Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. VFLVS033516, David R. Proulx, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Arias & Lockwood and Christopher D. Lockwood for Appellant Mukeshchandra M. Patel.
Zumbrunn Law Corporation and Gregory L. Zumbrunn for Respondent Amisha M. Patel.
Law Offices of Dennis F. Fabozzi and Dennis F. Fabozzi for Movant and Appellant Wells Fargo Bank, N.A.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Mukeshchandra M. Patel, M.D., appeals from orders made in a dissolution action. Mukeshchandra contends the family law court awarded excessive spousal and child support to Amisha M. Patel because the finding of his ability to earn is contrary to the record. Specifically, Mukeshchandra contends: (1) the family law court improperly included Amisha’s earnings in determining Mukeshchandra’s earnings; (2) the family law court failed to take into consideration its own order that Mukeshchandra serve a 45-day jail sentence for contempt; (3) the family law court failed to take into consideration that Mukeshchandra had lost income because he no longer had a medical laboratory; (4) the family law court based its determination of income on the expectation that Mukeshchandra would continue to work an extraordinary number of hours; and (5) the family law court failed to consider or deduct the amount of debts and expenses assigned to Mukeshchandra. Mukeshchandra further contends the family law court erred in determining the value of a community property medical building and medical practice. We find no error, and we affirm.
We will hereafter refer to the parties by their first names, not out of any familiarity or disrespect, but for clarity and ease of reference. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
Movant and appellant Wells Fargo Bank, N.A. (Wells Fargo) appeals from orders denying its request to intervene and denying its motion to compel the sale of real property. Wells Fargo contends: (1) it had a statutory right to intervene; (2) the family law court erroneously believed that Amisha Patel took property free of Wells Fargo’s judgment lien; and (3) the fact that the Patels were separated should not preclude Wells Fargo from attaching community real property. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Amisha and Mukeshchandra were married on January 22, 1985, and separated on September 13, 2005. They had two children, D. (born in 1989), and K. (born in 1992). Amisha filed a petition for dissolution of marriage on September 14, 2005.
During the marriage, Mukeshchandra, a cardiologist, operated a medical practice known as Shanti Mohan Medical Clinic, Inc. (the medical practice), and Amisha worked in the medical practice at a salary of $120,000 per year. Among the community assets at issue in this appeal are the medical practice and a medical building located at 16077 Kamana Road in Apple Valley (the medical building).
On September 16, 2005, Amisha obtained ex parte temporary restraining orders freezing various accounts, including accounts at Wells Fargo. Those orders were served on Mukeshchandra on September 16, 2005. Amisha hand delivered the orders to Wells Fargo. On June 6, 2006, Wells Fargo issued an unsecured business line of credit in the amount of $200,000 to the medical practice; Mukeshchandra personally guaranteed the loan.
On July 28, 2006, the family law court appointed Eric Beatty as the receiver of the medical practice and of all the parties’ assets, including the medical building. The notice of appointment of receiver and injunction against transfer or encumbrance of real property was recorded on August 9, 2006. That document stated, “Pursuant to the terms of the Receivership Order, the Parties, and each of them, are ‘restrained from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal . . . .’” That document listed the medical building among the real property subject to the receivership order and notice.
Two days before the receiver was appointed, Mukeshchandra quit the medical practice but continued to operate out of the same medical building under a different corporate entity. Mukeshchandra testified his family had created the new corporation for the express purpose of giving him a place to work after he quit the medical practice. Later, Mukeshchandra vacated the medical building and began working at another facility a quarter mile away.
The divorce action went to trial in April and May 2007. On May 30, the family law court recited into the record its findings and orders concerning the division of property and debt, and on July 3, 2007, the family law court issued a judgment of dissolution. The family law court ordered Mukeshchandra to pay Amisha child support in the amount of $6,293 per month and spousal support in the amount of $15,000 per month. The family law court found that the value of the medical building was $732,000 and awarded that asset to Amisha. The family law court valued the medical practice as of the date of separation. The family law court found that the value of the medical practice was $2.65 million and awarded that asset to Mukeshchandra.
On July 30, 2007, the family law court issued an order of further instructions to the receiver directing him, among other things, to take the necessary steps to deliver to Amisha possession of the real properties awarded to her in the judgment. Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION — MUKESHCHANDRA’S APPEAL
A. Sufficiency of the Evidence to Support the Findings of Income for Child and Spousal Support Purposes
Mukeshchandra challenges the family law court’s finding of his ability to earn, on which the family law court based its child and spousal support orders. Specifically, Mukeshchandra contends the finding of his ability to earn was contrary to the record because the family law court (1) improperly included Amisha’s earnings in determining Mukeshchandra’s earnings, (2) failed to take into consideration its own order that Mukeshchandra serve a 45-day jail sentence for contempt, (3) failed to take into consideration that Mukeshchandra had lost income because he no longer had a medical laboratory, (4) based its determination of income on the expectation that Mukeshchandra would continue to work an extraordinary number of hours, and (5) failed to consider or deduct the amount of debts and expenses assigned to Mukeshchandra.
1. Standard of Review
The deferential abuse of discretion standard governs our review of the determination of child and spousal support orders. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.) However, if the challenge on appeal goes to the sufficiency of the evidence underlying the findings on which the family law court based its support decision, we apply the substantial evidence standard of review: “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court, believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; italics omitted.)
Moreover, when a party challenges the sufficiency of the evidence, the party must set forth all material evidence on the issue, not merely the evidence that supports the party’s position. Failure to do so waives the error, and this court may presume the record contains evidence to support every finding of fact. (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.)
2. Additional Factual Background
The family law court appointed John McCallum, a certified public accountant, as a forensic accounting expert under Evidence Code section 730 to value the medical practice and to prepare a schedule of the assets of the marital community. In his report, the expert stated that the “Patel marital community” had earned $944,000 in 2004 (or $78,667 per month). McCallum testified as to how he had reached the figure of $944,000: “Well, I took the most recent year[’]s income. I added 350,000. I added in the other income of his practice. I allowed for an obsolescence of equipment $4,000 a year. The sum of those is 944,000. I further reconciled that amount by taking the historical net income, adding back officers’ salary and making adjustments for rent and travel, automobile usage expenses and came up with the same 944,000 . . . .”
Amisha’s expert witness calculated Mukeshchandra’s income at $96,000 per month for support purposes after taking into account the cost of replacing Amisha’s services to the medical practice.
Mukeshchandra filed an income and expense declaration on January 20, 2006, that showed an income of approximately $50,000 per month. Mukeshchandra filed a declaration in June 2006, stating that although his monthly income before January 2006 had been approximately $50,000, his income from the medical practice had “dropped dramatically” since the separation. He stated that he suffered from ulcerative colitis and progressive arthritis, and since the separation he had “scheduled [him]self for a traditional forty (40) hour work week.” He attached a letter from a physician confirming his medical diagnoses; the physician recommended that Mukeshchandra “reduce his work to attend to his health.”
Mukeshchandra filed an income and expense declaration on June 20, 2006, in which he stated that his average monthly income for the year to date had been $20,000. On October 16, 2006, Mukeshchandra filed an income and expense declaration in which he stated he worked 20 hours per week and earned $5,417 per month.
Mukeshchandra filed an income and expense declaration on April 20, 2007, in which he stated that the address and telephone number of his employer were “unknown” and that he worked only 10 hours per week, for which he earned $2,437 per month.
