Marriage of Jia & Liu CA2/8 ( 2021 )

Filed 3/5/21 Marriage of Jia & Liu CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Marriage of LEI JIA and B299976
WEI ZHI LIU.
LEI JIA, (Los Angeles County
Super. Ct. No. BD651575)
Respondent,
v.
WEI ZHI LIU,
Appellant.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County. Mark H. Epstein and Steve Cochran,
Judges. Affirmed.
Aijun Zhang for Appellant.
C. Stephanie Chen; and Lei Jia, in pro. per. for Respondent.
____________________________
Lei Jia and Wei Zhi Liu appeal and cross-appeal from a
judgment rendered in connection with their acrimonious
dissolution proceedings. In a 30-page statement of decision, the
trial court decided numerous issues related to the valuation and
distribution of their marital property. In a separate order, the
trial court awarded attorney fees to Jia under the Family Code.
Liu and Jia both assert there is insufficient evidence to support
the trial court’s findings and award of attorney fees. We conclude
substantial evidence supports the trial court’s findings, the court
did not abuse its discretion to value and order the distribution of
marital property as it did, and the award of attorney fees was
appropriate. We affirm.
FACTS
Liu and Jia were married on October 11, 2011, and they
separated on December 13, 2016. During the dissolution
proceedings, the parties’ dispute centered on the distribution and
valuation of real property located in Temple City (Temple City
property) and Arcadia (Arcadia property) as well as the real
estate company incorporated by Liu during their marriage,
Guangsha Investment, Inc. (Company). Additionally, the parties
alleged each breached his or her fiduciary duty to the other by
improperly transferring hundreds of thousands of dollars to third
parties or making noncommunity expenditures.
After six days of trial and opportunity for the parties to
comment on its rulings, the court issued a comprehensive 30-page
final statement of decision on June 14, 2019. It reserved the
issue of attorney fees, setting forth a deadline for the parties to
file a request for order. The trial court ordered Jia’s counsel to
prepare a final judgment. Liu appealed from the final statement
of decision on August 13, 2019.
2
On August 22, 2019, the trial court awarded Jia $56,313.76
in attorney fees and costs and $5,000 in expert fees pursuant to
Family Code section 271. The trial court further awarded Jia
$3,549.00 for fees and costs under Family Code section 1101. Liu
appealed from the attorney fees and costs award on November
27, 2019.
On January 27, 2020, the judgment in the dissolution
matter was filed and entered by the trial court. On February 11,
2020, Jia filed a notice of cross-appeal from the judgment. Liu’s
appeal of the attorney fees and costs award was consolidated with
this case by order dated March 11, 2020.
DISCUSSION
I. Motions to Dismiss
We first address the competing motions to dismiss that
were filed by the parties. Both motions are denied.1
Jia contends Liu’s appeal from the final statement of
decision rather than the judgment should be dismissed because a
statement of decision is not an appealable order. (Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901
[“a statement of decision is not treated as appealable when a
formal order or judgment does follow”].) While Jia is correct Liu
appealed from a nonappealable order, we “may treat a notice of
appeal filed after the superior court has announced its intended
ruling, but before it has rendered judgment, as filed immediately
after entry of judgment.” (Cal. Rules of Court, rule 8.104(d).) Jia
1 The parties also seek to amend or correct their notices of
appeal for various typographical or other errors. The motions to
amend, filed by Jia on March 3, 2020, and by Liu on October 7,
2020, are denied.
3
does not contend she was misled as to what orders or judgments
were encompassed by Liu’s appeal or that she was prejudiced in
any way by his premature appeal. Because we must liberally
construe a notice of appeal in favor of its sufficiency, we exercise
our discretion to treat Liu’s notice of appeal as filed immediately
after entry of judgment. (Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20;
Grossman v. Davis (1994) 28 Cal.App.4th 1833, 1838, fn. 1; Cal.
Rules of Court, rule 8.100(a)(2).)
Liu contends Jia’s cross-appeal should be dismissed
because it was untimely. Liu tethers the time to appeal to the
date of the final statement of decision rather than the judgment.
Based on this date, he contends his appeal was timely and Jia’s
cross-appeal was untimely under California Rules of Court, rule
8.108(g), which specifies: “If an appellant timely appeals from a
judgment or appealable order, the time for any other party to
appeal from the same judgment or order is extended until 20
days after the superior court clerk serves notification of the first
appeal.”
Jia’s notice of cross-appeal was filed on February 11, 2020,
more than 20 days after the superior clerk court served her with
notification of Liu’s first appeal on August 15, 2019. As discussed
above, however, the final statement of decision is not an
appealable order and we exercise our discretion to treat Liu’s
notice of appeal as if it was filed immediately after the judgment.
By our calculation, then, Jia’s February 11, 2020 notice of cross-
appeal was filed within 20 days after the date judgment was
entered—January 27, 2020. It is therefore timely.
4
II. Standards of Review
The standards of review applicable to a divorce proceeding
are well established. “[I]n a proceeding for dissolution of
marriage or for legal separation of the parties, the court
shall, . . . divide the community estate of the parties equally.”
(Fam. Code, § 2550.) We review a trial court’s decisions
regarding valuation and distribution of community property for
abuse of discretion. (In re Marriage of Sivyer-Foley & Foley
(2010) 189 Cal.App.4th 521, 526.) “The trial court possesses
broad discretion to determine the value of community assets as
long as its determination is within the range of the evidence
presented. [Citation.] The valuation of a particular asset is a
factual question for the trial court, and its determination will be
upheld on appeal if supported by substantial evidence in the
record. [Citation.]” (In re Marriage of Nichols (1994) 27
Cal.App.4th 661, 670.)
