Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct. No. FDI-03-755091
Jones, P.J.
Curtis Kekoa, Jr. (Husband), in propria persona, appeals the order awarding Christina Sagonowsky (Wife) sanctions of $50,000 pursuant to Family Code section 271. He contends the sanctions were improper because they were imposed by a commissioner who lacked jurisdiction to impose them.
No clerk’s transcript was filed in this appeal. The background is taken from Husband’s highly abbreviated and selective appendix.
Wife commenced dissolution proceedings in November 2003. The parties’ marriage was dissolved as to status only in September 2005.
On June 27, 2006, attorneys for both parties signed a stipulation captioned “Stipulation That Commissioner May Act As Judge Pro Tem.” It stated: “IT IS HER[E]BY STIPULATED by and between the parties appearing as litigants herein, through their respective counsel, that the Honorable MARJORIE A. SLABACH, Commissioner of the Superior Court in and for the City and County of San Francisco, may sit and act as a Judge Pro Tempore in the above-entitled action.” Husband was represented by Robert Sprague.
At an August 15, 2006 judicial settlement conference at which both parties and their attorneys were present, the court (Commissioner Slabach), with the parties’ agreement, ordered the case into case management on terms governing discovery, contested motions, and offers of proof, and for the purpose of using case management conferences to encourage the parties to reach an agreement and to bifurcate issues to assist in resolution or to curtail trial issues. After argument, the court made orders regarding substantive matters, including the sale of real estate in light of the availability of liquid assets to pay for living expenses and litigation costs, payment of spousal support by Husband and the deduction of spousal support for tax purposes. It set a trial for December 5-14, 2006.
A case management conference was held before Commissioner Slabach on August 25, 2006.
A second case management conference was held before Commissioner Slabach on September 8, 2006. On the same date, attorney Sprague, on Husband’s behalf, filed a notice that “reiterates [Husband’s] continuing objection to having any trial issues in this case decided by anyone other than a Superior Court judge. In particular he rejects any such suggestions or implications in [Wife’s] recent [attached] letter.”
The referenced letter of Wife, dated September 7, 2006, was addressed to Commissioner Slabach and written pursuant to “the Court’s Order” at the August 25, 2006 case management conference. It was Wife’s “letter brief” outlining her “plan of action regarding a bifurcation of [Husband’s] pre-separation claims of misappropriation and misuse of community funds for the benefit of third parties.” It does not contain any readily apparent or implied objection or disagreement as to the court officer who will decide issues and conduct future proceedings.
September 20, 2006 Motion for Order Vacating Stipulation
On September 20, 2006, Husband submitted a letter brief to Commissioner Slabach which constituted his request and motion for an order vacating the June 27, 2006 stipulation, vacating her status as Judge Pro Tempore (judge pro tem), and restoring the status quo ante by which she would continue to serve as the commissioner in the case and Superior Court Judge Donald Sullivan would continue to serve as the judge, pursuant to Code of Civil Procedure section 259, subdivisions (b) and (e) and Local Rule 11.4. The letter brief stated that the instant motion did not seek to vacate any other orders Commission Slabach made between June 27, 2006 and the present.
In support of the motion, attorney Sprague declared: He became attorney of record for Husband on April 17, 2006. To his knowledge, Commissioner Slabach had acted as a commissioner in the case before June 27, 2006, but had not served as a judge pro tem because Husband had not stipulated thereto. At a hearing prior to May 30, 2006, Sprague told Commissioner Slabach that Husband wanted to sell one of the parties’ nine parcels of community real property. A hearing was set for May 30, 2006, on Husband’s motion for an order authorizing sale of 2140 Filbert Street, one of the nine parcels. On May 30, the attorneys were asked to sign a stipulation allowing an experienced family law attorney to sit as a judge pro tem for that hearing only because Commissioner Slabach was unavailable. Sprague agreed to sign, but Wife’s attorney did not, so the hearing was continued to June 27. Before Commissioner Slabach entered the courtroom on June 27, her clerk informed Sprague that a stipulation was necessary for Commissioner Slabach to hear the motion. The clerk showed him a one-page stipulation the clerk had already prepared. This was the first time Sprague had been asked to sign a stipulation for Commissioner Slabach to hear a matter. He believed that the stipulation applied only to the June 27 hearing to determine the subject of the motion to sell 2140 Filbert Street. He signed the stipulation in reliance of that understanding. In Sprague’s experience, stipulations of this kind are routine in many discovery and law and motion departments in California superior courts, and he has signed them in the past. None of these stipulations was intended to apply beyond the hearing on the dates they were signed. Given Husband’s past objections to having Commissioner Slabach hear motions, it made sense to Sprague that she would want such a stipulation. Commissioner Slabach’s clerk did not give Sprague a copy of the stipulation, although he believed she would have if more time had elapsed before Commissioner Slabach took the bench. Sprague did not realize until September 11, 2006 that the stipulation was intended to make Commissioner Slabach a judge pro tem for the duration of the case, as opposed to the single June 27 hearing. Had he so understood, he would have refused to sign it. Sprague did not realize until the second case management conference on “September 9,” 2006 that Commissioner Slabach intended to function in the role of judge. Following the conference he went to the court house on September 11 and found the June 27 stipulation, which was not listed in the register of actions.
