Marriage of Freeman CA2/6

Filed 10/19/22 Marriage of Freeman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of OLIVE M. 2d Civil No. B311411
and ALAN S. FREEMAN. (Super. Ct. No. D374102)
(Ventura County)
OLIVE MERSADES
RICHARDS,
Appellant,
v.
ALAN STEVEN FREEMAN,
Respondent.
Olive Mersades Richards (formerly Freeman), a California
licensed attorney, appeals in propria persona from an order
denying her request to set aside a judgment on reserved issues
(the judgment) following the dissolution of her marriage to
respondent Alan Steven Freeman. The postjudgment order is
appealable pursuant to Code of Civil Procedure section 904.1,
subdivision (a)(2).1 (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127.)
The request to set aside the judgment was made pursuant
to section 473, subdivision (b). Appellant contends that the trial
court abused its discretion, was biased against her, and
erroneously required her to pay sanctions of $25,000. We affirm.
August 18, 2020 Judgment on Reserved Issues
The judgment was entered on August 18, 2020. It recites
the following facts: “The parties married on December 19, 1996,
and stipulated to a date of separation of October 12, 2015. On
May 29, 2018, the court granted a dissolution of marriage based
on irreconcilable difference . . . .” “The matter came on for trial
on reserved issues . . . on August 13, 2020. [Appellant] was not
present. Respondent . . . was present by and with his
attorney . . . .” The trial court noted that it had “read and
considered [appellant’s] [trial] brief,” which was “served and filed
the day before trial.”
The judgment divided the parties’ assets, ordered
reimbursements, and required appellant to make an equalizing
payment to respondent.
No Valid Appeal from Judgment on Reserved Issues
In her reply brief, appellant claims that she “file[d] a
meritorious timely appeal on April 2, 2021, from the August 18,
2020 judgment [on reserved issues] so she does not forfeit her
right to appellate review” of that judgment. The April 2, 2021
notice of appeal states that the appeal is from the “judgment
after court trial” that “was entered on . . . February 10, 2021.”
But the judgment was not entered on February 10, 2021. On that
1 All undesignated statutory references are to the Code of
Civil Procedure.
2
date, the court denied appellant’s motion to set aside the
judgment.
If in her notice of appeal appellant intended to appeal from
the August 18, 2020 judgment, the notice was filed late and is
therefore invalid. Notice of entry of judgment was mailed to the
parties on August 18, 2020. The 60-day jurisdictional period for
filing an appeal from the judgment expired on Monday, October
19, 2020. (Cal. Rules of Court, rule 8.104(a)(1)(A).) The time for
filing an appeal from a judgment is extended “[i]f, within the time
prescribed by rule 8.104 to appeal from the judgment, any party
serves and files a valid notice of intention to move – or a valid
motion – to vacate the judgment . . . .” (Id., rule 8.108(c).)
Appellant did not file her request to set aside the judgment
within the 60-day period for filing a notice of appeal from the
judgment. The request was filed on November 24, 2020, 98 days
after the mailing of notice of entry of the August 18, 2020
judgment.
Accordingly, we construe the April 2, 2020 notice of appeal
to be from the February 10, 2021 postjudgment order denying
appellant’s motion to set aside the August 18, 2020 judgment. As
so construed, the appeal was timely filed.
Appellant’s Request to Set
Aside Judgment on Reserved Issues
Appellant’s request to set aside the judgment was based on
her absence at the trial conducted on August 13, 2020. Appellant
declared that, because of health problems, she was unable to be
personally present at the trial. “[D]ue to financial restraints,”
she was “unable to obtain an attorney” to represent her at the
trial.
3
As authority for her request to set aside the judgment,
appellant relied on the “excusable neglect” provision of section
473, subdivision (b): “The court may, upon any terms as may be
just, relieve a party . . . from a judgment . . . taken against him or
her through his or her mistake, inadvertence, surprise, or
excusable neglect.” (Ibid.) Appellant “request[ed] the Court set
aside the [judgment] and allow this matter to be set for trial due
to my excusable neglect in being unable to attend the trial . . .
due to my health and my inability to acquire legal representation
. . . .”
As evidence of her health problems, appellant attached a
declaration signed by Dr. Scott A. Godfrey on December 16, 2019.