To the extent the parties challenge the sufficiency of the
evidence to support the trial court’s other factual findings, our
review is also for substantial evidence. (Bickel v. City of
Piedmont (1997) 16 Cal.4th 1040, 1053 (Bickel); In re Marriage of
Mix (1975) 14 Cal.3d 604, 614.) Under those well-known
principles, “ ‘ “the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,” to support the findings
below. [Citation.] We must therefore view the evidence in the
light most favorable to the prevailing party, giving it the benefit
of every reasonable inference and resolving all conflicts in its
favor . . .’ [Citation.]” (Bickel, supra, at p. 1053.) In judging
whether substantial evidence supports the trial court’s findings,
appellate courts do not reweigh evidence or reassess the
5
credibility of witnesses. (In re Marriage of Balcof (2006) 141
Cal.App.4th 1509, 1531 (Balcof).)
In five appellate briefs spanning hundreds of pages, both
parties attempt to reargue the “facts” as they see them, an
argumentative presentation that disregards the admonition that
they are not to “merely reassert [their] position at . . . trial.”
(Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664,
687; accord, Albaugh v. Mt. Shasta Power Corp. (1937) 9 Cal.2d
751, 773.) This “factual presentation is but an attempt to reargue
on appeal those factual issues decided adversely to [him or her] at
the trial level, contrary to established precepts of appellate
review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co.
(1982) 32 Cal.3d 388, 398–399.)
We also note that though both litigants are self-
represented,2 they are held to the same standards as a party
represented by counsel. “[M]ere self-representation is not a
ground for exceptionally lenient treatment.” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 984.) Parties who represent
themselves must adhere to the same restrictive rules of
procedure as attorneys. (Id. at pp. 984–985.) Thus, a self-
represented litigant is subject to forfeiture of an issue just as an
attorney would be: “ ‘An appellate court will ordinarily not
consider procedural defects or erroneous rulings, in connection
with relief sought or defenses asserted, where an objection could
have been but was not presented to the lower court by some
appropriate method . . . .’ ” (Doers v. Golden Gate Bridge etc. Dist.
(1979) 23 Cal.3d 180, 184, fn. 1; see also, e.g., Haywood v.
Superior Court (2000) 77 Cal.App.4th 949, 957, fn. 6.)
2 Liu retained counsel to represent him at oral argument.
6
III. The Temple City Property
Liu purchased the Temple City property in January 2011,
nine months before he married Jia. He made a down payment of
$88,000 and made $2,694 in principal payments from his
separate property for a total of $90,694. When Liu proposed to
Jia, he offered to add her to the grant deed as a wedding gift.
The transfer was formally recorded on October 14, 2011. After
their marriage, the mortgage was paid from community assets.
The trial court found Liu was entitled to recover the $90,694 he
contributed to the Temple City property prior to marriage. The
trial court also assessed charges against Liu for his exclusive use
of the property after the date of separation pursuant to In re
Marriage of Watts (1985) 171 Cal.App.3d 366, 373–374 (Watts).
Liu and Jia both challenge the trial court’s rulings associated
with the Temple City property.3 We conclude reversal is not
required.
A. Liu Has Forfeited His Argument the Appreciation
in Value of the Temple City Property Should Be
Included in the Reimbursement Calculation
Lui asserts the Temple City property increased in value by
$43,000 from the time he purchased it to the time he added Jia to
the deed. He contends the trial court erred when it failed to
include the appreciated value to calculate his reimbursement
3 In his reply brief, Liu argues the trial court erred when it
upheld the interspousal transfer because it was conducted with
“undue influence” in violation of Family Code section 721,
subdivision (b) since it advantages Jia at the expense of Liu.
According to Liu, no one informed him of the impact the transfer
would have if the couple divorced. “[P]oints raised for the first
time in a reply brief on appeal will not be considered.”
(Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.)
7
amount. Liu has forfeited this argument for failure to raise it
below.
Liu contends he has not forfeited the issue because he
requested reimbursement under Family Code section 2640, which
automatically includes any appreciation earned prior to the
conversion to community property.4 Further, Liu cites to a trial
exhibit prepared by his expert that sets forth a $43,000 increase
in value for the Temple City property from January 2011 to
October 2011.
Liu does not direct us to any portion of the record that
shows he requested the trial court include the appreciated value
in its calculation for reimbursement. Indeed, the trial court
expressly held the statute provided that any reimbursement was
“without interest or adjustment for appreciation.” Thus, the
court’s calculation did not include the appreciated value.
Although Liu objected to the court’s proposed statement of
decision on other grounds, he did not object on this ground or
otherwise direct the court’s attention to this purported error.
Accordingly, he may not now contend he is entitled to include the
appreciated value in calculating his separate property interest in
the Temple City property. (In re Marriage of Arceneaux (1990) 51
4 Although we need not address whether the appreciation in
value may be included in the reimbursement calculation, we note
Family Code section 2640, subdivision (b) specifies: “the party
shall be reimbursed for the party’s contributions to the
acquisition of property of the community property estate to the
extent the party traces the contributions to a separate property
source. The amount reimbursed shall be without interest or
adjustment for change in monetary values and may not exceed the
net value of the property at the time of the division.” (Italics
added.)
8
Cal.3d 1130, 1132 [appellant waived his objection to any errors in
the statement of decision when he failed to object to its alleged
deficiencies]; Avalos v. Perez (2011) 196 Cal.App.4th 773, 776 [a
party forfeits his or her claim of error by not bringing the error to
the trial court’s attention in a timely manner].)
