis for setting aside the judgment.

We also reject Guity’s assertion that the judgment must be set aside because the mediation resulted in an inequitable property division. “It is well settled that parties may agree in writing to an unequal division of marital property. [Citation.]” (Woolsey, supra, 220 Cal.App.4th at p. 903; see Mejia v. Reed (2003) 31 Cal.4th 657, 666 [“Whenever . . . the parties agree upon the property division, no law requires them to divide the property equally, and the court does not scrutinize the [marital settlement agreement] to ensure that it sets out an equal division.”].) Likewise, the fact that a dissolution judgment “may have been inequitable to the moving party cannot by itself serve as a basis for setting aside that judgment.” (In re Marriage of Rosevear, supra, 65 Cal.App.4th at p. 684, italics omitted.) “[S]ection 2123 of the Family Code is plain that if a set-aside motion is supported only by an imbalance in the division of community property, the trial court cannot grant the motion.” (In re Marriage of Heggie, supra, 99 Cal.App.4th at pp. 29-30.) Accordingly, even if we were to assume Nader received a more favorable deal in the mediation, that fact alone would not entitle Guity to relief under Family Code section 2122. Based on the totality of the record, the trial court did not abuse its discretion in denying Guity’s motion to set aside the January 22, 2016 judgment.

V. Motions to Compel Postjudgment Discovery
VI.
On appeal, Guity also challenges the trial court’s denial of her two motions to compel further responses to her postjudgment discovery requests. She contends the trial court erred in finding that her requests exceeded the scope of permissible discovery under Family Code section 218. She also claims the trial court erred in imposing monetary sanctions against her based on her misuse of the discovery process. We find no abuse of discretion in the trial court’s rulings.

A. The Trial Court Did Not Abuse Its Discretion In Denying Guity’s Discovery Motions
B.
We review a trial court’s ruling on a motion to compel discovery for abuse of discretion. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Family Code section 218 provides, in relevant part, that “[w]ith 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.” Accordingly, where a party in a marital dissolution proceeding files a postjudgment motion, he or she may seek discovery as to the issues raised in that motion without first obtaining court approval to reopen discovery. By its terms, however, the statute limits the scope of permissible discovery to those “issues raised in the postjudgment pleadings currently before the court.”

In this case, Guity served Nader with 106 document demands and 192 special interrogatories while her motion to set aside the January 22, 2016 judgment was pending before the trial court. Guity’s requests sought broad categories of information about her former spouse, including his general background, criminal history, past and current employment, income and earnings, community and separate property and debts, reimbursement claims and credits, and payments or loans made to and from third parties. While Nader agreed to produce certain financial information and documents, including his 2015 income tax returns, current bank account statements, and current personal financial statements, he objected to the majority of the requests on multiple grounds. In denying Guity’s motions to compel further responses to her discovery requests, the trial court concluded that the requests sought information “beyond the scope of issues raised in her postjudgment pleadings pending before the [c]ourt and [were] unduly burdensome and oppressive.” On this record, the trial court acted well within its discretion in denying Guity’s motions to compel further discovery.

For purposes of Family Code section 218, the only postjudgment pleading that was pending before the trial court when Guity propounded these additional discovery requests was her motion to set aside the January 22, 2016 judgment on reserved issues. As discussed, Guity sought relief from that judgment on the grounds of duress, inequitable property division, and lack of compliance with the disclosure requirements. The vast majority of Guity’s voluminous interrogatories and document demands, however, sought information beyond the narrow set of issues raised in her motion to set aside the judgment, and lacked any tendency in reason to prove or disprove any of the asserted grounds for relief. Because Guity’s discovery requests exceeded the scope of permissible postjudgment discovery under Family Code section 218, the trial court properly denied her motions to compel further responses to those requests.

On appeal, Guity does not identify any specific item of discovery, or even category of discovery, that she believes was relevant to her motion to set aside the judgment, nor does she explain why the trial court erred in denying her requests for such discovery. She merely claims the trial court’s ruling “prevent[ed] [her] from obtaining the documents and information necessary” to prove that Nader had “failed to comply with his disclosure obligations.” Guity makes no attempt, however, to show that her requests were reasonably calculated to lead to the discovery of information about Nader’s alleged lack of compliance with the disclosure requirements, or were otherwise relevant to any of the issues raised in her motion to set aside the judgment. In fact, the only specific error that Guity contends the trial court made in its discovery ruling was a purported finding that Nader had properly objected to Guity’s request for electronically stored information on privacy grounds. However, in its written order, the trial court expressly stated that it was not addressing this particular objection because Guity’s failure to comply with the discovery limitations imposed by Family Code section 218 provided a sufficient basis for denying her motion to compel. Guity has failed to show an abuse of discretion in the trial court’s ruling.

C. The Trial Court Did Not Abuse Its Discretion In Imposing Monetary Sanctions Against Guity
D.
Under Chapter 7 of the Civil Discovery Act, the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process. . . .” (Code Civ. Proc., § 2023.030, subd. (a).) “‘Misuse of the discovery process includes . . . unsuccessfully making or opposing discovery motions without substantial justification. . . .’ [Citation.]” (In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809.) The Civil Discovery Act further provides that “[t]he court shall impose a monetary sanction under Chapter 7 . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel” a further response to interrogatories or document demands, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.300, subd. (d), 2031.310, subd. (h).) “‘We review the trial court’s order imposing the sanction for abuse of discretion. [Citation.] We resolve all evidentiary conflicts most favorably to the trial court’s ruling [citation], and we will reverse only if the trial court’s action was “‘“arbitrary, capricious, or whimsical.”’” [Citations.]’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285-1286.)

On appeal, Guity argues the trial court abused its discretion in ordering her to pay a discovery sanction of $30,000. She asserts the sanction was “unduly harsh,” and was imposed “without explanation as to the amount.” This argument lacks merit. In its written ruling, the court expressly stated that it was imposing a sanction on Guity in the amount of $30,000 on the ground that her discovery requests and motions “lacked merit and were made without substantial justification.” The court noted that Guity had propounded voluminous requests that would be “unduly burdensome in most civil litigation in a pretrial setting,” and that she had failed to acknowledge the limits on postjudgment discovery imposed by Family Code section 218. The court also made clear it was acting pursuant to Code of Civil Procedure sections 2030.300 and 2031.310, which mandate the imposition of a monetary sanction on a party who unsuccessfully moves to compel further discovery responses, unless the sanction would be unjust. The amount of the sanction imposed by the court was consistent with the amount of attorney’s fees incurred by Nader in responding to Guity’s extensive discovery requests and in opposing her motions to compel.

Guity also claims the trial court erred by failing to consider her financial circumstances in accordance with Family Code section 270. That statue provides that, “[i]f a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay.” (Fam. Code, § 270.) As discussed, however, the trial court ordered a monetary sanction against Guity under the Civil Discovery Act rather than the Family Code. Guity does not cite any legal authority to support her contention that the limits of Family Code section 270 apply to sanctions imposed under Code of Civil Procedure sections 2030.300 or 2031.310. In any event, Guity did not submit any evidence showing an inability to pay the $30,000 sanction, or otherwise demonstrate to the trial court that her financial circumstances made the imposition of the sanction unjust. The record also reflects that, a few weeks after the trial court ordered the discovery sanction, it made an explicit finding that Guity had the ability to pay Nader an additional $77,500 in attorney’s fees for her conduct in unnecessarily increasing the cost of litigation. The court based that finding on Guity’s receipt of over $1 million as part of the parties’ Deal Memorandum. Under these circumstances, the trial court acted within its discretion in imposing a $30,000 sanction against Guity for her misuse of the discovery process.

DISPOSITION

The trial court’s June 30, 2017 order denying Guity’s motion to set aside the January 22, 2016 judgment, and the June 9, 2017 order denying Guity’s motions to compel further responses to her discovery requests are affirmed. Nader is to recover his costs on appeal.

ZELON, J.

We concur:

PERLUSS, P. J.

FEUER, J.

Filed 11/13/19 Marriage of Hunter CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re Marriage of STEVEN and KIMBERLY HUNTER. B292985

(Los Angeles County

Super. Ct. No. KD087738)

STEVEN M. HUNTER,

Appellant,

v.

KIMBERLY HUNTER,

Respondent.

APPEAL from a judgment of the Superior Court of the County of Los Angeles, H. Don Christian, Commissioner. Affirmed, in part, reversed, in part, and remanded with instructions.

Kearney|Baker and Gary W. Kearney, for Appellant.

Charles J. Morris, Jr., for Respondent.