At trial, Mukeshchandra testified that throughout the marriage, he had worked an extraordinary number of hours as a cardiologist; that before the separation in September 2005, he had worked more than 12 hours per day, seven days per week. He testified that for health reasons, he was currently working only about five hours a day for two or three days per week. However, a private investigator testified he had surveilled Mukeshchandra for 10 separate days between January and April 2007, and on each of those days, Mukeshchandra had worked at least 12 hours.
The family law court found McCallum’s testimony as to Mukeshchandra’s earnings credible because it was supported by Mukeshchandra’s historical earnings. The family law court also found that Mukeshchandra continued to work as he had in the past and that he had concealed any records or information about his current income. The court found that Mukeshchandra’s physical condition did not impair his present ability to work. The court also found that Mukeshchandra had lied to the court when he testified he was working only a couple of hours a day and only two or three days a week.
3. Failure to Raise Issues in Request for Statement of Decision
After the family law court recited its intended disposition into the record, Mukeshchandra requested the family law court to issue a statement of decision. However, in his request, he failed to raise most of the issues he now raises on appeal.
The request for statement of decision identified the following issues with respect to the support orders: “(7) The facts and circumstances supporting the award to Petitioner of child support in the amount of $6,293.00 per month. [¶] (8) The facts and circumstances supporting the award to Petitioner of spousal support in the amount of $15,000.00 per month.”
In In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928, the court stated: “Under Code of Civil Procedure section 632, after the court issues its tentative decision, a party may request a statement of decision explaining the basis for its ruling. ‘Thereafter, under [Code of Civil Procedure] section 634, the party must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. . . . [I]f a party does not bring such deficiencies to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient . . . and hence the appellate court will imply findings to support the judgment.’ [Citation.]” In In re Marriage of Cohn, the husband had requested a statement of decision, but had failed to bring the family law court’s attention to the fact that it did not make findings as to his opportunity to work. On appeal, the court held the husband’s challenge to the judgment based on that deficiency had been waived. (Ibid.) The court stated that it would imply all findings necessary to support the judgment, and its review was limited to whether the record contained substantial evidence to support such implied findings. (Ibid.)
Here, Mukeshchandra’s failure to request a statement of decision specifically addressing the points he now raises on appeal constituted a waiver of such challenges. Moreover, as we discuss below, his challenges fail on the merits.
4. Amisha’s Earnings
Before the parties’ separation, Amisha had worked at the medical practice for a salary of $10,000 per month. McCallum’s report stated that “the [medical practice] generated $944,000 for the benefit of the Patel marital community” in 2004. The family law court based its finding of Mukeshchandra’s ability to earn on three factors: (1) McCallum’s report; (2) Amisha’s testimony that the net income from the medical practice had averaged $100,000 per month; and (3) Mukeshchandra’s January 2006 Income and Expense Declaration that showed an income of approximately $50,000 per month as well as other evidence that showed approximately $25,000 had been paid to Hemant Chhatrala/Shiva Management for nonbusiness-related reasons. Thus, even if McCallum had included Amisha’s income from the medical practice in his calculation (which is not entirely clear from the record), the other evidence on which the family law court relied provides sufficient independent evidence to support the court’s determination of Mukeshchandra’s income. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) We therefore reject Mukeshchandra’s argument.
5. Effect of Contempt Sentence
The family law court expressly found that Mukeshchandra had taken approximately $1.4 million in community assets in violation of specific court orders and the automatic temporary restraining orders. The family law court found Mukeshchandra guilty of 19 counts of contempt of court for his willful failure to pay support and his taking of community assets in violation of court orders. The family law court sentenced him to serve 45 days in jail but left it to the discretion of the sheriff’s department to determine the times, dates, and manner in which the sentence was to be served. The court stated that the jail could make arrangements for Mukeshchandra to serve his time in some alternative fashion, including outside the jail facility.
Mukeshchandra argues that in fixing the amount of support, the family law court failed to take into consideration its own order that Mukeshchandra serve a 45-day jail sentence for contempt. Again, Mukeshchandra did not ask for a statement of decision addressing the effect of the contempt sentence on his earning power. We conclude that he has therefore forfeited any challenge on that basis. (See, e.g., In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1496.)
Moreover, Mukeshchandra did not present any evidence in the family law court to support his claim that the sentence would result in a loss of income, nor would a loss of income necessarily flow from serving his time outside the jail facility, as the family law court authorized in the discretion of the sheriff’s department. We therefore reject Mukeshchandra’ argument.
6. Loss of Income from Medical Laboratory
Mukeshchandra argues the family law court failed to take into consideration that Mukeshchandra had lost income because he no longer had a medical laboratory. Orders for support must be based on the circumstances that exist as of the date of the order, not on prior circumstances that no longer exist. (See In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 824.)
Before the Patels’ separation, the medical practice had included a laboratory, the license for which was under Amisha’s name. As noted, on July 26, 2006, Mukeshchandra quit the medical practice. However, he continued for a time to operate out of the same building under a different corporation. Mukeshchandra later moved out of the medical building to a new location a quarter mile away. Mukeshchandra argues the new location does not have space for a medical laboratory, and he does not operate a medical laboratory as part of his current practice. At some point after the separation, the license for the laboratory was cancelled.
Little evidence was presented at trial concerning the income attributable to the laboratory. McCallum testified that the medical laboratory had contributed “a perhaps significant but unidentifiable component of the overall revenue” of the medical practice, and no longer having a laboratory “may well have a significant impact on [Mukeshchandra’s] income and the goodwill of his practice.” However, because the receipts for the laboratory services had been deposited into the general operating account for the medical practice, McCallum was unable to determine the income or expenses attributable to the laboratory. Mukeshchandra filed a declaration on January 20, 2006, in support of his request for modification of the temporary child and spousal support awards. In his declaration, he stated that the profit from the laboratory in 2004 had been $12,075.
Mukeshchandra failed to request a statement of decision as to lost income from the discontinuation of the laboratory, and he has therefore forfeited his challenge. (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1496.) Moreover, the record contains insufficient evidence from which the family law court could have made any such determination—the family law court expressly found Mukeshchandra had concealed his actual income and failed to present any credible evidence of his current income. We therefore reject Mukeshchandra’s argument.
7. Mukeshchandra’s Work Hours
The evidence at trial indicated that during the parties’ marriage, Mukeshchandra had worked more than 12 hours a day, seven days a week. Mukeshchandra argues the family law court based its determination of income on the expectation that Mukeshchandra would continue to work that extraordinary number of hours.
In In re Marriage of Simpson (1992) 4 Cal.4th 225, the husband, who had worked long hours during the marriage, had stopped working those hours after the separation, and his documented income had been reduced accordingly. (Id. at pp. 228-229.) The trial court based the spousal and child support awards on the husband’s “earning capacity rather than his actual earnings at the time of trial, finding that [the husband] had ‘voluntarily reduced his ability to earn during the proceedings which was unjustified and a purposeful reduction in his income to support the minor child and [the wife].’” (Id. at p. 229.) The Supreme Court held that the trial court did not err by considering the husband’s earning capacity in calculating the support awards, and that substantial evidence supported the trial court’s finding that the husband had voluntarily changed his work so as to “shirk his family obligations.” (Id. at pp. 233-234.)