Insofar as September 9, 2006 fell on a Saturday, this date is presumably a typographical error. All other references in the record are to a hearing on September 8, which would have been a Friday.
The motion was also supported with the declaration of Husband’s former attorney, Cindy Lee, who declared: She was substituted into the case as Husband’s attorney in August 2005. At the outset of each hearing at which Lee represented Husband, he refused to execute a written stipulation to allow a judge pro tem or a commissioner to hear the pending motion. Throughout her representation of Husband she objected on his behalf to Commissioner Slabach’s jurisdiction to hear matters. She was informed and believed that matters heard by Commissioner Slabach were done via reference or recommendation, with all orders signed by a superior court judge.
The motion was further supported by Husband’s declaration. He declared: He never agreed to Commissioner Slabach or any other commissioner acting as a judge pro tem and has consistently insisted that all permanent rulings, orders, judgments, and determinations be made by a judge, not a commissioner. He also never authorized Sprague to stipulate that a commissioner could act as a judge pro tem.
Wife’s September 28, 2006 Opposition
The gravaman of Wife’s opposition to Husband’s motion to vacate the stipulation was that Sprague’s assertion of inadvertence and mistake was belied by the factual background of the stipulation.
Wife acknowledged that Husband was adamant at the commencement of the action about his refusal to allow a commissioner to act as judge pro tem. For example, when Husband appeared to oppose the motion of his former attorney, Barry Schneider, to withdraw as Husband’s attorney, Husband refused to sign a stipulation authorizing the commissioner to act as a judge pro tem in connection with that motion, and when he was subsequently represented by Cindy Lee, he refused to sign a stipulation that authorized the commissioner to act as a judge pro tem. However, Wife argued, after Husband discharged Lee and engaged Sprague, Husband, via Sprague, sought to rehabilitate himself in Commissioner Slabach’s eyes, as exemplified by his June 20, 2006 opposition to Wife’s request for sanctions and attorney fees in connection with an ex parte application to shorten time.
The June 20, 2006 opposition, filed by Sprague on Husband’s behalf, asserted as “‘preposterous’” Wife’s accusation in her request for sanctions that Husband was forum shopping. Husband’s June 20 opposition went on to observe that Husband had filed a motion for sale of real property in Commissioner Slabach’s department, even though the subject of the motion was not a preliminary matter, and in so doing he waived any right to object to her deciding it. The June 20 opposition further observed that Husband’s previous attorney, Cindy Lee, had objected to Commissioner Slabach deciding matters, including untimely invocations of Code of Civil Procedure section 170.6, but, the June 20 opposition continued, “‘these annoyances came to an end on April 17, 2006, when [Husband’s] current attorney [i.e., Sprague] substituted into the action. In a legal career spanning more than 30 years, he [Sprague] has never made a [] section 170.6 challenge to any judicial officer.’”
Wife argued that by his arguments and observations in the June 20 opposition, Sprague was clearly “trying to rehabilitate [Husband’s] standing in the eyes of the Court by disassociating his client from the strategy employed by Cindy Lee in objecting to the Commissioner’s authority to hear matters, and that he was now waiving any objection to the Commissioner hearing the motion. [¶] After [Husband’s] careful refusal even to stipulate to Commissioner Slabach acting as a Judge Pro Tem previously, it strains credulity to suggest that Mr. Sprague acted carelessly or inadvertently in signing the Stipulation on June 27.”
