Marriage of Fuller, In re

Citation210 Cal.Rptr. 73,163 Cal.App.3d 1070
CourtCalifornia Court of Appeals
Decision Date23 January 1985
PartiesIn re the MARRIAGE OF Linden L. FULLER and Errol Kent Fuller. Linden L. FULLER, Appellant, v. Errol Kent FULLER, Respondent. B004922.
David Rottenberg, San Diego, for appellant

Eliaser & Kay and James R. Eliaser, Los Angeles, for respondent.

LILLIE, Presiding Justice.

David Rottenberg, former attorney for the named appellant herein, Linden L. Fuller, appeals from order of October 26, 1983, denying motion for relief ( § 473, Code Civ.Proc.) from an order imposing a $2,500 sanction. 1

I FACTS

In 1982, Linden L. Fuller filed petition for dissolution of her marriage to Errol Kent Fuller involving, among other issues, determination of separate and community interests of the parties in numerous parcels of real property being operated by Mrs. Fuller.

On November 1, 1982, respondent (all reference hereinafter to respondent is to his counsel) served on Mrs. Fuller request for production of documents relating to the properties under her control. She made no written response thereto and did not appear in court for production of documents and did not produce any. Respondent was equally unsuccessful in attempting to communicate with appellant. Finally, on January 25, 1983, respondent filed his first notice of and motion to compel production of documents and for sanctions.

On February 28, 1983, counsel met and conferred and agreed that Mrs. Fuller would produce certain documents by March 31, 1983. Upon her failure to do so, and after numerous unsuccessful attempts to contact appellant, respondent on April 21, 1983, notified appellant in writing that Mrs. Fuller's response was unverified and faulty in other respects. On May 19, 1983, appellant promised respondent he would serve a proper response. Upon appellant's failure to do so, and on May 20, 1983, respondent's motion to compel production of documents and for sanctions was heard. The motion was granted in certain particulars, and Mrs. Fuller was ordered to produce various documents; motion for sanctions was denied.

Thereafter Mrs. Fuller failed to comply prompting respondent to file second notice of motion to compel compliance with the court's order for production of documents and for sanctions ($380 sought against Mrs. Fuller for her willful failure to comply). Meanwhile lis pendens was filed on the parcels of property; motion to expunge and the other motions were set for hearing on July 27, 1983. On the July 27 hearing an order was made, based on written stipulation entered into by the parties, expunging lis pendens on nine parcels of real property and, among other things, allowing Mrs. Fuller to continue to operate the properties and requiring her to account for and turn over in a timely fashion to a joint trust account in the names of appellant and respondent, all rents and profits. In addition, the court orally ordered her to make an accounting of her operation of the properties to respondent and to respond to the request for production and render her accounting to the court on or before August 30, 1983, and the parties to return to court on August 30.

No documents were produced, no proper response to request for production of documents was made and no accounting was rendered to respondent and the court by Mrs. Fuller, thus on August 30, 1983, respondent's motion to compel compliance with order re production of documents and for sanctions, and order to show cause re receiver and accounting came on for hearing; respondent and his counsel appeared but neither appellant nor Mrs. Fuller was present. By virtue of the failure of appellant and Mrs. Fuller to appear and their failure to render a proper accounting, failure to adequately and properly respond to request for production of documents and failure to pay over rents and profits on the real property as required by the order of July 27, 1983, the court on August 30, 1983, made its order awarding sanctions to respondent and his attorney against appellant and Mrs. Fuller, jointly and severally in the amount of $2,500.

On September 21, 1983, appellant was relieved as attorney for Mrs. Fuller. Meanwhile appellant filed motion for relief (from Aug. 30 order granting sanctions) under section 473, Code of Civil Procedure on stated grounds of excusable neglect, mistake and inadvertence. The motion was heard on declarations and denied on October 26, 1983. It is from this order Mr. Rottenberg appeals.

II SCOPE OF APPEAL

Mr. Rottenberg has appealed on the judgment roll. His main appellate issue is whether the trial court abused its discretion in denying his motion to be relieved of the sanction order of August 30, and it is on this motion he made his record in the court below. In a shotgun approach appellant also raises a variety of other issues which were not raised in the trial court or argued on his motion. Only one such issue, lack of notice to appellant of sanctions to be sought against him individually will be discussed.

