Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-03-FL116312
Premo, J.
Kathey Fyke, the respondent in a dissolution proceeding initiated by her former husband Richard Falcone in 2003, brought two separate appeals challenging various orders relating to her requests for pendente lite attorney fees, her request for a continuance of a hearing on motions to compel discovery, the appointment of a referee, her request for a new trial and her motion to vacate and enter a new judgment. Because the matters challenged are so interrelated, we ordered them considered together for purposes of oral argument and decision.
In these two appeals, Kathey contends that the trial court abused its discretion in denying her various requests and motions, and that the failure to award her attorney fees in December 2006 means that she has not had a fair hearing on any issue in the case since that time. We disagree and shall affirm.
“As is customary in family law cases, we will refer to the parties by their given names for purposes of clarity and not out of disrespect.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549, fn. 1.)
I. Factual and Procedural Background
A. Notable events prior to the December 14, 2006 hearing
i. Richard’s discovery requests and motions to compel responses
In the spring of 2004, Richard served form interrogatories and a request for production of documents on Kathey, who was apparently unrepresented at the time. When Kathey did not respond to these discovery requests, Richard eventually filed a motion to compel responses in April 2006.
In May 2006, Richard propounded special interrogatories which were served on Kathey’s then-counsel. Again, Kathey failed to respond to discovery, and on or about November 1, 2006, Richard filed a motion to compel responses to the special interrogatories.
For reasons which are not disclosed in the record, both motions to compel were calendared for hearing on December 14, 2006.
ii. Kathey’s counsel moves to be relieved
In early November 2006, Kathey’s counsel requested an order shortening time to bring a motion to be relieved as counsel. In his supporting declaration, Kathey’s attorney stated that Kathey had “failed to pay presently billed attorney’s fees and further, has failed to replenish the retainer for attorney’s fees as provided by the Attorney-Client Fee Agreement.” In addition, counsel advised the trial court that “[Kathey] and I have differences concerning the conduct of this case,” and “[Kathey] has consistently not allowed me to file responding documents.”
On November 21, 2006, the motion to withdraw was granted. In its order granting relief, the trial court noted the apparent breakdown in the attorney-client relationship as well as the fact that Kathey had filed numerous documents on her own behalf even while represented by counsel. The trial court’s order further stated that, at the hearing on counsel’s motion to withdraw, “the Court, counsel and [Kathey] discussed at length all currently scheduled dates in this matter, as follows: [¶] (1) The settlement conference set for 9:00 a.m. on November 15, 2006, relates to the contempt matter brought by [Kathey] against [Richard] and set for trial on November 27, 2006. . . . [T]he settlement conference was continued to November 22, 2006 at 9:00 a.m. The November 27, 2006 trial was not continued. [¶] (2) The case management conference set for 9:00 a.m. on November 16, 2006, was continued to December 14, 2006 at 9:00 a.m. [¶] (3) The hearing on the motion to compel sale of real property set for 1:30 p.m. on November 16, 2006, was continued to December 14, 2006 at 1:30 p.m. [¶] (4) The contempt hearing set for December 7, 2006 at 1:30 p.m. was continued to December 14, 2006 at 1:30 p.m.” (Italics added.)
Among the many documents Kathey prepared and filed on her own was a memorandum of points and authorities in opposition to Richard’s motion to compel the sale of certain real property.
B. The December 14, 2006 hearing
i. Morning session
During the case management conference on the morning of December 14, 2006, Richard’s counsel mentioned that the two discovery motions were on calendar for hearing that afternoon. Kathey expressed confusion, stating that the “order gave--said that there’s a motion to compel the sale of the real property that’s set. And then the hearings that were set for December 7th, which were my contempt hearings, are today, but this motion to compel the interrogatories is all new and that isn’t scheduled on this [order].”
Although Kathey did not specify which order she was referencing, it appears from our review of the record that she was referring to the trial court’s November 21, 2006 order granting her attorney’s motion to withdraw.
After confirming that there had not been a “meet-and-confer” on the discovery motions since Kathey’s counsel had been allowed to withdraw in late November, the trial court advised the parties that the discovery motions would be heard in the afternoon, but that Kathey and Richard’s counsel should meet and confer in the interim. Kathey reiterated that she was not prepared to argue the discovery motions since they had not been listed on the November 21, 2006 order. The trial court responded that “[t]he order didn’t say that was all that was going to be on. The [discovery motions were] served and filed with this as the original hearing date so it didn’t have to be moved, and it’s on for hearing today. . . . So I am giving you some ways to accommodate your concern about having this heard this afternoon, but it’s on--it’s properly on and it’s going to get resolved this afternoon unless it’s resolved in the meantime.”
