Marriage of Valkova CA2/3 ( 2022 )

Filed 2/15/22 Marriage of Valkova CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of VLADO B304187
VALKOV and ANA VALKOVA.
VLADO VALKOV, Los Angeles County
Super. Ct. No. BD643724
Appellant,
v.
ANA VALKOVA,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joshua D. Wayser and Timothy M. Weiner,
Judges. Affirmed.
John L. Dodd & Associates and John L. Dodd for Appellant.
Kearney Baker and Gary W. Kearney for Respondent.
_______________________________________
INTRODUCTION
Vlado Valkov1 appeals from the final judgment in this
heavily litigated marital dissolution action. Vlado challenges the
trial court’s denials of his repeated requests for a trial
continuance, the court’s refusal to enforce a stipulated settlement
between him and his former wife, Ana Valkova, and the court’s
imposition of approximately $85,000 in monetary sanctions
against him under Family Code 2 section 271 due to his conduct
during the litigation.
We conclude that the court did not abuse its discretion in
denying Vlado’s requests for a trial continuance because Vlado
failed to demonstrate good cause for a continuance. Specifically,
when Vlado asked to continue the trial in order to reopen
discovery, he did not explain why the materials he sought to
discover were unavailable prior to the discovery cut-off date. And
when Vlado repeatedly requested to continue the trial due to
mental health concerns, he failed to provide any medical evidence
supporting his contention that he was unable to attend the trial.
Regarding the stipulated settlement, the court reasonably
exercised its equitable authority to set that agreement aside,
particularly in light of the extremely inequitable terms of the
agreement and Vlado’s aggressive conduct throughout the
litigation. Finally, the record amply supports the court’s
imposition of sanctions under section 271. Accordingly, we affirm.
1 As is typical in marital dissolution cases, we refer to the parties by
their first names. No disrespect is intended.
2 All undesignated statutory references are to the Family Code.
2
FACTS AND PROCEDURAL BACKGROUND
1. Background
Vlado and Ana married in May 1998 and have two minor
children. Vlado is an architect and Ana worked in Vlado’s
business during the marriage. The parties separated on July 16,
2016.
2. Criminal Complaint
In December 2015, Vlado contacted the Culver City Police
Department and reported that Ana had written checks from a
business checking account and forged his signature without his
knowledge or consent. Vlado said he had been out of the country
in early December and while he was away Ana had forged seven
checks. He reported additional fraudulent checks in March 2016.
Vlado also contacted US Bank and submitted a fraud claim in the
amount of $10,872.85, which US Bank approved. Subsequently,
criminal charges were brought against Ana.
Ana did not learn about the criminal investigation until
July 4, 2016.
3. Restraining Order and Petition for Dissolution
On July 20, 2016, Ana filed and was granted a temporary
restraining order against Vlado based on a history of domestic
violence.3 One week later, Vlado initiated these marital
dissolution proceedings.
3In March 2017, the court granted Ana’s request for a five-year
domestic violence restraining order.
3
4. Stipulated Property Division
In April 2017, Vlado and Ana agreed to sell the family
residence (the condo) to Sol Levitt, a business acquaintance of
Vlado’s. Two documents were executed in furtherance of the sale:
an agreement regarding the sale signed by Vlado, Ana, and
Levitt (agreement to sell) and a stipulation regarding the couple’s
property division (stipulated property division).
The stipulated property division required Ana to transfer
her community property interest in the condo to Vlado and
required Vlado to assume the encumbrances on the condo,
including the mortgage, property taxes, and homeowners’
association dues. Ana also agreed that Vlado would receive all
the proceeds of the condo sale, a property in Bulgaria purchased
by the couple during the marriage which was worth
approximately $50,000, a vehicle worth approximately $23,000, a
22 percent interest in a property in Beverly Hills with a total
value of approximately $285,000, Vlado’s business and all
business assets (including bank accounts4 and accounts
receivable), credit card debt of $60,000, and a debt to Vlado’s
parents of approximately $75,000. For her part, Ana would
receive a vehicle worth approximately $6,000, bank accounts
containing less than $50, a debt to the IRS of $1,931, credit card
debt of approximately $51,000, and unsecured loans of roughly
$40,000. As compensation for the unequal division of community
property, Ana would receive an “equalization payment” of
4These accounts contained more than $44,000 at the time judgment
was entered.
4
$42,000 and Vlado would sign a civil compromise related to the
bank fraud case instigated against Ana by Vlado.5
The agreement to sell provided that Vlado would sell the
condo to Levitt for the below-market price of $420,000, minus the
encumbrances of approximately $130,000 (the mortgage,
delinquent property taxes, and delinquent homeowners’
association fees). From the roughly $290,000 net proceeds of the
sale, Levitt would pay Ana $42,000 in three installments.6 These
payments represented an “equalization payment” due to Ana
from Vlado. The remaining proceeds of the sale—approximately
$250,000—would be paid to Vlado.
As required under the stipulated property division, Ana
signed a quitclaim deed transferring her interest in the condo to
Vlado in June 2017. And pursuant to the agreement to sell,
Levitt made two of the three required payments to Ana. But
Vlado refused to sell the condo to Levitt for the agreed-upon
price.
5. Draft Settlement Agreements
In June 2017, while they were contemplating the sale of the
condo, Vlado and Ana attempted to settle the dissolution action.