Dr. Godfrey said he was treating appellant for “multiple
myeloma.” The treatment began on November 8, 2019. Dr.
Godfrey opined that, because of the treatment, she “is physically
incapable of attending and participating in trial, or the
preparation for trial . . . scheduled for December 19, 2019 . . . .”
Dr. Godfrey “request[ed] that trial should be postponed until a
date at least after March 1, 2020.” Dr. Godfrey expressed no
opinion as to appellant’s capability of preparing for and
participating in the postponed trial scheduled for August 13,
2020.
Appellant declared under penalty of perjury that she had
not moved for a continuance of the August 2020 trial because the
trial court’s prior statements had led her to believe “that even if I
were to ask for a continuance . . . due to my health and my
inability to find substitute legal representation, a continuance
would not be considered.” The court’s prior statements were
made in a notice to the parties dated July 2, 2020. On that date
the trial court granted appellant’s counsel’s motion to be relieved
4
as counsel. The notice said: “[T]he Court is prioritizing this trial
and is not moving the trial date if new counsel for [appellant]
substitutes into the case . . . . All parties and all counsel must be
ready to proceed with trial beginning on August 13, 2020. [¶] . . .
Any communications from [appellant] that she is self-represented
and unable to attend the trial is not a good enough reason to
vacate or move the trial date.”
In view of the trial court’s July 2, 2020 notice and
appellant’s interpretation of the notice in her declaration under
penalty of perjury, we reject the following contradictory claim in
her opening brief: “The court erred by failing to set aside the
judgment on the ground of mistake of fact” because appellant
“reasonably thought the court was going to continue the trial on
its own motion when it said in its July 2, 2020 [notice]: ‘The court
anticipates no appearance at the two-day TRIAL by
[appellant] . . . .’” (Bold omitted.)
Appellant declared, “If I had been able to attend and did
attend the trial . . . , the case could have been tried on the merits
with my giving testimony and providing exhibits to the Court to
be considered.” Appellant did not make an offer of proof as to her
testimony and did not produce or describe the exhibits.
Respondent’s Opposition to Appellant’s
Request to Set Aside Judgment
In support of respondent’s opposition to appellant’s request
to set aside the judgment, his counsel declared that, despite
appellant’s allegedly poor health, she had “faxed me a 37-page all
text Trial Brief . . . on August 12, 2020[, the day before the trial
began]. On August 14, 2020, she also faxed [her] Declaration . . .
in support of attorney’s fees, and a Notice of Intent to seek
Sanctions.”
5
Counsel further declared: “I [am not] aware of any orders
indicating a continuance [of the trial] would not be granted due to
[appellant’s] health reasons. In fact, the Court granted
[appellant’s] request for continuance immediately after being
provided with a declaration from [appellant’s] doctor in December
2019. I believe this supports the position that a continuance
would be granted if [appellant] was truly unable to participate for
health reasons.”
Hearing on Appellant’s Request to Set Aside Judgment
On February 10, 2021, the trial court conducted a hearing
via Zoom on appellant’s request to set aside the judgment. Both
parties were present and represented by counsel.
Respondent’s counsel complained that he had not received
any of appellant’s proposed exhibits. Appellant’s counsel replied,
“[I]f we don’t set aside the judgment, there’s no need to submit
any exhibit lists. So why do that extra work if we’re not
proceeding to a new trial. So that argument . . . is . . .
nonsensical in the context of this hearing.”
The trial court asked appellant’s counsel, “[U]nder [section]
473, . . . what do you believe was your client’s mistake,
inadvertence, surprise or excusable neglect?” Counsel replied:
“[A]t the very least the excusable neglect was not securing
alternate counsel at the time that [her former counsel] was
relieved as counsel [on July 2, 2020] . . . .” “At that particular
moment in time, she was not in a place to interview and retain
counsel due to her medical condition. [¶] This all is focused
around her medical condition.” Counsel did not say that financial
restraints had prevented her from retaining counsel to represent
her at the trial.