The trial court misspoke on this point. According to the November 21, 2006 order, “the Court, counsel and [Kathey] discussed at length all currently scheduled dates in this matter,” but the list which followed this statement made no mention of the two discovery motions. (Italics added.) For the reasons discussed below, in part II.B, we find that the trial court’s misstatement at the December 14, 2006 hearing about its prior order is immaterial.
When Kathey indicated that she did not have copies of the discovery motions with her, Richard’s counsel agreed that Kathey could stop by her office and obtain copies of the motions that morning. Kathey requested a continuance of the hearing on the motions on the grounds that she had not been able to obtain her file from her former attorney. The court denied her request, stating Kathey had “four hours and that is enough time” to prepare for the hearing.
Kathey then orally moved for an award of need-based attorney fees pursuant to Family Code section 2031, subdivision (b). The trial court declined to consider Kathey’s oral motion, advising her that she would “have to make a written motion for that relief.”
ii. Afternoon session
At the afternoon session, the trial court asked if there was an update on the discovery motions. Richard’s counsel responded that although she had made copies of the motions available to Kathey at her office, Kathey did not pick up those copies. Richard’s counsel and Kathey met and conferred by telephone regarding the motions, but Kathey refused to provide responses to the outstanding discovery. Richard’s counsel requested that Kathey be ordered to provide discovery responses by mid-January, since the trial on the issue of the date of separation was set for February 5 and 6, 2007 and the mandatory settlement conference was scheduled for January 17, 2007.
When asked why she should not be ordered to provide discovery responses by specified dates, Kathey did not directly respond to the court’s question at first. Instead, she provided her account of that morning’s telephonic meet and confer with Richard’s counsel, advising the court that Richard’s counsel refused to give her a “sufficient amount of time to properly respond to her motion to compel.” Kathey complained that the trial court had denied her requests for a continuance of the hearing and for attorney fees at the morning session, explaining she did “not have a complete understanding of what’s going on. I haven’t seen the file. I am doing the best I can with what limited information that I have.” She again noted that the November 21, 2006 order “did not mention that [these discovery motions were] coming up today.” Kathey advised the court that she was entitled to notice and an opportunity to be heard before any sanctions could be awarded.
When the trial court again asked why Kathey should not be ordered to serve verified answers to Richard’s discovery, Kathey stated “there was no jurisdiction at the time the discovery was propounded . . . [¶] . . . I did not make a general appearance until the end of October [2006]. So [the discovery requests were] all premature. It’s all part of the motion to quash. . . . [T]he case was not yet at issue. So if the case isn’t at issue, I can’t be held to a discovery standard.” Kathey further said that she would “have no problem” with responding to Richard’s discovery requests “if they want to properly serve me. . . . It’s just that they served this stuff way back when, when there was no jurisdiction on the case.” Kathey also raised laches and “unclean hands” as defenses to the discovery motions.
In April 2005, Kathey filed a motion to quash in which she argued that she had not been properly served with the summons and petition for dissolution. For reasons which are not explained by the record, there was some delay in ruling on the motion to quash, which was finally denied by the trial court on or about August 15, 2006. Taking judicial notice of our records in Fyke v. Superior Court, H030599, we summarily denied Kathey’s petition for a writ of mandate challenging the denial of her motion to quash on October 5, 2006.
After the matter was submitted, the trial court granted the motions and directed Kathey to serve verified responses to Richard’s various discovery requests by specified dates. The trial court advised that it was taking the sanctions issue under submission and would issue a written order. On December 15, 2006, the trial court issued a written order imposing $3,880 in sanctions against Kathey under Code of Civil Procedure sections 2030.290, subdivision (c) and 2031.310, subdivision (d). The trial court noted that it could not find substantial justification for Kathey’s failure to respond to discovery and for her opposing the motions to compel.
The trial court then arraigned Kathey on a contempt motion arising from an order to show cause filed on October 10, 2006. Just prior to the arraignment, Kathey renewed her requests for attorney fees and for a continuance. The trial court did not directly address her requests, but noted that it was giving her an advisement of her rights in connection with the hearing on the order to show cause regarding contempt.