I. INTRODUCTION

When Steven Hunter (Steven) petitioned for dissolution of his marriage to Kimberly Hunter (Kimberly), disputes arose concerning the parties’ separate and community property. Following a bench trial, the court entered a judgment that, among other things, characterized and divided certain of the parties’ property. On appeal from the judgment, Steven challenges the trial court’s authority to order the sale of a vacation home and a recreational vehicle. He also challenges court’s finding that Kimberly was entitled to reimbursement for her separate and community property expended to improve the vacation home and invest in two of Steven’s real estate development projects. Finally, he contends the court failed to divide a community credit line debt assigned solely to him and failed to rule on two of his reimbursement claims. We affirm the judgment, in part, reverse, in part, and remand with instructions.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Marriage, Separation, and Dissolution Proceedings

Steven and Kimberly married on December 9, 2006, and separated on December 1, 2013. Steven filed a petition for dissolution of marriage and the case then proceeded through several years of litigation. When settlement discussions broke down, the matter was tried to the court beginning on August 7, 2017, primarily on disputes over the division of separate and community property. Prior to and during trial, the parties stipulated that their respective exhibits could be marked and received in evidence without further foundation. The court heard testimony over the course of six days, ending on December 8, 2017. We will discuss the testimony related to the issues raised on appeal in the Discussion section below.

B. Intended Statement of Decision, Objections, and Hearing

Following the close of evidence, the trial court requested that the parties submit closing argument briefs and proposed statements of decision by February 23, 2018, and indicated that, upon receipt of those submissions, the matter would be deemed submitted. The record does not include Steven’s trial brief, closing argument brief, or the parties’ proposed statements of decision.

On March 27, 2018, the trial court issued its intended statement of decision, which it stated would become the statement of decision, pursuant to California Rules of Court, rule 3.1590(c), unless within ten days, either party filed and served a document that specified controverted issues or made proposals not included in the tentative decision.

On April 23, 2018, Steven filed objections to the intended statement of decision. Among other things, Steven contended that the trial court had failed to rule on his request for reimbursement of $102,750 in community expenses paid postseparation to preserve many of the community assets, including insurance for Kimberly and her children. Steven further objected that the trial court had failed to rule on his request for reimbursement of community funds that were spent to improve, maintain, and preserve Kimberly’s separate property, a single-family residence in Thousand Oaks, California (the Capitan property). Steven further challenged a number of the trial court’s findings. Kimberly filed a response to the intended statement of decision on or about April 23, 2018.

On June 8, 2018, the trial court held a hearing on the parties’ objections to the intended statement of decision. The record, however, does not include a reporter’s transcript of that hearing, a settled or agreed statement, or a minute order reflecting the trial court’s rulings, if any, on the parties’ objections. Nor does the record reflect whether the trial court adopted the intended statement of decision as its final statement of decision.

C. Judgment, New Trial Motion, and Appeal

On July 19, 2018, the trial court entered a judgment that incorporated certain, but not all, portions of the intended statement of decision.

On August 3, 2018, Steven filed a notice of intention to move for new trial and on August 13, 2018, he filed his supporting memorandum of points and authorities. Kimberly opposed the motion on September 4, 2018. Because the trial court did not rule on the motion within the statutory time limit, the motion was deemed denied by operation of law. (Code Civ. Proc. § 660, subd. (c).)

On September 26, 2018, Steven filed a timely notice of appeal from the judgment.

III. DISCUSSION

A. Legal Principles

In marital dissolution cases involving disputes over the separate or community character of the spouses’ property, “there is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is a community property unless traceable to a separate property source.” (In re Marriage of Haines, supra, 33 Cal.App.4th at pp. 289–290.) But “‘[t]he presumption . . . may be overcome. [Citations.] Whether or not the presumption is overcome is a question of fact for the trial court.’ (In re Marriage of Mix (1975) 14 Cal.3d 604, 611–612 . . . .) “‘Where funds are paid from a commingled account, the presumption is that the funds are community funds. [Citations.] In order to overcome this presumption, a party must trace the funds expended to a separate property source. [Citation.] This issue presents a question of fact for the trial court and its finding will be upheld if supported by substantial evidence.’” (In re Marriage of Higinbotham (1988) 203 Cal App.3d 322, 328 . . . ; [citations].)” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 94–95.) The party contesting the community character of property bears the burden of overcoming the presumption. (In re Marriage of Mix, supra, 14 Cal.3d at p. 611.)

B. Presumption of Correctness/Standard of Review

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant must affirmatively establish error by an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) In the absence of a proper record on appeal, the appealable judgment or order is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296.)

Code of Civil Procedure sections 632 and 634, however, “set forth the means by which to avoid application of these inferences in favor of the judgment. When the court announces its tentative decision, a party may, under section 632, request the court to issue a statement of decision explaining the basis of its determination, and shall specify the issues on which the party is requesting the statement; following such a request, the party may make a proposal relating to the contents of the statement. [Fn. omitted.] Thereafter, under section 634, the party must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. [Fn. omitted.]” (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.)

Although a court has the option of converting a tentative decision to a statement of decision, by stating it will be deemed as such, absent a formal request for a statement of decision (Cal. Rules of Court, rule 3.1590, subd. (c)(4)), “a trial court’s tentative or memorandum decision is no substitute for a statement of decision.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.) Rather, “a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then the judgment supersedes any memorandum or tentative decision or any oral comments from the bench.” (Ibid.)

“[W]e apply the substantial evidence standard to the trial court’s factual findings as to the existence and character of the parties’ property. By contrast, the trial court’s determination of what legal principles apply is subject to our de novo review.” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421 (Bono).)

C. Analysis

Steven raises numerous challenges to the trial court’s judgment, contesting its orders regarding various assets and debts. We discuss each argument below, and include a brief description of the facts, viewed in the light most favorable to the court’s judgment.

1. Sonoita Property

In April 2006, prior to the parties’ marriage, Steven purchased an undeveloped lot located on Sonoita Avenue in Topok, Arizona (the Sonoita property), for $90,000. In 2010, he and Kimberly decided to “put a modular home on the property” to serve as a vacation home. Kimberly contributed approximately $135,000 from her separate property to purchase a manufactured home that was eventually placed on the lot. Steven contributed approximately $61,000 toward the project.

The judgment provides that, “[Steven] purchased the Sonoita [p]roperty prior to the marriage for $90,000.00 from his separate property funds . . . . Since the [Sonoita] property is in the name of [Steven], the Court shall retain jurisdiction over the sale, distribution and characterization of the proceeds from any potential sale. If the parties agree that [Steven] may buy-out [Kimberly’s] interest in the property, the property needs to be re-appraised by an agreed upon real estate appraiser. In any event, [Kimberly] shall be entitled to reimbursement for the $135,000.00 separate property contribution and one-half of all community investment.”

In his opening brief, Steven contends that the trial court erred when it ordered the sale of the Sonoita property. According to Steven, once the court found that the Sonoita property was his separate property, it had no jurisdiction to compel him to sell it, citing In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260. In response, Kimberly argues that the trial court did not order the sale of the Sonoita property. In reply, Steven appears to concede that the trial court did not order the sale of the Sonoita property, but nevertheless maintains that the court’s retention of jurisdiction over the sale is unauthorized under the Family Code.

It is clear from the judgment that the trial court did not order Steven to sell the Sonoita property and thus did not err as claimed in the opening brief. As to Steven’s argument that the trial court erred in retaining jurisdiction over the sale, we do not consider this argument as Steven raised it for the first time in his reply brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542.)

Steven next contends that the trial court erred in finding that Kimberly was entitled to reimbursement of $135,000. According to Steven, the trial court should have characterized Kimberly’s $135,000 investment in the manufactured home—prior to its installation on Steven’s unimproved lot—as a community asset at purchase that was transmuted to Steven’s separate property when it was subsequently affixed to his unimproved lot. Once the court properly characterized the manufactured home, Steven argues that the court was then required under Bono, supra, 103 Cal.App.4th at page 1409 to analyze whether the community-funded improvements to Steven’s unimproved lot increased the value of that separate property, such that the community acquired a pro tanto interest in it.

There is nothing in our record to suggest that Steven ever raised this argument with the trial court for consideration. As noted, Steven did not include in the record either his trial brief or closing argument brief. And, although Steven did include his objections to the trial court’s intended statement of decision, those objections did not raise these contentions of legal error. Thus, Steven has forfeited his argument on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.)

2. Steven’s Requests for Reimbursement

At the time of her marriage, Kimberly owned the Capitan property. During the marriage, she leased, maintained, repaired, and sold that property, receiving approximately $326,000 in sales proceeds as her separate property. Steven testified that exhibit 13 was “a spread sheet of expenses paid either personally by [him] or by the community” on Kimberly’s separate Capitan property, both before and after it was leased, but prior to its sale. Steven also testified that he made certain payments, postseparation, to maintain assets including for auto and health insurance for Kimberly and her children.

Steven contends on appeal that because he raised the trial court’s failure to mention his requests for reimbursements in his objections to the intended statement of decision, we must reverse so that the court can make findings and a decision on these claims. We disagree.

Although Steven contends that the trial court erred in failing to resolve his claims for reimbursement, there is no record of how the trial court ruled on Steven’s objections to the intended statement of decision. Nor does the record reflect whether the trial court adopted the intended statement of decision as the final statement. Notably, the judgment does not indicate any such adoption.

