Opinion
NOT TO BE PUBLISHED
Appeals from a judgment and postjudgment order of the Superior Court of Orange County No. 01D009483, David S. Weinberg, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of Thomas E. Elenbaas and Thomas E. Elenbaas for Appellant Barbara Fisler.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Lisa R. Wiley for Appellant Richard Curnutte.
RYLAARSDAM, ACTING P. J.
This case involves consolidated appeals from a marital dissolution judgment (No. G038378) and a subsequent order granting a new trial under Code of Civil Procedure section 914 (No. G039720). We conclude Barbara Fisler’s motion to dismiss Richard Curnutte’s appeal from the judgment has merit because he accepted the benefits of the judgment. For the same reason, we also conclude Curnutte waived his right to seek a new trial because a portion of trial transcript is missing. Therefore, we shall dismiss the appeal in case No. G038378 and reverse the order granting a new trial in case No. G039720.
FACTUAL AND PROCEDURAL BACKGROUND
Although Fisler and Curnutte married in December 1998 and separated in January 2001, before trial on the division of their property they executed a stipulation partially resolving the property issues that, in part, declared: “All assets and debts acquired by the parties from 1993 through their date of separation shall be treated as the parties’ community property for the purposes of... trial, except as set forth herein and except for allegations by each party of misappropriation, or breach of fiduciary duty with respect to assets or liabilities.” The parties also agreed to try the matter before a retired commissioner. The proceedings, which included pretrial hearings beginning in July 2002, followed by trial that started in September 2004, covered 38 separate dates over a four-year period.
The pretrial stipulation identified numerous items of property with a net value exceeding $2.7 million. The assets included three real estate parcels, five vehicles, eight bank accounts, four securities accounts, the cash surrender values of two life insurance policies, two individual retirement accounts, and the profit sharing plan of Coast Packaging and Container Co., Inc. (Coast), a now-defunct community business. Subject to verifying documentation for some assets, the parties agreed on the valuation of all the foregoing property items. They also agreed on the division of most assets, but left others, including their real property interests and business, to be determined by the court. The real estate consisted of two residences and a commercial building on Hazard Avenue in which the parties operated Coast.
After the trial judge issued a tentative ruling, both parties requested a final statement of decision. The trial judge issued a statement of decision that incorporated the tentative ruling and made additional findings as requested by the parties.
One issue concerned valuing Coast and determining how much of this valuation should be allocated to each party’s share community property division. The trial court determined Coast had a value of $1,065 million before Curnutte resigned from it in late 2002. It also found Curnutte violated his fiduciary obligation to the community under the Family Code by leaving Coast and creating a competing business. But the court further concluded Fisler “b[ore] some responsibility for the downfall of [Coast]” through her mismanagement of the business after Curnutte’s departure. Of the $1,065 million loss, the court awarded $798,750 of it to Curnutte and $266,250 to Fisler.
The court also awarded one residence, located on Tortola, to Curnutte and the other residence to Fisler. It awarded the Hazard Avenue property to Fisler at the parties’ stipulated value, but directed her to make an equalization payment to Curnutte of nearly $599,000. Fisler deposited $600,000 with her attorney. Because the court had not yet ruled on the issue of attorney fees, it directed counsel to retain one-half of the deposit in his client trust account and send the other half to Curnutte’s attorney.
In March 2006, Curnutte moved to reopen trial to allow for an alternative disposition of the Hazard Avenue property. The court conducted further hearings on the matter during which Curnutte admitted he had sold the Tortola residence in late March. In August 2006, the court denied Curnutte’s motion.
The court entered judgment in January 2007. It directed the parties to bear their respective attorney fees and costs. Fisler was also ordered to release the balance of the equalization payment to Curnutte who, in turn, was directed “upon payment” to “release the lis pendens encumbering the Hazard property....”
A dispute arose over which party was entitled to the interest earned on the trust account deposits. The parties resolved the matter and Fisler sent Curnutte a check in the amount of $299,185. Upon receipt and deposit of the check, Curnutte recorded a notice withdrawing his lis pendens.
