Opinion
B313808
05-01-2023
KIMBERLY M. CALITTO, as Administrator, etc., Petitioner and Appellant, v. LILIAN E. VINUEZA, Claimant and Respondent.
Law Offices of Jessica Ponce and Jessica Ponce for Petitioner and Appellant. Law Offices of Alan S. Yockelson and Alan S. Yockelson for Claimant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. VD080499 Charles Q. Clay III, Judge. Affirmed.
Law Offices of Jessica Ponce and Jessica Ponce for Petitioner and Appellant.
Law Offices of Alan S. Yockelson and Alan S. Yockelson for Claimant and Respondent.
BENKE, J. [*]
BACKGROUND
The subject matter of this case is an underlying dissolution action filed between Douglas Calitto (Douglas) and Lilian Elizabeth Vinueza (Lilian) on January 7, 2013. Appellant Kimberly M. Calitto (Kimberly) is the daughter of her deceased father, Douglas, and respondent mother, Lilian. Kimberly is also the administrator of Douglas' estate.Because the factual background is complex and critical to an understanding and resolution of the case, we set forth the facts in detail.
We use first names for convenience only. We mean no disrespect to the parties.
Douglas and Lilian were married in 1998. They separated on March 8, 2012. On January 7, 2013, Douglas petitioned for dissolution of the marriage based on irreconcilable differences. Lilian responded and also requested dissolution of the marriage based on irreconcilable differences.
Temporary orders pending judgment or further orders were entered by the family court on September 20, 2013. These included temporary control orders over four incomegenerating parcels of real estate in California; one in Compton, and three in Los Angeles. The stipulation over control called for accountings from each party.
1. The July 8, 2014 Bifurcated Hearing
At a hearing on July 8, 2014, Lilian requested, and Douglas' counsel did not oppose, a bifurcated hearing for dissolution of the parties' marriage. Specifically, they agreed in open court to bifurcate the issue of the status of the marriage. Status was taken, and a judgment of dissolution of marriage as to status only was, as of that date, orally granted by the court. What happened at and after the July 8, 2014, hearing is critical to understanding the dispute before us.
At the July 8, 2014, hearing, captioned as a short cause court trial, attorney Roger Shafer appeared for Douglas. Danielle PaulJohn appeared for Keith Lynch who was representing Lilian. Mr. Shafer began the trial by noting that his client, Douglas, was unexplainably absent, and announcing no one was prepared for trial that day, but rather another hearing date, January 7, 2015, had already been secured from the clerk. He stated that in the meantime "the Respondent wishes to proceed to bifurcate and take status today, and we have no objection. If my client were here, we would have done the same thing." (Italics added.)
Mr. Shafer added: "However, we can't submit the judgment until the disclosure documents have been filed, and so everyone will do that and then submit the judgment." (Italics added.) Lilian then testified there were irreconcilable differences, no counseling could aid the parties, and she wanted the marriage dissolved. It is not clear who Mr. Shafer meant by "we." The court thereafter stated, "All right. And the court does grant a judgment of dissolution based upon irreconcilable differences. Marital status will be terminated upon entry of judgment and the parties are restored to the status of single persons.¶ Court does reserve jurisdiction on all other issues, specifically custody, visitation and support of the minor child, division of property, and the court finding marriage to be one of longterm spousal support." (Italics added.) Thereafter, the following discussion took place:
There is no indication in the record, however, that Lilian was sworn before she testified.
"The Court: That will be the order. And Mr. Shafer, you're going to prepare the judgment?
Mr. Shafer: I can do that.
Court: Thank you. All right
Mr. Shafer: Since I asked the questions, I'll do that.
Ms. Pauljohn: Thank you.
Mr. Shafer: But I won't present it until I know the declarations of disclosure have been filed.
Court: Okay; fine. Thank you.
Mr. Shafer: Or they can be filed concurrently.
Court: Yes.
Mr. Shafer: That's fine."