Steven seems to assume that the intended statement of decision became the trial court’s final statement of decision. The intended statement, however, provided that it would become the statement of decision, “unless within ten (10) days either party files and serves a document that specifies controverted issues or makes proposals not covered in the Memorandum of Intended Decisions.” Steven did file an objection to the intended statement of decision. Although he filed it more than 10 days following the trial court’s filing of the intended statement of decision, the trial court permitted the filing and held a hearing on the objections. Thus, the condition precedent to the intended statement of decision becoming the final statement of decision, that is, the failure of a party to file a document in objection, did not occur. Based on the record before us, we affirm the trial court’s implicit denial of Steven’s requests for reimbursement on the grounds that Steven has failed to establish error by an adequate record.

3. Assignment of Entire $26,000 Credit Line

Debt to Steven

Steven opened a $100,000 line of credit secured by property located at an address on Lunes, in La Verne, California (the Lunes property), which Steven had purchased prior to marriage and the trial court found to be his separate property. On September 13, 2011, Kimberly withdrew the entire $100,000 balance on the credit line without Steven’s knowledge. Kimberly eventually repaid all but approximately $26,000 of her withdrawal. Kimberly used $26,000 on a variety of living expenses for Steven, Kimberly, and her children.

The judgment ordered that Steven was solely responsible for this debt. Steven contends that the trial court violated section 2550 when it assigned the entire outstanding credit line balance to him without offset. Because the credit line balance was incurred during the marriage, Steven maintains that it was a community obligation that the trial court was required to divide equally between the parties.

Kimberly counters that sections 2550 and 2551 do not require the trial court to divide each community debt equally; they require the court to divide the community estate equally. Because the court retained jurisdiction over assets and debts of the parties that have yet to be divided, Kimberly argues that Steven has failed to show that the assignment of the entire credit line balance to him was erroneous.

Kimberly appears to concede that the credit line balance is a community obligation that was subject to division under sections 2550 and 2551. She also seems to suggest that the trial court’s failure to divide the debt at trial by way of offset or otherwise was not erroneous because the court retained jurisdiction generally to assign and divide other unspecified assets and liabilities at a later date. But section 2550 provides that “the court shall, either in its judgment of dissolution . . . or at a later time if it expressly reserves jurisdiction to make such a property division,” divide the community estate—i.e., the assets and obligations of the estate—equally. Here, the judgment assigned the credit line debt to Steven, but it did not equally divide that debt between the parties by way of offset. Moreover, the trial court did not expressly reserve jurisdiction to make such an offset. Because the court failed to comply with section 2550, Steven is entitled to a limited reversal on this issue for the purpose of modifying the judgment to divide the credit line debt equally between the parties.

5. Toy Hauler

Steven testified that in September 2006, prior to marriage, he purchased a 29-foot recreational vehicle and that, in March 2007—i.e., after marriage—he traded in that vehicle for a larger, 39-foot recreational vehicle (the Toy Hauler). He made the payments on the loan for the Toy Hauler, as well as the payments for “maintenance costs and expenses.”

Kimberly submitted an exhibit that indicated both the 29-foot recreational vehicle and the Toy Hauler were purchased during the parties’ marriage. The exhibit also summarized the monthly loan payments made on the Toy Hauler and indicated that Steven “made all payments noted above.”

The judgment provided, “The [Toy Hauler] is ordered sold and the net proceeds distributed as follows: one-half each after [Steven] is credited with the reasonable expenses to maintain the hauler during the pendency of this matter. The Court retains jurisdiction to resolve any disputes as to the terms of sale and appropriate division of the proceeds, if any.” In its intended statement of decision, the trial court found: “[The Toy Hauler] was purchased by [Steven] prior to marriage.” (Italics added.)

Steven argues that because the trial court found that he purchased the Toy Hauler prior to marriage—despite what he acknowledges to be undisputed evidence to the contrary—it was his separate property as a matter of law. Steven therefore concludes that the trial court had no jurisdiction to order the sale of that separate property asset.

There are two problems with Steven’s argument. First, the judgment does not include any finding that the Toy Hauler is separate property; and that judgment superseded the intended statement of decision’s reference to Steven’s purchasing the Toy Hauler prior to marriage. (See Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 268.) Second, even if the trial court had concluded that Steven purchased the Toy Hauler prior to marriage, we would affirm the order regarding its disposition because the uncontroverted evidence demonstrated that Steven had purchased the Toy Hauler during the marriage. Thus, to the extent the trial court concluded that the Toy Hauler was separate property, there was insufficient evidence to support that conclusion. Therefore, Steven cannot complain that he was prejudiced by the court’s order to sell that asset, which was presumptively community property. (Code Civ. Proc., § 906.)

6. Reimbursement to Kimberly for Community Assets

and Services Expended on Santa Clarita Projects

Steven testified about two of his personal development projects in Santa Clarita (the Santa Clarita projects) which he described as “handshake” agreements with clients in which he invested money and professional services. The work he performed “was to help [the clients] get entitlements with the City of Santa Clarita to develop [multi-unit apartment projects] on the property.” He claimed that all the money he invested came from his separate property accounts, and that the amounts he invested were shown on his exhibit 1 spreadsheet.

Kimberly testified that she was aware of the Santa Clarita projects and that there was “some investment going on in Santa Clarita,” but admitted that she “knew very limited information [about those projects].” Steven did not inform Kimberly when he contributed money to those investments. Kimberly’s exhibit G listed payments made by Steven on the Santa Clarita projects from January 11, 2007, to December 1, 2008. Based on exhibit G, the total amount of the payments made on those projects during the marriage was $64,732.12.

The judgment awarded Kimberly a $38,317 reimbursement for “Santa Clarita 9 and 27.” (Emphasis omitted.)

According to Steven, there was insufficient evidence to support the judgment because his evidence on this issue was largely uncontroverted and defeated Kimberly’s claim for reimbursement and, in any event, Kimberly’s evidence, exhibit G, did not show that she was entitled to the amount awarded by the court. Kimberly counters that Steven’s testimony—that the time and money he spent on the Santa Clarita projects were his separate property—was not credible and contrary to applicable law. She maintains that her uncontroverted exhibit G showing all the community payments made on these projects was sufficient evidence to support the trial court’s reimbursement award. She does not address, however, the fact that her exhibit G shows only $64,732.12 in community expenditures (for a total community share of $32,366.06), whereas the court awarded Kimberly $38,317 in reimbursement for such expenditures.

We agree with Steven that exhibit G, alone, does not support an order of reimbursement for $38,317 and instead supports an order of reimbursement for $32,366. Nonetheless, without a final statement of decision, and given the voluminous evidence of the parties’ financial contributions during the marriage, we conclude that Steven has not met his burden of demonstrating that the appealable judgment is incorrect. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295–1296.)

V. DISPOSITION

The judgment is reversed, in part, and remanded with instructions to modify the order assigning the credit line debt to Steven so as to instead characterize that debt as community debt and to thereafter comply with section 2550. The judgment is affirmed in all other respects. No costs are awarded on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

Case Number: 19STCV14964 Hearing Date: November 14, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

hilda sanchez,

Plaintiff,

v.

city of los angeles, et al.,

Defendants.

Case No.: 19STCV14964

Hearing Date: November 14, 2019

[TENTATIVE] order RE:

motions to compel discovery responses

Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) moves to compel responses from Plaintiff Hilda Sanchez (“Plaintiff”) to: (1) Request for Production of Documents, Set One (“RPD”); (2) Form Interrogatories, Set One (“FROG”); and (3) Special Interrogatories, Set One (“SROG”).

Defendant served the discovery at issue on Plaintiff by mail on July 1, 2019. Defendant provided multiple extensions of time to respond to October 8, 2019. As of the filing date of these motions, Defendant has not received responses from Plaintiff. Plaintiff did not file an opposition prior to the statutory deadline (or any opposition at all), and there is nothing in the record to suggest that Plaintiff has complied with her discovery obligations. Accordingly, the motions to compel responses to the RPD, FROG, and SROG are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve responses to Defendant’s RPD, FROG, and SROG, without objections, within 30 days of service of this order.

Defendant seeks sanctions in connection with the motions. The Court concludes that Plaintiff’s failure to respond to the discovery is an abuse of the discovery process. The Court awards sanctions against Plaintiff and her counsel of record, Raymond Ghermezian, Esq., jointly and severally, in the amount of $1,125 based upon five hours of attorney time at a rate of $225 per hour.

CONCLUSION AND ORDER

Defendant’s motions to compel responses to the RPD, FROG, and SROG are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve verified responses, without objections, within (30) days of notice of this order.

Plaintiff and Plaintiff’s counsel, Raymond Ghermezian, Esq., jointly and severally, are ordered to pay monetary sanctions in the amount of $1,125 to Defendant, by and through counsel, within thirty (30) days of notice of this order.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: November 14, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC692630 Hearing Date: November 14, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

arsen gevorgyan,

Plaintiff,

v.

elena janet arevalo raniagua,

Defendants.