Specifically, on June 23, 2017, a Friday afternoon, Ana’s attorney
5 As explained post, the parties executed the stipulated property
division but did not have their signatures notarized as required by the
stipulation. The parties then agreed notarization would not be
required. Ana’s counsel circulated a modified version containing
handwritten interlineations with blanks for the parties to initial their
agreement. Ana initialed the modified stipulation. Vlado did not.
6 Ana needed the cash to pay the attorney who was defending her in
the criminal action and to make restitution to US Bank.
5
emailed Ana and Vlado a draft marital settlement agreement
(Ana’s proposed MSA) incorporating the terms of the stipulated
property division. Within one hour, Ana signed the agreement
and returned her copy to her counsel.
Vlado did not sign Ana’s proposed MSA. Instead, during the
weekend of June 24 and 25, 2017, Vlado worked with Levitt to
draft an alternative marital settlement agreement (Vlado’s
proposed MSA) that contained several terms that were materially
different than Ana’s proposed MSA. Late in the evening of
June 25, 2017, Levitt emailed Ana’s counsel Vlado’s proposed
MSA with a cover note stating that Ana’s proposed MSA “ ‘gets us
close but as written is not acceptable.’ ” Vlado signed Vlado’s
proposed MSA in the early morning hours of June 26, 2017. Ana
did not sign Vlado’s proposed MSA.
6. First Bifurcated Trial and Stipulation
As noted, Vlado refused to sell the condo to Levitt for the
agreed-upon price. To resolve the issue, Ana filed a complaint for
joinder in October 2017 seeking to join Levitt to the dissolution
action and asking the court to determine the parties’ interests in
the residence. The court granted the joinder request pursuant to
stipulation of the parties. The court ordered a bifurcated trial in
early February 2018 regarding the sale of the condo and
allocation of related debts and the proceeds. Vlado filed a cross-
complaint against Levitt alleging Levitt was his attorney and
asserting a claim for breach of fiduciary duty against him.
The first bifurcated trial commenced on February 5, 2018,
and resulted in a stipulation by Vlado, Ana, and Levitt
concerning the conditions of sale of the condo. The property was
later sold for $560,000. The net proceeds of the sale ($286,222)
were held in a trust account by Ana’s counsel.
6
7. Vlado’s Request for Entry of Judgment Regarding
Proposed MSA
The matter was initially set for trial in October 2018. The
court ordered all discovery to be propounded by July 10, 2018,
and to be completed by August 30, 2018. The court also indicated
that if Vlado wanted to file a motion for entry of judgment under
Code of Civil Procedure section 664.6, he should do so no later
than July 10, 2018.
In July 2018, Vlado requested entry of judgment pursuant
to Code of Civil Procedure section 664.6. Specifically, Vlado asked
the court for “entry of a Judgment covering child custody and the
division of debts and assets executed on June 23 and 24, 2017, by
each party.” Vlado represented that he had fully complied with
Ana’s proposed MSA but denied that Ana had executed a
quitclaim deed transferring her interest in the condo to him. He
attached a copy of Ana’s proposed MSA bearing his signature
with the handwritten date of June 24, 2017.
Ana opposed the request and advised the court that the
parties had not settled the case and that the document filed by
Vlado was inaccurate. Ana requested that the court address the
issues at trial.
8. Stipulated Property Division Signed by the Court
In late August 2018, Vlado submitted to the court a copy of
the stipulated property division bearing both his and Ana’s
signatures. In addition, the copy filed with the court included two
interlineations eliminating the requirement that signatures be
notarized. Both interlineations were purportedly initialed by
Vlado and Ana. The court immediately signed and filed the
stipulated property division (property division order).
7
Also during that month, Ana filed a request for order
seeking to compel discovery and requesting evidentiary sanctions
as well as monetary sanctions in the amount of $4,372.50
relating, in part, to Vlado’s failure to appear at his noticed
deposition. The matter was subsequently continued for hearing at
trial.
9. Second Bifurcated Trial Regarding Proposed MSA
In November 2018, the court conducted a three-day trial
regarding Vlado’s request to enter judgment on Ana’s proposed
MSA. A major issue to be resolved at trial was whether Vlado
signed Ana’s proposed MSA on June 24, 2017, as Vlado
represented to the court. Vlado apparently7 testified that he did
so and claimed Ana’s proposed MSA was binding and enforceable.
Vlado explained that he worked with Levitt over the weekend of
June 24 and 25, 2017 to prepare a “supplemental agreement”
rather than a counterproposal to Ana’s proposed MSA. Ana and
Levitt also testified.
The court concluded, based on the credibility of the
witnesses and the documentary evidence, that Vlado did not sign
Ana’s proposed MSA on June 24, 2017, as he claimed. Instead,
the court found Vlado backdated his signature at some later time
and therefore the parties had not mutually agreed to the terms of
Ana’s proposed MSA in June 2017. Accordingly, and after taking
the matter under submission, the court issued a written order on
November 28, 2018, denying Vlado’s request to enter judgment
predicated on Ana’s proposed MSA. The court did not address
7The appellate record does not include a reporter’s transcript of those
proceedings.
8
issues raised by Ana concerning the enforceability of the
stipulated property division.
10. Ana’s Request to Set Aside the Stipulated Property
Division and Order, Request for Sanctions Under
Section 271
In February 2019, Ana filed a request for order seeking to
set aside the property division order and rescind the stipulated
property division. She also requested sanctions against Vlado
under section 271. Ana submitted several versions of the
stipulated property division bearing the parties’ signatures and
initials. Those documents indicated that Vlado did not fully
execute the stipulated property division in 2017.8 Ana asserted
that, as with her proposed MSA, the parties had not
contemporaneously agreed to and executed the stipulated
property division.