Following the arraignment, the trial court proceeded to hear Richard’s motion to compel the sale of real property, during which the parties offered evidence and testimony to support their positions. Kathey cross-examined Richard and another witness who testified regarding the condition of the property. The trial court granted the motion and appointed a special master to supervise the sale of the property. The trial court indicated on the record that it had signed the form relating to the appointment of the special master and that Richard’s counsel was to prepare a separate order reflecting the other rulings made at the hearings.
That order was filed on February 6, 2007, and notice of entry was served on Kathey on February 15, 2007.
C. Notable events relevant to the issues on appeal in H031458
At the end of December, Kathey filed written objections to the order appointing a “referee.” Among her numerous other objections, she again raised the trial court’s denial of her requests for a continuance and for “need based” attorney fees. Several days later, Kathey filed written objections to the December 15, 2006 order awarding discovery sanctions against her. In this document, she raised the jurisdictional arguments which the trial court had previously rejected, and again complained that the trial court had denied her requests for a continuance of the hearing and for “need based” attorney fees.
i. Kathey’s first motion for a new trial
On February 5, 2007, Kathey moved for a new trial “on the matter of granting monetary sanctions pursuant to the Discovery Act.” The motion was principally based on the trial court’s denial of her requests for a continuance of the hearing on Richard’s discovery motions and for “need based” attorney fees. The motion for a new trial was denied.
ii. Kathey’s second motion for new a trial and motion to vacate judgment
Kathey filed a second motion for a new trial on March 2, 2007, to be heard, on shortened notice, on March 26, 2007. In this second motion, Kathey sought “a new trial/hearing on the motion to compel sale of property, motion to compel discovery, request for attorney fees, and other matters heard December 14, 2006.”
Also on March 2, 2007, Kathey filed a motion to vacate judgment and enter a different judgment, which was set for hearing on April 10, 2007. In that motion, Kathey sought an order vacating the “judgment/orders rendered at the hearing on December 14, 2006” and the entry of “a different judgment/orders . . . denying [Richard]’s Motions to Compel Discovery and Motion to Compel Sale of Real Property.”
In both the motion for a new trial and the motion to vacate judgment, Kathey again raised the trial court’s denial of her requests for “need based” attorney fees and to continue the hearings as separate grounds for granting a new trial or for vacating the December 14, 2006 “judgment/orders.”
On March 28, 2007, the trial court issued an order granting in part and denying in part Kathey’s motion for a new trial. Specifically, the trial court denied the motion for a new trial as to the rulings on the discovery motions and the motion to compel the sale of real property, but granted the motion for a new trial on the issue of Kathey’s oral request for attorney fees. The trial court set Kathey’s request for attorney fees for hearing on April 24, 2007, and the order directed that Kathey file a current income and expense declaration and other evidence she wished considered in connection with her request for fees no later than April 13, 2007. Pursuant to the court’s order, Richard had until April 18, 2007, to file “any responsive papers.”
iii. The April 10, 2007 hearing on Kathey’s motion to vacate
On April 10, 2007, the trial court denied Kathey’s motion to vacate judgment. When the trial court turned to a proposed order implementing the sale of real property, Kathey interrupted, asking again for attorney fees and for a continuance “to hire an attorney to protect my interests in this matter.” The following colloquy took place:
“THE COURT: Okay. I have already ordered several weeks ago that you provide me with the financial information that I need to do that.
The trial court was apparently referencing to its March 28, 2007 order granting in part and denying in part Kathey’s motion for a new trial.
“[KATHEY]: And I appreciate that.
“THE COURT: So I can’t grant that order any faster, because I don’t have your financial information.
“[KATHEY]: I understand that. [¶] And it’s a Catch-22, and I have
“THE COURT: No. It’s not Catch-22. [¶] As soon as I get that information I make an order, but you haven’t given it to me.
“[KATHEY]: Okay. I know. I am requesting a continuance so I can get to that point.
“THE COURT: I am not going to continue this matter. I just denied your request for stay.
“[KATHEY]: I understand that, and I just want to put on record in accordance with [Family Code section] 2030, or is it--is it 2030-31, and I’m asking for continuance. If you say no that’s okay.
“THE COURT: If you want to provide the information, the information that I ordered you to provide sooner, you can do that, but I can’t grant an order any faster than you get the information to me.”