Case No.: BC692630

Hearing Date: November 14, 2019

[TENTATIVE] order RE:

PLAINTIFF’s motion for order compelling defendant to produce documents

BACKGROUND

Plaintiff Arsen Gevorgyan (“Plaintiff”) moves to compel Defendant Elena Janet Arevalo Paniagua (“Defendant”) to produce photographs of damage to the vehicles involved in the underlying collision. Defendant does not oppose the motion, which is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.480, if a deponent fails to produce any document or electronically stored information under the deponent’s control, which is specified in the deposition notice, the party that noticed the deposition may move to compel the deponent to produce the evidence. (Code Civ. Proc., § 2025.480, subd. (a).)

DISCUSSION

Plaintiff took Defendant’s deposition on August 1, 2019. In the deposition notice, Plaintiff requested that Defendant produce any photographs related to the underlying collision. (Declaration of Marina Pilikyan, Exh. #1.) Defendant testified at her deposition that she had photos of the damage to the vehicles as a result of the underlying collision that she did not bring with her to the deposition. (Declaration of Marina Pilikyan, Exh. #2.) The parties agreed that Defendant would email those photos to her counsel, and that Defendant’s counsel would produce the photos to Plaintiff. (Ibid.) Defendant produced the photos, but they were in black-and-white and condensed in size. (Id., ¶ 4 & Exh. #3.) This production is not sufficient because Plaintiff specified that Defendant should produce “original color digital images . . . .” (Declaration of Marina Pilikyan, Exh. #1.) Further, Defendant did not include a verification, which was necessary because the photos were not produced at the deposition (i.e., when Defendant herself could have verified them under oath on the record). The motion is therefore granted.

Plaintiff requests sanctions against Defendant and Defendant’s counsel. The Court finds that sanctions are appropriate under Code of Civil Procedure sections 2025.450(g)(1) and 2023.030(a) because Defendant failed to produce the photographs as required by a deposition subpoena, constituting an abuse of the discovery process. Indeed, this motion was necessitated by Defendant’s gamesmanship. Therefore, the Court orders Defendant and Defendant’s counsel, jointly and severally, to pay sanctions in the amount of $810, based upon three hours of attorney time at $250 per hour plus a filing fee of $60.

CONCLUSION AND ORDER

Plaintiff’s motion to compel Defendant to produce photographs of the damage to the vehicles involved in the underlying collision is granted. Defendant shall produce all photos in her possession, custody or control of the damage to the vehicles involved in the underlying collision their original digital format within thirty (30) days of notice of this order. Defendant is also to produce a statement, under oath, that the photos are the only photos of the damage to the vehicles involved in the underlying collision in her possession.

Defendant and Defendant’s counsel of record, jointly and severally, shall pay sanctions in the amount of $810 within thirty (30) days of notice of this order. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 14, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC707380 Hearing Date: November 14, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

CHRISTOPHER CEBALLOS,

Plaintiff,

v.

JOAN PANIAGUA,

Defendant.

Case No.: BC707380

Hearing Date: November 14, 2019

[TENTATIVE] order RE:

DEFENDANT’S MOTION TO COMPEL

BACKGROUND

Plaintiff Christopher Ceballos (“Plaintiff”) filed this action following a motor vehicle collision with Defendant Joan Paniagua (“Defendant”). Defendant moves to compel third party Gerald Alexander, M.D. (“Dr. Alexander”) to comply with a deposition subpoena for the production of medical records. Defendant personally served the motion upon Dr. Alexander, and the motion is unopposed. The motion is granted.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc. § 1987.1.) Prior to serving a subpoena on a third party for the production of personal records, the party seeking the discovery must serve a copy of the subpoena on the individual to whom the records pertain. (Code Civ. Proc. § 1985.3, subd. (e).)

DISCUSSION

On May 23, 2019, Defendant served a deposition subpoena upon the custodian of records for Gerald Alexander, M.D. for the production of Plaintiff’s medical records, which are relevant because they relate to the injuries at issue in this litigation. Plaintiff objected after Defendant served him with a copy of the subpoena. Plaintiff’s objections are overruled for two independent reasons. If Plaintiff sought to stop production of the documents, he was required to file a motion to quash the subpoena. (Code Civ. Proc. §§ 1987.1, subd. (c), 1985.3, subd. (g).) The subpoena set the date for production as June 20, 2019, so Plaintiff should have filed his motion to quash the subpoena before June 14, 2019. (See Code Civ. Proc. § 1985.3, subd. (g).) As Plaintiff did not timely move to quash the subpoena, he has waived any right to prevent the production of the subpoenaed documents.

Putting that aside, even if the Court were to reach the merits of Plaintiff’s objections, they would be overruled. Plaintiff “may not withhold information which relates to any physical or mental condition which they have put in issue by bringing the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.) Therefore, Plaintiff has waived any privacy interest or privilege associated with these records.

Defendant seeks sanctions against Plaintiff’s counsel, Michael Schemtoub, in the amount of $1,430.00, pursuant to Code of Civil Procedure Section 2023.030. “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2023.030, subd. (a).) Defendant contends that Plaintiff’s counsel had made, without substantial justification, an unmeritorious objection to discovery, which has ultimately resulted in Defendant needing to bring this motion.

The Court initially heard this motion on November 8, 2019. However, the Court continued the hearing to November 14, 2019, because Defendant’s counsel stated that she did not receive advance notice that Plaintiff’s counsel would challenge the sanctions award, and Plaintiff’s counsel agreed to file a supplemental declaration on the issue whether sanctions were appropriate. The Court has now reviewed and considered that declaration, but it does not change the Court’s tentative decision to order sanctions.

Defendant served the subpoena upon Dr. Alexander on May 23, 2019. (Declaration of Mona L. Bauer, ¶ 5 & Exh. A.) Plaintiff’s counsel objected on June 15, 2019. (Id., ¶¶ 7-8 & Exh. C & D.) Plaintiff’s counsel did not withdraw the objection before the motion was filed. (Declaration of Stephanie Folan, ¶ 4.) The objection was withdrawn on October 23, 2019. (Ibid.) Nor did Plaintiff’s counsel inform Defendant’s counsel that the objection would be withdrawn prior to the filing of the motion. (Ibid.) Instead, Plaintiff’s counsel persisted in making a meritless objection from June 15, 2019 to October 23, 2019, necessitating this motion. As discussed, it was inappropriate to make an objection to Dr, Alexander, which presumably was the reason he did not comply with the subpoena. Moreover, the objection had no merit for the reasons discussed. Therefore, the Court finds that Plaintiff’s counsel abused the discovery process, necessitating this motion, which warrants sanctions. The Court orders sanctions in the amount of $585 based upon three hours of attorney time at a billing rate of $195, plus one filing fee of $60, for a total of $645.

CONCLUSION AND ORDER

Per Code of Civil Procedure section 1987.1, Defendant’s motion to compel compliance with the subpoena it served on Deponent is granted. The Court finds that Plaintiff has waived any privacy interest and privilege in the medical records in Dr. Gerald Alexander, M.D.’s possession and orders him to produce these records within twenty (20) days of notice of this order. The Court orders Plaintiff’s counsel, Michael Schemtoub, to pay sanctions in the amount of $645 to Defendant, through counsel, within twenty (20) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: November 14, 2019 ___________________________

Hon. Stephen Goorvitch

Judge of the Superior Court

Filed 11/14/19 Contreras-Perales v. Bruno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID CONTRERAS-PERALES,

Plaintiff and Appellant,

v.

LOIS ANN BRUNO,

Defendant and Respondent.

D073742

(Super. Ct. No. 37-2016-00043310-

CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Reversed.

Law Offices of Ameer A. Shah, Ameer A. Shah and Lisa Jackson for Plaintiff and Appellant.

Thompson Coe & O’Meara, Stephen M. Caine; Law Offices of John A. Hauser and Lynne Ann Pearson Houry for Defendant and Respondent.

I.

INTRODUCTION

Plaintiff David Contreras-Perales appeals from a judgment entered in favor of defendant Lois Ann Bruno after the trial court granted Bruno’s motion for summary judgment.

Contreras-Perales filed a civil tort action alleging negligence on Bruno’s part after he was injured while trimming trees that exceeded 15 feet in height at Bruno’s residence. Contreras-Perales operates a yard maintenance business and provides routine yard maintenance services to many customers, including Bruno. On the day of Contreras-Perales’s injury, Bruno had asked Contreras-Perales to trim five of the trees on her property. Contreras-Perales agreed to do so for an additional fee, above his normal fee for the routine yard maintenance. Although Contreras-Perales had his own tools that he used for regular yard maintenance, he did not have tree-trimming tools, so he borrowed a ladder and clippers from Bruno in order to complete the tree-trimming. Contreras-Perales alleged that Bruno provided him with a “defective” ladder, and that after Contreras-Perales had completed four hours of tree-trimming, the ladder “swayed/wobbled,” causing him to fall off of the ladder and sustain injuries.

In response to Contreras-Perales’s lawsuit, Bruno asserted the affirmative defense that workers’ compensation law was the exclusive remedy available to Contreras-Perales. Bruno moved for summary judgment on the basis of this affirmative defense, arguing that Contreras-Perales was presumptively considered to be Bruno’s employee because of a statute under the Workers’ Compensation Act that creates a presumption of employment status when an unlicensed worker provides services that require a license. The parties agree that a contractor’s license is required by anyone who trims trees that are 15 feet in height or higher.