Ana argued, among other things, that equitable principles
authorized the court to set aside the property division order and
rescind the stipulated property division. Specifically, Ana argued
she had signed the stipulated property division under extreme
duress stemming from the abusive marital relationship, lack of
financial support from Vlado prior to and during their separation,
mounting bills, and the criminal prosecution instigated by Vlado.
Documents submitted with the request for order indicated that
Ana signed the stipulated property division, in which Vlado
8 As noted, both Vlado and Ana signed the stipulated property division
in April 2017. However, Vlado did not initial the handwritten changes
made by counsel that eliminated the notarization requirement at that
time.
9
promised to execute a civil compromise concerning his fraud
claims, one day before the scheduled pretrial hearing in the
criminal matter.
Regarding her request for sanctions, Ana noted that she
had incurred over $100,000 in attorney’s fees in the marital
dissolution action, much of which was necessitated by Vlado’s
obstruction and aggressive litigation tactics. She argued Vlado
repeatedly delayed the case, refused to comply with discovery
requests and court orders, failed to appear at his deposition, and
unreasonably refused to sell the condo which required Ana to
litigate that issue. She also incurred substantial fees in defending
against Vlado’s bad faith request for entry of judgment
predicated on a forged version of Ana’s proposed MSA. Ana’s
request for order was continued for hearing at trial on July 25,
2019.
11. Vlado Seeks Further Discovery
On June 3, 2019, Vlado obtained and served a subpoena on
US Bank seeking records relating to an account in Ana’s name
for the period 2014 to the present. Ana filed a motion to quash
the subpoena and requested sanctions against Vlado, arguing
that the motion failed to provide proper notice and was filed
almost one year after the discovery cut-off date.9
On June 24, 2019, Vlado obtained and served a subpoena
on Union Bank seeking records relating to an account in Ana’s
name for the period September 1, 2001 to the present.
9In August 2019, Vlado withdrew the subpoena and asked the court to
deny Ana’s request for sanctions. The court granted Ana’s motion to
quash and awarded sanctions in the amount of $3,240.
10
12. Vlado’s Requests for Trial Continuance
12.1. Additional Discovery
On June 28, 2019, Vlado submitted an ex parte application
seeking to reopen discovery and extend the cut-off date to July
30, 2019 and to continue the trial date from July 25, 2019 to
August 30, 2019. In his supporting declaration, and in his sworn
statements to the court, Vlado represented that he had recently
discovered “new and disturbing” facts and information that were
“critically important for that case.”
The court denied the request without prejudice on the
ground that Vlado failed to demonstrate good cause for the
continuance. Vlado became upset in the courtroom and the
following exchange occurred:
“Vlado: Your honor, it has been continued twice
because of the respondent. This is the first time I’m asking for
continuance just to review crimes.
“Ana’s counsel: That’s not true, Your Honor.
“Vlado: Those are the facts.
“Court: All right. Thank you.
“Vlado: Why would you do that to me?
“Court: I’m not continuing it. Thank you.
“Vlado: Why – Why are you – Why are you –
“Court: Sir –
“Vlado: Why are you – why are you supporting
criminal?
“Bailiff: Sir, stop. Stop.
“Vlado: Why are you supporting criminal? I cannot
stand the injustice any more.
“Bailiff: Just relax.
11
“Vlado: I cannot have the right to – I cannot have the
right to say something, sir?
“Bailiff: Relax. I want you to sit down. Sit down.”
The transcript of the proceeding concludes at that point.
Following the termination of the recorded proceeding, however,
Vlado used a razor blade to cut his own wrist horizontally three
times while still in the courtroom. Vlado was restrained by
several bailiffs and later taken to a hospital.10 He was released in
less than 24 hours.
12.2. Mental Health
On July 24, 2019, one day before the third bifurcated trial
was set to begin, Vlado filed an ex parte request for a continuance
due to “temporary mental incapacity.” In connection with the ex
parte request, Vlado was represented for the first time by new,
recently retained counsel. Counsel represented that Vlado’s
“mental state [has] inhibited his ability to assist [counsel] in
preparing for [t]his matter and actively participating in
preparing for trial. [Vlado] is currently receiving a treatment at
the American Indian Counseling Center according to [a
representative] of the Department of Mental Health. The trial
date is currently July 25, 2019. With the current trial date,
[Vlado] does not have time to sufficiently recover from his
treatment to assist counsel in the preparation for his trial.”
Counsel represented that he had been retained by Vlado on
10On July 2, 2019, citing Vlado’s attempt to harm himself in court,
Ana filed an emergency request for sole legal and physical custody of
the children with no visitation for Vlado. The court granted the request
pending a further hearing.
12
July 16, 2019, and had only met with Vlado once. The ex parte
application attached a letter from the County of Los Angeles
Department of Mental Health dated July 17, 2019, stating that
Vlado had been attending outpatient psychotherapy on a weekly
basis since February 2019, and had made “minimal progress.”
The letter was not written by a treating physician.
Ana opposed the request for a continuance on several
grounds. First, Ana noted that the letter submitted in support of
the request for a continuance was not signed by a physician nor
did it suggest that Vlado was incapacitated, hospitalized, or
otherwise unavailable to attend the trial. Second, although
Vlado’s attempt to harm himself in court was troubling, Vlado
was not held on an involuntary inpatient basis after that incident
nor was he taking any medication to treat any mental health
condition. Ana also documented Vlado’s prior attempts to delay
the trial as well as his recent attempt to reopen discovery and
further delay the trial. Finally, Ana noted that Vlado’s current
counsel was Vlado’s twelfth attorney of record11 in the dissolution
matter.