The Supreme Court further held, however, that the trial court had erred in calculating the amount of the husband’s earning capacity. The court held that the calculation of earning capacity for purposes of a support order should be based upon an objectively reasonable work schedule rather than on the extraordinarily heavy work schedule the husband had followed during the marriage. (In re Marriage of Simpson, supra, 4 Cal.4th at pp. 234-235.) Finding that the trial court had not properly calculated earning capacity under this standard, the court reversed the judgment and remanded for recalculation. (Id. at p. 236.) The court further recognized, however, that in some occupations, a normal work week will require more than the standard 40 hours, and such excess might be considered reasonable. (Ibid.; see also In re Marriage of Serna (2000) 85 Cal.App.4th 482, 486.)
In In re Marriage of Smith (1990) 225 Cal.App.3d 469, 493, footnote 15, the court stated, “We do not mean to suggest that income from overtime work, or from a second job, should be disregarded in determining spousal support, either initially or upon modification. Such income must be considered by the trial court. However, how it is to be considered in a particular case is within the discretion of the trial court.”
Here, both Mukeshchandra’s expert witness, Marvin Reiter, and the court-appointed expert, McCallum, testified that a cardiologist with 20 years experience typically works substantially more than 40 hours per week. McCallum testified he did not know of any database that “would reliably tell you how many hours a 20-year cardiologist would work[.]”
the private investigator documented through video surveillance that Mukeshchandra was continuing to work 12-hour days.
8. Debts and Expenses Assigned to Mukeshchandra
Mukeshchandra argues that in fixing the child support and spousal support awards, the family law court failed to consider or deduct the amount of debts and expenses assigned to Mukeshchandra. Mukeshchandra asserts that the only asset awarded him was the medical practice. He asserts he was also ordered to pay over $4.7 million in debts, and the money required to pay those debts was unavailable to pay support.
Mukeshchandra’s argument is based on a faulty analysis of the family law court’s orders. First, the amount of “debt” Mukeshchandra listed in his brief included the approximately $1.4 million in assets the family law court awarded Amisha under Family Code sections 1101, subdivision (h), and 2602, and In re Marriage of Rossi (2001) 90 Cal.App.4th 34, pages 40 through 41, because Mukeshchandra had fraudulently, and with malice, taken and/or concealed those assets. We consider his current argument for reduced support on the basis of his own wrongdoing to be disingenuous in the extreme.
Second, the amount of “debt” Mukeshchandra listed in his brief included credits the family law court had awarded him for his prior payment of community debts totaling approximately $241,000. Because the payments were already made, Mukeshchandra cannot reasonably argue that he is required to make the payments from the same funds from which he must pay support.
Third, Mukeshchandra contends he was ordered to pay some $1.4 million in debts to family members and friends. The record shows that Mukeshchandra had already transferred $1.4 million to those individuals, and the court found that Mukeshchandra had done so to avoid Amisha’s community interest in those funds. Again, because the payments in question have already been made, Mukeshchandra cannot reasonably argue that he is required to make those payments from the same funds from which he must pay support. Moreover, the family law court expressly found no credible evidence to support a finding of any legitimate community debts totaling approximately $1.4 million to Mukeshchandra’s family and friends. The court found that Mukeshchandra’s testimony and that of his sister and brother-in-law about those purported debts was utterly without credibility. The court stated it believed that “these sums were paid by [Mukeshchandra] to his family and friends to hold for him and avoid [Amisha’s] community property interest in same. The court further found it was likely Mukeshchandra could retrieve the money he had given his family and friends. Thus, Mukeshchandra is mistaken in arguing the family law court failed to take those “debts” into account—the court did take them into account, found they were not legitimate, and found it was likely Mukeshchandra could get the money back.
Finally, Mukeshchandra includes among the debts the loans he received after the separation, totaling $1.048 million. The trial court found those were Mukeshchandra’s separate obligations, not obligations of the community. And the evidence shows that he paid the $600,000 he obtained in a loan from Desert Community Bank to his friend and paid the $200,000 he obtained in a loan from Wells Fargo to his brother.
B. Sufficiency of the Evidence to Support the Family Law Court’s Determination of the Value of the Medical Building
The family law court fixed the value of the medical building at $732,000 and awarded the medical building to Amisha. Mukeshchandra contends the evidence was insufficient to support that determination of value, and the family law court undervalued the medical building by more than $200,000.
1. Standard of Review
The deferential abuse of discretion standard governs our review of the family law court’s determination of the value of community assets. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) “To the extent that a trial court’s exercise of discretion is based on the facts of the case, it will be upheld ‘as long as its determination is within the range of the evidence presented. [Citation.]’ [Citation.] Conversely, a court abuses its discretion if its findings are wholly unsupported, since a consideration of the evidence ‘is essential to a proper exercise of judicial discretion. [Citation.]’ [Citation.]” (Ibid.)
2. Additional Factual Background
The receiver appointed Steven D. Roppel, a commercial real estate agent, to value the medical building. Roppel visited the neighborhood and viewed the property, evaluated sales and leases of comparable properties, properties on the market, and actual transactions. In Roppel’s opinion, the value of the medical building was $732,000, or $150 per square foot. In reaching that valuation, he relied on four prior sales in Victorville. He did not consider prior sales in Apple Valley, where the medical building is located.
Although Mukeshchandra repeatedly characterizes the expert as Amisha’s appraiser in his brief on appeal, the record shows that the receiver hired the expert.
Amisha testified the medical building was constructed in 2003, and the cost of construction was $700,000 to $800,000. Her estimate of the value of the building was $700,000 to $800,000.
Mukeshchandra did not present his own expert testimony about the value of the medical building, but attempted through cross-examination to challenge Roppel’s opinion. Mukeshchandra’s attorney provided Roppel with information on sales and listings of other medical buildings one or two blocks from the medical building. Roppel conceded that the average price for the buildings in Apple Valley provided by Mukeshchandra’s attorney was $250 per square foot, and the buildings Roppel had used for comparison had been listed at or sold for $161, $230, $250, $275, and $300 per square foot. Roppel testified, however, that some of those Apple Valley properties were under 1,000 square feet, and smaller buildings may have greater value per square foot.
In his January 2006 schedule of assets and debts, Mukeshchandra listed the value of the medical building as $800,000. In another schedule of assets and debts, Mukeshchandra listed the valued of the medical building as $700,000. In his November 2006 deposition, he testified the value of the building was $800,000. Mukeshchandra testified at trial that the current value of the medical building was at least $1 million. He further testified that his earlier statement of value had been a guess.
Mukeshchandra introduced the testimony of Dr. James Krider that Dr. Krider was interested in buying a medical building and was ready, willing, and able to pay $200 to $220 per square foot. Mukeshchandra also introduced the testimony of John Connolly, a licensed real estate broker, who testified he had sent a letter to the receiver in which Connolly mentioned a possible purchaser for the medical building at a price of $990,000.
The family law court determined the fair market value of the medical building to be $732,000. The court based that finding on Mukeshchandra’s and Amisha’s earlier statements of value and on Roppel’s expert testimony. The family law court noted that “While the price per square foot of other comparable sales was brought to Mr. Roppel’s attention, at no time did he adjust his opinion of value. The Court considered the testimony of Dr. Krider and the realtor, John Connolly, of the potential willingness of a buyer to purchase the property for approximately $990,000 to be of little credibility. No evidence was presented as to a written offer by a qualified buyer of the property.”
3. Analysis
a. Basing valuation on parties’ statements of value
Mukeshchandra argues that the trial court erred in relying on the opinions of both Amisha and Mukeshchandra as to the value of the medical building because those opinions were merely guesses and were not based on competent matters.