The record reflects that on July 8, 2014, Lilian filed, but appears not to have served, an Income and Expense Declaration on form FL-150 (I &E). That document listed her income as $1,600 per month, monthly expenses exceeding her monthly income, and debts in the amount of $9,319 owed to her attorneys and $13,000 owed to a third party for a personal loan. In the assets section of the I &E, Lilian did not identify any assets and indicated the value of her assets was "$0." We note, however, that she was given temporary use, possession, and control over two of the parties' properties in September 2013. We cannot tell whether Lilian filed the I &E before or after the hearing. It was filed in the same department as that hearing her bifurcated trial request. It appears, however, that at the time of the bifurcated proceeding, Mr. Shafer was unaware that Lilian had that day filed the I &E. Neither the court nor Mr. Shafer mention this filing. And counsel for Lilian, whose firm also filed the I &E, did not mention the filing in open court.
There is also no indication in the record that the parties served, filed, or waived exchanging a declaration of disclosure-i.e., the Declaration of Disclosure on form FL-140 (Disclosure Form)-at any time before Douglas died. The Disclosure Form requires disclosure of more financial information than the I &E. For example, the Disclosure Form requires a party to attach a detailed schedule of assets and debts and all tax returns filed by the party in the two years before the date that the party served the disclosure documents.
As the minute order from July 8, 2014 states, and as noted above, the court orally granted the dissolution and reserved jurisdiction over all other issues, specifically, custody, visitation, child support, division of property, and spousal support-the court finding this to be a long term marriage. The matter was continued until January 7, 2015, at 8:30 a.m. for trial on the reserved issues. The minute order ends with the notation that counsel for Douglas needed to prepare and submit the status only judgment.
2. The History of the Case Following the Bifurcation
Trial on the issues on which the court expressly reserved jurisdiction was never held. Between January 7, 2015, and July 13, 2017, there were eight continuances of the short cause trial. In the declaration of Jessica Ponce filed February 8, 2021, she states that all of the continuances were requested by Douglas' counsel on the representation the case was not ready for trial. During this lengthy period, no Disclosure Form was filed or served by either party, no stipulation waiving or deferring service of the of the Disclosure Form was filed or served, and no judgment of dissolution of the marriage was filed or served. Finally, on January 31, 2018, pursuant to a stipulation between the parties, trial on the reserved issues was taken off calendar.
On October 20, 2019, Douglas died. Lilian then recorded Affidavits of Death of Joint Tenants, claiming that by operation of law she became sole owner of the couple's four real properties.
3. Kimberly's Requests for Substitution and a Nunc Pro Tunc Judgment of Dissolution
On November 5, 2020, Kimberly, as the administrator of Douglas' estate, filed an ex parte application seeking orders substituting herself in place of Douglas and further requesting a judgment of dissolution of marital status nunc pro tunc. In support of her application, Kimberly submitted her own declaration and a declaration from Mr. Shafer. She also lodged the July 8, 2014, transcript. Kimberly claimed a judgment of dissolution had been granted and counsel for Douglas failed to submit the judgment as ordered by the court. On his part, Mr. Shafer offered that the judgment was not filed because he never received the necessary financial disclosures from the parties. Judge James Horan denied the application on November 24, 2020, finding that Kimberly failed to show "irreparable harm, immediate danger, or any other statutory basis for granting the [requested] relief ex parte."
In early February 2021, Kimberly renewed her requests for orders and submitted a supplemental memorandum of points and authorities and additional evidence. For example, she submitted an unsigned copy of Douglas' 2013 federal tax return which indicated his filing status as "single." Lilian opposed the requests for orders and declared that Douglas died intestate in 2019 while they were still married. According to Lilian, Mr. Shafer never filed the judgment of dissolution because the parties never filed or served declarations of disclosure. On reply, Kimberly submitted additional documents, including a transcript of a November 2020 probate hearing to show that the probate court had not ruled on the issues pending before the family court.
The hearing on Kimberly's requests for orders was conducted on February 26, 2021, before the same judge- Charles Q. Clay, III-that dissolved the parties' marriage in 2014. The court stated it had read and considered Kimberly's requests for orders and accompanying declarations. The court noted, however, that a judgment of dissolution was never filed or entered before Douglas died. After hearing from counsel, the court denied the requests and explained that this was not a situation where the case had been completed and submitted for consideration to the trier of fact. The court also denied Kimberly's oral request for a continuance to allow her to cross-examine Lilian. Lilian's counsel was directed to prepare and serve an order after hearing.