The court (Judge Lewis) denied the ex parte request. The
following day, on the morning trial was to begin, Vlado’s counsel
renewed the request for a continuance on the ground that the
court had not properly considered the request on the merits. Due
to an illness, Judge Lewis was unavailable and the request for
reconsideration was heard by a different judge. After reviewing
11 One of Vlado’s prior attorneys was relieved as counsel by the court
after Vlado threatened to hurt the attorney’s family. Another attorney
advised Ana’s counsel that he no longer wished to represent Vlado due
to Vlado’s “ ‘inability to control his anger and lash out to others [sic].’ ”
13
the court file, the court denied Vlado’s motion to reconsider the
request for continuance and the matter proceeded to a different
courtroom for trial.
13. Third Bifurcated Trial on Remaining Issues
13.1. Proceedings
A short cause trial took place over two days in July 2019
and an additional day in September 2019 before Judge Wayser.
Ana, her counsel, and Levitt appeared, as did Vlado’s counsel of
record. Vlado, however, did not attend the trial.
At the outset of the trial, Vlado’s counsel renewed the
request to continue the trial based on Vlado’s purported
unavailability due to mental health concerns. The court denied
the renewed request.
With the agreement of counsel, the court agreed to consider
as evidence prior declarations submitted by the parties. As a
result, the majority of the testimony and evidence presented at
trial related to Levitt’s claim for lost profit on the purchase and
sale of the condo and Vlado’s cross-complaint against Levitt
concerning a purported attorney-client relationship between
Levitt and Vlado. That testimony is not relevant to this appeal.
In addition, Ana testified about financial transactions relating to
the sale of the condo, payoff of the debts relating to the condo,
and other assets and debts owned by the community. The court
then requested briefing from the parties on the remaining issues.
On the final day of trial, September 6, 2019, Ana provided
additional testimony regarding community property assets and
debts. And counsel argued whether the stipulated property
division and related order should be set aside based on undue
influence.
14
13.2. Findings
After considering the testimony, documentary evidence,
oral and written arguments, and the credibility of the witnesses,
the court issued its ruling on October 7, 2019. After summarizing
the history of the case, the court commented, “One consistent
theme emerges from the above description of the proceedings:
Vlado has misused the Court process to further his agenda with
respect to Ana. [¶] Vlado has gone through 12 family law lawyers
in this case, which is a clear and obvious sign that something is
amiss. Parties, of course, have the right to counsel of their
choosing. But at a certain point, reason and reality must come
into play. Going through that many lawyers can be caused by any
combination of several factors, but none of those factors would
likely comply with the spirit of FC 271.” Concerning the trial
testimony, the court found that Levitt and Ana were credible and
presented a cogent and comprehensive account of the relevant
facts.
The court specifically found that Vlado had misused the
criminal court process to exert pressure on Ana in an attempt to
leverage an inequitable property settlement from her.
Accordingly, the court chose not to enforce the stipulated
property division and instead would distribute the community
property equally. The court also granted Ana’s request for
sanctions under section 271, commenting: “This case sadly is the
very reason why FC 271 must exist as an effective tool for trial
court judges. A five-year ROAH is issued; claims of financial
abuse are then brought by the offending spouse against the
victim of DV; the abusing spouse attempts to use undue
advantage to leverage an unequal distribution of the community
[property], and then the abusing spouse prolongs the proceedings
15
and continues with inappropriate behavior in and out of court.
FC 271 was designed just for this type of situation … .”
14. Final Judgment and Appeal
The court (Judge Weiner) entered a final judgment on
January 21, 2020.
14.1. Property Division
As pertinent here, the court awarded Vlado the following
significant items of community property, including any
encumbrances:
◦ Proceeds from the sale of the condo of $137,090;
◦ Real property in Bulgaria valued at $50,020;
◦ An automobile valued at $23,346;
◦ An investment interest in a property in Beverly
Hills valued at $66,708;
◦ Vlado’s business, DBA Design Initiatives; and
◦ A business bank account containing $44,357.
The court also confirmed as Vlado’s separate property,
including any encumbrances:
◦ Real property in Bulgaria valued at $44,494; and
◦ Proceeds from the prior sale of property in
Bulgaria of $49,907.
The court awarded Ana the following significant items of
community property, including any encumbrances:
◦ Proceeds from the sale of the condo of $149,132;
and
16
◦ An automobile valued at $5,965.
The court also confirmed as Ana’s separate property debts
in the amount of $93,950.
Due to the unequal distribution of assets and debts, Vlado
owed Ana $135,920 as an equalization payment.
14.2. Sanctions
The judgment also included an award of sanctions against
Vlado under section 271 in the amount of $85,739.25, comprising
$3,240 (of which $882 had been paid) relating to Ana’s motion to
quash the subpoena issued to US Bank, $4,372.50 relating to
Ana’s motion to compel discovery responses, and $79,008.75
relating to the proceedings to set aside the stipulated property
division and subsequent court order.
14.3. Distribution of Community Funds
At the time judgment was entered, the proceeds from the
sale of the condo, held by Ana’s attorney in a trust account,
totaled $286,222. The court ordered the entire amount to be paid
to Ana and ordered Vlado to pay the remaining balance owed to
Ana, $85,739.25, immediately upon entry of the judgment.