Evidence Code section 813, subdivision (a) provides, in part: “The value of property may be shown only by the opinions of any of the following: [¶] (1) Witnesses qualified to express such opinions. [¶] (2) The owner or the spouse of the owner of the property or property interest being valued.” However, “[i]n stating an opinion as to the value of his property, an owner is bound by the same rules of admissibility as is any other witness. [Citation.]” (Sacramento & San Joaquin Drainage Dist. v. Goehring (1970) 13 Cal.App.3d 58, 65.)
Mukeshchandra failed to object to the parties’ statements of value in the family law court and therefore has forfeited any claim that they were incompetent evidence. (Evid. Code, § 353; In re Estate of Odian (2006) 145 Cal.App.4th 152, 167-168.) In In re Marriage of Hargrave (1985) 163 Cal.App.3d 346, the wife asserted that the referee had erred by crediting the husband’s testimony about the value of a community property residence over the opinion of the wife’s expert. The wife argued that the trial court was required to reject the husband’s testimony because the husband had not given reasons for his opinion, but the court rejected that argument as “disingenuous.” (Id. at p. 352.) The court noted that “[w]ife neither cross-examined husband concerning his reasons nor did she object to his testimony. She failed to urge the court to exercise its discretion to require the witness to state the basis of his opinion prior to stating that opinion. [Citation.] Having refrained from testing the credibility of husband’s opinion in the trial court, wife is foreclosed from challenging the admissibility thereof in this court.” (Ibid.)
Mukeshchandra’s claim also fails on the merits. In In re Marriage of Hopkins (1983) 142 Cal.App.3d 350, the wife testified as to the valuation of community assets “based upon her own observations; statements of Husband; appraisals and her testimony relative to these facts.” (Id. at p. 361.) The husband offered no evidence at trial on the value of the assets. The court found the wife’s testimony sufficient to support the trial court’s valuations. The court stated, “The trial court evidently believed the Wife. The testimony of a witness, even the party herself, may be sufficient. [Citation.] Viewing this evidence in the light most favorable to Wife, giving her the benefit of every reasonable inference, and resolving all conflicts in her favor, as we must under the rules of appellate review, we find that there was substantial evidence to support the trial court’s findings as to the character and valuation of the community assets. [Citations.]” (Ibid.)
We likewise conclude that the parties’ statements of value provided a sufficient basis for the trial court’s finding of the value of the medical building.
b. Basis for expert witness’s opinion
Mukeshchandra further contends the trial court undervalued the medical building by more than $200,000, “and reached that result by considering evidence of sales which were not comparable and ignoring undisputed evidence of comparable sales of property located within a block of the building.” Mukeshchandra did not produce his own expert to testify as to the value of the medical building; rather, he sought through cross-examination to refute the assumptions on which the expert had based his opinion. His arguments as to the evidence on which the expert based his valuation go to the weight, but not the admissibility, of the expert’s opinion. As the court held in In re Marriage of Sparks (1979) 97 Cal.App.3d 353, 356, when the husband in a dissolution proceeding failed to offer any contrary evidence of the value of real property, he could not challenge the court’s valuation of the property.
The value of a building should be based on fair market value, or the amount a willing and informed buyer would pay to a willing and informed seller. (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 88-89.) “In assessing the opinions of the valuation witnesses, . . . the trier of fact is not required to accept the testimony of any one witness in total, but may instead, after balancing and reconciling the various opinions of the witnesses and their bases, decide upon a value which falls within the range of the opinion testimony. [Citations.]” (People ex rel. Dept. Pub. Wks. v. Peninsula Enterprises, Inc. (1979) 91 Cal.App.3d 332, 346-347.)
Roppel stated his opinion on the basis of sales of comparable properties. That was an appropriate basis for his opinion. “[P]roperly qualified evidence of comparable sales of real property is admissible to prove the value of real property in litigation. [Citations.] [¶] However, to be admissible, evidence of comparable sales must be properly qualified. A foundation must be laid indicating the other property sold was sufficiently similar to the property in litigation to indicate ‘“the price realized for the other land may fairly be considered as shedding light on the value of the land in question.”’ [Citation.] It must also appear that the other sale was genuine and sufficiently voluntary to be a reasonable index of value and that the price was actually paid or substantially secured. [Citation.] In addition, of course, the evidence must be offered in unobjectionable form.” (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 752-753.)
Evidence Code section 816 provides, “When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the price and other terms and circumstances of any sale or contract to sell and purchase comparable property if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation. In order to be considered comparable, the sale or contract must have been made sufficiently near in time to the date of valuation, and the property sold must be located sufficiently near the property being valued, and must be sufficiently alike in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value and that the price realized for the property sold may fairly be considered as shedding light on the value of the property being valued.”
Although Mukeshchandra’s counsel provided Roppel with information about properties listed for sale in Apple Valley, listings and purchase offers are not appropriate bases on which to base a property valuation. (Evid. Code, § 822, subd. (b).) Evidence Code section 822, subdivision (b), provides: “In an action other than an eminent domain or inverse condemnation proceeding, the matters listed in subdivision (a) are not admissible as evidence, and may not be taken into account as a basis for an opinion as to the value of property, except to the extent permitted under the rules of law otherwise applicable.” Those inadmissible matters include listing prices and purchase offers: “The price at which an offer or option to purchase or lease the property or property interest being valued or any other property was made, or the price at which the property or interest was optioned, offered, or listed for sale or lease, except that an option, offer, or listing may be introduced by a party as an admission of another party to the proceeding; but nothing in this subdivision permits and admission to be used as direct evidence upon any matter that may be shown only by opinion evidence under Section 813.” (Evid. Code, § 822, subd. (a)(2).)
We conclude the family law court did not err in relying on Roppel’s opinion.
C. Sufficiency of the Evidence to Support the Family Law Court’s Determination of the Value of the Medical Practice
In the division of community property, the family law court determined the value of the medical practice to be $2.65 million and awarded the medical practice to Mukeshchandra. On appeal, Mukeshchandra contends the family law court overvalued the medical practice. Specifically, he argues (1) the family law court erred in relying on the cash on hand as a basis for valuation because there was no evidence the cash remained at the time of trial; (2) a large portion of the value of the medical practice was the laboratory, which no longer existed; and (3) a large portion of the value consisted of goodwill, which in turn was based on Mukeshchandra’s continuing to work an extraordinary number of hours.
1. Standard of Review
We apply the deferential abuse of discretion standard of review to the family law court’s determination of the value of the medical practice and the substantial evidence standard of review to the factual findings underlying that determination. (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 197.)
2. Additional Factual Background
The family law court appointed John McCallum under Evidence Code section 730 as a forensic accounting expert to perform accounting services including establishing the value of the medical practice. McCallum testified the value of the medical practice as of December 31, 2004, was $2 million. He used that date for his valuation because he was unable to obtain medical records for the period between the end of 2004 and the Patels’ separation in September 2005. To arrive at his opinion, McCallum used three methods: (1) excess earnings; (2) cash flow; and (3) weighted average annual cost of capital. He testified that Mukeshchandra was the only physician in the practice, and Mukeshchandra regularly had worked more than 60 hours a week, which was typical for physicians.