Wife also argued that Commissioner Slabach had thereafter noted that, in light of the stipulation, she could now issue orders that would not need to be submitted for review to a judge, and on August 15, 2006, with Husband and his attorney both present, she directed the implementation of a case management plan. Part of the plan called for determining whether issues should be bifurcated for separate trials. Neither Husband nor Sprague suggested at any time that Commissioner Slabach lacked authority to act as a judge pro tem in the matter until the second case management conference of September 8, 2006, when Husband filed his “Notice of Continuing Objection To The Determination of Trial Issues By Anyone Other Than a Judge.” Until then, Wife’s argument continued, the court and the parties had relied on the June 27 stipulation when they enacted and implemented a case management plan that established discovery and briefing schedules and procedures for the trial on bifurcated issues related to Husband’s claim of preseparation misappropriation.
October 6, 2006 Hearing
During an October 6, 2006 hearing, Commissioner Slabach denied Husband’s motion to vacate the stipulation to have the commissioner serve as a judge pro tem. She stated: “The stipulation was not a mistake or negligence on the part of the attorney. In fact, it’s very clear that the stipulation was done in a reasonable fashion and a rational fashion with much thought as to how to rehabilitate [Husband] in the court’s eyes. By the way it was much appreciated by the Court. And the Court looked forward from that day to a more rational and reasonable process [from Husband]. At this point, there has been far too much that has happened and too many orders that have been issued, including the process of [] case management[,] and therefore for efficiency of the Court, and because I cannot find that there was a mistake on the part of [Husband], that request is denied.”
The court’s written order following the October 6 hearing reiterated that Husband’s request to withdraw the stipulation was denied because it was untimely and because his stipulation was not the result of mistake or negligence by Husband’s attorney.
October 6, 2005 Motion to Vacate Orders from August 15 and 25 and September 8 and 22, 2006 Hearings.
Husband moved to vacate all orders arising from the above four hearings, all heard before Commissioner Slabach, on the grounds, inter alia, (1) attorney Sprague had no authority to stipulate to judge pro tem status for Commissioner Slabach and exceeded his authority in so doing, and (2) Sprague mistakenly believed the June 27, 2006 stipulation applied only to the June 27 hearing.
Sprague’s supporting declaration stated that he erred in signing the June 27, 2006 stipulation. He believed it applied only to that day’s hearing, “but which by its literal terms applied prospectively as well.”
Hearing on the motion was set for October 31, 2006.
Husband’s motion to vacate the four orders was discussed at another case management telephone conference on October 13, 2006. Wife was given an opportunity to file written opposition by October 27, and the scheduled October 31 hearing on Husband’s motion was vacated, with the motion to be taken under submission October 31.
In Wife’s opposition her attorney, Richard Marx, declared: At the August 15, 2006 trial setting conference, Commissioner Slabach met with counsel in chambers for approximately 90 minutes. She indicated that she believed a case management order would be appropriate, and reviewed with counsel an example of a stipulation for case management pursuant to Family Code section 2450 et seq. During the meeting the only concern expressed by attorney Sprague related to possible limitations on his pending discovery, but he agreed with Commissioner Slabach’s directives regarding discovery. He made no objections to the case management process after August 15 until his motion to vacate Commissioner Slabach’s judge pro tem status was denied. Pursuant to the agree-upon case management process, Husband’s claims regarding Wife’s alleged preseparation misappropriation was set for trial on bifurcated issues on November 27, 2006. Husband now sought to avoid having these issues determined by Commissioner Slabach. Husband had been ordered to pay attorney fees as sanctions on numerous occasions prior to his representation by attorney Sprague. “Apparently, when [Husband] retained [Sprague], a tactical decision was made to attempt to rehabilitate [Husband] in the eyes of the Court by stipulating to the Commissioner acting as a Judge Pro Tem and taking a more cooperative posture, including agreeing to the case management procedures. However, apparently upset that the Court ha[s] not consistently ruled in his favor, [Husband] has dropped the façade of cooperation and is now blatantly seeking to forum shop by trying to withdraw his stipulation that the Commissioner act as a Judge Pro Tem and seeking to avoid all of the case management orders previously made.”