The court entered the judgment on January 21, 2020, and
served notice of entry of judgment that day. Vlado timely appeals.
DISCUSSION
Vlado argues the court erred in denying his requests for a
trial continuance, setting aside the stipulated property division
and related court order, and imposing sanctions against him
under section 271. We address these issues in turn.
17
1. The court did not abuse its discretion in denying
Vlado’s repeated requests for a trial continuance.
1.1. Legal Principles and Standard of Review
California Rules of Court, rule 3.1332 (Rule 3.1332),
governs motions for continuance of a trial. As its starting point,
the rule states: “To ensure the prompt disposition of civil cases,
the dates assigned for a trial are firm. All parties and their
counsel must regard the date set for trial as certain.” (Rule
3.1332(a).) Trial continuances are “disfavored,” and “[t]he court
may grant a continuance only on an affirmative showing of good
cause requiring the continuance.” (Rule 3.1332(c).) As pertinent
here, good cause for a continuance may exist due to “[a] party’s
excused inability to obtain essential testimony, documents, or
other material evidence despite diligent efforts” or where a party
is unavailable “because of death, illness, or other excusable
circumstances.” (Rule 3.1332(c)(2), (6).) Assuming good cause is
shown, the court must also consider all relevant facts and
circumstances surrounding the request for a continuance
including, for example, “[t]he proximity of the trial date,”
“[w]hether there was any previous continuance, extension of
time, or delay of trial due to any party,” “[t]he length of the
continuance requested,” “[t]he prejudice that parties or witnesses
will suffer as a result of the continuance,” and “[w]hether the
interests of justice are best served by a continuance, by the trial
of the matter, or by imposing conditions on the continuance.”
(Rule 3.1332(d)(1)–(3), (5), (10).)
We review the denial of a motion to continue the trial date
for an abuse of discretion. (Schlothan v. Rusalem (1953) 41 Cal.2d
414, 417; Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, 814.)
“ ‘[T]he appropriate test of abuse of discretion is whether or not
18
the trial court exceeded the bounds of reason, all of the
circumstances before it being considered.’ ” (In re Marriage of
Ackerman (2006) 146 Cal.App.4th 191, 197.) “ ‘The burden is on
the party complaining to establish an abuse of discretion, and
unless a clear case of abuse is shown and unless there has been a
miscarriage of justice a reviewing court will not substitute its
opinion and thereby divest the trial court of its discretionary
power.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
“ ‘ “The abuse of discretion standard … measures whether, given
the established evidence, the act of the lower tribunal falls within
the permissible range of options set by the legal criteria.” ’
[Citation.] As long as there is a reasonable or even fairly
debatable justification for the ruling, we will not set it aside.”
(Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1195.)
1.2. Vlado failed to demonstrate good cause to
continue the trial to conduct additional
discovery.
As noted, approximately one month before trial was set to
begin, Vlado requested to continue the trial from July 25, 2019 to
August 30, 2019. He also asked the court to reopen discovery and
set a new discovery cut-off date of July 30, 2019. The court denied
the request without prejudice on the ground that Vlado failed to
demonstrate good cause for the continuance. Vlado contends the
court abused its discretion by denying his request.
As pertinent here, good cause for a continuance may exist
due to “[a] party’s excused inability to obtain essential testimony,
documents, or other material evidence despite diligent efforts.”
(Rule 3.1332(c)(6).) Vlado failed to establish any “excused
inability” to obtain the evidence “despite diligent efforts.” Vlado’s
one-page declaration states broadly that he “recently discovered a
19
new disturbing information which is critically important for that
case and we want to know the truth! 1) The respondent [Ana]
broke her fiduciary duty by opening secret accounts and
embezzling family funds using a fraudulent scheme. 2) The
respondent [Ana] hid those accounts and did not disclose them. It
is a 3 years case—1 month continuance should not be a problem.
But will help us learn the truth. Why the respondent is so afraid
of discovering the truth and is opposing the justice?” (Sic.) Vlado
makes no mention, however, of his prior discovery efforts or any
specific action taken by Ana to conceal information from him. His
statements in court shed no light on that issue.
It appears that Vlado hoped to obtain bank records from
two banks—US Bank and Union Bank—regarding accounts he
suspected were held by Ana at those institutions. Regarding
Union Bank, Vlado averred that “[i]n June 2019 the petitioner
[Vlado] received by mail an ad revealing that the respondent
[Ana] is having undisclosed bank account. There is underlying
assumption/reasonable suspicion that the Respondent failed to
hasn’t disclosed (at discovery completed on 08/30/18) 2 bank
accounts and the court needs to issue a new discovery and
continuation of July 25-26 trial.” (Sic.) The declaration
attachments included an image of a postcard from Union Bank
addressed to “Ana Valkova or Current Occupant” inviting the
recipient to “[o]pen a new business checking account and receive
a $350 Bonus.” On its face, the advertisement does not suggest
that Ana already had an account at Union Bank nor does it
support a reasonable inference that she did, particularly given
that the invitation to open an account was addressed to Ana or a
current occupant.
20
As to US Bank, Vlado attached copies of bank statements
addressed to “Ana V Valkova dba Design Initiatives” at the condo
address. The statements include handwritten12 notations such as
“There is no ‘Ana V Valkova dba Design Initiatives’ registered!