Amisha’s expert, Gregory Wiebe, certified public accountant, testified he used four methods to determine the value of the medical practice: the goodwill registry method, the multiples of gross receipts method, the multiple of the owner’s cash flow method, and the excess earnings method. Wiebe determined the value of the medical practice as of December 31, 2004, so the family law court could compare his conclusions with those of the court’s expert, McCallum, who also used that date. Wiebe then adjusted his report to bring it up to the date of separation of September 13, 2005, to take into account the substantial amount of cash that had accumulated since December 31, 2004. Wiebe testified that the cash in business accounts had increased from $339,000 to $841,000 during that time, and gross accounts receivable had increased from $2.1 million to $2.6 million. Wiebe took into account that the medical practice would have to pay a salary to replace Amisha’s services, and accordingly he reduced the cash flow by $60,000 per year. He also reduced cash flow in his calculations by $100,000 to reflect the cost of hiring a younger associate to assist Mukeshchandra in the practice. Wiebe testified that in his opinion, the medical practice as of the date of separation was $2.65 million.
Mukeshchandra’s expert, Marvin Reiter, certified public accountant, testified that only 32.65 percent of every dollar billed as accounts receivable was collected by the medical practice and only 5 percent of accounts receivable over 90 days was collectable. In Reiter’s opinion the value of the accounts receivable as of January 4, 2006, was $395,981. Reiter placed a value of approximately $300,000 on the goodwill of the medical practice. He explained that the number of hours Mukeshchandra worked were “a significant factor as to whether there’s goodwill or not,” and Mukeshchandra’s hours “were over and above what an expectation would be for somebody coming in.” Reiter believed Mukeshchandra “works probably twice as much as a normal cardiologist would work . . . .” He based that opinion on an informal survey of three cardiologists. Reiter testified that in his opinion, with the adjustments discussed above for the value of the accounts receivable and goodwill, he was otherwise in agreement with McCallum’s report.
a. Date of Valuation of Medical Practice
Although not stated in such terms, each of the contentions Mukeshchandra raises on appeal is, in substance, an attack on the family law court’s decision to value the medical practice as of the date of separation rather than as of the date of trial. On July 17, 2006, the family law court entered an order that the medical practice would be valued as of the date of separation.
Family Code section 2552 states a presumption that community assets should be valued as of the date of trial rather than as of the date of separation: “(a) For the purpose of division of the community upon dissolution of marriage . . . except as provided in subdivision (b), the court shall value the assets and liabilities as near as practicable to the time of trial. [¶] (b) Upon 30 days’ notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner.” (Fam. Code, § 2552, subds. (a) & (b).) Family Code section 2552, subdivision (b), therefore gives the family law court considerable discretion as to the date of valuation. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 625). “As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.” (Ibid.) Both the date and method of valuation must result in an equal division of the community estate. (See Fam. Code, § 2550.)
“‘Case law has established that good cause generally exists for a professional practice to be valued as of the date of separation. [Citations.]’” (In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1291.) The rationale for valuing a professional practice as of the date of separation rather than as of the date of trial is that earnings after the date of separation belong to the spouse with the practice rather than to the community. (In re Marriage of Stevenson (1993) 20 Cal.App.4th 250, 253-254.) Here, the family law court used the date of separation because Mukeshchandra had failed to provide adequate postseparation records. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1550-1551.) Mukeshchandra has not directly appealed from the order establishing the date of valuation as the date of separation.
b. Valuation based on accumulated cash
Mukeshchandra contends the trial court erred in basing the valuation of the medical practice in part on accumulated cash in the medical practice as of September 13, 2005, because that cash came from loans obtained from Wells Fargo and Desert Community Bank. This argument is patently disingenuous—Mukeshchandra testified he obtained those loans in 2006, after the date of the valuation of the medical practice. He testified had had paid the $600,000 he obtained in a loan from Desert Community Bank to his friend and paid the $200,000 he obtained in a loan from Wells Fargo to his brother. Thus, no evidence supports his contention that the proceeds of the loans went into the accumulated cash for the medical practice.
Mukeshchandra further argues there was no evidence the extra cash remained in the business as of the date of the award. Rather, he argues, $280,000 in cash had been paid to Amisha as temporary support. Contrary to his assertion, however, the record makes clear that Mukeshchandra consistently failed to comply with the family law court’s temporary support orders, and the receiver liquidated community assets to cover Amisha’s support.
Finally, to the extent Mukeshchandra argues there was no evidence the accumulated cash remained in the business as of the date of the award, he failed to introduce evidence to establish that fact. The trial court found Mukeshchandra had failed to provide adequate or credible postseparation records. His argument that the trial court erred is based on mere speculation about what those records might have shown.
c. Laboratory
Mukeshchandra next argues that much of the value of the medical practice as of the date of separation was created by the medical laboratory; that after the separation, Mukeshchandra relocated his practice to a building that does not have space for a medical laboratory, and he no longer has a medical laboratory.
We find no error. First, Mukeshchandra failed to provide any evidence from which the family law court could make any determination of the historical earnings attributable to the laboratory. Second, the laboratory was still in operation as of the date of separation, the date the family law court used for the valuation of the medical practice. Finally, as noted, Mukeshchandra failed to provide adequate or credible postseparation records, and his argument that the closing of the laboratory led to a drop in his income is based on mere speculation about what those records might have shown.
d. Goodwill
Mukeshchandra asserts that $616,000 of the value of the practice consisted of goodwill. He argues that the goodwill figure was based on a schedule of working seven days a week and more than 12 hours a day, and a reduction in his work hours would correspondingly reduce the goodwill.
“No rigid rule applies for determining the value of goodwill. [Citation.] Rather, it ‘may be measured by “any legitimate method of evaluation that measures its present value by taking into account some past result,” so long as the evidence “legitimately establishes value.” [Citation.]’ [Citation.]” (In re Marriage of Ackerman, supra, 146 Cal.App.4th at p. 200.) In determining profession goodwill, “‘[c]ertain matters merit consideration which may be said reasonably to contribute to, diminish, or affect the intangible value of professional goodwill at the time of dissolution and the continuity and retention of the benefits thereof which the professional practitioner will continue to enjoy after the marital dissolution. In that context some such factors are the practitioner’s age, health, past demonstrated earning power, professional reputation in the community as to his judgment, skill, knowledge, his comparative professional success, and the nature and duration of his business as a sole practitioner or as a member of a partnership or professional corporation to which his professional efforts have made a proprietary contribution.’ [Citation.]” (In re Marriage of Hargrave, supra, 163 Cal.App.3d at pp. 352-353.)
Mukeshchandra’s argument that the family law court overvalued the goodwill of the practice is, in essence, a challenge to the family law court’s decision to value the medical practice as of the date of separation because his argument is based on a supposed postseparation reduction in working hours. As noted, the family law court chose that date because Mukeshchandra failed to provide adequate and credible records of his postseparation earnings. The evidence, including Mukeshchandra’s own testimony, was undisputed that before the separation he was regularly working more than 12 hours per day, seven days a week.
We conclude substantial evidence supports the trial court’s determination of goodwill. The family law court rejected Mukeshchandra’s testimony that he had reduced his working hours after the separation. Mukeshchandra was caught out in his lies to the court.
D. Family Law Court’s Treatment of the Parties
Mukeshchandra asserts that “[b]oth parties failed to comply with their legal obligations during the dissolution,” and although the family law court severely sanctioned Mukeshchandra, “for [Amisha’s] violations it merely reserved jurisdiction.” Mukeshchandra therefore implies that the family law court’s treatment of him was less than evenhanded. As examples of Amisha’s “violations,” Mukeshchandra points out that Amisha transferred funds to their children’s names and opened accounts in her own name in India.