Contreras-Perales conceded that he was presumptively considered to be an employee of Bruno’s for the four hours that he worked trimming the large trees on her property, but argued that another statute in the Workers’ Compensation Act excepts from the status of “employee” workers who provide services to homeowners and who have not been employed by the homeowner for 52 hours or more over the 90 days prior to the accident that caused the worker’s injury. Although Contreras-Perales provided yard maintenance services to Bruno for approximately 72 hours in the 90 days prior to his accident, he argued that he provided those services as an independent contractor, and not as Bruno’s employee, such that those hours should not be combined with the 4 hours of tree-trimming during which he must presumptively be considered to be Bruno’s employee.

The trial court agreed with Bruno’s contention that Contreras-Perales was Bruno’s employee for purposes of workers’ compensation law, concluding that the 72 hours that Contreras-Perales provided landscape maintenance services for Bruno should be added to the four hours of tree-trimming services. The court reasoned that all of the hours that Contreras-Perales spent performing landscape maintenance and tree-trimming for Bruno constituted a “single engagement,” and that Contreras-Perales had not provided any legal authority to support the idea that a “single engagement” may be split into two subparts. The trial court concluded that Bruno had sufficiently established that Contreras-Perales was her employee for purposes of workers’ compensation, and that the exclusivity provisions of workers’ compensation law required dismissal of Contreras-Perales’s civil action.

On appeal, Contreras-Perales contends that the trial court erred in concluding that he was Bruno’s employee as a matter of law for purposes of workers’ compensation law. He argues that he “did not work the requisite number of hours as an employee to be eligible for workers’ compensation coverage under Labor Code[ ] § 3352(a)(8)(A),” (italics omitted) and that he may therefore bring a civil tort action against Bruno. Contreras-Perales contends in the alternative that Bruno failed to establish that she maintained workers’ compensation insurance that would cover Contreras-Perales’s injuries. Contreras maintains that, as a result, pursuant to section 3706, which provides that an injured employee may bring “an action at law” against an employer who “fails to secure the payment of [workers’] compensation,” his claim is not subject to the exclusivity provisions of the workers compensation system and he may bring this civil tort action in court.

We agree with Contreras-Perales that there remains a material question of fact with respect to whether Contreras-Perales performed work for Bruno for a sufficient number of hours in the status of an “employee,” rather than as an “independent contractor,” to render him eligible for workers’ compensation. Specifically, there remain factual issues with respect to whether Contreras-Perales was performing as an employee when he completed the 72 hours of routine landscape maintenance work at Bruno’s residence, or instead, as an independent contractor. If Contreras-Perales was acting as an independent contractor for the 72 hours of landscape maintenance work he provided to Bruno, he would not meet the threshold 52 hours of work performed as an employee in the 90 days immediately preceding the accident to be eligible for workers’ compensation, and the exclusivity provisions of workers’ compensation law would not preclude his civil tort action.

For this reason, we conclude that the trial court erred in granting summary judgment for Bruno. We therefore reverse the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

According to the allegations of the complaint, Contreras-Perales was “hired by [Bruno] to do gardening work and was asked to trim some trees [on] her property.” According to the complaint, on December 14, 2014, “[w]hile [Contreras-Perales] was on top of the ladder, which was provided by [Bruno] and was defective, [he] was holding on to a branch with one hand for support and holding on to the ladder with the other hand, the ladder swayed/wobbled, the branch he was holding on[to] broke and caused [him] to fall all the way to [the] ground.” The complaint alleges that this fall cause Contreras-Perales to suffer physical injuries, “including fractures.”

The record contains evidence that Contreras-Perales provided gardening services to multiple customers, one of whom was Bruno, and that he provided his own tools, was paid per job, project, or engagement and not by the hour, and that he was permitted to take as long as necessary to complete the job, project or engagement. The landscape maintenance services that Contreras-Perales provided to customers included “[lawn] mowing . . . , edging sidewalks, trimming bushes, pulling . . . weeds.” Contreras-Perales had provided landscape maintenance services to Bruno “once a week or once every two weeks from 2013” until the date of his injury.

On December 14, 2014, Bruno asked Contreras-Perales to provide additional services, beyond his typical landscaping work, in the form of trimming five trees on her property. The trees measured more than 15 feet in height. Contreras-Perales agreed to do the tree trimming for an additional fee, separate from the fee that he regularly charged Bruno for yard maintenance. Contreras-Perales was not a licensed tree trimmer, and he did not have the tools or equipment necessary to carry out the tree trimming task. Therefore, Bruno provided Contreras-Perales with a ladder and clippers. Contreras-Perales had just completed trimming the fourth tree when he fell from the ladder that Bruno had provided. He had been trimming the trees for approximately four hours before the fall that caused his injuries.

Contreras-Perales had trimmed the trees on Bruno’s property twice previously, within the two years prior to Contreras-Perales’s accident. He had not trimmed them within the 90 days prior to the accident, however. In those 90 days prior to the accident, Contreras-Perales had provided landscape maintenance services for Bruno for a total of approximately 72 hours.

B. Procedural background

In December 2016, Contreras-Perales filed a form complaint against Bruno, asserting causes of action for “General Negligence” and “Premises Liability.”

Bruno filed an answer to the complaint in which she asserted a number of defenses, including the affirmative defense that Contreras-Perales’s action “is barred by the exclusive remedy of Workers’ Compensation.”

In August 2017, Bruno moved for summary judgment. Bruno contended that the undisputed facts established the affirmative defense that workers’ compensation law provided the exclusive remedy available to Contreras-Perales. Specifically, Bruno argued that at the time of Contreras-Perales’s injury, he was providing services in the capacity of Bruno’s “employee” for purposes of workers’ compensation law, and that the workers’ compensation system thus was the only remedy that Contreras-Perales could pursue. According to Bruno, Contreras-Perales was conclusively presumed to be an “employee” and not an “independent contractor” when he was trimming Bruno’s trees because section 2750.5 deems an individual who performs services for which a license is required, but does so without a license, to be an employee rather than an independent contractor, and Business and Professions Code section 7026.1, subdivision (a)(4) requires that those who contract to trim trees that are 15 feet in height or more be licensed to perform such services. Further, Bruno asserted, because Contreras-Perales had worked for Bruno for more than 52 hours during the 90 days immediately preceding the accident, he was not excluded from the definition of “employee” for purposes of the workers’ compensation system (see § 3352, subd. (a)(8)).

In support of this contention, Bruno noted that Contreras-Perales admitted that he had worked for Bruno for “[a]pproximately seventy-two (72) hours” in the 90 days prior to the date of Contreras-Perales’s fall, that the accident occurred at Bruno’s residence, that at the time of the fall, Contreras-Perales was attempting to trim a tree that was “about 15 to 20 feet in height,” and that Contreras-Perales did not possess a license to perform such tree trimming.

After receiving Contreras-Perales’s opposition to Bruno’s motion for summary judgment, the trial court issued a tentative order granting Bruno’s motion. The court subsequently heard oral argument from the parties and, on November 13, 2017, issued a minute order confirming and supplementing its tentative ruling granting Bruno’s motion for summary judgment.

In granting Bruno’s motion for summary judgment, the trial court stated, in relevant part, the following:

“In this action, it is undisputed that the subject tree exceeded 15 feet in height such that a license was required [citation]. It is undisputed that Plaintiff did not have a tree trimming license [citation]. As a result, Plaintiff cannot be considered an independent contractor. Instead he is Defendant’s employee as a matter of law. An employee’s rights against his or her employer for on-the-job injuries lies solely under the workers’ compensation law; i.e., the employer is immune from civil damages liability because workers’ compensation is the injured employee’s exclusive remedy. Labor Code 3600, 3601, 2602(a). As a result, this action is barred and the Motion is granted on this basis.

“Plaintiff contends that an exception to exclusivity exists via Labor Code section 3352(h)(1). This provision states that the definition of ’employee’ excludes ‘[a] person . . . whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, . . . was . . . for less than 52 hours.’ It is undisputed that Plaintiff worked for Defendant approximately 72 hours in the 90 days before the accident on December 14, 2014. However, Plaintiff argues that the hours he worked as a ‘gardener’ should be excluded because he was working in the capacity of an independent contractor. As a result, hours he worked as a ‘tree trimmer’ are less than 52 within the 90 days before his injury. Plaintiff argues, he was not an ’employee’ while trimming trees, and the rule of exclusivity does not apply.

