In re Marriage of Maynard

Full title: In re the Marriage of JULIA and MARK MAYNARD. v. MARK T. MAYNARD…

Court: California Court of Appeals, Sixth District

Date published: Dec 20, 2021

No. H044039 (Cal. Ct. App. Dec. 20, 2021)

Opinion

H044039

12-20-2021

In re the Marriage of JULIA and MARK MAYNARD. v. MARK T. MAYNARD, Appellant. JULIA S. MAYNARD, Respondent,

BAMATTRE-MANOUKIAN, .J.

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 1-08-FL146860

BAMATTRE-MANOUKIAN, .J.

I. INTRODUCTION

Appellant Mark T. Maynard and respondent Julia S. Maynard were married for over 20 years and had two children, Evan and Maxwell.¹ Julia filed a petition for dissolution of the marriage in July 2008, shortly after the parties separated. A status-only judgment of dissolution was filed on September 22, 2011.

1 We refer to the parties by their first names for convenience and clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2002) 81 Cal.App.4th 1131, 1136, fn. 1.)

Between 2010 and 2016, the court conducted a series of trials addressing designated matters. There were three main trial proceedings conducted by three different judicial officers, each of whom rendered lengthy written orders. The first trial (conducted over four days) before Temporary Judge Edward Mills (Judge Mills) concerned five parcels of real estate. The trial involved issues of valuation, division, Mark's claim for reimbursement of separate property contributions to community real property assets under Family Code section 2640, ² and other reimbursement claims asserted by the parties. From that proceeding, an order was filed May 28, 2010 (the Real Estate Order).

2 All further statutory references are to the Family Code unless otherwise stated.

The second trial (conducted over seven days) before Judge Margaret Johnson involved personal property and other issues and was generally identified as a trial on bifurcated reimbursement claims. The order after that trial was filed on February 20, 2015 (the Reimbursement Order).

A third trial (conducted over nine days with additional posttrial proceedings) before Judge James Towery addressed a collection of remaining issues, including the parties' retirement accounts, claimed support overpayments, rights and obligations concerning a family business, LTE, Inc. (LTE), rights and obligations concerning the LTE Profit Sharing Plan (LTE Plan), miscellaneous reimbursement claims, and the parties' respective breach of fiduciary duty claims. An amended final statement of decision on remaining issues and judgment was filed on April 22, 2016 (the Judgment). The Judgment referred to and incorporated the prior rulings from the Real Estate Order and the Reimbursement Order.

Mark filed an appeal from the Judgment. He asserts 14 challenges (some with subparts) to the Judgment. We conclude that several of these challenges have merit. In summary, Mark's claims, and our conclusions regarding the merits of those claims, are as follows:

A. Valuation of Truckee Properties: Mark contends that the court erred in its valuation of two community-owned real estate parcels located in Truckee, California, namely, 4156 South Shore Drive (South Shore), and 13351 Sierra Drive (Sierra). (Hereafter, South Shore and Sierra are collectively referred to as the Truckee Properties.)

We conclude the court erred with respect to the valuation of both Truckee Properties.

B. Mark's Section 2640 Reimbursement Request: Mark asserts that the court erred by significantly reducing the amount of his claim for reimbursement of his separate property contributions under section 2640, subdivision (b) (hereafter, section 2640(b)) that were made to improve community-owned real property, namely, 5969 Vista Loop in San Jose (Vista Loop).

We conclude there was no error.

C. Alleged Structural Error in Bypassing Case Manager: Mark contends that the court erred because, notwithstanding the parties' stipulation to the assignment of a case manager and a temporary judge, the court issued procedural orders that resulted in "bypassing" the case manager and temporary judge in subsequent proceedings.

We conclude there was no error.

D. Mark's Personal Property Reimbursement Claims: Mark asserts that the court erred in rejecting his claim for reimbursement of postseparation payments he made for community obligations for a truck, a car, a personal watercraft, and a boat.

We conclude there was no error as to any of the four items of personal property.

E. Credits for Sanctions "Paid"; Interest on Sanctions: Mark contends that the court erred by including in the Judgment sanctions of $5,000 and $1,500 from prior court orders; he claims he paid the sanctions. Mark also challenges the award of prejudgment interest on a $10,000 sanctions order.

We conclude there was no error as to any of the three issues.