The evidence shows that during the Patel’s marriage, Amisha deposited her paychecks into an account maintained in her sole name, and the balance on that account had reached $925,000. In May 2005, several months before the separation, Amisha transferred the funds from that account to their children’s names. Amisha testified Mukeshchandra had orally agreed to the transfer, but Mukeshchandra denied knowing about the transfer until after he had been served with the divorce papers. The family law court found that the transfer was invalid because Mukeshchandra had not consented in writing. Because the children were indispensable parties to an action to reclaim the money, the court reserved jurisdiction over the issue.
In addition, before 1997, money had been sent to accounts in India in Amisha’s name. Amisha failed to disclose the accounts in her schedule of assets and debts and testified she did not know anything about them. Mukeshchandra acknowledged he had set up another account in Amisha’s name; she testified he had done so without her knowledge. The family law reserved jurisdiction over the accounts and ordered Amisha “to determine the existence and amount of these alleged accounts and report to [Mukeshchandra] and the Court with her conclusions and any supporting documentation.”
Although Amisha did not disclose the accounts in India, the family law court stated it “believe[d] that [Amisha] did not know or remember that one or more accounts may exist in her name in India,” and the court did not find that Amisha acted in bad faith when she transferred assets to the children before the separation. In contrast, Mukeshchandra repeatedly flouted express orders of the family law court. Thus, we reject Mukeshchandra’s implied contention that the family law court treated the parties inequitably.
IV. DISCUSSION—WELLS FARGO’S APPEAL
Wells Fargo contends the family law court erred in denying Wells Fargo’s motions for leave to intervene and to compel the sale of property. Wells Fargo contends the trial court denied Wells Fargo’s motions based on the trial court’s erroneous belief that Amisha took the property free of Wells Fargo’s judgment lien.
A. Additional Background
The petition for dissolution of the Patel’s marriage was filed on September 14, 2005. On September 16, 2005, temporary orders were issued freezing all community accounts, specifically including those at Wells Fargo. The same day, Amisha delivered a copy of the orders to Wells Fargo.
On June 6, 2006, Wells Fargo issued an unsecured business line of credit to the medical practice; Mukeshchandra personally guaranteed the line of credit. On July 28, 2006, the family law court appointed a receiver over all the assets of the Patels, and on August 8, 2006, the appointment of receiver was recorded at the County Recorder’s office. The notice of appointment of receiver included an injunction against transfer or encumbrance of real property. The Patels were “‘restrained from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal . . . .’” The medical building was specifically described as property that could not be “sold, encumbered or otherwise transferred without order of the Court” in the dissolution action.
Mukeshchandra failed to make any payments on the Wells Fargo loan, and Wells Fargo filed a lawsuit (Wells Fargo Bank, N.A. v. Mukeshchandra Patel, et al., Superior Court case No. VCVVS 043066) against Mukeshchandra on September 1, 2006. On September 6, 2006, Wells Fargo obtained an ex parte writ of attachment, “subject to Receivership in case #VFLVS033516 and any Family Law orders.” On September 13, 2006, Wells Fargo filed a request for special notice of all proceedings and copies of all pleadings in the divorce action.
On November 16, 2006, Wells Fargo appeared in the family law court for a hearing on the receiver’s application for instructions relating to defending Wells Fargo’s action. On January 5, 2007, Wells Fargo appeared in family law court for a mandatory settlement conference.
Wells Fargo contends that on April 4, 2007, its attorney appeared in family law court to request the court to either delay trial until after the hearing on Wells Fargo’s summary judgment motion or to reserve partition of the property until after the summary judgment. However, the citation to the record that Wells Fargo has provided does not support that contention; the case report for the family law action does not reflect that any proceedings took place on April 4.
On April 2, 2007, Wells Fargo filed a response to the receiver’s application for further instructions. In that response, Wells Fargo stated it had brought a motion for summary judgment in its action against Mukeshchandra, and the motion was scheduled to be heard on May 9. Wells Fargo purportedly requested that the family law court continue the divorce trial until at least 30 days after Wells Fargo’s motion was heard, “thereby allowing Wells to present a Judgment to this Court prior to a division of the martial assets, primarily the Medical Building; or, in the alternative, expressly reserve jurisdiction as to the division of the Medical Building until said time.” However, Wells Fargo later conceded it had sent its response only to the receiver, and its request for continuance was never put on the family law court calendar.
The trial court in case No. VCVVS 043066 granted Wells Fargo’s motion for summary judgment in its action against Mukeshchandra, and judgment was entered in favor of Wells Fargo in the amount of $244,794.11 plus interest on May 14, 2007.
Meanwhile, trial took place in the family law action between mid-April and late May, 2007. On May 30, the family law court stated it would award the medical building to Amisha.
On June 14, 2007, Wells Fargo appeared at the ex parte motion of another creditor to compel the sale of real property. On June 19, 2007, the family law court issued its proposed statement of decision in the dissolution action. On July 3, 2007, the family law court entered a judgment of dissolution in which Amisha was awarded the medical building, among other property. On July 16, 2007, Wells Fargo learned that the family law court had rendered its decision.
On July 31, 2007, Wells Fargo moved to intervene in the dissolution action and moved for sale of real property. On August 31, 2007, Mukeshchandra filed his notice of appeal from the dissolution orders.
The basis for Wells Fargo’s motions in the family law court was the prejudgment writ of attachment; Wells Fargo’s attorney did not mention the abstract of judgment. Wells Fargo stated in its motions that it had a lien against the medical building under the writ of attachment. Similarly, at the hearing, Wells Fargo’s attorney represented to the court, “The Writ of Attachment was where we go after the [medical building].” The attorney further stated, “Well, there was—the Writ of Attachment was to secure the payment on the note. The Judge issued a prejudgment remedy in the writ. [¶] Subsequent to that . . . we got a summary judgment motion against Dr. Patel and Shanti Mohan Medical for the full amount which should relay [sic] back to the Writ of Attachment which we got back from . . . September 9th of ’06.” Wells Fargo’s position was “that the bank had security in that property at the time that the writ was issued.”
The family law court found the motion to intervene untimely because it was filed after judgment in the dissolution action had been entered. The court found that late intervention would be prejudicial to Amisha because she had no ability to change the terms of the judgment, and she “would have had to significantly alter her trial preparation and presentation, and now it’s too late to do that because the trial is done.” The family law court therefore denied the motion to intervene.
With respect to the motion for sale of property, the family law court noted that before Wells Fargo filed its suit against Mukeshchandra, the court had appointed a receiver who had taken possession and control of all the assets of the parties, and a notice of appointment of receiver had been filed with the county recorder. The court further noted that Wells Fargo’s right to attach order and order for issuance of writ of attachment were specifically made subject to the receivership and any family law orders, and the court found that the writ of attachment had not been authorized by the court that appointed the receiver. The family law court therefore denied the motion for sale of property.
B. Request for Judicial Notice
Wells Fargo has requested this court to take judicial notice of (1) excerpts from the deposition of Mukeshchandra in case No. VCVSS 043066, (2) Wells Fargo’s complaint in that case, (3) the abstract of judgment in that case, and (4) Wells Fargo’s request for special notice in the dissolution action.
Mukeshchandra has filed an opposition to the request to take judicial notice of excerpts from his deposition on the ground there was no indication in the request that those excerpts had ever been filed with any court, and discovery documents not submitted to a family law court are not proper subjects of a request for judicial notice. We agree, and we will decline to take judicial notice of the deposition excerpts. (See, e.g., Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [“Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally ‘when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered”].)