“In support of this contention, Plaintiff presents evidence that he operates an independent landscape business in which he services multiple clients, utilizes his own tools, was not paid hourly, utilized specialized skills, etc. The evidence provided by Plaintiff is sufficient to create a dispute regarding whether his work for Defendant as a gardener (excluding tree trimming) was performed as an independent contractor. See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350–351 (discussing factors supporting employment relationship). On the other hand, Plaintiff fails to cite any legal authority supporting the contention that a single engagement can be split into two subparts; consisting of both an employment relationship and an independent contractor relationship. Plaintiff’s own declaration presents unrefuted evidence that the engagement was intertwined. He was retained to trim the trees as an addendum to his normal duties. The tree trimming was completed in conjunction with the normal gardening service, on the same date and at the same location. Plaintiff did not operate a separate business as a tree trimmer. Both were components of the services provided to Defendant on the same day. Thus, the separation Plaintiff seeks is not permissible and Plaintiff’s argument lacks merit.” (Italics added.)

The court added to its final ruling, as a “supplement” to the above comments, the following statements:

“Defendant satisfied its burden of persuasion regarding a finding of an employment relationship that results from the unlicensed tree trimming. This employment relationship, in turn, prevents the institution of a civil action for damages as a matter of law. At the same time, Defendant satisfied its burden of producing evidence establishing the unlicensed tree trimming. The burden then shifts to Plaintiff to present evidence supporting his proffered theory of liability. As previously discussed, Plaintiff presents no legal authority supporting the contention that a single engagement can be split into two subparts; consisting of both an employment relationship and an independent contractor relationship. And even if authority did exist, Plaintiff has not met his burden of producing evidence of this separateness. Plaintiff’s declaration does not discuss whether he was performing gardening work on the date of the tree trimming incident, whether he was paid via a separate check for the tree trimming services, whether he performed tree trimming work for other gardening clients, etc. Thus, the ruling is confirmed on this basis.” (Underscore omitted.)

The court subsequently entered judgment in favor of Bruno. Contreras-Perales filed a timely notice of appeal.

III.

DISCUSSION

A. Summary judgment standards on appeal

A motion for summary judgment “shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted . . . based on inferences . . . contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.)

A defendant moving for summary judgment based on an affirmative defense ” ‘bears an overall burden of persuasion that there is a complete defense to the plaintiff’s action’ . . . [and] must persuade the court there is no triable issue of fact as to that defense.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057.)

On appeal, this court “determine[s] de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] In other words, we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) “We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in the moving party’s favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493–494.)

“In performing . . . de novo review [of an order granting summary judgment], we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing his evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768–769.)

B. Background regarding the workers’ compensation system

“The California Workers’ Compensation Act (Act) provides an elaborate and complete scheme for the adjudication of claims by employees against employers for injuries arising out of the course and scope of employment.” (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1177.)

“Where an employee is injured in the course and scope of his or her employment, workers’ compensation is generally the exclusive remedy of the employee and his or her dependents against the employer.” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 279 (LeFiell), citing §§ 3600, subd. (a), 3602.) The Workers’ Compensation Act provides that “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is . . . the sole and exclusive remedy of the employee or his or her dependents against the employer” (§ 3602, subd. (a), italics added), and that “[i]n all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.” (§ 3602, subd. (c)). “The ‘exclusivity rule’ is based upon a presumed compensation bargain: ‘[T]he employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.’ [Citation.]” (LeFiell, supra, at p. 279.)

As the Supreme Court has explained, “a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers’ Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. [Citations.] ‘The employee is pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute. It is incumbent upon the employer to prove that the Workmen’s Compensation Act is a bar to the employee’s ordinary remedy.’ [Citation.]” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96–97, fn. omitted.)

C. Legal framework for determining whether a worker is an employee or an independent contractor

“The Worker’s Compensation Act (Act) extends only to injuries suffered by an ’employee,’ which arise out of and in the course of his ’employment.’ (§§ 3600, 3700; see Cal. Const., art. XIV, § 4 (former art. XX, § 21).) ‘[Employees]’ include most persons ‘in the service of an employer under any . . . contract of hire’ (§ 3351), but do not include independent contractors. The Act defines an independent contractor as ‘any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.’ (§ 3353.)” (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349 (Borello).)

The categories of “employee” and “independent contractor” are mutually exclusive. (City of Los Angeles v. Meyers Bros. Parking Systems, Inc. (1975) 54 Cal.App.3d 135, 138; see §§ 3351, 3352, 3353, 3357.) Whether a worker is an employee or independent contractor “is one of fact if dependent upon the resolution of disputed evidence or inferences.” (Borello, supra, 48 Cal.3d at p. 349.)

In Borello, the Supreme Court noted that the Act includes the “common law ‘control-of-work’ test” in the statutory definition of an independent contractor. (Borello, supra, 48 Cal.3d at p. 350.) However, the Supreme Court also acknowledged that “courts have long recognized that the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (Ibid.) The court went on to describe other factors that may be considered in determining whether a worker is an employee or instead, an independent contractor:

“[W]e have noted that ‘[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations.]’ [Citations.] Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. [Citations.] ‘Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ [Citation.]” (Borello, supra, at pp. 350–351.)

The Borello court also agreed that “under the Act, the ‘control-of-work-details’ test for determining whether a person rendering service to another is an ’employee’ or an excluded ‘independent contractor’ must be applied with deference to the purposes of the protective legislation. The nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the ‘history and fundamental purposes’ of the statute.” (Borello, supra, 48 Cal.3d at pp. 353-354.) Importantly, “[e]ach service arrangement must be evaluated on its facts, and the dispositive circumstances may vary from case to case.” (Id. at p. 354, italics added.)

Beyond these factors, the Labor Code includes specific statutory provisions that are applicable to the facts presented in this case. For example, section 3351 defines an ” ‘[e]mployee’ ” to mean “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed,” and specifically includes within this definition “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant,” with the exception of individuals identified “in paragraph (8) of subdivision (a) of Section 3352.” (§ 3351, subd. (d), italics added.)

Section 3352, subdivision (a), in turn, specifically excludes from the status of ” ’employee’ ” a number of different types of workers, including the following:

“(8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, for injuries as described in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury, for diseases or injuries as described in Section 5412, comes within either of the following descriptions:

“(A) The employment was, or was contracted to be, for less than 52 hours.

“(B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).[ ]” (§ 3352, subd. (a)(8).)

Section 3357 provides a presumption of “employee” status as follows: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” (Italics added.)

Finally, pursuant to section 2750.5, “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” Section 2750.5 is not a part of the workers’ compensation law, but is contained in Division 3 of the Labor Code, which deals with the employer-employee relationship; by its terms, however, section 2750.5 supplements, and applies to, workers’ compensation law. (See State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 9–15.) The parties to this case agree that under Business and Professions Code section 7026.1, subdivision (a)(4), one who provides tree trimming services on trees 15 feet in height or more is required to have a contractor’s license.

In applying these statutes together, courts have determined that a worker hired by a homeowner or by an unlicensed contractor who, in turn, has been hired by a homeowner, does not come within the workers’ compensation system’s exclusivity provisions, despite the contractor’s and worker’s unlicensed status, when that worker has not worked 52 hours or more for the homeowner, or earned $100 in wages for work performed for that homeowner, within 90 days prior to the date of injury. (See Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1016; see also Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 79 (Mendoza) [roofer injured after only four hours of beginning to work on the job came within exclusion to workers’ compensation law coverage now contained in section 3352, subdivision (a)(8)]; Cedillo v. Workers’ Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 234 [affirming Board’s determination that because injured worker “worked less than 52 hours on the roof” worker was “excluded from being” homeowner’s employee for purposes of worker’s compensation]; Heiman v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 724, 744–745 [individual owners of the units in condominium building were not liable for workers’ compensation for injury to worker hired by unlicensed contractor to work on rain gutters because worker did not work sufficient hours under former version of section 3352, subdivision (a)(8) to be an “employee” under workers’ compensation law]; see also Ramirez v. Nelson (2008) 44 Cal.4th 908, 914 [noting with approval that “[d]uring the hearing of pretrial motions it became apparent to the trial court and parties that the workers’ compensation laws were inapplicable to this case for two reasons. . . . [One of the reasons was that] the decedent had not worked the required 52 hours for the Nelsons, nor earned $100 during the 90 calendar days immediately preceding his death, so as to bring him within the special statutory definition of an ’employee’ eligible for workers’ compensation benefits, regardless of whether defendants maintained insurance that included workers’ compensation coverage for their ’employees’ “].)

D. Analysis

As the party moving for summary judgment, Bruno bore the initial burden of production of evidence to make a prima facie showing of the nonexistence of any triable issue of material fact in the trial court, and continues to bear that burden on appeal. (See Aguilar, supra, 25 Cal.4th at pp. 850–851.) Further, if Bruno meets her burden of production, and Contreras-Perales meets his own burden of production to make a prima facie showing of the existence of a triable issue of material fact, Bruno then bears the burden of persuasion to demonstrate that the evidence would not allow a reasonable trier of fact to find the underlying fact in favor of Contreras-Perales, in accordance with the applicable standard of proof. (See id. at p. 850.)

Because Bruno is relying on the affirmative defense that the workers’ compensation system provides the exclusive remedy for Contreras-Perales’s injuries, she has the burden of demonstrating that facts exist establishing this affirmative defense as a matter of law. Thus, it is Bruno’s burden to prove that Contreras-Perales was acting as an “employee” subject to workers’ compensation coverage at the time of his injury.