There is only ‘Vlado Valkov dba Design Initiatives’! Mrs. Valkova
fraudulently opened ‘Ana V Valkova dba Design Initiatives[’]
bank account and stole $22,500 from my dba!” The two legible
statements from US Bank were dated May and August 2014, well
before the dissolution proceedings began and well before
discovery was concluded. But in his declaration, Vlado did not
explain why he was unable to obtain statements from US Bank
before the discovery cut-off date. In other words, he provided no
evidence of prior diligent efforts to obtain these bank records and
therefore failed to establish good cause to continue the trial and
conduct additional discovery.
Vlado does not address this issue in his appellate briefs,
except to say that “[g]iven Ana’s financial offenses at the outset of
this case, the trial court abused its discretion in denying a
reasonable continuance so that Vlado could obtain and analyze
all claims, accounts[,] and assets.” For the record, however, the
court never made any factual findings relating to Ana’s alleged
criminal conduct and observed that, “given Vlado’s other conduct,
it appears unlikely” that Vlado’s accusations of fraud were
truthful.
12The handwriting appears similar, if not identical, to Vlado’s
handwritten declaration.
21
In short, Vlado failed to demonstrate good cause for a trial
continuance in order to conduct additional discovery. Accordingly,
the court did not abuse its discretion in denying his request.
1.3. Vlado failed to demonstrate good cause to
continue the trial based on an illness or other
medical condition.
Vlado also made repeated requests to continue the trial due
to his mental state. As noted, one day before the third bifurcated
trial was set to begin, Vlado filed an ex parte request for a
continuance due to “temporary mental incapacity.” That request
and several requests for reconsideration were denied by three
different judges because Vlado failed to proffer any evidence that
he was unable to attend the trial.
As we have said, a court may find good cause to continue a
trial due to “[t]he unavailability of a party because of death,
illness, or other excusable circumstances.” (Rule 3.1332(c)(2).)
The Rules of Court do not define “unavailability” and the parties
have not attempted to do so. But we conclude that, under any
reasonable standard, Vlado failed to establish that he was
unavailable to attend the trial. The only evidence Vlado provided
in support of his ex parte application was a letter from the
County of Los Angeles Department of Mental Health dated
July 17, 2019, stating that Vlado had been attending outpatient
psychotherapy on a weekly basis since February 2019, and had
made “minimal progress.” The letter was not written by a
treating physician and does not suggest that Vlado was unable to
attend or participate in the trial. Vlado did not appear at the ex
parte hearing, nor did he submit a declaration supporting the
request for a continuance.
22
Ana submitted evidence demonstrating that Vlado was not
incapacitated. Specifically, with Vlado’s consent, Ana’s counsel
contacted the author of the letter. Counsel stated in her
responsive declaration that after the in-court incident, Vlado was
not placed on an involuntary psychiatric hold and was instead
released to a friend after less than 24 hours. Further, according
to the letter’s author, Vlado was not a danger to himself, he had
not threatened to hurt himself or anyone else, he did not need in-
patient treatment, and he was not taking any medication to treat
any mental health condition. Finally, although the author of the
letter indicated Vlado might be impacted by “ ‘a language barrier
or processing issue’ ” during court proceedings, she did not
identify any mental health issue that would preclude Vlado from
participating in or require a postponement of the trial.
Vlado cites two cases to support his contention that he was
unable to attend the trial due to illness, neither of which is of
assistance to him. First, in Jaffe v. Lilienthal (1894) 101 Cal. 175(Jaffe), the court held that the trial court abused its discretion in
denying a request for a trial continuance made on the day of trial
by the plaintiff.13 But there, the plaintiff submitted two
affidavits—his own and his physician’s—demonstrating that he
suffered from “an attack of acute rheumatism … and was wholly
unable to move or leave his room … and in the opinion of his
physician would not be able to leave his room in less than two
months.” (Id. at p. 176.) Further, both the plaintiff and his
attorney stated that the plaintiff’s presence at trial was
13Like Rule 3.1332, the applicable law authorized a court to grant a
continuance in the absence of a party for good cause. (Jaffe, supra, 101
Cal. at p. 178.)
23
“indispensably necessary.” (Ibid.) Vlado produced no similar
evidence here.
Vlado also cites Betts Spring Co. v. Jardine Machinery Co.
(1914) 23 Cal.App. 705, in which a court’s denial of a request for a
continuance was reversed. There too, a party (the defendant)
moved for a continuance on the basis of good cause due to an
illness. That motion was supported by a declaration stating that
“three months prior thereto the [defendant] had suffered a stroke
of apoplexy, and shortly thereafter visited Europe, where he went
on the advice of his physician in an endeavor to regain his health;
that he was in Scotland at the present time, and it would be two
months before he returned to San Francisco. The affidavit also
averred that the [defendant] was the only witness to prove the
matters and things set forth in his defense.” (Id. at p. 706.)
Notably, “there was no intimation that the motion was not made
in good faith, nor was there any showing that the plaintiff would
be injured or prejudiced by the delay.” (Id. at pp. 706–707.) As
already noted, Vlado produced no evidence that he had a
disabling illness. And as for good faith, Vlado’s conduct
throughout the litigation reflects his pattern of delaying and
obstructing the proceedings. The fact that Vlado’s then-current
counsel was Vlado’s twelfth attorney of record in the dissolution
matter also casts doubt on his tactics.
In short, Vlado failed to demonstrate good cause for a trial
continuance due to unavailability based on an illness.
Accordingly, the court did not abuse its discretion in denying his
requests for a continuance of the trial on that basis.