Amisha filed an opposition to the request to take judicial notice of the remaining documents on the ground that none of the listed documents was brought to the attention of the family law court before its decision on Wells Fargo’s motions. Wells Fargo’s complaint in case No. VCVVS 043066 and request for special notice in the family law action are already included in the record before us. Judicial notice is therefore unnecessary. The abstract of judgment was not filed in the family law action, nor was it brought to the family law court’s attention at the hearing on Wells Fargo’s motions. We will therefore deny Wells Fargo’s request for judicial notice of the abstract of judgment. (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 444, fn. 3
C. Denial of Motion for Leave to Intervene
1. Trial Court’s Jurisdiction to Hear Motion
Amisha’s attorney argued that the family law court had no jurisdiction to consider Wells Fargo’s motions because a notice of appeal had been filed in the dissolution action on August 31, 2007, before the hearing on the motions. Whether the trial court had jurisdiction is a pure question of law subject to our independent review. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 537.)
In Mallick v. Superior Court (1979) 89 Cal.App.3d 434 (Mallick), the court held that, in appropriate cases, intervention may be granted “at any time, even after judgment.” (Id. at p. 437.) The Mallick court further stated, “[S]ince the issue of intervention is not a matter ‘embraced in or affected by the judgment’ the trial court is not deprived of its jurisdiction pursuant to the ‘stay’ provisions of Code of Civil Procedure section 916 when an appeal is perfected. [Citation.]” (Id. at p. 438.) We therefore conclude the trial court had jurisdiction to hear Wells Fargo’s motion to intervene.
2. Denial of Motion to Intervene on Ground of Untimeliness
Under Code of Civil Procedure section 387, subdivision (b), the trial court must grant a timely request to intervene when a person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that disposition of the action may, as a practical matter, impair or impede the person’s ability to protect its interest, unless the person’s interest is adequately represented by existing parties. (Code Civ. Proc., § 387, subd. (b); see generally Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547-555.) As noted, in appropriate cases, intervention may be granted “at any time, even after judgment.” (Mallick, supra, 89 Cal.App.3d at p. 438.)
However, delay may be cause for denial of a motion to intervene. (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108.) In Allen, the court stated, “Aside from the statutory limitation upon the time of intervention [which at that time required that it be “before trial”] it is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. [Citations.]” A utility company sought to intervene in a water rights dispute seven years after the trial in the matter, even though issues had been reserved for future determination. The court pointed out that the utility company had been aware of the underlying litigation and had been informed of the status of the proceedings, but had not attempted to intervene before the trial. (Ibid.) The court, in part on that basis, affirmed the denial of the motion to intervene. (Id. at pp. 108-109.)
Here, the family law court denied Wells Fargo’s request to intervene on the ground the request was untimely. The record supports an implied finding that Wells Fargo had actual and constructive knowledge of the pending dissolution action before Wells Fargo extended the line of credit to the medical clinic. The receiver was appointed, and the appointment of receiver was recorded before Wells Fargo filed its complaint against Mukeshchandra. The recorded notice stated that the medical building could not be “sold, encumbered or otherwise transferred without order of the Court” in the dissolution action. “The term ‘incumbrances’ includes taxes, assessments, and all liens upon real property.” (Civ. Code, § 1114, italics added.)
Wells Fargo’s writ of attachment was expressly made subject to the receivership in the family law action and to any family law orders. However, Wells Fargo never obtained the family law court’s permission to attach the medical building.
Moreover, throughout the dissolution action, Wells Fargo was sent copies of correspondence between the parties and the receiver, and counsel for Wells Fargo appeared a various hearings, yet Wells Fargo failed to file its motion to intervene until after judgment had been entered in the dissolution action. The family law court expressly found that granting the belated motion to intervene would be prejudicial to Amisha.
Considering all these circumstances, we conclude the family law court did not abuse its discretion in denying the motion to intervene on the ground it was untimely.
D. Denial of Motion to Compel Sale of Real Property
Wells Fargo’s second motion was to compel the sale of real property, specifically, the medical building.
1. Trial Court’s Jurisdiction to Hear Motion
Whether the family law court had jurisdiction to hear the motion for sale of property is a separate question subject to our independent review. (Thompson Pacific Construction., Inc. v. City of Sunnyvale, supra, 155 Cal.App.4th at p. 537.)
On our own motion, this court requested the parties to provide additional briefing to address the issue.
In general, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).) However, “[w]hen there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from.” (Code Civ. Proc., § 916, subd. (b).) “The purpose of the automatic stay provision of [Code of Civil Procedure] section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)
In determining whether a matter is embraced in or affected by the judgment, we consider whether the postjudgment proceedings “‘would have any effect on the “effectiveness” of the appeal.’ [Citations.]” (Varian, supra, 35 Cal.4th at p. 189.) As Wells Fargo has pointed out in its supplemental brief, the only issue on appeal that involves the medical building is whether the trial court properly valued the medical building. That issue would not be affected by the motion to sell the property. We therefore conclude the family law court had jurisdiction to entertain the motion.
2. Effect of Wells Fargo’s Judgment Lien
Wells Fargo contends the trial court denied Wells Fargo’s motion for sale of property based on the trial court’s erroneous belief that Amisha took the property free of Wells Fargo’s judgment lien. Wells Fargo contends it had obtained a perfected interest in the medical building, which was a community asset of the Patels.
Wells Fargo obtained a judgment against Mukeshchandra on May 14, 2007. Wells Fargo contends that upon recordation, the abstract of judgment created a lien on all real property owned by Mukeshchandra and on the Patels’ community property in the county. (Code Civ. Proc., §§ 697.310, 695.020, subd. (a)(1).)
As noted above, however, Wells Fargo did not base its motion for sale of property on the abstract of judgment, but only on the writ of attachment. In fact, Wells Fargo never mentioned the abstract of judgment to the family law court. In general, an issue not raised in the trial court cannot be raised for the first time on appeal. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712.) We see no reason to depart from that general rule in the present case.
3. Effect of Wells Fargo’s Writ of Attachment
Wells Fargo also contends it has a lien against the medical building based on the prejudgment writ of attachment. However, that writ of attachment was specifically made subject to the receivership in the dissolution action and to any family law orders.
Although the issue was not raised by the parties, and we therefore do not base our ruling on this basis, it appears, from the record before us, that the writ of attachment was void on its face because no undertaking was posted. (See Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882 (Vershbow).) The judicial council form states that the clerk shall issue a writ of attachment upon the filing of an undertaking, but the amount of the undertaking is left blank.
When parties are ordered to turn over property to a receiver, the receiver obtains the right, title, and interest of the entity and stands in the shoes of the entity. (Allen v. Todd (1970) 12 Cal.App.3d 654, 657.) The appointing court has custody over all property in the receiver’s possession and has plenary jurisdiction to resolve disputes concerning such property. Only the court may authorize a transfer or encumbrance of the property, and that property is generally not subject to levy or garnishment without the appointing court’s consent. (Robbins v. Bueno (1968) 262 Cal.App.2d 79, 84 (Robbins).)