F. Breach of Fiduciary Duty Against Mark (IRA Distribution): Mark contends that court erred in awarding Julia damages of $28,832 for breach of fiduciary duty in connection with his 2010 liquidation of his retirement accounts.

We conclude there was error.

G. Mark's Real Estate Reimbursement Claim: Mark asserts that, due to confusion between two judicial officers hearing the proceedings, the court erred in denying his claim for reimbursements based upon the postseparation payment of $42,685.54 for community-owned real property expenses; the expenses were paid after the first trial had concluded and before the Real Estate Order was entered.

We conclude that the matter should be remanded for reconsideration of the evidence provided at the bifurcated trial on reimbursement claims held on January 28, 2013. The evidence to be reconsidered concerns Mark's claim for reimbursement of postseparation expenses for community-owned real property. The court on remand should determine whether Mark provided adequate proof of such claim and should therefore receive reimbursement.

H. Sanctions Awards Against Mark: Mark challenges two orders requiring him to pay Julia attorney fees as sanctions under section 271. The amounts imposed were $10,000 in an interim order of January 29, 2013, and $25,000 in the April 22, 2016 Judgment.

We conclude there was partial error as to the imposition of the $10,000 award, and that sanctions of no more than $6,000 should have been ordered. We conclude further that there was error as to the imposition of the $25,000 sanctions award.

I. Mark's Child Support Overpayment Claim: Mark contends that the court erred in denying reimbursement for overpaid child support in the principal amount of $17,084.72.

We conclude there was no error.

J. Mark's Expense Reimbursement Claim (Insurance Premiums): Mark contends the court erred in denying his claim for reimbursement of post-separation expenditures made to satisfy certain community obligations, namely, medical, dental, and disability insurance premiums.

We conclude there was no error.

K. Mark's Claim Based on Julia's Use of Community Cash: Mark contends that the court erred in denying reimbursement of one-half of the $4,000 in community funds that Julia withdrew prior to separation, which she allegedly used to pay for her family law attorney.

We conclude there was no error.

L. Prejudgment Interest: Mark contends that the trial court erred with respect to prejudgment interest findings in that the court (1) undercalculated interest on his recovery for overpaid child support, (2) omitted interest on his recovery for overpaid spousal support, (3) overstated interest on sanctions of $5,000 imposed against him, (4) imposed interest on sanctions of $1,500 previously ordered against him, and (5)overstated interest on sanctions of $10,000 imposed against him.

We conclude there is no error as to any of the five issues. Because the sanctions award of $10,000 must be reduced to $6,000, the prejudgment interest as to that award must be recalculated.

M. Duplicate Abstract of Judgment: Mark argues that an abstract of judgment was prematurely issued on June 27, 2012, and that it should be ordered removed.

We conclude there was no error.

N. ADA Issues: Mark asserts that the court erred in denying his May 2009 request for accommodations under the Americans With Disabilities Act (ADA), and that the court erred further by failing to provide reasonable accommodations to him in response to subsequent ADA requests.

We conclude there was no error.

We will therefore reverse the Judgment with directions that the court below conduct limited further proceedings. The court shall make a redetermination of the fair market value of the Truckee Properties. The court shall reconsider the evidence provided on January 28, 2013, at the bifurcated trial on reimbursements claims concerning Mark's claim for reimbursement of expenses paid for community-owned real property between February 11, 2010 and May 28, 2010, to determine whether Mark provided adequate proof of such claim, and, if so, it shall include one-half the amount of such expenses paid as a credit to Mark in the new judgment. Upon conducting the limited further proceedings, the court shall enter a new judgment, which shall (1) utilize the language and findings of the prior Judgment, except insofar as utilizing the language and findings may be inconsistent with the holdings and directives of this opinion; (2) utilize the redetermined values of the Truckee Properties; (3) enter a finding in favor of Mark as to the breach of fiduciary duty claim (IRA distribution) based upon the absence of proof of damage, and strike the award of $28,832 in favor of Julia relative to that claim; (4) if the court determines it appropriate, include a credit to Mark for one-half of the expenses for community owned real property made between February 11, 2010 and May 28, 2010; (5) reduce the $10,000 award of sanctions against Mark to $6,000; (6) strike the $25,000 award of sanctions against Mark; (7) correct the total amount of sanctions owed by Mark from $41,500 to $12,500; (8) recalculate the amount of prejudgment interest on the sanctions award of $6,000 (previously in the amount of $10,000); (9) correct the total amount of prejudgment interest owed by Mark on the sanctions awards to reflect the sum of (a) the corrected prejudgment interest on the $6,000 sanctions award, (b) $3,000 (prejudgment interest previously determined on the sanctions award of $5,000), and (c) $462 (prejudgment interest previously determined on the sanctions award of $1,500); and (10) recalculate the debits and credits applicable to the parties and then recalculate the amount of the equalizing payment, if any, owed.