The trial court, which apparently could not hear Kathey’s motion for attorney fees on April 24, asked the parties for alternative hearing dates, ultimately settling on May 17, 2007. There was no discussion, however, either by the court or the parties, of also extending the time for Kathey and Richard to file their supporting and responsive papers. When the court asked if the matter could be submitted on the papers, Kathey specifically requested a hearing.
On April 18, 2007, Kathey filed her notice of appeal in H031458. The appeal encompasses the following orders:
“1. Findings and Order After Hearing of the Superior Court, filed February 16, 2007, regarding the denial [of] [Kathey]’s request for need based attorney fees without inquiry into the parties’ needs and ability to pay and associated continuance; [Richard]’s Motions to Compel Sale of Real Property; [Richard]’s Motions to Compel Discovery; the appointment of Ed Mills as temporary judge; and other matters.
“2. Order Appointing Referee of the Superior Court, filed December 14, 2006, regarding the sale of real property.
“3. Order Granting in Part and Denying in Part [Kathey]’s Motion for New Trial of the Superior Court, filed on March 28, 2007, regarding [Kathey]’s request for need based attorney fees and continuance; [Richard]’s Motions to Compel Sale of Real Property; [Richard]’s Motions to Compel Discovery; and other matters.
“4. Order Denying [Kathey]’s Motion to Vacate and Enter a New Judgment of the Superior Court, heard on April 10, 2007, regarding [Kathey]’s request for need based attorney fees and continuance; [Richard]’s Motion[s] to Compel Sale of Real Property; [Richard]’s Motions to Compel Discovery; and other matters.”
D. Notable events relevant to the issues on appeal in H031792
On April 11, 2007, Richard’s counsel wrote to Kathey, indicating that, because “the Judicial Custody Conference and your motion for fees have been continued to May 17, the deadlines [for filing associated paperwork] previously imposed by the court should be revised.” Richard’s counsel proposed that the parties exchange their paperwork at the end of April, and asked if that was acceptable to Kathey. It does not appear that Kathey responded to this letter in any way.
On May 4, 2007, Richard filed a memorandum of points and authorities in opposition to Kathey’s motion for attorney fees. The memorandum of points and authorities was supported by an income and expense declaration, as well as a responsive declaration and a declaration from Richard’s counsel. On May 10, 2007, Kathey filed a memorandum in support of her motion for attorney fees, as well as an income and expense declaration, a supporting declaration and several exhibits.
In her opening brief, Kathey refers to her memorandum of points and authorities as a “reply” memorandum. The document provided in the record is not so entitled.
On May 11, 2007, the trial court issued an order in which it stated that it would take Kathey’s motion for attorney fees “under submission on the papers without oral testimony or argument,” as it had been “extensively briefed by the parties.” By order dated May 23, 2007, the trial court denied Kathey’s motion for attorney fees on the grounds that she had failed to file an income and expense declaration or any other supporting evidence by April 13, 2007, as directed by the court’s March 28, 2007 order.
Approximately two weeks later, Kathey filed written “objections” to the court’s May 11 and May 23 orders, claiming that that the trial court had violated her rights to a full and fair hearing on her “oral” motion for attorney fees by denying her the right to present oral argument and testimony on the matter after she had specifically requested a hearing on the motion. Kathey also claimed that she failed to timely file her income and expense declaration and supporting documents because she was misled by the April 11, 2007 letter from Richard’s counsel which stated that the “deadlines previously imposed by the court should be revised,” due to the continuance of the hearing date from April 24 to May 17.
On July 10, 2007, Kathey filed her notice of appeal in H031792. The appeal encompasses the following orders:
“1. Order re Matters Set for Hearing on May 17, 2007; dated and filed May 11, 2007 including Respondent’s Motion for New Trial relating to Respondent’s oral motion for need based attorney fees and representation.
“2. Order on Motions for Attorney Fees; for Sanctions; for New Trial and to Vacate Judgment; and for Vocational Evaluation and Sanctions; dated May 22 and filed May 23, 2007.”
On January 24, 2008, Kathey filed a petition for a writ of supersedeas and request for temporary stay of further proceedings below “relative to the issue of representation and need based attorney fees.” This court denied the petition by separate order dated February 4, 2008.
II. Discussion
A. General principles applicable to these appeals
To be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. “ ‘ “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” [Citations.]’ (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.)