Although not entirely clear from the record, the court apparently issued an order following a November 3, 2006 case management conference which stated that it would issue a written statement of decision on Husband’s motion to vacate the four case management orders, which motion the court had taken under submission on October 31. The order also noted that Husband’s attorney did not object to the orders following the October 6 and 13 case management conferences.
November 27, 2006 Hearing
The purpose of the November 27, 2006 hearing was to determine whether Husband had sufficiently alleged a claim of misappropriation of community funds and/or a breach of fiduciary duty by Wife during the marriage and prior to separation to permit him to go forward with his claims. Prior to the hearing Husband had submitted pleadings that enumerated various payments or expenditures by Wife from community assets as the wrongfully appropriated funds or as constituting the breaches. The court (Commissioner Slabach) determined that Husband’s declarations and exhibits, which it accepted as true, failed to demonstrate that any of the expenditures by Wife of community assets were made in secret or without consideration, “the hallmarks” of misappropriation and breach of fiduciary duty. Consequently, the expenditures did not demonstrate misappropriation or breach of fiduciary duty, although, the court observed, Husband might have a claim for reimbursement of some of the payments Wife had made.
These pleadings are not in the appellate record.
November 28, 2006 “Ruling”
The written ruling following the November 27, 2006 hearing states that through the process of case management the court had previously bifurcated the issue of Wife’s alleged misappropriation of community funds and breach of the duty of good faith by transferring funds to third parties or herself. The court had directed the parties in their discovery for this purpose and set deadlines for all pleadings and exhibits related to the issue and set the matter for a law and motion hearing to determine whether Husband’s pleadings were sufficient to allege misappropriation or breach of duty. It had also set aside trial dates immediately following the hearing in the event it found sufficient evidence in Husband’s pleadings to warrant an evidentiary hearing on the issue of misappropriation/breach of duty. The Court concluded Husband’s pleadings failed to allege either misappropriation or breach of fiduciary duty by Wife.
The final four paragraphs of the ruling pertain to “ATTORNEY’S FEES AND COSTS” and state:
“20. [] Wife had requested the bifurcation of the issue of pre-separation claims of misappropriation of funds and breach of fiduciary duty because Husband was focusing on Wife’s ‘wrongful acts’ to the detriment of the parties’ ability to move forward with settlement talks. Wife argued that Husband should have his opportunity to produce evidence of such wrongful deeds, and once that matter has been resolved[,] the parties could focus on the post separation issues of asset characterization, valuation, and distribution as well as collateral issues such as spousal support. The Court, through its authority under Family Code section 2451[,] in a stipulated Case Management Plan, bifurcated that issue, directed the discovery and pleading deadlines, thus creating an efficient process with which to deal with these allegations.
“21. In spite of the plan of action, Husband continually disrupted the process with objections to the Commissioner’s authority to hear these matters (this in spite of his stipulation allowing the Commissioner to hear the matters), with objections to the case management plan (this in spite of Husband’s stipulation to the Case Management Plan), by directing his former attorney [i.e., Lee] to record a Family Law Attorney’s Real Property Lien, and in general by using the opportunity to present evidence of misappropriation of funds to create more havoc than clarity. By his own declarations it was made clear that Wife had not hidden assets or transfer[red] funds. His allegations of such [have] simply hardened the parties’ positions and widened the gap between them. Wife now requests $100,000 in sanctions for what she alleges was malicious behavior on Husband’s part.
“22. Eleven months ago this Court wrote, ‘Husband has made the process of this divorce far more litigious than appropriate or necessary or contemplated by the State Legislature when it stated the public policy that parties in family law matters were to behave toward one another in such a manner as to “promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” (See Family Code section 271.)’ This finding remains true. And sanctions in the amount of $100,000 would be an appropriate amount for such activity.
“23. However, this Court cannot find that Husband has the ability to pay such an award or that Wife has the need for such an award. Instead, this Court finds that Husband has the ability and Wife has the need for payment of sanctions in the amount of $50,000.”