II. PROCEDURAL HISTORY

Julia and Mark were married in July 1987. They separated on June 24, 2008. After 21 years of marriage, Julia filed a petition for dissolution on July 23, 2008. On or about August 7, 2008, the court entered an order based upon the parties' stipulation concerning child custody, visitation, and support which included provisions that Mark would pay monthly child support for the two children totaling $2,306 and monthly spousal support of $2,112.

On December 11, 2008, the court entered an order after hearing concerning the parties' management of four rental properties they owned. Reciting that the parties had stipulated that they would be equally responsible for all expenses associated with the rental properties, the court ordered that the parties cooperate in obtaining a loan from the LTE Plan of up to $60,000 to pay for expenses related to the rental properties, and that they would each be responsible for the repayment of such loan.

A four-day bifurcated trial concerning the parties' five real estate holdings (the Real Estate Trial) commenced on January 15, 2010, before Judge Mills.³ The trial concerned five parcels of community-owned real property, namely the Vista Loop property in San Jose, 5348 Elrose Avenue in San Jose (5348 Elrose), 5372 Elrose Avenue in San Jose (5372 Elrose), and the Truckee Properties (South Shore and Sierra). (Hereafter, 5348 Elrose and 5372 Elrose are collectively referred to as the Elrose Properties.) The issues at trial consisted of the valuation and division of the real property, Mark's claim for reimbursement of separate property contributions to community assets under section 2640 (hereafter, the 2640 claim), and the parties' respective reimbursement claims relative to the five parcels.

3 The trial on real estate issues took place on January 15, 25, and 29, and February 10, 2010.

During the proceedings, the court made an interim order in which it denied Julia's motion in limine prohibiting Mark from introducing certain documents in support of his 2640 claim as a discovery sanction. However, the court ordered Mark to pay $5,000 to Julia forthwith as a discovery sanction for his failure to produce documents as previously ordered.

The Real Estate Trial was completed on February 10, 2010. After extensive posttrial briefing, the court issued its tentative decision on April 23, 2010, and its final decision (incorporating the tentative decision) on May 28, 2010 (i.e., the Real Estate Order). The court in the Real Estate Order assigned net valuations (after debt, and in the case of South Shore, after a separate property credit to Mark), and it ordered dispositions of the parties' real estate holdings as follows:

(1) Vista: $0, distributed to Mark;

(2) 5348 Elrose: $139,075, distributed to Julia;

(3) 5372 Elrose: $136,075, distributed to Julia;

(4) South Shore: $792,561, distributed to Mark; and

(5) Sierra: $89,759, distributed to Mark.

The court also ruled on Mark's 2640 claim relative to separate property contributions he allegedly made for improvements to a community asset, the Vista Loop property. Although the original amount of Mark's 2640 claim was $441,956, the court concluded that he had established a claim in the amount of $71,957.20. The court, applying Walrath ⁴ calculations, found that Mark had separate property interests in South Shore and the Elrose Properties of $4,853.08 and $26,299.64, respectively. Further, the court concluded that Julia was entitled to reimbursement from the community of $22,112; and Mark was entitled to reimbursement from the community of $178,004.51, plus the amount of $169,810.⁵ The court concluded by ordering that, after providing specific credits to Mark and Julia, a net equalizing payment of $127,126 was due from Mark to Julia, "payable upon completion of the division of the parties' remaining property."⁶

4 See In re Marriage of Walrath (1998) 17 Cal.4th 907 (Walrath).

5 The latter figure of $169,810 represented the amount of the loan against Vista Loop that exceeded the property's fair market value, which loan Mark was assuming through the division of property as ordered.

6 Mark appealed, among other orders, the Real Estate Order in July 2010. After the matter was briefed, this court dismissed the appeal, concluding, inter alia, that the Real Estate Order was not immediately appealable. (See Maynard v. Maynard (Apr. 12, 2013, H035859) [nonpub. opn.] (Maynard I).)

A status-only dissolution was filed on or about September 22, 2011.