B. Substantial Evidence Supports Reimbursement of
Liu’s Separate Property Contribution
Jia contends Liu was not entitled to reimbursement under
Family Code section 2640 for his separate property contribution
to the Temple City property because it was a gift to her upon
their marriage. By Jia’s calculation, the gift included the
amounts spent by Liu prior to marriage to acquire the property.
We disagree.
Family Code section 2640, subdivision (b) provides
reimbursement for separate property “unless a party has made a
written waiver of the right to reimbursement or has signed a
writing that has the effect of a waiver . . . .” We agree with the
trial court that there is no writing indicating Liu intended to
waive his right to reimbursement under Family Code section
2640. Further, Jia has presented no authority that holds the
deed stating the transfer was a gift constitutes a written waiver
under Family Code section 2640, subdivision (b). Jia failed to
demonstrate prejudicial error on this issue. (In re Marriage of
McLaughlin (2000) 82 Cal.App.4th 327, 337.)
C. Substantial Evidence Supports the Watts Charge
Liu next challenges the trial court’s calculation of the Watts
charges for his exclusive use of the Temple City property during
the 28 months between separation and trial. A Watts charge is
applicable when one spouse has exclusive use of an asset between
separation and trial and must reimburse the community for the
9
reasonable value of that use. (In re Marriage of Garcia (1990)
224 Cal.App.3d 885, 890; Watts, supra, 171 Cal.App.3d at pp.
373–374.)
At trial, Jia testified she searched the MLS system to
conclude the fair rental value for the Temple City property was
$2,600 per month. Liu estimated the fair rental value to be
between $2,000 and $2,300 per month. Both Jia and Liu hold
real estate licenses. The trial court, however, credited Jia’s
testimony because she demonstrated she conducted research to
support her estimate of the fair rental value of the Temple City
property while Liu did not. Jia’s testimony constitutes
substantial evidence of the fair rental value of the Temple City
property. We decline to second guess the trial court’s decision to
credit Jia’s testimony rather than Liu’s. (Balcof, supra, 141
Cal.App.4th at p. 1531.)
Liu attempts to disqualify Jia’s testimony, asserting she
was not qualified as an expert to testify to the fair rental value of
the Temple City property. It is well established, however, that
the value of a property may be shown by the property owner’s
testimony. (Evid. Code, § 813, subd. (a).)
Relying on In re Marriage of Garcia, supra, 224 Cal.App.3d
at page 891, Liu also argues he should not be charged under
Watts because he paid all the mortgage and other costs of the
Temple City property after separation. This argument is
meritless. A spouse may offset Watts charges with what are
known as Epstein credits: “where the asset is not owned outright
by the community but is being financed, and the monthly
payments equal or exceed the reasonable value of the asset’s use,
the spouse may satisfy the duty to compensate the community for
use of the asset by making the monthly finance payments from
10
his or her separate property.” (In re Marriage of Garcia, supra,
224 Cal.App.3d at pp. 890–891.) Thus, “[w]here a spouse with
exclusive use of a community asset after separation makes the
monthly finance payments on the asset, he or she is not required
to further compensate the community for use of the community
asset where the monthly finance charges equal or exceed the
reasonable value of said use each month and the paying spouse
does not obtain Epstein credits for the monthly payments.” (Id.
at p. 891.) Because Liu received Epstein credits for his payments,
he was appropriately subject to Watts charges for his exclusive
use of the Temple City property.
We likewise reject Liu’s contention that the Watts charges
should be reduced by one third due to his separate property
interest in the Temple City property. As described above, Liu
was reimbursed for his contribution to the purchase of the
Temple City property. Thus, he cannot claim to own any part of
the Temple City property as separate property.
IV. The Arcadia Property
Jia and Liu purchased the Arcadia property in December
2012 for $617,000, intending to build a new home on it. After
they separated, Jia lived in the Arcadia property. Liu contends
the trial court erred when it determined Jia was entitled to
reimbursement for her contribution of separate property towards
the purchase price. Liu also challenges the trial court’s valuation
of the property and the Watts charge against Jia’s use of the
property.
11
A. Substantial Evidence Supports Reimbursement to
Jia of Her Contribution to the Purchase of the
Arcadia Property
Liu contends the evidence shows Jia did not contribute any
noncommunity funds to the purchase of the Arcadia property.
Liu’s argument relies on highlighting the deficiencies in Jia’s
testimony and evidence at trial. He merely asks us to reweigh
the evidence, which we may not do. (Balcof, supra, 141
Cal.App.4th at p. 1531.) We conclude Jia’s testimony and
evidence at trial constitute substantial evidence to support the
trial court’s finding.
A “party shall be reimbursed for the party’s contributions
to the acquisition of property of the community property estate to
the extent the party traces the contributions to a separate
property source. The amount reimbursed shall be without
interest or adjustment for change in monetary values and may
not exceed the net value of the property at the time of the
division.” (Fam. Code, § 2640, subd. (b).) “Generally speaking
such post-marital property can be established to be separate
property by two independent methods of tracing. The first
method involves direct tracing. . . . The second method involves
consideration of family expenses.” (In re Marriage of Mix, supra,
14 Cal.3d at p. 612.) The family expenses method “is based upon
the presumption that family expenses are paid from community
funds. [Citation.] If at the time of the acquisition of the property
in dispute, it can be shown that all community income in the
commingled account has been exhausted by family expenses,
then all funds remaining in the account at the time the property
was purchased were necessarily separate funds. [Citation.]”
(Ibid.)
12
At trial, Jia claimed she contributed $36,980 in separate
property to the $200,000 down payment for the Arcadia property.