In March, Curnutte filed a notice of appeal from the judgment. (Case No. G038378.) Shortly thereafter, he recorded another lis pendens on the Hazard Avenue property.
Fisler filed a motion to dismiss the appeal in this court, claiming Curnutte had accepted benefits under the judgment. In June, after requesting an extension of time to respond to Fisler’s motion, Curnutte filed a motion in the superior court seeking a new trial under Code of Civil Procedure section 914. He claimed one court reporter who transcribed several days of trial testimony was missing while other reporters could not locate their trial notes. Curnutte then filed opposition to Fisler’s dismissal motion, in part relying on his new trial motion. This court issued an order directing the parties to advise it of the trial court’s ruling on Curnutte’s new trial motion.
In October 2007, the trial court issued an order granting Curnutte’s new trial motion. In part, the court rejected Fisler’s argument that it “may properly deny [the] motion based upon [Curnutte] having availed himself of the benefits of the [j]udgment.”
Fisler timely appealed from the new trial order. (Case No. G039720.) In January 2008, Curnutte filed a request to dismiss his appeal in case No. G038378. We issued an order consolidating the appeals, directing that Fisler’s motion to dismiss the appeal in case No. G038378 and Curnutte’s request to voluntarily dismiss that appeal be decided in conjunction with a ruling on the merits of the appeals.
We also directed Curnutte to seek, and the trial court to grant, a request to prepare a settled statement of the parts of the reporter’s transcripts the court determined could not be prepared. (Cal. Rules of Court, rule 8.137.) However, Curnutte claimed his trial counsel’s “personal trial notes” were “not sufficient to provide a basis to prepare the settled statement nor to discuss or respond to any proposed settled statement that may be prepared by [Fisler’s] counsel,” while Fisler insisted the court rules obligated the appellant to prepare the initial proposed statement. Consequently, a statement was never prepared and settled by the trial court.
DISCUSSION
1. The Motion to Dismiss Curnutte’s Appeal
First, Fisler contends Curnutte’s acceptance of the benefits awarded to him under the trial court’s judgment bars the appeal in case No. G038378. Curnutte argues “[t]he record... show[s] that [he] hardly acquiesced in the judgment.” While acknowledging “[t]he grounds for [his] appeal have not yet been fully ascertained,” Curnutte suggests his appeal may be from a portion of the judgment severable from the benefits he has received under it. Fisler has the better analysis of this issue.
“‘It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom.’ [Citation.]” (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214.) “[A]cceptance of even a part of the benefit of a judgment or order will ordinarily preclude an appeal from the portion remaining. [Citation.]” (Epstein v. Dedomenico (1990) 224 Cal.App.3d 1243, 1246.) “Stated more generally, ‘“... where an appellant is shown to have received and accepted advantages from a judgment to which [he or she] would not be entitled in the event of a reversal of the judgment...,”’ the acceptance of even part of the judgment precludes the appeal. [Citations.]” (Ibid.)
But this “settled rule... is subject to qualifications.... First, the appellant must demonstrate a clear and unmistakable acquiescence in, or, to put it another way, an ‘“unconditional, voluntary, and absolute”’ acceptance of, the fruits of the judgment. [Citations.] Furthermore, where the benefits accepted are those to which the appellant would be entitled even in the event of reversal, acceptance thereof does not bar prosecution of the appeal. [Citations.] Thus, ‘[i]f the appeal is only from a portion of a judgment in which the issues are severable, the portions from which no appeal is taken may become final and beyond the scope of review of the appellate court [citations]; and so where the judgment clearly establishes the appellant’s right to recover but the amount is less than he demands, he may accept it and nevertheless appeal, claiming the larger recovery. [Citations.]’ [Citation.]” (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 744.)
Concededly, before judgment Curnutte litigated the issues concerning characterization and valuation of the community assets upon which the parties could not agree, the existence of any breach of fiduciary duties, and the allocation of the remaining community property. But his subsequent acceptance of the equalization payment after negotiating an increase in the balance to account for the earned interest on it, plus his withdrawal of the original lis pendens and sale of the Tortola residence reflect he acquiesced in the judgment by accepting portions of it that were beneficial to him.