A second bifurcated trial involving the parties' reimbursement claims (the Reimbursement Trial) commenced on May 21, 2012, before Judge Johnson. The trial was conducted over seven days.⁷ The case was initially submitted for decision on September 19, 2013, but the case was reopened by order of Judge Johnson on December 11, 2013. Judge Johnson deemed the matter resubmitted on December 1, 2014. The Reimbursement Order after that trial was filed on February 20, 2015. Generally, that order addressed numerous requests by the parties (mostly by Mark) for reimbursement of postseparation advances made for community obligations. The reimbursement issues related, inter alia, to vehicles, watercraft, private school tuition, college expenses, other child-related expenses, life insurance, dental insurance, medical insurance, and real estate expenses Mark claimed had not been previously addressed. The court ordered that Mark receive reimbursements totaling $32,979.94, to be offset by a reimbursement amount to Julia of $9,217, for a net reimbursement amount of $23,762.94.⁸

7 The trial took place on May 21, 2012, July 23, 2012, September 17, 2012, November 19, 2012, December 18, 2012, January 28, 2013, and February 25, 2013.

8 In the body of the Reimbursement Order, the court recited that Mark was to be reimbursed $6,400 for postseparation expenses related to a community-owned Pro-Line boat. This reimbursement award was omitted in the court's conclusion identifying all reimbursements, and was not added to the gross total amount of reimbursement, which should have been $39,379.94. After offset for the reimbursement to Julia ($9,217), the total net reimbursement to Mark should have been indicated in the Reimbursement Order to be $30,162.94. This omitted $6,400 reimbursement amount was, however, listed in the Judgment.

A third bifurcated trial on remaining issues (the Remaining Issues Trial) commenced on November 3, 2014, before Judge Towery. The trial took place over nine days, ⁹ and the court issued a number of formal written interim rulings that were designated as statements of decision. By its terms, the Judgment "supplant[ed] all of the preliminary tentative decisions that were issued between November 4, 2014 to April 17, 2015." After the court issued a lengthy proposed statement of decision on June 2, 2015, and it received Mark's objections thereto, it ordered that the proceedings be reopened for limited further proceedings which occurred on December 17, 2015. The court issued its Judgment (Amended Final Statement of Decision and Judgment) on April 22, 2016.¹⁰

9 The trial occurred on November 3, 5, 18, and 24, 2014, December 19, 2014, February 20, 2015, March 10 and 16, 2015, and December 17, 2015.

10 There were several intervening procedural matters between the last day of trial and entry of the Judgment. The court filed its initial final statement of decision and judgment on February 23, 2016. Mark filed objections and a motion for new trial. After a hearing on April 20, 2016, the court denied Mark's motion for new trial, indicating it would address several issues through an amended judgment. On April 22, 2016, the court entered a formal order denying the new trial motion and entered the Judgment.

The Judgment incorporated the Real Estate Order and the Reimbursement Order. The court's Judgment also addressed a number of outstanding issues, including, inter alia, Mark's claims for reimbursement of (1) overpaid spousal support, (2) one-half of a liability related to the South Shore property (judgment related to sewer line), (3) postseparation real estate expenditures, (4) overpaid child support, (5) dental insurance premiums for the children, (6) LTE Plan expenses, (7) automobile insurance premiums, (8) life insurance premiums, and (9) previously omitted expenses. The court also issued rulings as to retirement accounts, ownership of the LTE Plan, the parties' respective breach of fiduciary duty claims against each other, Julia's request for sanctions, and the parties' respective prejudgment interest claims. The trial court ruled in favor of Julia on her claim for breach of fiduciary duty with respect to Mark's liquidation of his retirement accounts during the pendency of the proceedings and awarded Julia damages of $28,832. The court otherwise denied both parties' multiple claims for breach of fiduciary duty. It awarded Julia $25,000 in sanctions under section 271. The final monetary awards issued by the court as stated in the Judgment were that (1) Mark owed $305,243.50 (including the equalizing payment of $127,126 reflected in the Real Estate Order) to Julia, (2) Julia owed $108.517.78 (including the net amount of $23,762.94 owed by Julia as reflected in the Reimbursement Order) to Mark, and (3) Mark owed a net amount to Julia of $196,725.72.

Mark filed a notice of appeal from the Judgment.