Liu claimed a $7,000 separate property contribution. Jia, who is
a certified public accountant, testified she used the “family
expenses” method to trace the source of the funds used for the
down payment. She explained her Bank of America account
contained $37,895 when she married Liu. She then listed the
deposits and withdrawals for that account during marriage,
showing community expenses had exhausted the community
funds in the account at the time they purchased the Arcadia
property. As a result, a portion of the remaining funds used to
purchase the property were necessarily her separate funds. Liu
cross-examined her on the topic. The trial court admitted into
evidence trial exhibit 47, which set forth the tracing analysis
conducted by Jia regarding her contribution to the down
payment. Liu confirmed he received the underlying bank
statements on which trial exhibit 47 was based. Indeed, the bank
statements were later admitted into evidence.
The trial court found Jia’s tracing analysis to be
appropriate and Liu had failed to undermine her methodology
during cross-examination. It further declined to reimburse Liu
for his claimed $7,000 contribution because Liu did not conduct
any tracing to support his claim. Exhibit 47, which was admitted
without objection, and Jia’s testimony constitute substantial
evidence to support the trial court’s finding that she used $36,980
in separate property to aid in the purchase of the Arcadia
property. Jia was thus entitled to reimbursement.
Liu disagrees with the trial court’s view of the evidence.
He argues Jia failed to demonstrate the community income was
exhausted at the time of purchase because trial exhibit 47
13
showed a balance of $70,775 as of October 23, 2012. According to
Liu, this proved the community funds were not exhausted at the
time they purchased the Arcadia property because the balance
was more than $36,980. We disagree. The balance appears to
show the parties had $70,775 available to contribute towards
their $200,000 down payment, of which $36,980 was Jia’s
separate property. Indeed, the trial court specifically questioned
Jia about the account balance listed in trial exhibit 47. She
explained it was merely for reference purposes and the trial court
accepted that answer. On cross-examination, Liu did not
question Jia about the $70,775 balance. He may not on appeal
question Jia’s tracing methodology when he failed to do so at
trial.
Liu also faults Jia for failing to specify whether each
expenditure on trial exhibit 47 was for community or
noncommunity purposes. The presumption that funds in a
commingled account are community property also applies to
expenditures using funds withdrawn from a commingled account.
(In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 100.) Liu
was unable to overcome the presumption that they were
community expenses; as discussed below, the trial court
determined Jia did not breach her fiduciary duty to him by
withdrawing community funds for noncommunity purposes.
B. Substantial Evidence Supports the Watts Charge
Jia lived in the Arcadia property while they were
separated. Jia testified the kitchen and one bathroom were
inoperable due to plumbing issues, the roof leaked, the heating
did not work, and the foundation was cracked. Jia also testified
the Arcadia property could not be rented because it was in such
poor condition. Nevertheless, she equated the rental value of the
14
Arcadia property with renting a bedroom and a bathroom in
someone’s home. She explained those were the only two rooms
that were usable in the house. She estimated the rental value to
be $600 per month. Liu’s expert testified to the average rent per
square foot of a home in Arcadia without considering the poor
condition of the property. He estimated a rental value of $2,569
to $3,053 per month for the Arcadia property. The trial court
disregarded Liu’s expert’s analysis, finding it “off base.” The trial
court instead credited Jia’s testimony. The trial court had
discretion to accept or reject any expert opinion. (In re Marriage
of Rosen (2002) 105 Cal.App.4th 808, 820.) As a result, Jia’s
testimony constituted substantial evidence of the trial court’s
finding regarding the Watts charge for the Arcadia property.
Liu argues on appeal the trial court should have
disregarded Jia’s testimony because it was presented on rebuttal
after both parties had presented their case-in-chief. Liu argues
this procedural “irregularity” prejudiced him but fails to explain
how. Neither does he present any legal authority that would
render her testimony inadmissible on this basis. He has failed to
meet his burden to demonstrate prejudicial error. (In re
Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.)
Liu also contends the trial court failed to comply with its
own formula for calculating the fair rental value of the Arcadia
property. He specifically relies on the trial court’s observation
that “[t]he proper analysis . . . would be to determine what would
need to be done to bring the property into a condition in which it
could be rented. Then one could determine the rental value
based on the property as repaired multiplied by the number of
months at issue and subtract the cost of repair. . . . No one did
that type of analysis, however.”
15
Liu contends Jia’s expert offered testimony that it would
cost $8,000 to repair the property. As a result, he argues the trial
court should have abided by its own formula by subtracting the
$8,000 figure provided by Jia’s expert from the rental estimate
provided by his expert. This argument is meritless. Jia’s expert
opined it would cost “$8,000 just [to] make [it into] usable
condition, [he did] not consider [an] update to the current market
condition.” Thus, Jia’s expert did not testify it would cost $8,000
to repair the house to a condition where it could be rented for
$2,600 a month. Moreover, the trial court refused to credit Liu’s
expert’s testimony, finding it was “off base.” The trial court did
not abuse its discretion to order Watts charges against Jia in the
amount of $600 per month.
C. Substantial Evidence Supports the Trial Court’s
Valuation
Liu next argues the evidence was insufficient to support
the trial court’s valuation of the Arcadia property. The record
reveals otherwise. At trial, Jia’s appraiser estimated the Arcadia
property was worth $700,000 and Liu’s appraiser valued it at
$1,000,000. The trial court found fault with both appraisers’
valuations. In particular, the homes used by the appraisers were
not entirely comparable to the Arcadia property. Jia’s appraiser
used a home that was located in a less desirable school district.
Liu’s appraiser chose homes that were in better condition than
the Arcadia property. As a result, the trial court averaged the
appraisers’ comparable homes and arrived at a valuation of
$884,440.