III NO ABUSE OF DISCRETION

In support of his motion for relief appellant's declaration asserted: Mrs. Fuller was in court and understood the order requiring her to render an accounting within 30 days; he discussed the order with her, explained the nature of the information required and advised her to hire an accountant; he told her he would be out of the country on August 30 and it was imperative she comply with the court's order so the cause would go off calendar; she hired an accountant but appellant never heard from either one; he received no accounting from her or the accountant, and left the country on August 25 for a "long-planned" vacation, but that morning instructed his clerk to call Mrs. Fuller and stress the importance of complying with the order; the clerk was unable to contact her; it "was up to" Mrs. Fuller to follow through "as she promised"; on September 20, Mrs. Fuller discharged him. In his memorandum of points and authorities he argued that Mrs. Fuller knew what she was supposed to do, he made every possible effort to obtain her compliance and she knew he was leaving the country, but there was nothing he could do to force her to "act appropriately"; he relied upon her to comply and he should not be penalized for her failure.

Two declarations were filed in opposition to the motion. The declaration of Mrs. Fuller, asserting that appellant did not advise her when he would be out of the country, and generally blaming him for her failure to comply, prayed for a denial of his motion and an order making him solely responsible for paying the $2,500. The declaration of respondent (counsel) asserted: on the July 27, 1983, hearing appellant told him and the court that August 30 was a "convenient" time for him and his client to return; appellant must have known then about his "long-planned" vacation and that he would be out of the country at that time, but at no time did appellant advise him or the court he would not be in court on August 30.

In a second declaration appellant said he thought he had an oral understanding with respondent that if his client produced the accounting the cause would go off calendar.

The foregoing are all of the facts the trial court had before it at the time it was called upon to exercise its discretion on appellant's 473 motion. In disregard of the rules governing appellate review, appellant asks us to accept his reasons for not appearing, which version was rejected by the trial court, and advances a factual argument better suited to a trial court presentation. Implicit in the denial of appellant's motion for relief under section 473, Code of Civil Procedure is the finding that appellant had established none of the grounds (excusable neglect, mistake, inadvertence) for vacating the August 30 sanction order; we will not disturb the order of October 26. Appellant has failed to sustain his burden of showing an abuse of judicial discretion (Lint v. Chisholm, 121 Cal.App.3d 615, 620, 177 Cal.Rptr. 314), and none is manifest.

IV NOTICE

For the first time, appellant raises the issue of notice. Under ordinary circumstances, for his failure to raise the issue below he would be precluded from advancing it in this court. Even a constitutional right must be raised at the trial level to preserve the issue on appeal (Snelson v. Ondulando Highlands Corp., 5 Cal.App.3d 243, 259, 84 Cal.Rptr. 800, 85 Cal.Rptr. 806). We cannot condone appellant's conduct, as a lawyer or as an officer of the court, relative to his failure to appear on August 30, for surely he had a duty to do more than "direct" Mrs. Fuller to comply with the order then leave the country without ascertaining whether she could, would or did comply, without advising respondent's attorney and the court he would not be present on August 30 and without asking the court or opposing counsel for a continuance or arranging for representation for Mrs. Fuller in his absence. But, it is apparent from the record that at no time prior to the making of the sanction order against him did appellant have any notice that sanctions would be sought against him individually, nor did he have any reason to suspect that sanctions would be awarded against him as Mrs. Fuller's counsel. However, he has neither appealed from the order of August 30 imposing sanctions nor filed petition for peremptory writ by which this court could have reached the issue of notice. Instead, he filed in the trial court motion for relief under section 473, denial of which, in his notice of appeal, he denominates "Ruling Denying Reconsideration and Relief from Order Imposing Sanctions." Whatever appellant may call his motion for relief, it is clear that under neither a motion for reconsideration ( § 1008, Code Civ.Proc.) nor motion for relief ( § 473, Code Civ.Proc.) could he have properly raised the issue of notice. (O'Brien v. Cseh, 148 Cal.App.3d 957, 960, 196 Cal.Rptr. 409.) The time for appeal from the August 30 order having...

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