III. DISCUSSION: APPLICABLE LAW & STANDARDS OF REVIEW

A. Valuation and Division of Community Assets

Under section 2550, absent the parties' written agreement or court stipulation, the court in the judgment of dissolution must divide the community assets equally." 'This task constitutes a nondelegable judicial function [citation] which must be based upon substantial evidence [citation].' [Citation.]" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) An equal division of the community estate must be predicated on fair market value. (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 88-89.) The community assets (and liabilities) of the parties must generally be valued "as near as practicable to the time of trial." (§ 2552, subd. (a).) The court is vested with "broad discretion to determine the value of community assets as long as its determination is within the range of the evidence presented. [Citation.]" (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.) In exercising this broad discretion, "the trial court 'makes an independent determination of value based upon the evidence presented on the factors to be considered and the weight given to each. The trial court is not required to accept the opinion of any expert as to the value of an asset.' [Citations.]" (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 632.)

"The trial court's findings on the characterization and valuation of assets in a dissolution proceeding are factual determinations which are reviewed for substantial evidence. [Citation.] 'In this regard, the court has broad discretion to determine the manner in which community property is divided and the responsibility to fix the value of assets and liabilities in order to accomplish an equal division. [Citations.] The trial court's determination of the value of a particular asset is a factual one and as long as that determination is within the range of the evidence presented, we will uphold it on appeal.' [Citation.]" (In re Marriage of Campi, supra, 212 Cal.App.4th at p. 1572.)

B. Separate Property Reimbursement (§ 2640)

A party contributing separate property to acquire either the other spouse's separate property or community property may have a right of reimbursement under section 2640(b). The statute provides that a "party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source." (Ibid.)¹¹ Subdivision (a) of section 2640 defines" '[c]ontributions to the acquisition of property,' [to] . . . include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property." Thus, reimbursable separate property contributions under section 2640 are "[the] types of payments [that] either directly contribute to equity acquisition, or are expenses or costs of making improvements which may increase equity, assuming that the improvement actually results in an increase in property value. By contrast, payments . . . which are specifically excluded[] . . . [are ones that] do not contribute to equity acquisition, despite the fact that they are expenses necessary to retain ownership or preserve and protect the owner's interest." (In re Marriage of Nicholson and Sparks (2002) 104 Cal.App.4th 289, 296, original italics.)

11 "In the division of the community estate . . ., unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the value of the property at the time of the division." (§ 2640(b).)

The party seeking reimbursement must "trace[] the contributions to a separate property source." (§ 2640(b).) "Either of two tracing methods may be utilized to characterize the disputed property interests: 'direct tracing,' or 'family living expense tracing.' [Citation.]" (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 823 (Braud).)¹² "Under the 'direct tracing' method, the disputed asset (in this case the improvements to the community property home) is traced to the withdrawal of separate property funds from the commingled account. This method requires specific records reconstructing each separate and community property deposit, and each separate and community property payment as it occurs. Separate property status cannot be established by mere oral testimony of intent or by records that simply total up all separate property funds available during the relevant period and all the separate expenditures during that period; such records do not adequately trace to the source of the purchase at the time it was made. [Citations.] [¶] Under the 'family living expense' or 'recapitulation' method, it is assumed that family living expenses are paid out of community property funds. [Citations.] Payments may be traced to a separate property source by showing community income at the time of the payments or purchase was exhausted by family expense, so that the payments or purchase necessarily must have been made with separate property funds. [Citations.] The recapitulation must be sufficiently exhaustive to establish not only that separate property funds were available to make the payments, but that they were actually used. [Citation.] As with direct tracing, the record must demonstrate that community income was depleted at the time the particular asset was acquired. [Citations.]" (Id. at pp. 823-824, original italics.)

12 The Supreme Court cited Braud, supra, 45 Cal.App.4th at pages 822-825 with approval, but did not specifically decide the issue of tracing under section 2640(b): "We recognize . . . that in ascertaining whether a party's contribution was derived from a separate property source, use of the direct and family expense tracing methods may be appropriate. [Citation.] We need not decide the issue in this case because the parties agree on the existence and amount of their separate property contributions." (Walrath, supra, 17 Cal.4th at p. 921, fn. 5, original italics.)

Further, the tracing of a reimbursement right under section 2640(b) is not limited to the community property to which the separate property contribution was made. It applies "also to any other community property that is subsequently acquired from the proceeds of the initial property, and to which the separate property contribution can be traced." (Walrath, supra, 17 Cal.4th at p. 918.)