Liu argues the trial court was not allowed to simply
average the appraisals and indicated the trial court had to accept
one of the estimates provided by the experts. Liu provides no
16
legal authority that would require us to so limit the trial court’s
fact-finding ability. We conclude the trial court did not abuse its
discretion to calculate the value of the Arcadia property in this
way and substantial evidence supported its finding.
V. The Company
Liu became a licensed real estate agent in 2007. He
worked for Long Dragon Realty Group, Inc. during his marriage
with Jia. In 2014, Liu incorporated the Company to receive his
commission checks from Long Dragon Realty. At trial, the
parties presented expert testimony regarding the Company’s
value. Liu contends there is insufficient evidence to support the
trial court’s valuation of the Company. The record shows
otherwise.
A. Substantial Evidence Supports the Trial Court’s
Goodwill Valuation
Liu first challenges the trial court’s reliance on Jia’s
expert’s $139,000 valuation of the Company’s goodwill. Both
experts used the excess earnings approach to value the
Company’s goodwill. The trial court noted the gross revenue
numbers were “relatively straightforward” and the parties agreed
on at least some of the net operating income numbers.
“The ‘goodwill’ of a business is the expectation of continued
public patronage.” (Bus. & Prof. Code, § 14100.) However, there
is more to goodwill than expectation of continued patronage.
“The goodwill of a business is property and is transferable.” (Bus.
& Prof. Code, § 14102.) The excess earning method has been
used to calculate the value of a business’s goodwill for purposes of
a marital dissolution. (In re Marriage of Rosen, supra, 105
Cal.App.4th at p. 818.)
Liu argues the Company lacked any goodwill value because
it was created solely as a repository for his commission checks
17
from Long Dragon Realty. According to Liu, the clients he
services belong to Long Dragon Realty and the Company
otherwise lacks assets or employees. As a result, any goodwill
the Company holds is personal goodwill based on Lui’s own
earning capacity, personal skill, and reputation. Personal
goodwill is not property subject to distribution in a dissolution
proceeding. (In re Marriage of McTiernan & Dubrow (2005) 133
Cal.App.4th 1090, 1102.)
Again, Liu has forfeited this argument for failure to raise it
at trial. (Avalos v. Perez, supra, 196 Cal.App.4th at p. 776.) In
its statement of decision, the trial court noted, “Mr. Liu now
contends that there is no goodwill as a matter of law. It is too
late, however, to raise that issue. And, in any event, both experts
disagree with him, as does the Court.” Indeed, Liu presented
expert testimony regarding the value of the goodwill held by the
Company.
Alternatively, Liu argues any goodwill held by the
Company was generated before the marriage, rendering it
entirely separate property and not subject to division. Neither of
the cases relied upon by Liu—In re Marriage of Rives (1982) 130
Cal.App.3d 138 and In re Marriage of Koester (1999) 73
Cal.App.4th 1032—stand for this proposition. In each, a business
created prior to marriage, even if characterized as separate
property, was nevertheless subject to valuation and appropriate
division according to established rules. Neither case held the
business was the separate property of one spouse and not subject
to division. (In re Marriage of Rives, supra, 130 Cal.App.3d at p.
151; In re Marriage of Koester, supra, 73 Cal.App.4th at p. 1036.)
Lastly, Liu contends the value of the goodwill adopted by
the trial court was not supported by substantial evidence. Liu
finds fault with the expert testimony presented by Jia on the
subject. He contends the entirety of the expert testimony on the
18
topic, including testimony from his own expert, should be
disregarded and the goodwill of the Company should be valued at
zero. Again, Liu merely urges us to judge credibility and reweigh
the evidence. We decline to do so. (Balcof, supra, 141
Cal.App.4th at p. 1531.)
In her cross-appeal, Jia similarly argues against the
outcome proposed by her own expert. Jia argues the trial court
was wrong to adopt her expert’s valuation because the court’s
own calculation of goodwill exceeded her expert’s number by
$7,318. We agree with the trial court that “this is not a huge
difference” and conclude it did not abuse its discretion to adopt
the slightly more conservative number. Error, if any, was invited
by Jia as she was the one who set forth this valuation at trial.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Jia has also
forfeited this issue, having failed to object or raise it with the
trial court below. (Avalos v. Perez, supra, 196 Cal.App.4th at
p. 776.)
B. The Trial Court Did Not Abuse Its Discretion to
Include Checks Dated After Separation in the
Company’s Valuation
Liu asserts the trial court erred when it included two
commission checks dated January 31, 2017, in the valuation of
the Company because there was no evidence those commissions
were earned prior to the date of separation, December 13, 2016.
We conclude the trial court did not abuse its discretion to add
these checks to the tangible assets of the Company to be
distributed.
At trial, Jia included three commission checks that were
issued after the date of separation in her valuation of the
Company. Two commission checks for $9,320 and $16,020 were
19
dated January 31, 2017, and one check for $12,820 was dated
February 8, 2017. The trial court acknowledged there was no
evidence about the transactions to which these checks related.
The trial court added the two January checks to the tangible
assets of the Company but found the February check to be too
distant from the date of separation to credit to the community.
Ordinarily, “a party has the burden of proof as to each fact
the existence or nonexistence of which is essential to the claim for
relief or defense that he is asserting.” (Evid. Code, § 500.)
However, “ ‘ “[w]here the evidence necessary to establish a fact
essential to a claim lies peculiarly within the knowledge and
competence of one of the parties, that party has the burden of
going forward with the evidence on the issue although it is not
the party asserting the claim.” [Citations.]’ [Citation.]” (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1189; see also
In re Marriage of Prentis-Margulis & Margulis (2011) 198
Cal.App.4th 1252, 1267; Wolf v. Superior Court (2003) 107
Cal.App.4th 25, 35, [“where essential financial records are in the
exclusive control of the defendant who would benefit from any
incompleteness, public policy is best served by shifting the
burden of proof to the defendant, thereby imposing the risk of any
incompleteness in the records on the party obligated to maintain
them”].)