6
The trial court noted that although appellant claimed she
“was in no position to retain, contact, hire counsel for the trial of
August of 2020, what she did do was file a 32 [sic 37]-page trial
brief that . . . I received on the day of trial.” The brief “is
extraordinarily lawyer like. It is cohesive. It states [appellant’s]
position as to many different facets of the case with an articulate
ability that impresses me and impressed me at the time.”
The trial court continued: “[W]ith respect to her medical
condition at the time of trial, all I had, in terms of hard evidence
of her medical condition, was a somewhat cryptic declaration
from Dr. Godfrey in December of 2019, some eight months prior
to the trial. [¶] So for anyone to suggest that I understood the
metes and bounds of her medical condition at the time of trial is
nonsensical.” Furthermore, “I did not have before me on August
the 13th a motion to continue the trial, a declaration from a
physician or anything else that would have given me a good basis
to continue the trial at that time.”
Finally, the trial court observed that “even in a default
proceeding, which this was, . . . the burden is on the moving party
who’s trying to set aside the default judgment to show me that it
is probable that there would have been a different result. And
there is no evidence in this case at this time that there would
have been a different result had I had [appellant], a licensed
attorney, or another attorney present on her behalf. [¶] So on all
of those grounds, the motion to set aside the judgment . . . is
denied.”
Standard of Review
“The standard for appellate review of an order denying a
motion to set aside under section 473 is quite limited. A ruling
on such a motion rests within the sound discretion of the trial
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court, and will not be disturbed on appeal in the absence of a
clear showing of abuse of discretion, resulting in injury
sufficiently grave as to amount to a manifest miscarriage of
justice. Where a trial court has discretionary power to decide an
issue, an appellate court is not authorized to substitute its
judgment of the correct result for the decision of the trial court.
[Citations.] ‘“‘The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two
or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’” [Citations.]’ [Citation.] The burden is on
the complaining party to establish abuse of discretion, and the
showing on appeal is insufficient if it presents a state of facts
which simply affords an opportunity for a difference of opinion.”
(In re Marriage of King (2000) 80 Cal.App.4th 92, 118, fn.
omitted.)
“We have previously commented on the ‘daunting task’
confronting an appellant who seeks reversal of a trial court’s
discretionary ruling. (Estate of Gilkison (1998) 65 Cal.App.4th
1443, 1448-1449 . . . .)” (Dreamweaver Andalusians, LLC v.
Prudential Ins. Co. of America (2015) 234 Cal.App.4th 1168,
1171.)
Motions to Augment Record
There are three motions to augment the record on appeal.
On July 6, 2022, respondent filed a motion to augment the record
to include numerous “pleadings, documents, and transcripts.”
Appellant filed opposition to the motion. “We deny [respondent’s]
motion because augmentation is unnecessary for our
determination of the issues in this appeal.” (In re M.M. (2015)
235 Cal.App.4th 54, 59, fn. 4.)
8
On June 13, 2022, appellant filed a motion to augment the
record to include three documents. For the reasons set forth in
respondent’s June 20, 2022 opposition to the motion, we deny it.
Finally, on August 26, 2021, appellant filed an unopposed
motion to augment the record. On September 17, 2021, we
granted the motion as to exhibits i through xxiv, but deferred
ruling on exhibits xxv through xxviii. Exhibit xxv is Dr.
Godfrey’s declaration dated June 4, 2021. As to this exhibit, we
deny the motion to augment because the exhibit was not before
the trial court on February 10, 2021, when it denied appellant’s
request to set aside the judgment. “In assessing a claimed abuse
of discretion, we assess the trial court’s ruling by considering the
record then before the court.” (People v. Myles (2012) 53 Cal.4th
1181, 1200.)
As to exhibits xxvi through xxviii, we deny the motion to
augment because they are irrelevant to the issues in the present
appeal. These exhibits involve proceedings conducted after the
filing of the notice of appeal on April 2, 2021.
The Trial Court Did Not Abuse Its Discretion
“While section 473 authorizes a court to relieve a party
from default suffered through inadvertence, surprise, excusable
neglect or mistake, ‘these words are not meaningless, and the
party requesting such relief must affirmatively show that the
situation is one which clearly falls within such category.’