DISCUSSION
Husband contends that Commissioner Slabach had no jurisdiction to impose the award of sanctions because, in signing the June 27, 2006 stipulation, attorney Sprague acted without Husband’s consent and contrary to his express instructions; because the denial of Husband’s motion to vacate the June 27, 2006 stipulation was an abuse of discretion; because Commissioner Slabach had no authority to make findings and rulings after Husband refused to stipulate to her serving as a judge pro tem; because sanctions cannot be awarded following a summary adjudication of issues; and because the court erroneously concluded he failed to show preseparation misappropriation or breach of duty by Wife.
a. Abuse of Discretion
Resolution of all Husband’s contentions turns on whether the court abused its discretion in denying the motion to vacate the June 27, 2006 stipulation.
Subject to the supervision of the court, every court commissioner has the power to act as a temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation by the litigating parties. (Code Civ. Proc., § 259, subd. (d).) A stipulation to a temporary judge signed solely by counsel for the litigating parties is binding on the parties. (In re Horton (1991) 54 Cal.3d 82, 93-98; In re Marriage of Crook (1991) 235 Cal.App.3d 30, 33-34.)
San Francisco Superior Court Rule 11.4 reflects this statute. It provides that, except as provided in Code of Civil Procedure section 259, subdivision (e), matters assigned to a court commissioner require that the parties stipulate to a commissioner hearing the matter. If a party refuses to stipulate to having a case heard by a commissioner, the commissioner may hear the matter as a referee, and a superior court judge will thereafter approve, reject, or modify the findings and conclusions of the commissioner. In the absence of the assigned judge or court commissioner, matters may be assigned to a judge pro tem acting as a temporary judge.
Here, Husband, via his attorney, Robert Sprague, stipulated in writing on June 27, 2006 that Commissioner Slabach could sit as a judge pro tem “in the above-entitled action.” While attorney Sprague acknowledged that by its plain meaning the stipulation applied prospectively, he moved to vacate the stipulation in a September 20, 2006 letter brief and accompanying pleadings on the equitable doctrine of extrinsic mistake and the mistake/surprise/inadvertence/excusable neglect grounds of Code of Civil Procedure section 473. The court concluded that not only did his motion fail to demonstrate mistake, negligence, etc., it was untimely.
A motion for relief under Code of Civil Procedure section 473 rests soundly on the trial court’s discretion, and its decision will not be disturbed on appeal absent a clear abuse. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) We find no abuse. Commissioner Slabach had presided over numerous hearings in this action since its inception and knew that Husband and at least one of his previous attorneys had strenuously resisted a commissioner hearing matters. She could readily infer that, by stipulating to her serving as judge pro tem “in the above-entitled action,” Husband’s new attorney, Sprague, was intentionally offering a constructive olive branch because he believed that his client’s interests would be better served by a showing of cooperation and willingness to accommodate the Family Court, and that Husband accepted Sprague’s advice. The fact that neither he nor Husband objected to her August 15 orders regarding critical procedural steps of case management or to her presiding over the August 25 case management conference further belied the assertion that Sprague mistakenly thought the stipulation was limited to the June 27 hearing. Furthermore, to “undo” all that had occurred in the case since the stipulation, which included the August 15 order, and the August 25 and September 8 case management conference, would be prejudicial to Wife and a waste of court resources.
b. Client Authorization
Citing Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, Husband argues that a stipulation to have a commissioner act as a judge pro tem involves the “substantial right [of] trial by a judge,” and thus requires the client’s express authority. In Blanton, the plaintiff’s attorney, without his client’s consent, entered into an agreement to have her medical malpractice dispute resolved through binding arbitration, to have the arbitrator selected by the defense attorney, and to place a limit on the amount of recovery. (Id. at p. 407.) Blanton reversed the judgment entered on the arbitration award. “An attorney is not authorized [] merely by virtue of his retention in litigation, to ‘impair the client’s substantial rights or the cause of action itself.’ [Citation.]” (Id. at p. 404.) Changing from the judicial to the quite-different binding arbitral forum was a consequence that affected the client’s substantial rights. (Id. at pp. 407, 408.)
By contrast, as Crook, supra, 235 Cal.App.3d at page 33 observed, an attorney’s stipulation to a judge pro tem does not constitute a waiver of the client’s cause of action, a waiver of the client’s right to trial, or a waiver of the client’s right to a trial with live witnesses. Therefore, it does not deprive the client of a fundamental right. (Ibid.)
c. Commissioner Slabach’s Authority to Make Findings
Husband contends Commissioner Slabach had no power to make “findings and rulings” after he objected to having her hear matters, nor did the subsequent adoption of her findings and rulings by a judge validate her “lack of power.” He refers specifically to Judge Sullivan’s December 2005 endorsement and adoption of Commissioner Slabach’s recommendations.