On April 12, 2021, the court signed the order after hearing. The order stated that the court "read and considered the moving and responsive pleadings." It also stated that Kimberly's requests for substitution of parties, entry of judgment of dissolution nunc pro tunc, and for an evidentiary hearing, were denied. This appeal followed.
DISCUSSION
1. Standard of Review
The central issue in this appeal is whether the trial court had jurisdiction to enter a judgment of dissolution nunc pro tunc after the husband had died and, for nearly five years after a status dissolution was orally granted, the judgment had never been filed. The parties agree that whether a court has jurisdiction to enter a judgment nunc pro tunc presents a question of law for this court to review de novo. (In re Marriage of Rosenfeld &Gross (2014) 225 Cal.App.4th 478, 485 ; In re Marriage of Fong (2011) 193 Cal.App.4th 278, 288.)
2. Even if the court erred in denying Kimberly's request for substitution, the error was harmless.
We begin with Kimberly's contention that the court erred in denying her request for substitution. Kimberly, as Special Administrator with Letters of Administration, applied for an order allowing her to substitute in place of her father in the family law proceeding under Code of Civil Procedure sections 377.21 and 377.31. That request was denied without explanation. On appeal, Kimberly contends the court erred because substitution would have allowed her to appear in the underlying family law proceedings following Douglas' death.
"As a general proposition, ... judgment cannot be rendered for or against a decedent, nor ... for or against a personal representative of a decedent's estate until the representative has been made a party by substitution. [Citations.]" (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957.) "Failure to substitute, however, is merely a procedural irregularity, not an act in excess of jurisdiction. [Citation.]" (4 Witkin, Cal. Procedure (6th ed. 2021) Pleading, § 258.) Accordingly, Kimberly is not entitled to reversal of the order unless she can show prejudice from her failure to be substituted. (Sacks v. FSR Brokerage, Inc., supra, 7 Cal.App.4th at pp. 958-960.)
Kimberly argues she was prejudiced by the court's order because she could not litigate the issue of dissolution of her parents' marital status, "including litigation of the issue of a nunc pro tunc entry of the judgment." Thus, the question before us is whether Kimberly has been prejudiced by the failure to substitute her before the court denied her request for entry of judgment nunc pro tunc. Otherwise, a failure to substitute a party before entry of judgment is denied could never be held harmless.
We conclude any error by the court is at most a technical one and does not require reversal of the order. Here, Kimberly had a full and complete opportunity to marshal all of the evidence supporting her request for entry of the judgment nunc pro tunc, and the court expressly stated it considered that evidence before finding it had no jurisdiction to enter the proposed judgment after Douglas died. We therefore can find no prejudice and any error in not substituting Kimberly was harmless.
3. The court did not err in finding the case was not submitted before Douglas died.
This appeal requires us to determine whether the case had been submitted for decision on July 8, 2014. If the answer is in the affirmative, the court had authority to enter a judgment dissolving the parties' marital status nunc pro tunc. If the case had not been submitted, the court lost jurisdiction over the matter upon Douglas' death. We agree with Lilian that the case was not yet submitted on July 8, 2014, and therefore the court did not have jurisdiction to enter judgment after her husband's death.
Code of Civil Procedure section 669 provides, "If a party dies after trial and submission of the case to a judge sitting without a jury for decision or after a verdict upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon." This provision "applies to marital dissolution actions." (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1170 (Mallory).) "A cause is deemed submitted in a trial court when either of the following first occurs: [¶] (1) ... the court orders the matter submitted; or [¶] (2) ... the final paper is required to be filed or ... argument is heard, whichever is later." (Cal. Rules of Court, rule 2.900(a); see also Fam. Code, § 2346, subd. (d) [the court shall not cause a judgment to be entered nunc pro tunc as of a date before submission to the court of an application for judgment on affidavit pursuant to Family Code section 2336].)
Although the court orally granted Lilian's request to dissolve the parties' marriage on July 8, 2014, it specifically stated that "marital status will be terminated upon entry of judgment." Then, towards the end of the hearing when the court asked Douglas' counsel to prepare the judgment, counsel stated he would not do so until "the declarations of disclosure have been filed," and the court responded, "Okay; fine. Thank you." And, as we stated before, no judgment was ever filed or entered, and no Disclosure Form was ever filed, served, or waived.