[Citation.] ‘[A] party who seeks relief under [section 473] must
make a showing that due to some mistake, either of fact or of law,
of himself or of his counsel, or through some inadvertence,
surprise or neglect which may properly be considered excusable,
the judgment or order from which he seeks relief should be
reversed. In other words, a burden is imposed upon the party
9
seeking relief to show why he is entitled to it, and the assumption
of this burden necessarily requires the production of evidence.
[Citations.]’ [Citations.] In a motion under section 473 the initial
burden is on the moving party to prove excusable neglect by a
‘preponderance of the evidence.’” (Kendall v. Barker (1988) 197
Cal.App.3d 619, 623-624.) “‘[The] moving party must present a
reasonable excuse. . . .’” (Id. at p. 624.)
The trial court did not exceed the bounds of reason in
concluding that appellant had failed to prove excusable neglect by
a preponderance of the evidence. Appellant was a licensed
California attorney. Despite her legal background, she did not
move to continue the August 2020 trial based on her health
problems. The trial court never said it would deny a continuance
irrespective of her medical condition. It had earlier granted a
continuance of the trial based on Dr. Godfrey’s declaration. Since
appellant was capable of preparing and filing an impressive,
“extraordinarily lawyer[-]like” trial brief for the August 2020
trial, it is reasonable to infer that she was also capable of
preparing and filing a motion to continue the trial.
In addition, it is reasonable to infer that appellant was
capable of retaining counsel to represent her at the trial.
Respondent’s trial counsel claimed that appellant had adequate
time to retain new counsel since in February 2020 her counsel
“filed his Motion to be Relieved as Counsel.” The record shows
that the motion to be relieved as counsel was filed on February
25, 2020, more than five months before the August 13, 2020 trial
date.
Furthermore, in support of her request to vacate the
judgment, appellant presented no medical evidence from her
doctors as to her condition before the August 2020 trial. The trial
10
court noted, “[A]ll [it] had, in terms of hard evidence of her
medical condition, was a somewhat cryptic declaration from Dr.
Godfrey in December of 2019, some eight months prior to the
trial.” Dr. Godfrey’s opinion that appellant was “physically
incapable of attending and participating in trial, or the
preparation for trial . . . scheduled for December 19, 2019” had no
bearing on whether she was capable of participating in and
preparing for the trial scheduled for August 13, 2020.
Finally, the trial court acted within its discretion because,
as the court observed, “there is no evidence in this case at this
time that there would have been a different result had I had
[appellant], a licensed attorney, or another attorney present on
her behalf” at the August 2020 trial.
Appellant Failed to Show that the Trial Court’s Alleged
Abuse of Discretion Resulted in a Miscarriage of Justice
If the trial court had abused its discretion, appellant would
not have been entitled to a reversal because she failed to show
that the error resulted in a miscarriage of justice. “A ruling on
. . . a [section 473] motion . . . will not be disturbed on appeal in
the absence of a clear showing of abuse of discretion, resulting in
injury sufficiently grave as to amount to a manifest miscarriage of
justice.” (In re Marriage of King, supra, 80 Cal.App.4th at p. 118,
italics added; see also Cal. Const., art. VI, § 13 [“No judgment
shall be set aside . . . unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice”].)
The “miscarriage of justice” rule is codified in section 475:
“No judgment, decision, or decree shall be reversed or affected by
reason of any error . . . unless it shall appear from the record that
11
such error . . . was prejudicial, and also that by reason of such
error . . . the said party complaining or appealing sustained and
suffered substantial injury, and that a different result would
have been probable if such error . . . had not occurred or existed.”
There is no evidentiary showing of a miscarriage of justice.
Appellant did not make an offer of proof as to what her testimony
would have been at the trial. Nor did she produce or describe the
exhibits she would have introduced. She merely declared, “If I
had been able to attend and did attend the trial . . . , the case
could have been tried on the merits with my giving testimony and
providing exhibits to the Court to be considered.”
At the hearing on the request to set aside the judgment,
appellant’s counsel said, “[I]f we don’t set aside the judgment,
there’s no need to submit any exhibit lists. So why do that extra
work if we’re not proceeding to a new trial.” But without an offer
of proof as to what evidence was excluded by appellant’s absence
from the trial, appellant cannot show that she “sustained and
suffered substantial injury, and that a different result would
have been probable” had she been present at the trial. (§ 475; see
Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [“‘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’”]; County of Los Angeles v. Nobel Ins. Co. (2000) 84
Cal.App.4th 939, 945 [“The burden is on the appellant in every
case to show that error has resulted in a miscarriage of justice”].)