24
2. The court did not err in setting aside the stipulated
property division and related order on equitable
grounds.
2.1. Legal Principles and Standard of Review
Vlado contends that, instead of dividing the community
property equally, the court should have enforced the stipulated
property division. (§ 2550.) “Property settlement agreements
occupy a favored position in the law of this state[.]” (Adams v.
Adams (1947) 29 Cal.2d 621, 624.) And generally speaking, courts
are reluctant to disturb them “except for equitable
considerations. A property settlement agreement, therefore, that
is not tainted by fraud or compulsion or is not in violation of the
confidential relationship of the parties is valid and binding on the
court.” (Ibid.; In re Marriage of Woolsey (2013) 220 Cal.App.4th
881, 897–898; In re Marriage of Egedi (2001) 88 Cal.App.4th 17,
22.)
Nevertheless, settlement agreements such as the stipulated
property division at issue are subject to attack on several
grounds. “[A] trial court may set aside an MSA on traditional
contract [grounds]. ‘An MSA is governed by the legal principles
applicable to contracts generally. [Citation.]’ [Citations.]” (In re
Marriage of Egedi, supra, 88 Cal.App.4th at p. 22.) As with all
contracts, consent to agreements between spouses must be freely
given, mutual, and communicated by one party to the other and
such agreements are voidable and subject to rescission or set-
aside by a party whose consent was obtained through duress,
menace, fraud, undue influence or mistake. (See, e.g., In re
Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1523.)
A court may also invalidate an agreement that is
inequitable. “Family law cases ‘are equitable proceedings in
25
which the court must have the ability to exercise discretion to
achieve fairness and equity.’ [Citation.] ‘ “Equity … will assert
itself in those situations where right and justice would be
defeated but for its intervention.” [Citation.]’ [Citation.] Thus,
‘marital settlement agreements may be set aside where the court
finds them inequitable even though not induced through fraud or
compulsion. [Citations.]’ [Citation.]” (In re Marriage of Egedi,
supra, 88 Cal.App.4th at pp. 22–23.)
We review a court’s ruling dividing property for abuse of
discretion. (See In re Marriage of Oliverez (2019) 33 Cal.App.5th
298, 309.)
2.2. Analysis
Ana sought to set aside the stipulated property division on
multiple legal and equitable grounds including that she signed
the agreement under duress, Vlado breached the agreement, she
detrimentally relied on the agreement, the agreement is
unconscionable due to the gross disparity in the distribution of
community assets, and Vlado should be prohibited from
attempting to enforce the agreement due to his unclean hands.
The court agreed that the stipulated property division should not
be enforced and found that Vlado failed to rebut the presumption
of undue influence under section 721.
The court did not abuse its discretion in setting aside the
stipulated property division and property division order as a
matter of equity. First, and notwithstanding the provision14 in
14The stipulated property division states, “The parties further
acknowledge and agree that they enter into this agreement
26
the stipulated property division to the contrary, there is evidence
that Ana signed the stipulation under duress which would nullify
her consent to the agreement. (See In re Marriage of Balcof,
supra, 141 Cal.App.4th at p. 1523 [noting duress “ ‘is shown
where a party “intentionally used threats or pressure to induce
action or nonaction to the other party’s detriment” ’ ”]; see also
In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 90 [such
avowals might themselves be the product of undue influence].)
Certainly, her trial testimony supports the point. Discussing the
stipulated property agreement and agreement to sell the condo,
Ana said she agreed to the deal because “I want to finish the
whole saga with Mr. Valkov. I was on the edge. He was pushing
me on the edge to fall in, in, in, in the face. I didn’t have any
other choices.” Indeed, the very fact that the stipulated property
division includes a provision requiring Vlado to sign a civil
compromise, coupled with the grossly disproportionate division of
property in Vlado’s favor,15 supports Ana’s contention that she
signed the stipulated property division because of the pending
criminal prosecution. We agree with the court’s characterization
of these events: “Vlado misused the criminal court process to
leverage a settlement from Ana.” That Vlado sought to enforce
voluntarily, free from duress, fraud, undue influence, coercion or
misrepresentation of any kind.”
15 Vlado received nearly all the community property (assets worth
more than $300,000) in exchange for an equalization payment of
$42,000 and his agreement to sign a civil compromise in the pending
criminal case against Ana.
27
the stipulation even though he did not fully honor the deal16 also
supports the court’s decision to set it aside.
Additional facts surrounding the stipulated property
division also support the court’s decision not to enforce it on
equitable grounds. As noted, the stipulated property division was
signed and negotiated at the same time as the agreement to sell
the couple’s condo. In accordance with the stipulation, Ana
quitclaimed her interest in the condo to Vlado to facilitate the
prompt sale of the property to Levitt. As part of the agreement to
sell, Levitt agreed to pay Ana the $42,000 equalization payment
Vlado owed her. But Vlado refused to sell the condo according to
the agreement to sell and therefore Levitt did not make the full
equalization payment to Ana. Thus, not only did Ana not receive
the benefit of her bargain with Vlado and Levitt, but she was also
forced to join Levitt to the case and seek court intervention to sell
the condo—at a considerable cost both in terms of time and
money.
Finally, we reject Vlado’s assertion that the court could not
set aside the stipulated property division because it was
incorporated into the property division order. None of the
authorities cited by Vlado holds that a court loses its inherent
equitable authority to set aside a stipulated agreement when the
agreement is incorporated into a court order. Further, even if
16 Although Vlado apparently signed a civil compromise at one point,
on August 10, 2017, Vlado’s counsel wrote to the District Attorney’s
office stating Vlado’s intent to withdraw any previous agreement to
enter into a civil compromise. Counsel represented that the civil
compromise was signed as part of a global settlement that did not come
to fruition.