Bruno presented evidence to support a prima facie showing that Contreras-Perales was her “employee” for purposes of workers’ compensation law at the time of his injury. Specifically, she presented evidence that on December 14, 2014, the date on which Contreras-Perales’s injury occurred, Contreras-Perales was trimming trees on her property that exceeded 15 feet in height and that he did not have a license to perform such work. Therefore, under section 2750.5, there is a rebuttable presumption that Contreras-Perales was acting as an “employee” of Bruno’s while he was trimming trees on her property.

Given the further requirement in section 3352, subdivision (a)(8)(A) that a person who is “employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling” (§ 3351, subd. (d)) also have been employed or contracted to be employed for at least 52 hours prior to the occurrence of the injury in order to be considered an employee, at the time of the injury, for purposes of workers’ compensation law, Bruno presented evidence that Contreras-Perales conceded that he had “worked for” Bruno for more than 52 hours during the 90 days before the date of his injury.

In response to Bruno’s production, Contreras-Perales produced additional evidence regarding what had occurred between the parties—evidence that raised a material question of fact regarding whether section 3352, subdivision (a)(8)(A) operated to exclude Contreras-Perales from the status of “employee” for purposes of workers’ compensation law. Specifically, Contreras-Perales presented evidence from which a factfinder could find the following: Bruno hired Contreras-Perales to provide routine landscape maintenance at her residence, and he performed landscape maintenance services on a regular basis for Bruno and for other customers, as well. The landscape maintenance that Contreras-Perales provided consisted of a number of duties, including pulling weeds and trimming bushes, but did not include trimming trees 15 feet or more in height. Contreras-Perales was paid “by the job” and “not by the hour” for his routine landscaping services, and he could take as long as necessary to complete a task. In addition, gardeners such as Contreras-Perales typically perform their landscape maintenance services without supervision from homeowners. Contreras-Perales had provided landscape maintenance services for Bruno “once a week or once every two weeks from 2013” until the date of his injury. In the 90 days prior to the day that Contreras-Perales was injured, he had provided a total of approximately 72 hours of landscape maintenance services to Bruno at her residence.

A factfinder could also find that Contreras-Perales brought and utilized his own tools to perform landscape maintenance services for his customers, and that he did not possess tree-trimming tools. In addition, a fact-finder could find that on December 14, 2017, Bruno asked Contreras-Perales to provide additional services for her, beyond the normal landscape maintenance that he provided, by trimming five trees that exceeded 15 feet in height, and that Contreras-Perales agreed to provide the tree-trimming services for “a price in addition to, and separate from [his] regular gardening/yard maintenance fee.” In order to complete the tree-trimming assignment, Contreras-Perales had to borrow tools from Bruno, including a “tall ladder” and “hand clippers.”

Given this evidence, the trial court determined that the record on summary judgment was sufficient to create a dispute about whether the services that Contreras-Perales normally performed, i.e., gardening and landscape maintenance, was done as an independent contractor. We agree with this assessment. Indeed, there are a number of indicators from which one could find that Contreras-Perales was acting not as an employee, but as an independent contractor, during the 72 hours in which he provided routine landscape maintenance services for Bruno, under the factors identified as relevant for determining employment status in Borello, supra, 48 Cal.3d at pages 350–351. There is evidence from which one can infer that Contreras-Perales had control over his work, thereby meeting the ” ‘control-of-work’ ” test outlined in the statutory definition of independent contractor provided in section 3353. For example, Contreras-Perales stated that he could take as long as necessary to complete a task, and that gardeners like him would typically perform their tasks without supervision from homeowners. One could thus infer that Contreras-Perales controlled the means by which the result of his work was accomplished. Other factors also weigh in favor of a finding that he was acting as an independent contractor when he provided landscape maintenance services, such as the fact that he owned his own landscape maintenance business and provided his services to multiple customers, not just Bruno, that he provided his own tools and special expertise in performing landscape services, and that he was paid per project or job, and not by the hour. (See Borello, supra, at p. 351 [factors related to determination of employment relationship include “whether the one performing services is engaged in a distinct occupation or business,” “whether the principal or the worker supplies the instrumentalities, tools, . . . for the person doing the work,” and “the method of payment, whether by the time or by the job”].)

Despite the existence of all of this evidence from which one could conclude that for the 72 hours that Contreras-Perales performed landscape maintenance services for Bruno in the 90 days prior to the day of his injury he was providing his services as an independent contractor, the trial court concluded that this evidence was not sufficient to create a triable issue of fact as to whether all of the services for which Bruno contracted with Contreras-Perales constituted a “single engagement” consisting of “two subparts,” or instead, whether the services that Contreras-Perales provided could have constituted two separate engagements for services, one of which involved Contreras-Perales acting as an independent contractor (i.e., for the normal landscape maintenance work that he did on a regular basis for Bruno), and one of which involved Contreras-Perales acting as an employee (i.e., for tree trimming).

Essentially, the trial court concluded that, as a matter of law, there was a “single engagement” for all of the services, jointly—i.e., the landscape maintenance services and the tree trimming services, and further concluded that this “single engagement” could not be broken down into services performed as an independent contractor and services performed as an employee. The court erred in this regard, because there remains a material question of fact as to whether Contreras-Perales was working for Bruno in two separate capacities, such that he was an independent contractor when he provided the routine landscape maintenance services, but was acting as an employee for the hours during which he provided the tree trimming services. Of particular import for our determination is the evidence that Contreras-Perales operated his own landscape maintenance business, through which he provided landscape maintenance services that did not include trimming trees, that a license is required for the specific duties of trimming trees that are 15 feet or more in height, such that those services may generally be considered to be separate from other landscape maintenance services, that Contreras-Perales was not equipped with the tools necessary to provide tree trimming services and had to use tools that belonged to Bruno, and that Contreras-Perales agreed to perform the tree trimming for a separate amount of money “in addition to” the fee that he charged her for his regular landscape maintenance services. This evidence demonstrates that the skills and equipment necessary to perform the two tasks at issue here—routine landscape maintenance versus tree trimming—are different. Indeed, given all of the facts, it is clear that a reasonable factfinder could conclude that in the 90 days prior to Contreras-Perales’s injury, he had provided 72 hours of routine landscape maintenance services, excluding tree trimming, as an independent contractor who owned his own landscape/gardening maintenance business, and that he provided only 4 hours of tree trimming services as an employee of Bruno’s.

The trial court faulted Contreras-Perales for failing to present any “legal authority supporting the contention that a single engagement can be split into two subparts.” Based on the facts presented on summary judgment, a factfinder could conclude that Bruno contracted with Contreras-Perales for two separate services, and that he was acting as an independent contractor while performing landscape maintenance services, but was acting as Bruno’s employee while trimming trees that exceeded 15 feet in height. If Contreras-Perales was acting in the status of an independent contractor when he provided landscape maintenance services to Bruno at her residence in the 90 days prior to the accident, then the 72 hours that he worked providing routine landscape maintenance services during those 90 days cannot not be combined with the 4 hours he spent trimming trees on the property. Contreras-Perales would thus not meet the 52-hour requirement necessary to establish that he was an “employee” under sections 3351, subdivision (d) and 3352, subdivision (a)(8)(A) for purposes of workers’ compensation law at the time of his injury.

In reaching our conclusion that the trial court erred in granting summary judgment for Bruno, we reject the trial court’s faulting Contreras-Perales for failing to present evidence as to “whether he was performing gardening work on the date of the tree trimming incident, whether he was paid via a separate check for the tree trimming services, whether he performed tree trimming work for other gardening clients, etc.” and relying on this as part of the basis for granting summary judgment. The answers to these questions might provide further elucidation to assist a factfinder in determining whether the hours that Contreras-Perales provided landscape maintenance services as part of his own landscape maintenance business were performed as an independent contractor, while the hours that he spent trimming Bruno’s tall trees, for a separate fee while using Bruno’s supplies, were performed as an employee. However, Contreras-Perales had already presented sufficient evidence to demonstrate the existence of a material issue of fact as to whether he provided the 72 hours of landscape maintenance services as an independent contractor and the 4 hours of tree-trimming services as an employee, even without evidence as to the matters raised by the trial court. Further, the court appears to have placed on Contreras-Perales the burden of persuasion to establish the inapplicability of the exclusivity provisions of the workers’ compensation law, but Contreras-Perales should not have been held to such a burden. Rather, once Contreras-Perales presented evidence sufficient to rebut the presumption that he was acting as Bruno’s employee for the 52 hours required under the Act, the burden of persuasion for establishing the applicability of the exclusivity provisions of the workers’ compensation system was Bruno’s, as the defendant moving for summary judgment on the basis of an affirmative defense. It was thus error for the court to conclude that Contreras-Perales had to demonstrate that the landscape maintenance services that he provided to Bruno were performed as an independent contractor but that the tree trimming services on the date of his injury were performed as an employee, as a matter of law, in order to survive summary judgment. Rather, the court should have required Bruno to demonstrate as a matter of law that Contreras-Perales was acting in the status of Bruno’s employee for more than 52 hours in the 90 days prior to his injury. As we have already concluded, there remain issues of material fact as to whether, when Contreras-Perales provided landscape maintenance services to Bruno as part of his independent landscaping/gardening business, he was acting in the status of an independent contractor, even if he was acting in the status of an employee during the hours he provided tree trimming services for Bruno. As a result, Bruno was not entitled to summary judgment on the ground of her affirmative defense that the workers’ compensation system provided the exclusive remedy for Contreras-Perales’ injuries.