Error alone does not warrant reversal. “It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.” (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1439.) “ ‘The burden is on the appellant, not alone to show error, but to show injury from the error.’ ” (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740.) “Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.” (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) “Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114.) A miscarriage of justice is not found “unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.” (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1841.)
B. The court did not abuse its discretion in denying Kathey’s request for a continuance of the December 14, 2006 hearing on Richard’s motions to compel discovery
Kathey argues that the trial court abused its discretion in refusing her request for a continuance of the discovery motions at the December 14, 2006 hearing. We disagree.
Continuances are granted only on an affirmative showing of good cause requiring a continuance. (Cal. Rules of Court, rule 3.1332; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) Reviewing courts must uphold a trial court’s choice not to grant a continuance unless the court has abused its discretion in so doing. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)
Kathey failed to demonstrate good cause to continue the hearing on Richard’s discovery motions. Her argument in favor of a continuance was based solely on the fact that the November 21, 2006 order did not include the two discovery motions as matters that were “currently scheduled” for hearing on December 14, 2006, and thus she was not prepared to argue those motions. Although the trial court’s November 21, 2006 order allowing Kathey’s counsel to withdraw did not list these discovery motions as being calendared for hearing, the motions had been properly filed, served on Kathey’s then-counsel and set for hearing. The motion to compel responses to form interrogatories and for production of documents had been pending for more than six months. The motion to compel responses to special interrogatories, filed at the beginning of November 2006, had also been properly noticed for hearing.
It is well-settled that “ ‘one who acts through another will be presumed to know all that the agent learns during the transaction, whether it is actually communicated to him or not.’ ” (Watson v. Sutro (1890) 86 Cal. 500, 517; accord, Maron v. Swig (1952) 115 Cal.App.2d 87, 90.) The rule applies to attorneys as well as other agents. (See, e.g., Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 930.) “Notice to counsel or attorney is constructive notice to client.” (Watson v. Sutro, supra, at pp. 516-517.) Thus, “ ‘one who acts through another will be presumed to know all that the agent learns during the transaction, whether it is actually communicated to him or not.’ ” (Id. at p. 517.)
Even assuming Kathey could truly claim to be surprised to learn, on the morning of December 14, 2006, that the two discovery motions would be heard that afternoon, any unfairness which might otherwise have resulted was ameliorated by the fact that she had approximately four hours to prepare for the afternoon hearing. At the afternoon hearing, it became clear that Kathey had no substantive objections to Richard’s discovery, since she admitted she would have “no problem” providing responses to his discovery requests so long as they were “properly serve[d]” on her.
Though not relevant to the question of whether or not the trial court abused its discretion in denying Kathey’s request for a continuance, it is telling that her principal argument in opposition to the discovery motions was jurisdictional. As noted above, in footnote 5, Kathey had spent many months contesting jurisdiction in this case and continued to assert that the court only acquired jurisdiction over her in October 2006. Since Richard’s discovery requests were served on her before the court had jurisdiction, Kathey argued, she was under no obligation to respond.
Finally, Kathey is not the only participant in the proceedings below, and the trial court is obliged to ensure that the rights of all parties, including Richard’s rights to timely responses to discovery and the right to a timely trial on the date of separation, are protected as well. A continuance of the hearing on the motions to compel discovery would undoubtedly have adversely impacted Richard’s preparation for the upcoming mandatory settlement conference, as well as the trial on the date of separation issue.
C. Denial of Kathey’s requests for attorney fees
Kathey argues that the trial court erred in denying her oral motions for attorney fees to allow her to hire counsel to represent her in the ongoing dissolution proceedings, including the pending discovery motions and the motion to compel the sale of real property. Kathey made her motions pursuant to Family Code section 2031, subdivision (b)(1), which allows such motions to be made orally, without notice, “[a]t the time of the hearing of the cause on the merits.” Kathey claims that the trial court erred in denying the motions because the court failed to consider the financial circumstances of the parties before ruling. Assuming that the orders are appealable, we detect no reversible error on this record.
Family Code section 2031 provides, in pertinent part: “(a)(1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage, for nullity of marriage, for legal separation of the parties, or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause. [¶] (2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause. [¶] (b) An order described in subdivision (a) may be made without notice by an oral motion in open court.”