28
Vlado is correct that the presumption of undue influence did not
apply and it was Ana’s burden to demonstrate why the stipulated
property division and related property division order should be
set aside, she did so. (See In re Marriage of Kieturakis, supra, 138
Cal.App.4th at p. 90 [party seeking relief from a judgment that
incorporates an unequal marital settlement agreement must bear
the burden of proof where the judgment is at least six months
old]; see also Navigators Specialty Ins. Co. v. Moorefield
Construction, Inc. (2016) 6 Cal.App.5th 1258, 1287–1288 [“If
substantial evidence supported the implied finding [made by the
trial court], then the trial court’s misallocation of the burden of
proof would be harmless because there would be no reasonable
probability the court’s decision would have been different in
absence of the error.”].)
In sum, we see no error in the court’s decision to exercise
its equitable authority to set aside the stipulated property
division as well as the order confirming that stipulation.
3. The court did not abuse its discretion in imposing
sanctions against Vlado under section 271.
3.1. Legal Principles and Standard of Review
Vlado contends the court abused its discretion in awarding
Ana approximately $85,000 in attorney’s fees as a sanction
against him under section 271. Subdivision (a) of that section
provides: “Notwithstanding any other provision of this code, the
court may base an award of attorney’s fees and costs on the
extent to which the conduct of each party or attorney furthers or
frustrates the policy of the law to promote settlement of litigation
and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys. An
29
award of attorney’s fees and costs pursuant to this section is in
the nature of a sanction. In making an award pursuant to this
section, the court shall take into consideration all evidence
concerning the parties’ incomes, assets, and liabilities. The court
shall not impose a sanction pursuant to this section that imposes
an unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this
section, the party requesting an award of attorney’s fees and
costs is not required to demonstrate any financial need for the
award.”
“Section 271 authorizes a fees and costs award as a penalty
for obstreperous conduct.” (Robert J. v. Catherine D. (2009) 171
Cal.App.4th 1500, 1520.) “ ‘The imposition of sanctions under
section 271 is committed to the sound discretion of the trial court.
The trial court’s order will be upheld on appeal unless the
reviewing court, “considering all of the evidence viewed most
favorably in its support and indulging all reasonable inferences
in its favor, no judge could reasonably make the order.”
[Citation.]’ [Citation.]” (Sagonowsky v. Kekoa (2016) 6
Cal.App.5th 1142, 1152.)
3.2. Analysis
The court’s order awarding sanctions is predicated in part
on the following relevant findings: “The facts are troubling. Vlado
sought an unequal distribution of the community asset[s]. He
initially obtained it by Ana’s agreement (albeit under undue
influence). But then Vlado lost his leverage because the criminal
charges against Ana had been dropped with his consent in the
interim. When he lost that leverage, he started to engage in other
litigation tactics. Judge Leis found that he backdated [Ana’s
proposed MSA] to try to create a settlement where one did not
30
exist. And this Court finds that Vlado knowingly and wrongfully
filed the [stipulated property division] when he knew or should
have known that it was no longer enforceable or capable of
performance. All of this against … a five-year [domestic violence
restraining order], with Vlado recently engaging in an act that
would itself be considered a lethality factor in domestic violence
(self-harm) and Vlado having gone through 12 lawyers.” As
described in detail ante, these factual findings are supported by
substantial evidence.17
Nevertheless, Vlado contends the court abused its
discretion in awarding fees under section 271. For the most part,
Vlado simply ignores the evidence and prior court findings
against him. He argues, for example, that he tried to settle the
case “via the April 18, and June 24, 2017, agreements, which Ana
negotiated with benefit of counsel, and both she and her counsel
signed. Ana, not Vlado, refused not only to settle, but sought to
avoid her own negotiated settlements, first by opposing Vlado’s
section 664.6 motion and then by seeking to have the 2017
stipulation and resulting order set aside. This conduct is the
opposite of the policy sought to be furthered by section 271.” Of
course, the court found that Vlado and Ana did not reach an
agreement on June 24, 2017, and found further that Vlado
17 Many of Vlado’s bad-faith tactics took place while he acted as his
own attorney. Vlado retained 12 different attorneys during the course
of the proceedings below. One of Vlado’s prior attorneys was relieved
as counsel by the court after Vlado threatened to hurt the attorney’s
family. Another attorney advised Ana’s counsel that he no longer
wished to represent Vlado due to Vlado’s “ ‘inability to control his
anger and lash out to others [sic].’ ”
31
fraudulently backdated Ana’s proposed MSA and then attempted
to enforce it, necessitating a multi-day court trial. This is only
one of many examples cited by the court in its order that support
the award of sanctions in this case.
Vlado also contends the sanctions award is an
unreasonable financial burden on him and points to evidence that
his income was relatively low in the years preceding the trial.
Income is not the only measure of ability to pay, however. As
noted, in addition to awarding Vlado more than $300,000 in cash
and community property assets, the judgment confirms as
Vlado’s separate property assets valued at approximately
$95,000. Vlado does not explain why those assets cannot be used
to pay the sanctions award and has therefore failed to establish
an abuse of discretion on the part of the court.
32
DISPOSITION
The judgment is affirmed. Respondent Ana Valkova shall
recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
LIPNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
33