IV.

DISPOSITION

The judgment is reversed. The matter is remanded for further proceedings. Contreras-Perales is entitled to costs on appeal.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

Filed 11/14/19 Oliver v. Worldwide Corporate Housing, L.P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHIRLEY OLIVER,

Plaintiff and Respondent,

v.

WORLDWIDE CORPORATE HOUSING, L.P.,

Defendant and Appellant. B291230

(Los Angeles County

Super. Ct. No. BC516791)

APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Reversed.

Moranga & Morgenstern and Paul Andrew Elkort; Greines, Martin, Stein & Richland, Robert A. Olson and Mark J. Poster for Defendant and Appellant.

Grassini & Wrinkle, Roland Wrinkle and Robert B. Reagan, Jr. for Plaintiff and Respondent.

Fred J. Hiestand, General Counsel for Amicus Curiae, The Civil Justice Association of California.

__________________________

The question presented by this appeal is whether a landlord of a furnished apartment is strictly liable for injuries to a tenant caused by a latent defect in one of the furnishings. The Supreme Court in Peterson v. Superior Court (1995) 10 Cal.4th 1185 (Peterson) addressed this question with respect to a fixture in a hotel room in which the injured party was staying. The Court concluded that hotel owners/operators are not strictly liable for injuries resulting from defects in their premises. We find that the reasoning in Peterson applies as well to defective furnishings in a leased residence. While landlords that breach the applicable standard of care may be held liable under other tort principles for injuries resulting from defective furnishings, they are not strictly liable for such damages.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Worldwide Corporate Housing, L.P. (landlord) appeals from a judgment holding it liable for the death of a tenant, Lauren Humphrey, caused by a television that caught fire. Landlord leased a fully furnished studio apartment to Humphrey. The television was installed in the apartment when Humphrey moved in.

On November 13, 2012, a fire broke out in Humphrey’s apartment. When the firefighters arrived, the apartment was filled with smoke and Humphrey was deceased. The cause of death was determined to be carbon monoxide poisoning.

Humphrey’s mother, Shirley Oliver (plaintiff), sued Landlord and others for wrongful death based on theories of negligence and strict liability. Plaintiff settled with the television manufacturer for $1,000,000, and the court found the settlement to be in good faith. Landlord moved for summary judgment and for a directed verdict on strict products liability. The trial court denied the motions.

At trial, plaintiff proceeded on the theory that Landlord was strictly liable for injuries caused by the defective television. The jury found in favor of plaintiff and awarded her $3 million in damages. The jury further apportioned liability as follows: 80 percent to Landlord and 20 percent to the decedent. The net judgment, after apportioning liability and crediting the manufacturer’s $1,000,000 settlement with plaintiff was $1,400,000. In a motion for judgment notwithstanding the verdict, Landlord argued it was not strictly liable for plaintiff’s damages. The court denied the motion, and Landlord timely appealed.

DISCUSSION

California’s products liability doctrine “provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective product.” (Peterson, supra, 10 Cal.4th at p. 1188.) Strict liability “is not imposed even if the defendant is technically a ‘link in the chain’ in getting the product to the consumer market if the judicially perceived policy considerations are not satisfied. Thus, a defendant will not be held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among defendants. [Citations.]” (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1537.)

The Peterson court was confronted with an injury caused by a fall in a hotel bathroom. The present appeal involves related, but not identical facts—a wrongful death caused by a television that caught fire in a rented apartment. The parties, understandably, have different views on whether this factual distinction has any legal significance. Landlord argues that the principles articulated in the Supreme Court’s opinion in Peterson mandate that landlords not be held strictly liable for such injuries. Plaintiff relies on Fakhoury v. Magner (1972) 25 Cal.App.3d 58 (Fakhoury) for the argument that a landlord is not the same as a hotel proprietor, and that a landlord that furnishes a large number of televisions should be considered a distributor of that product to which strict products liability applies. We decline to follow Fakhoury but rather conclude, under the reasoning of Peterson, strict liability does not apply here.

In Peterson, a hotel guest was injured when she slipped and fell in the bathtub. (Peterson, supra, 10 Cal.4th at p. 1189.) Our Supreme Court held that “neither landlords nor hotel proprietors are strictly liable on a products liability theory for injuries to their respective tenants and guests caused by a defect in the premises.” (Id. at pp. 1188–1189.) Instead, liability was limited to premises liability based on a breach of the standard of care. (Id. at pp. 1189.)

The Peterson court explained why imposing strict liability on retailers in the chain of distribution did not support the extension of strict liability to the case before it. “In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end . . . . Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.” (Peterson, supra, 10 Cal.4th p. 1198.)

The court observed that most of the “reasons for imposing strict liability upon a retailer of a defective product do not apply to landlords or hotel proprietors who rent residential premises.” (Peterson, supra, 10 Cal.4th at pp. 1198–1199.) “A landlord or hotel owner, unlike a retailer, often cannot exert pressure upon the manufacturer to make the product safe and cannot share with the manufacturer the costs of insuring the safety of the tenant, because a landlord or hotel owner generally has no ‘continuing business relationship’ with the manufacturer of the defective product.” (Id. at p. 1199.) “The mere circumstance that it was contemplated customers of these businesses would use the products . . . or be benefited by them does not transform the owners of the businesses into the equivalent of retailers of the products. [Citation.]” (Id. at pp. 1199–1200.)

Peterson expressly overruled Becker v. IRM Corp. (1985) 38 Cal.3d 454 (Becker). (Peterson, supra, 10 Cal.4th at p. 1190.) The plaintiff in Becker was injured by a shower door in an apartment he rented from the defendant. (Becker, at p. 458.) The Supreme Court held the defendant strictly liable, reasoning that “a lease for a dwelling contains an implied warranty of habitability” and, thus, a landlord makes an “implied assurance of safety.” (Id. at pp. 462, 465.)

The Becker court relied on Fakhoury in support of its holding. (Becker, supra, 38 Cal.3d at p. 464.) In Fakhoury, a couch in a furnished apartment injured the plaintiff, and the court held the landlord strictly liable for the defective piece of furniture. (Fakhoury, supra, 25 Cal.App.3d at p. 63.) The Becker court concluded that “the rationale” of Fakhoury “establishing the duties of a landlord and the doctrine of strict liability in tort, requires us to conclude that a landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises . . . .” (Becker, at p. 464 (emphasis added).)

We find significant that when the Peterson court framed the issue before it, the court stated it could treat Becker in one of two ways. “We granted review in the present case to decide whether Becker was wrongly decided and should be overruled, or, if Becker is not overruled, whether the principles underlying that decision apply outside the landlord-tenant context and warrant the imposition of strict products liability upon the proprietor of a hotel for an injury to its guest caused by a defect in the hotel premises.” (Peterson, supra, 10 Cal. 4th at p. 1188.) If the court had taken the second path, Peterson and Becker could have coexisted with different rules for landlords and hotel proprietors. But it did not. “Upon reexamining the basis for Becker’s holding with regard to the proper reach of the products liability doctrine, we conclude that we erred in Becker in applying the doctrine of strict products liability to a residential landlord that is not a part of the manufacturing or marketing enterprise of the allegedly defective product that caused the injury in question.” (Ibid.)

Plaintiff attempts to draw a distinction between defects in the premises (the bathtub in Peterson) and a defective furnishing (television in the present case) provided by a landlord. We see nothing in Peterson that would allow for different treatment.

The purpose of strict liability “ ‘is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ [Citation.]” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 348.) By contrast, landlords are not obligated insure the safety of their tenants. Nor, on this record, would holding landlords strictly liable lead to safer products or the spreading of loss through the chain of commerce. Whether the defect is with a fixture or a furnishing, it does not always follow that landlord has the ability to exert pressure upon the manufacturer to make the product safe. A defendant landlord often has no continuing business relationship with manufacturers that would allow it to share the costs of insuring the safety of the tenant. The Peterson court cited one commentator who predicted that, in fact, the “cost of insuring risk will not be distributed along the chain of commerce but will probably be absorbed by tenants who will pay increased rents.” (Peterson, supra, 10 Cal.4th at p. 1199.)

We hold that Peterson precludes strict liability against a landlord of a furnished apartment where, as on the facts here, a tenant is injured by a defective furnishing. The trial court erred in denying Landlord’s motion for judgment notwithstanding the verdict.

DISPOSITION

The judgment is reversed. Appellant Worldwide Corporate Housing, L.P. is awarded its costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.