Given the checks were issued over a month after the
parties separated and cashed months after that, the knowledge of
which transactions they related to was peculiar to Liu. Thus, he
had the burden to show they were earned after December 13,
2016. He did not do so. The trial court did not abuse its
discretion to add the January 31, 2017 checks to its valuation of
the Company.
20
VI. Breach of Fiduciary Duty
At trial, both parties asserted the other misappropriated
assets from the community in violation of Family Code section
1101. Along with numerous other withdrawals, Liu alleged Jia
improperly transferred $30,000 to her brother shortly before they
separated. Jia, in turn, accused Liu of misappropriating
hundreds of thousands of dollars from the community by
siphoning cash to himself or to others for improper expenditures.
The trial court found the allegations of misappropriation
generally meritless, noting each regularly spent “considerable”
amounts of cash without accounting for it and without complaint
or questions from the other party. However, the trial court found
Liu breached his fiduciary duty when he used $181,800 from
community funds for the Company. On appeal, Liu contends the
trial court erred.
A. Substantial Evidence Supports the Trial Court’s
Finding Jia Did Not Misappropriate Community
Funds
Liu contends there is insufficient evidence to support the
trial court’s finding that Jia’s transfer of $30,000 to her brother
on November 8, 2016 was not a breach of fiduciary duty. The
record, however, supplies substantial evidence supporting the
trial court’s finding.
At trial, Jia testified she traveled to China to visit her
family in September 2018. While there, she drove without a
license and became involved in a car accident. No one was hurt
but the other car was “totaled.” Because she did not want to
involve the authorities, she agreed to pay 100,000 yuan, or
approximately $20,000, to the other driver to compensate him for
his damaged car. Her brother loaned her the money. They set
21
out the terms of the settlement on a sheet of notebook paper.
Her brother loaned her an additional $10,000 to cover her other
expenses while she was in China. The trial court found Jia’s
testimony credible and concluded her $30,000 transfer was not a
breach of fiduciary duty.
Again, Liu urges us to reevaluate the evidence to arrive at
a different conclusion. He contends there should have been
photographs of the accident or contact information for the driver
of the other car. We decline to second guess the trial court given
that Jia’s testimony and the paper receipt constitute substantial
evidence to support its finding. (Balcof, supra, 141 Cal.App.4th
at p. 1531.)
To the extent Liu contends the receipt lacked foundation,
Jia’s testimony is sufficient to establish its authenticity. (Evid.
Code, § 1413 [“A writing may be authenticated by anyone who
saw the writing made or executed, including a subscribing
witness.”]; McAllister v. George (1977) 73 Cal.App.3d 258, 263
[where invoice for dental services was authenticated by plaintiff’s
testimony that the services were performed and he received and
paid the bill, “contrary inferences flowing from the facts that the
bill was handwritten, not on official stationery, and signed by a
student were issues going to the weight of the evidence . . . .”].)
The trial court did not abuse its discretion to admit the receipt
into evidence.
Liu further argues he may not be liable for any damage
caused by Jia under Family Code section 1000 because she was
not performing an activity for the benefit of the community at the
time of the accident. The trial court expressly found “paying for
damages or injury caused [in a traffic accident] is not a breach of
fiduciary duty.” Liu failed to object based on Family Code section
22
1000 when the trial court attributed this expense to the
community. He has thus forfeited this argument. (Avalos v.
Perez, supra, 196 Cal.App.4th at p. 776.) In any case, Liu has
presented no authority for the proposition that a violation of
Family Code section 1000, if there was one, is also a breach of
fiduciary duty.
Liu has also forfeited his argument that Jia breached her
fiduciary duty by violating Chinese law when she drove without a
license. This argument is a non sequitur, in any case. Even if Jia
had a license to drive in China, she would still have had to pay
for the damage she caused to the other car.
B. Substantial Evidence Supports the Trial Court’s
Finding Liu Breached His Fiduciary Duties
Liu contends there is insufficient evidence to show he
breached his fiduciary duties by transferring $181,800.00 in
November 2015 to Huan Huan Huang. The record demonstrates
otherwise.
Liu testified he paid Huang to provide him with business
referrals from China and she produced two brochures for him.
He admitted into evidence the contract with Huang, which
specified a term from July 2014 to June 2015 and required
Huang to spend at least 15 days a month on the project. The
contract listed the “Client (Party A)” as “Wei-Zi Liu [¶] California
Long Dragon Realty.” The trial court interpreted this to mean
that Liu signed on behalf of Long Dragon Realty. However, Liu
testified that was not the case and the contract was between him
and Huang as individuals. Liu testified Huang did refer clients
to him but admitted he had no records of his contacts with her or
any accounting of her expenses. Liu testified he obtained a high
gross income in 2014, partly as a result of Huang’s referrals. He
23
did not produce any records showing which clients she referred to
him because they were not requested during discovery.
The trial court observed there was no evidence of Huang’s
qualifications or credentials, how Liu came to enter into the
contract with her, what clients were referred by Huang, what
business or revenues were generated by Huang’s referrals, or
even any communications between Huang and Liu. It also noted
Liu had never made any other expenditure of this size or for this
kind of service. The trial court concluded it was “not fully
prepared to say that the entire transaction was a sham, although
the evidence would support such a finding, for the Court need not
reach that issue. Even giving Mr. Liu the benefit of the doubt
that the Huang transaction was really done to further his
business, the expenditure is so reckless as to constitute a breach
of duty.” The trial court further noted the expense adversely
affected the Company’s valuation because it significantly reduced
the Company’s 2015 income. If the Company had not incurred
that expense in 2015, the valuation of the Company would have
been higher. The trial court denied Jia’s request for penalties for
Liu’s breach of duty but allowed her to recover 50 percent of the
amount plus interest. It also awarded attorney fees expended by
Jia in proving up the breach.