In Robbins, the court appointed a receiver over the husband’s assets after the husband refused to comply with court orders and left the state. The court found the couple’s residence to be the husband’s separate property, but the court awarded the wife a homestead interest in the residence and a money judgment against the husband. The husband confessed judgment against himself in the amount of $16,000 in favor of his attorney, who then tried to levy on the residence. The court stated that if the receiver had not been appointed, the judgment would attach to the husband’s separate interest in the residence, above the homestead amount. However, the appointment of the receiver protected the property from the judgment creditor. The court explained, “Property in the custody of a receiver is generally not subject to garnishment or attachment without the court’s consent. [Citations.] Because the receiver is appointed by the court, he becomes an officer of the court; thus his custody is actually the custody of the court. [Citations.] [¶] If [the creditor’s] judgment had become a lien on [the husband’s] property prior to the lien of the financial provisions of the divorce decree, [the creditor] could not be denied satisfaction notwithstanding the fact that the property to be levied upon is in the custody of the court. [Citation.] . . . But [the creditor] obtained his judgment after the appointment of the receiver and after the receiver took possession of [the husband’s] assets. Thus the court was entitled to protect the priority of its judgment, as against the later judgment which [the husband] confessed to [the creditor], by preventing any interference by [the creditor] with any of [the husband’s] assets held by the receiver. This holding applies to [the husband’s] interest in the homestead property as well as to his other property in the receivership.” (Robbins, supra, 262 Cal.App.2d at pp. 84-85.)
In American Olean Tile Co. v. Schultze (1985) 169 Cal.App.3d 359, the plaintiff filed an action against the ex-wife and ex-husband on a promissory note the ex-husband had signed days after he and the ex-wife had executed a settlement agreement dividing their community property. (Id. at p. 363.) The plaintiff obtained a prejudgment attachment of a promissory note, secured by a deed of trust on real property, that had originally been payable to both the ex-husband and ex-wife. (Id. at pp. 363-364.) When that note was converted to cash, the sheriff was ordered to hold the proceeds subject to the prejudgment attachment order. (Id. at p. 364.) The trial court held that the debt was the ex-husband’s separate obligation. (Ibid.) The trial court entered judgment in favor of the plaintiff against the husband and also entered judgment for the ex-wife, holding that the former community property she held was not liable for the debt the ex-husband had incurred after the separation. The court therefore discharged the prejudgment attachment as to the ex-wife, and on appeal, the court affirmed, holding that the debt was the ex-husband’s separate obligation. (Ibid.)
Wells Fargo failed to obtain prior consent from the family law court for Wells Fargo’s writ of attachment, which was expressly subordinate to the family law orders. The receivership was in place before Wells Fargo filed its lawsuit against Mukeshchandra. The family law court found that the Wells Fargo line of credit was Mukeshchandra’s sole debt, and not a debt of the community.
Wells Fargo argues, however, that it would be fundamentally unfair to put the burden on a creditor to protect itself when a separated spouse obtains a loan, the creditor relies on community property in issuing the loan, and the community property is later awarded to the non-debtor spouse. In Kennedy v. Taylor (1984) 155 Cal.App.3d 126, the court stated that “[o]btaining both spouses’ signatures [when extending credit] is a reasonable burden to place on creditors who later attempt to recover against former community assets. Compared to this simple and prudent expedient, it would be unreasonable to require a separated and noncontracting spouse, in effect, to police the financial dealings of his or her contracting spouse and to remain ever vigilant to notify prospective creditors of the true status of their marital relationship and respective assets. The protection afforded [the wife] and [the husband’s] separated and noncontracting spouse should not be subordinated to the rights of creditors who have failed to take reasonable steps to protect themselves.” (Id. at p. 130.)
Wells Fargo further asserts that the Equal Credit Opportunity Act, 12 Code of Federal Regulations part 200 et seq., prohibits a creditor from requiring the signature of both spouses. To support this assertion, Wells Fargo selectively quotes 12 Code of Federal Regulations part 202.7(d)(1), which provides: “Except as provided in this paragraph, a creditor shall not require the signature of an applicant’s spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor’s standards of creditworthiness for the amount and terms of the credit requested. . . .”
Wells Fargo omits other relevant portions of the regulations which create exceptions to the rule against requiring a spouse’s signature. Specifically, 12 Code of Federal Regulations part 202.7(3) provides an exception applicable in community property states, as follows:
“(3) Unsecured credit -- community property states. If a married applicant requests unsecured credit and resides in a community property state, or if the applicant is relying on property located in such a state, a creditor may require the signature of the spouse on any instrument necessary, or reasonably believed by the creditor to be necessary, under applicable state law to make the community property available to satisfy the debt in the event of default if:
“(i) Applicable state law denies the applicant power to manage or control sufficient community property to qualify for the credit requested under the creditor's standards of creditworthiness; and
“(ii) The applicant does not have sufficient separate property to qualify for the credit requested without regard to community property.” (12 C.F.R. § 202.7)
In addition, 12 Code of Federal Regulations part 202.5 provides:
“(c) Information about a spouse or former spouse -- (1) General rule. Except as permitted in this paragraph, a creditor may not request any information concerning the spouse or former spouse of an applicant.
“(2) Permissible inquiries. A creditor may request any information concerning an applicant's spouse (or former spouse under paragraph (c)(2)(v) of this section) that may be requested about the applicant if: [¶] . . . [¶]
“(iv) The applicant resides in a community property state or is relying on property located in such a state as a basis for repayment of the credit requested; [¶] . . . [¶]
“(d) Other limitations on information requests -- (1) Marital status. If an applicant applies for individual unsecured credit, a creditor shall not inquire about the applicant's marital status unless the applicant resides in a community property state or is relying on property located in such a state as a basis for repayment of the credit requested.” (12 C.F.R. § 202.5.)
Thus, contrary to Wells Fargo’s assertion, federal law does not appear to prohibit the safeguards suggested by California decisional law. Wells Fargo could have, but did not, take any such safeguards in issuing the loan to Mukeshchandra.
We conclude the family law court did not err in denying Wells Fargo’s motion for sale of real property.
V. DISPOSITION
The orders appeal from are affirmed. Costs are awarded to Respondent.
We concur: KING, J., MILLER, J.
As the court in Vershbow stated, “The attachment statutes at issue here clearly require the posting of an undertaking prior to issuance of a writ of attachment. [Code of Civil Procedure] [s]ection 484.520 permits the trial court, upon application by a party, to order a writ of attachment to be issued ‘upon the filing of an undertaking as provided by [Code of Civil Procedure] [s]ections 489.210 and 489.220.’ [Code of Civil Procedure] [s]ection 489.210 reads, ‘Before issuance of a writ of attachment, . . . the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.’ (Italics added.) [Code of Civil Procedure] [s]ection 489.220 provides that the amount of the undertaking shall be $7,500 [now $10,000] in an action in the superior court.” (Vershbow, supra, 231 Cal.App.3d at p. 882.) The court held that the improperly issued writ was void ab initio, even though the debtors knew there was a lien on their property and they had never objected to the lack of an undertaking. The court therefore affirmed the denial of a request for a sale order. (Id. at pp. 882-883.)
Moreover, it does not appear from the record that the writ of attachment was ever recorded. A writ of attachment is not self-executing; rather, it must be levied and recorded to create a lien on real property. (See Code Civ. Proc., §§ 488.315 [“To attach real property, the levying officer shall comply with [Code of Civil Procedure] [s]ection 70.015 and the recorder shall index the copy of the writ of attachment and a notice of attachment as provided in that section.”]; 488.500, subd. (a) [“A levy on property under a writ of attachment creates an attachment lien on the property from the time of levy until the expiration of the time provided by [Code of Civil Procedure] [s]ection 488.510.”].) In its motion for sale of property, Wells Fargo merely asserted that it “had a lien on the Property under a Writ of Attachment, issued on September 8, 2006.” The record contains no indication that the writ was ever levied or recorded.