Judge Sullivan’s December 2005 adoption is not before us in this appeal. First, assuming this adoption constituted an appealable order, no appeal was taken therefrom, and any appeal taken now would be untimely. (See Cal. Rules of Court, rule 8.104.)
Husband’s brief refers to Judge Sullivan’s endorsement and adoption of Commissioner Slabach’s recommendation as “Exhibits A and Q.” These exhibits are not in the appellate record.
Second, the present appeal is taken from the November 28, 2006 order imposing sanctions following the November 27, 2006 hearing. As discussed, the order was made by Commissioner Slabach sitting as a judge pro tem pursuant to the valid June 27, 2006 stipulation to do so. The propriety of the December 2005 findings/adoption was not at issue in the matter heard on November 27, 2006.
d. Limited Appealability of November 28, 2006 Ruling
Husband contends the award of sanctions must be reversed because the November 27, 2006 hearing “can only be construed as . . . summary adjudication of an issue,” i.e., his allegation of Wife’s misappropriation of community funds prior to separation, and he was not afforded the procedures of Code of Civil Procedure section 437c governing summary adjudication of issues. He further contends the award was improper because the court erroneously concluded that his specific claims of Wife’s preseparation wrongful acts did not meet the legal test for misappropriation or breach of fiduciary duty.
Husband has misconstrued the November 27 hearing and November 28 ruling thereon. Pursuant to the case management process, the issue of Husband’s claim of Wife’s preseparation misappropriation was bifurcated from other issues in the dissolution proceedings. The purpose of the hearing was to determine whether Husband’s pleadings were sufficient to allege misappropriation or breach of duty. Thus, the hearing was in the nature of a hearing on a demurrer, which tests whether the pleadings, liberally construed, state facts sufficient to constitute a cause of action. Orders sustaining a demurrer are not appealable; the appeal lies from the judgment after trial or the judgment or order of dismissal. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) The portion of the ruling that was akin to the sustaining of a demurrer is therefore not appealable.
While orders imposing sanctions are appealable (Code Civ. Proc. § 904.1, subd. (a)(12)), the appealing party must demonstrate that the award and/or the amount of the award constituted an abuse of discretion. (Simonian v. Patterson (1994) 27 Cal.App.4th 773, 785; In re Marriage of Norton (1988) 206 Cal.App.3d 53, 57.) Husband’s opening brief does not explain why the court here abused its discretion in making the award. Issues not properly addressed in the briefs may be deemed waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216.) Nor need the court address an issue raised for the first time on appeal in a reply brief unless good reason is shown for failure to raise it in the opening brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
Husband argued in his opening brief that the award of sanctions must be reversed because Commissioner Slabach had no jurisdiction to impose sanctions, because the court failed to adhere to the procedures governing a summary adjudication of issues, and because the court’s conclusion that his allegations of Wife’s preseparation wrongful acts did not constitute actionable misappropriation or breach of fiduciary duty was incorrect. He nowhere asserted that, while a court has discretion to impose sanctions, the court here, in making this award, breached that discretion. To permit him to raise the issue of abuse of discretion, as he has, in his reply brief is unfair to Wife, because it deprives her the opportunity to respond. Moreover, for him to label the argument in his reply brief on the issue of abuse of discretion as “rebuttal” to Wife’s assertion that the appellate record does not reveal the award to be excessive, disproportionate or unwarranted is disingenuous. He has not made any showing sufficient to establish good reason for his delay in raising the issue in his opening brief. (See Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
Even if we generously construe Husband’s assertion that sanctions were improper because the court erred in concluding he had failed to allege facts demonstrating preseparation misappropriation as an assertion that sanctions were imposed simply because he had made the allegations, such an assertion would be a misreading of the award. The court did not award sanctions because Husband had alleged misappropriation. It awarded sanctions because of his continuous disruption of the agreed-upon case management plan to address the bifurcated issue of misappropriation/breach of fiduciary duty, which had been set up as an efficient process to resolve the issue so the parties could then focus on postseparation issues.
DISPOSITION
The November 28, 2006 order awarding sanctions is affirmed.
We concur: Simons, J.Needham, J.