It is well-established “that trial courts enjoy broad discretion in awarding attorneys’ fees in marital proceedings.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) But “the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
i. The trial court’s error in refusing to consider Kathey’s oral request for attorney fees at the December 14, 2006 hearing was harmless
At the December 14, 2006 hearing, when Kathey made an oral request for attorney fees, the trial court stated that Kathey would have to “make a written motion for that relief.” Such an oral request for fees is expressly authorized by Family Code section 2031, subdivision (b). However, because the trial court subsequently corrected its error by granting Kathey’s motion for a new trial on the issue, the error was harmless.
We find it curious that Kathey has apparently never once brought a written motion for need-based attorney fees pursuant to Family Code section 2031, subdivision (a)(1), particularly given her steadfast insistence that such fees are essential to protecting her interests in these proceedings. After several years of intensively litigating this case in propria persona at both the trial and appellate level, Kathey is obviously well-versed in law and motion practice.
ii. To the extent the trial court erred in declining to permit oral argument in connection with Kathey’s request for attorney fees, such an error was harmless
A court may, in its discretion, decline to take oral testimony or receive additional evidence on a motion and may grant or deny relief solely on the basis of the written materials submitted by the parties in support of and in opposition to that motion. (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485; Cal. Rules of Court, rule 5.118(f).) Prior to the trial court issuing its May 11 order declining to take oral testimony, Richard and Kathey had, in fact, filed papers in connection with Kathey’s request for attorney fees, so the court did act within its discretion in denying the request solely on the basis of those written materials.
Assuming, arguendo, that the trial court abused its discretion in declining to permit oral argument on Kathey’s request for attorney fees, Kathey would still have to establish that she was prejudiced by the trial court’s decision in order to prevail on appeal. In other words, if the trial court had allowed her to appear and argue her request for attorney fees, is it reasonably likely that the trial court would have granted the request? We think the answer is: No.
a. The request for attorney fees was properly denied since Kathey unjustifiably failed to file supporting papers by April 13, 2007, in compliance with the trial court’s March 28, 2007 order
Even if the trial court had allowed the parties to appear at the May 17 hearing, Kathey’s supporting papers were still untimely and the trial court would have been justified in denying the request on that basis alone. (See Cal. Rules of Court, rule 3.1113(a) [court may construe absence of supporting memorandum as admission that motion is without merit and cause for its denial].) In its March 28, 2007 order, the trial court directed Kathey to file a current income and expense declaration and other evidence she wished considered no later than April 13, 2007. Though the hearing on the attorney fee request was subsequently continued to May 17, 2007, the deadline to file these papers was not extended. When a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)
Kathey cannot claim to have been unaware that the trial court was awaiting this information from her. At the April 10, 2007 hearing, when Kathey again made an oral request for attorney fees, the trial court reminded Kathey that it could not rule on her request without the financial information Kathey had previously been ordered to provide.
Though Kathey contends that she could have successfully argued that she was “misled” by Richard’s counsel into filing her papers late, there is no merit to this contention. Given that the record is filled with instances in which Kathey, long before April 11, 2007, accused Richard’s counsel of misrepresenting facts or otherwise attempting to mislead the trial court, it strains credulity for her to now claim that she would rely on any representations by Richard’s counsel, let alone any representations regarding court-imposed deadlines. Furthermore, even if Kathey could credibly claim to have relied on the April 11 letter, she still failed to comply with the “new” deadline at the end of April suggested by Richard’s counsel. Instead, Kathey’s papers were filed on May 11, nearly two weeks after the supposedly revised deadline would have passed.
In addition, it is not as if the letter stated that the deadlines for filing paperwork “had been revised,” which would have been an obvious misstatement. Rather, the letter itself actually extends an offer to Kathey to extend the deadlines; an offer which she apparently never formally accepted.
D. Since Kathey’s requests for a continuance and for attorney fees were properly denied, her remaining contentions also fail
Kathey’s remaining arguments bring to mind the ancient proverb “For want of a nail the shoe was lost . . . .” (Herbert, Jacula Prudentum (1651).) According to Kathey, because her requests for a continuance and for attorney fees were denied at the December 14, 2006 hearing, every subsequent action and decision taken by the trial court, such as the orders granting Richard’s discovery motions, the order compelling the sale of real property, etc., must be overturned as Kathey did not have “parity” of legal representation when those matters were heard.
Because we find that Kathey’s requests for attorney fees and for a continuance were properly denied, there is no basis for overturning the other matters raised in Kathey’s notices of appeal.
III. Disposition
The orders are affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.