Nor do any of the exceptions apply in this case. “‘The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked. [Citations.]’ [Citations.]” (Hansen v. Hansen (1965) 233 Cal.App.2d 575, 580.)
Curnutte suggests some potential appellate issues, including “the award of the Hazard [Avenue property] or other property to Fisler, the amount of the equalization payment, the finding of breach of fiduciary duty,” and “the overall valuations determined by the court.” A consideration of a few alternative divisions of the community assets reflects these rulings are inextricably intertwined with the benefits Curnutte received and willingly accepted under the judgment.
The judgment awarded Fisler community assets valued at approximately $2,430,000, including her portion of the business’s lost value ($266,250) and the net fair market value of the Hazard Avenue building ($997,094). The judgment awarded Curnutte community assets valued at nearly $1,240,000, which included his portion of the community business’s lost value ($798,750). Thus, the court ordered Fisler to pay Curnutte an equalizing payment of nearly $599,000, so that each party received approximately $1,839,000 in community assets.
But, had the court awarded the Hazard Street property to Curnutte, he would have received community assets valued at $2,236,968 and reduced the value of the assets awarded to Fisler to approximately $1,439,522. Assuming no other change to the property division, this would have not only eliminated Fisler’s equalization payment to Curnutte, he would then be obligated to make an equalization payment to her of nearly $399,000.
Alternatively, had the court concluded both spouses were equally liable for the loss of the community business, this would have resulted in awarding each of them $532,500 of its value. Again, assuming no other change in the assets awarded to each party, Fisler would have received assets valued at approximately $2,703,000 while the assets awarded to Curnutte would have amounted to only about $974,000. The court would then have had to order Fisler to pay Curnutte over $860,000 to equalize the division. Rather than impose such an onerous burden on her, the court might have concluded it would be more appropriate to award the Hazard Avenue property to Curnutte. In this event, he would receive nearly $1,971,000 in assets and Fisler approximately $1,705,773, thus requiring a more manageable equalization payment from Curnutte to Fisler of less than $133,000.
As indicated, the foregoing examples assume no other change in the court’s division of the parties’ community assets. But, in rendering its decision, the trial court denied Curnutte’s request that it assess Fisler for some portion of the rent receivable on the Hazard Avenue property and equipment and truck lease payments for the time period after he withdrew from Coast. In its statement of decision the court explained the ruling by concluding these assessments “would be inequitable” given “the unusual facts of this case....” However, had the court chosen to award the Hazard Avenue property to Curnutte or found both spouses equally chargeable with the failure of Coast, the court might have concluded it would be equitable to assess some portion of the lost rent and lease payments to Fisler, thereby altering the amount of any necessary equalization payment.
Thus, the record reflects the trial court was required to consider the entirety of the parties’ assets and debts in its division of their community estate. Curnutte does not explain how the court’s findings and rulings as to certain items can be severed from the remaining assets and obligations without changing other aspects of the judgment.
For the same reason, the third exception, allowing an appellant to accept benefits to which he or she would be entitled under the judgment while challenging other portions of it, cannot be satisfied. Since the trial court’s determination of the amount of the equalization payment was dependent on its resolution of the remaining issues, including those discussed above, Curnutte cannot show he would be entitled to retain the equalization payment and other assets awarded to him if this court were to reverse other portions of the judgment.
Some cases have recognized “that the collection of attorney’s fees and... support, which are concededly due, will not bar the appeal from other portions of the judgment.” (Hansen v. Hansen, supra, 233 Cal.App.2d at p. 582.) Here, the trial court did rule on these issues, declining to award support to either party and directing each to bear his or her fees and costs. Curnutte does not suggest these rulings as possible bases for an appeal.
Therefore, we conclude Fisler’s motion to dismiss the appeal in case No. G038378 should be granted and deny Curnutte’s subsequent request to voluntarily dismiss it.