Liu again quarrels with the evidence relied upon by the
trial court to support its findings and urges us to reevaluate it.
He contends the trial court failed to consider his contradictory
evidence demonstrating it was a legitimate business expense.
Given the substantial evidence supporting the trial court’s
findings, identified above, the trial court did not abuse its
discretion to order recovery of 50 percent of the misappropriated
amount.
24
In her cross-appeal, Jia contends the trial court erred when
it declined to award the entire amount of $181,800 to her. Jia
acknowledges an aggrieved spouse’s remedy under Family Code
section 1101, subdivision (g) for a breach of fiduciary duty
consists of an award of 50 percent of any asset misappropriated
from the community plus attorney fees and costs. However, she
claims she is entitled to 100 percent of the misappropriated funds
under Family Code section 1101, subdivision (h), which allows for
punitive damages upon clear and convincing evidence of
oppression, fraud, or malice. The trial court made no finding of
oppression, fraud, or malice. Indeed, the trial court indicated it
was not prepared to find the transaction a sham. Like Liu, Jia
merely asks us to reevaluate the evidence. We decline to do so.
(Balcof, supra, 141 Cal.App.4th at p. 1531.)
We likewise decline to add the $181,800 to the Company’s
valuation as urged by Jia. This would result in a classic case of
double counting. The trial court accounted for the $181,800
amount when it awarded 50 percent of it to Jia. She would
recover doubly if we were to also increase the value of the
Company by that amount.
Jia additionally contends the trial court mistakenly
calculated the interest for the misappropriated funds from
November 2015 when the checks were dated October 29, 2014
and November 5, 2014. The testimony and evidence at trial
indicated the checks were not cashed until April 2015, however.
Liu testified the delay was a result of the banking system
between China and the United States. Accordingly, it appears
the breach did not occur until April 6 and 7, 2015, when the cash
was transferred. We need not address whether interest should be
calculated from April 2015, however, because Jia has forfeited
25
this issue for failure to raise the error with the trial court. (In re
Marriage of Arceneaux, supra, 51 Cal.3d at p. 1132.) Indeed, Jia
prepared the judgment and specified the interest was to be
calculated from November 2015 to September 15, 2019.
VII. Attorney Fees
The trial court declined to award Jia need-based attorney
fees under Family Code section 2030, finding the parties’ incomes
and access to assets were roughly equal after the distribution of
marital property. The court, however, awarded Jia $64,872.56 in
attorney fees and costs pursuant to Family Code sections 271 and
1101,5 finding Liu frustrated the policy of the law to promote
settlement of litigation and reduce the cost of litigation. Jia
challenges the denial of her attorney fees under Family Code
section 2030, and Liu challenges the court’s order under Family
Code section 271. We affirm the attorney fees orders.
A. Family Code Section 2030
Jia contends the trial court erred when it denied her
attorney fees under Family Code section 2030. We find no abuse
of discretion.
Family Code section 2030, subdivision (a)(1) provides:
“the court shall ensure that each party has access to legal
representation . . . to preserve each party’s rights by ordering, if
necessary based on . . . income and needs assessments, one
party . . . to pay to the other party . . . whatever amount is
reasonably necessary for attorney’s fees and for the cost of
5 Liu also requests we reverse the Family Code section 1101
attorney fees award if we reverse the trial court’s ruling as to the
breach of fiduciary duty finding related to the Huang transaction.
Since we affirmed the trial court’s determination on this issue,
we decline to reverse the corresponding Family Code section 1101
attorney fees award.
26
maintaining or defending the proceeding . . . .” In addition,
“the court shall make findings on whether an award of attorney’s
fees and costs . . . is appropriate, whether there is a disparity in
access to funds to retain counsel, and whether one party is able to
pay for [the] legal representation of both parties.” (Fam. Code,
§ 2030, subd. (a)(2).) “If the findings demonstrate disparity in
access and ability to pay, the court shall make an order awarding
attorney’s fees and costs.” (Ibid.) The factors to be considered in
determining the relative circumstances of the parties include, to
the extent relevant, those used for determining spousal support,
enumerated in Family Code section 4320, including “[a]ny other
factors the court determines are just and equitable.” (Fam. Code,
§ 4320, subd. (n); see Fam. Code, § 2032, subd. (b).)
We review a trial court’s attorney fees determination under
Family Code section 2030 for an abuse of discretion. (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at pp. 111–112.)
Its findings will be upheld if supported by substantial evidence.
(Ibid.)
The trial court declined to award Family Code section 2030
attorney fees based on a finding the parties’ salaries and assets
were “roughly the same.” Substantial evidence supports this
finding. Jia’s annual salary ranged from approximately $110,000
in 2017 to $120,000 in 2019. Although Liu’s commissions
exceeded Jia’s salary, the trial court found Jia was “already
getting that money” through the division of goodwill from the
Company. The trial court explained the excess earnings model
used to value the Company subtracted out a reasonable salary for
Liu (which the trial court found to be roughly equal to Jia’s
salary) and attributed the excess to goodwill. As a result, Jia’s
receipt of half of the Company’s goodwill equalized any
27
discrepancy in their assets. The court also noted Liu testified he
earned no commissions in the first four months of 2019.