The cases cited by Kimberly are distinguishable. In Frederick v. Superior Court (2014) 223 Cal.App.4th 988, 992 (Frederick), the husband's counsel submitted a written judgment to the court at the hearing, and the court entered the written judgment dissolving the parties' marital status three days after the husband died and less than three weeks after the judgment had been submitted to the court. In Mallory, supra, 55 Cal.App.4th at p. 1168, the husband died after trial but the last of the written arguments of the parties had been filed with the court before the husband's death. By contrast, here the matter was never submitted because the court expressly stated that the parties' marital status "will be terminated upon entry of judgment" and the judgment was never filed or entered because the parties failed to exchange the Disclosure Form. In addition, Frederick and Mallory did not, like our case, involve the parties' failure to exchange financial disclosure documents as a stipulated condition precedent to the filing of a judgment.
Much argument is offered by the parties with respect to who had the responsibility to file the Disclosure Form. Certainly, Family Code section 2337, subdivision (b), states that the party moving for the bifurcation has the responsibility to serve the declaration on the nonmoving party. Lilian was the party who moved for bifurcation. However, counsel for Douglas joined the motion to bifurcate. Counsel for Douglas also bound his client, as well as Lilian, to the requirement that a Disclosure Form had to be exchanged by the parties before he would file the judgment. The record supports the conclusion that Mr. Shafer spent years waiting for the parties to exchange those documents. We do not know, and the record does not reflect, why so much time passed without action by either party. We do know from the record that Mr. Shafer reminded the parties, separately and together, that the judgment needed to be filed and he could not file it until the parties exchanged the Disclosure Form. Whether the Family Code requires parties to mutually exchange a Disclosure Form, or just the moving party seeking to bifurcate the issue of dissolving the status of the marriage, before a marriage may be dissolved is of no moment. Here, both parties mutually agreed to do so and that was never done.
4. The court did not err in implicitly finding that Kimberly failed to show that the judgment was not entered due to mistake, negligence, or inadvertence.
Kimberly contends that the delay in entering the judgment was a result of several mistakes made by Mr. Shafer. Family Code section 2346 permits the trial court to enter a decree of dissolution nunc pro tunc in situations where failure to timely enter the judgment is due to mistake, negligence or inadvertence. (Fam. Code, § 2346, subd. (a).)" 'A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. [Citation.] Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. [Citations.]' Negligence may be passive in character: it may consist in heedlessly refraining from doing the proper thing. When the circumstances call for activity, one who does not do what he should is negligent. [Citation.] Negligence is sometimes defined as the failure to use ordinary care in the management of one's person or property. [Citation.] The essence of negligence is the failure to exercise due care and take proper precaution in a particular case. [Citation.]" (Berry v. Berry (1956) 140 Cal.App.2d 50, 59-60.)
Here, the court made no express finding regarding mistake, neglect, or inadvertence. The court found only that the parties never obtained a final judgment. And "[t]he mere failure of a party to apply for a final decree does not constitute mistake, negligence, or inadvertence." (Berry, supra, 140 Cal.App.2d at p. 60.)
Moreover, the record supports the court's implied finding that the failure to obtain a judgment was not through mistake, neglect, or inadvertence by Mr. Shafer, Douglas, or Lilian. First, Mr. Shafer never stated he was requiring the parties to exchange the Disclosure Form pursuant to any specific provision in the Family Code. And Kimberly cites no authority holding that parties could not agree to exchange a Disclosure Form as a condition of bifurcating the issue of dissolution of their marriage. Second, based on Mr. Shafer's and Lilian's declarations, there was substantial evidence before the court that the parties knew that a judgment had not been filed on their behalf and that the Disclosure Form had not been exchanged. Third, there is no evidence that Mr. Shafer advised his client to proceed with filing a judgment of dissolution in the absence of the exchange of the Disclosure Form. Finally, Lilian stated that the parties were married as of October 2019 when Douglas died, implying that they chose not to proceed with dissolving their marriage.
In sum, the court did not err in denying Kimberly's request to enter a judgment of dissolution nunc pro tunc under Family Code section 2346.
DISPOSITION
The order is affirmed. In the interest of justice, the parties shall bear their own costs on appeal.
WE CONCUR: EDMON, P. J. LAVIN, J.
[*] Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.