2. The Order Granting the Motion for a New Trial
The foregoing conclusion does not entirely resolve the matter. While Curnutte’s appeal was pending, he obtained an order granting a new trial under Code of Civil Procedure section 914. In case No. G039720, Fisler appeals from this postjudgment ruling. She argues that, because Curnutte accepted the benefits of the judgment, “he... waived the right to seek a new trial under [s]ection 914” because of the missing trial transcripts. We agree.
Code of Civil Procedure section 914 declares, “When the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule, because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.” We review a ruling under this statute for abuse of discretion. (Fickett v. Rauch (1947) 31 Cal.2d 110, 112.) But “[t]he discretion is not unlimited” (ibid.) and, in ruling on the motion, the court must consider the rights of both parties (id. at p. 115).
In opposing the new trial motion, Fisler cited Curnutte’s voluntary acceptance of the judgment’s benefits and claimed that, as a consequence, his “[m]otion... must also fail since the only grounds are predicated on the need for trial transcripts in order to prosecute the appeal.” The trial court declined to determine whether Curnutte “ha[d] availed himself of the benefits of the judgment,” “finding this challenge... more appropriate for the appellate process....”
The trial court erred in failing to address whether Curnutte waived his right to seek a new trial under Code of Civil Procedure section 914. As noted, the statute only applies if an “appeal has been... or is to be taken....” (Code Civ. Proc., § 914.) In Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, the appellate court recognized the limited nature of the relief allowed by section 914 in reversing an order that granted a limited new trial on the issue of damages. Recognizing a motion under this statute is separate and distinct from the statutes generally governing new trial motions (Code Civ. Proc., § 656 et seq.), and that the only relief permitted is to set aside or vacate the judgment and order a new trial, Hennigan declared “[w]e may not disregard or enlarge the plain provisions of the statute, nor may we go beyond the meaning of the words used when they are clear and unambiguous. [Citations.]” (Hennigan v. United Pacific Ins. Co., supra, 53 Cal.App.3d at p. 7.)
Code of Civil Procedure section 914 unambiguously declares its intent to protect a litigant’s appellate rights by ensuring the existence of a complete record of the trial proceedings. Furthermore, because “an election to take the one is a renunciation of the others,” cases have recognized “the acceptance of the fruits of a judgment is inconsistent with the right [either] to move for a new trial or to appeal therefrom....” (Wold v. League of Cross of Archdiocese of San Francisco (1930) 107 Cal.App. 344, 347; see also Storke v. Storke (1901) 132 Cal. 349, 352-353.) Thus, the question of whether Curnutte’s acquiescence in the terms of the judgment before moving for a new trial waived his right to seek relief under section 914 was properly before the trial court. While it could not decide whether Curnutte’s actions had resulted in a waiver of his right to appeal, the court could consider the same facts in determining whether he had waived his right to seek a new trial under the statute.
Finally, Curnutte’s acceptance of benefits under the judgment did result in a waiver of his right to seek this remedy. In Storke, the Supreme Court held the trial court erred in failing to dismiss a new trial motion where the moving party “accepted the part of the judgment that was beneficial to her. It was a final judgment, and by its terms gave her $450. This sum was based upon the findings, and was the result of the litigation. Defendant took the $450, and now seeks to attack the judgment through which she received it. This she cannot do. Having taken the benefit, she must bear the burden.” (Storke v. Storke, supra, 132 Cal. at p. 352.) By accepting the benefits of a judgment in which all of the provisions were connected, Curnutte renounced his right to seek a new trial due to the absence of a complete trial record.
DISPOSITION
Appellant Curnutte’s request for judicial notice is granted. His request to voluntarily dismiss the appeal in case No. G038378 is denied. Appellant Fisler’s motion to dismiss the appeal in case No. G038378 is granted and that appeal is dismissed with prejudice. In case No. G039720 the order granting a new trial is reversed and the matter is remanded with directions to enter a new order denying the new trial motion and reinstating the original judgment. Appellant Fisler shall recover her costs on appeal.
WE CONCUR: O’LEARY, J., ARONSON, J.