Jia contends the trial court failed to take into account the
fact that she lacked access to the assets during the litigation and
trial because those assets had not yet been distributed. Thus, the
trial court’s finding that their incomes and access to assets were
equalized by the distribution of goodwill was unsupported.
We disagree.
The record shows Jia had access to funds during the
litigation. She testified she was able to borrow money from her
brother and she continued to earn roughly the same salary as Liu
during this time period. (In re Marriage of Smith (2015) 242
Cal.App.4th 529, 533 [trial court may consider loans former wife
received from her father when considering the relative positions
of the parties for purposes of award of attorney fees].) Indeed,
she earned more than he did in the first part of 2019. Given
these facts, we cannot say the trial court abused its discretion to
deny Jia attorney fees under Family Code section 2030.
B. Family Code Section 271
Liu contends insufficient evidence supports the imposition
of Family Code section 271 sanctions. We disagree.
1. Applicable Law
Family Code section 271, subdivision (a) 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 award of
attorney’s fees and costs pursuant to this section is in the nature
28
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.” (Fam. Code, § 271, subd. (a).)
“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.’ ” (In re E.M. (2014) 228
Cal.App.4th 828, 850; In re Marriage of Corona (2009) 172
Cal.App.4th 1205, 1225–1226.) We review any findings of fact
that formed the basis for the award of sanctions under a
substantial evidence standard of review. (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1479.) It is not the
function of the reviewing court to decide questions of fact or
credibility. (In re E.M., supra, at p. 851.)
2. Proceedings Below
In her request for attorney fees and costs under Family
Code section 271, Jia alleged Liu refused to cooperate in the
litigation, including objecting to reasonable subpoenas for bank
records, propounding excessive discovery (253 requests for
admission alone), and rejecting multiple reasonable settlement
offers made prior to trial. Jia set forth the settlement offers she
made as to specific contested issues and demonstrated that in
29
most of these issues, the settlement offer was more advantageous
to Liu than what he ultimately received at trial.
At the hearing, the trial court asked Liu whether it was
true his lawyers propounded hundreds of discovery requests at a
time to raise the costs of litigation. Liu responded, “That was
what my previous attorney did.” He elaborated that he had “no
idea” why they did that but acknowledged he was responsible for
their conduct. However, he denied he unreasonably refused to
settle, asserting he relied on his expert’s valuations and
conclusions to conclude Jia’s settlement offers were not
acceptable.
The trial court found “[t]his case was over litigated . . . .
There was a war of attrition going on, hundreds of discovery
requests at a time. It wasn’t warranted. I don’t think the case
had to go to trial. The expert opinions were not that different.”
The trial court ordered Liu to pay to Jia a total of $64,872.56 in
fees and costs comprised of $3,549 in attorney fees and costs
under Family Code section 1101 and $56,313.76 in attorney fees
and costs plus $5,000 in expert fees under Family Code section
271.
3. Substantial Evidence Supports the Trial Court’s
Award under Family Code Section 271
Liu contends a fee award under Family Code section 271 is
not warranted because Jia failed to produce any evidence, much
less substantial evidence, to show his litigation conduct violated
the law or any court order. Yet, Liu acknowledges his counsel
propounded 253 requests for admissions and that none of the
information gleaned from those requests was used at trial. He
also does not deny he objected to deposition subpoenas and failed
to produce all documents requested during discovery. His own
30
admissions regarding his failure to cooperate in discovery and his
excessive discovery requests are substantial evidence supporting
the trial court’s finding.
Additionally, the trial court impliedly disbelieved his
explanation that he refused to settle based on his expert’s
valuation of the marital property when it observed the parties’
expert valuations were “not that different.” We do not reweigh
the evidence or judge credibility on appeal. Given these facts, we
cannot say the trial court abused its discretion to order attorney
fees and costs under Family Code section 271.
We also decline to consider Liu’s unsupported assertion on
appeal that the fee award imposes an unreasonable financial
burden on him. The trial court implicitly decided against Liu on
this issue, and Liu has presented no factual or legal authority to
demonstrate the trial court prejudicially erred to impose the
sanctions. (In re Marriage of McLaughlin, supra, 82 Cal.App.4th
at p. 337.)
VIII. Judgment
Lastly, Liu asserts portions of the judgment do not conform
to the final statement of decision or the parties’ stipulations.
We do not read Liu’s argument as merely an attempt to correct
clerical or typographical errors in the judgment. Instead, Liu
again attempts to reargue the facts in raising this issue. For
example, Liu contends Jia double counted his Porsche Macan by
awarding it to him as separate property in the judgment and
requiring Liu to pay Jia an equalizing payment of $12,000 while
simultaneously including the Porsche as a tangible asset in her
expert’s valuation of the Company. Liu had the opportunity to
raise this issue at trial but did not. Neither did he attempt to
31
raise it as an objection to the proposed statement of decision.6
Liu does not get a third bite at the apple. He has forfeited these
arguments. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p.
1132.)
Liu obliquely addresses the issue of forfeiture by arguing
he filed objections to the proposed judgment. Those objections
were untimely. A party has 10 days after service of the proposed
judgment to serve and file objections to it. (Cal. Rules of Court,
rule 3.1590(j).) The objections were filed on September 20, 2019,
more than 10 days after the proposed judgment was served on
him by electronic mail on September 5, 2019.7
DISPOSITION
The judgment and the attorney fees orders are affirmed.
Jia to recover her costs on appeal.
BIGELOW, P. J.
We concur:
GRIMES, J. WILEY, J.
6 By this observation, we do not intend to decide whether
such an objection would have been timely.
7 Because we determine the objections were not timely, we
need not reach the issue whether objections to a proposed
judgment may properly be made when a statement of decision
has been requested and a party has previously submitted
objections to the statement of decision.
32