Appellant’s Attack on Validity of Judgment
In her opening brief appellant makes a lengthy, detailed
attack on the validity of the judgment. She lists 21 “instances” in
which respondent “committed extrinsic fraud.” She claims that
12
the trial court erred in its division of property and
reimbursement orders. She contends that (1) respondent
“breached his fiduciary duty,” (2) the trial court “erred in
relieving [retained counsel] as [her] attorney on July 2, 2020,” (3)
the court erroneously admitted into evidence respondent’s
inaccurate accounting, and (4) it failed to award her need-based
attorney fees.
Appellant did not appeal from the August 18, 2020
judgment. She appealed from the postjudgment order denying
her request to set aside the judgment pursuant to section 473,
subdivision (b). (See ante, at pp. 2-3.) In the trial court, her
theory was that she was entitled to relief based on “excusable
neglect.” (§ 473, subd. (b).) Appellant cannot change her theory
on appeal. “As a general rule, having chosen to file her motion in
the trial court under section 473 and base all her arguments
below upon that provision, appellant should not at this late date
be permitted to change the entire basis of her motion because in
hindsight it now seems expedient for her to do so. ‘A party is not
permitted to change his [or her] position and adopt a new and
different theory on appeal. To permit him [or her] to do so would
not only be unfair to the trial court, but manifestly unjust to the
opposing litigant.’” (In re Marriage of King, supra, 80
Cal.App.4th at pp. 110-111; see also id. at p. 117, fn. 17 [an
appellate court can “only address those issues appellant actually
raised before the trial court” in the motion to set aside the
judgment; thus, appellant cannot “bootstrap onto this appeal any
arguments regarding the underlying judgment that were not
already raised on the motion to set aside in the trial court
below”].)
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Appellant’s Claim that Trial
Court Was Biased Against Her
Appellant asserts: “Judicial misconduct is pervasive in
[her] case as the judge is predetermined to rule against [her]
because she is a woman and because he does not like her.” “[T]he
court’s gender-based bias deprives [her] of her due process rights
and a fair trial . . . .”
The claim of judicial bias is not supported by the evidence.
Moreover, the claim is forfeited because appellant did not raise
the issue before the trial court ruled on her motion to set aside
the judgment. (Moulton Niguel Water Dist. v. Colombo (2003)
111 Cal.App.4th 1210, 1218 [“owners did not preserve their claim
of judicial bias for review because they did not object to the
alleged improprieties and never asked the judge to correct
remarks made or recuse himself”]; Caminetti v. Pacific Mut. Life
Ins. Co. of Cal. (1943) 22 Cal.2d 386, 392 [“‘It would seem . . .
intolerable to permit a party to play fast and loose with the
administration of justice by deliberately standing by without
making an objection of which he is aware and thereby permitting
the proceedings to go to a conclusion which he may acquiesce in,
if favorable, and which he may avoid, if not’”].)
Sanctions Order
In a postjudgment order filed on October 26, 2020, the trial
court required appellant to pay respondent “the sum of $25,000
as a sanction pursuant to Family Code section 271.” Appellant
claims that the evidence is insufficient to support the sanctions
order. There is no jurisdiction to consider her claim because she
failed to file an appeal from the order. (Adoption of Alexander S.
(1988) 44 Cal.3d 857, 864 [“A timely notice of appeal vests
jurisdiction in the Court of Appeal”].) An appeal was available
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under section 904.1, subdivision (a)(2), authorizing an appeal
from a postjudgment order, or under section 904.1, subdivision
(a)(12), authorizing an appeal “[f]rom an order directing payment
of monetary sanctions . . . if the amount exceeds five thousand
dollars.”
Disposition
The order denying appellant’s request to set aside the
judgment on reserved issues is affirmed. Respondent shall
recover his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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John R. Smiley, Judge
Superior Court County of Ventura
______________________________
Olive Mersades Richards, in pro. per., for Appellant.
Norman Dowler and Thomas Hutchinson, for Respondent.