The party claiming the right of reimbursement bears the burden of tracing the contribution to a separate property source. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.) The reimbursement award comes" 'off the top'" of the community property item at issue, i.e., prior to division of the community property. (Walrath, supra, 17 Cal.4th at p. 913.) And the contributing spouse, under section 2640(b), has a "vested property right" to reimbursement for his or her separate property contribution. (Walrath, supra, at p. 919.)

We review for substantial evidence a trial court's finding that a party has adequately traced and identified the source and funds of his or her separate property. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; see also Braud, supra, 45 Cal.App.4th 823.)" 'Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.] 'Substantial evidence . . . is not synonymous with "any" evidence.' Instead, it is '" 'substantial' proof of the essentials which the law requires."' [Citations.] The focus is on the quality, rather than the quantity, of the evidence. . . . [Citations.] Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).)

C. Reimbursement of Postseparation Expenditures

The court is empowered "to order reimbursement in cases it deems appropriate for debts paid after separation but before trial." (§ 2626.) As the California Supreme Court has elucidated," '[A]s a general rule, a spouse who, after separation of the parties, uses earnings or other separate funds to pay preexisting community obligations should be reimbursed therefor out of the community property upon dissolution. However, there are a number of situations in which reimbursement is inappropriate, so reimbursement should not be ordered automatically. [¶] 'Reimbursement should not be ordered if payment was made under circumstances in which it would have been unreasonable to expect reimbursement, for example, . . . generally, where the payment was made on account of a debt for the acquisition or preservation of an asset the paying spouse was using and the amount paid was not substantially in excess of the value of the use.'" (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (Epstein), superseded by statute on other grounds as stated in Walrath, supra, 17 Cal.4th at p. 914.) Thus, for example, where the husband was denied reimbursement for his postseparation installment payments on the purchase by the community of a refrigerator of which he had exclusive possession, the appellate court concluded there was no error. (In re Marriage of Tucker (1983) 141 Cal.App.3d 128, 136.)

"[R]eimbursement is not automatic, but involves the consideration of such a variety of factors [citation] that the onus must necessarily be on the paying spouse to specifically request reimbursement. Further, even reimbursement under section 2640 (establishing right of reimbursement for separate property contributions to the acquisition of community property, including payments that reduce loan principal) requires the paying spouse to trace contributions to a separate property source. If the paying spouse simply sits back and does nothing, there will be no reimbursement." (In re Marriage of Feldner (1996) 40 Cal.App.4th 617, 625, original italics.) The trial court is therefore vested with "broad discretion" in determining whether to award Epstein credits, i.e., reimbursement to a spouse who has used postseparation separate property to satisfy community obligations that existed at the time of separation. (Hebbring v. Hebbring (1989) 207 Cal.App.3d 1260, 1272 (Hebbring).)

D. Breach of Fiduciary Duty Claims

"Spouses have fiduciary duties to each other as to the management and control of community property. [Citations.]" (In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 569.) These fiduciary duties continue "until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request." (§ 1100, subd. (e).) Moreover, "each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes." (§ 2100, subd. (c).)

A spouse may assert "a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate." (§ 1101, subd. (a).)¹³ The remedies of an aggrieved spouse for breach of fiduciary duty "include . . . an award . . . of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary duty, the date of the sale or disposition of the asset, or the date of the award by the court." (§ 1101, subd. (g).) The spouse asserting a breach of fiduciary duty claim has the burden of proving the value of the community asset that is the subject of the claim. (See Bono v. Clark (2002) 103 Cal.App.4th 1409, 1430 (Bono).)

13 "A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate." (§ 1101, subd. (a).)

The factual findings of the trial court supporting a finding that one spouse breached fiduciary duties owed to the other spouse are reviewed on appeal for substantial evidence. (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.) "We review for abuse of discretion the trial court's decision concerning the appropriate remedy for breach of fiduciary duty. [Citation.]" (In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 150.)

E. Attorney Fees as Sanctions Under Section 271

Subdivision (a) of section 271 provides: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." As a sanction, "[t]he statute is aimed at conduct that furthers or frustrates settlement of family law litigation and at reduction of litigation cost." (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.)

Sanctions under section 271 are appropriate to address "obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase." (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106.) Unlike other sanctions statutes, such as Code of Civil Procedure section 128.5, where the conduct to be sanctionable must be "frivolous or solely intended to cause unnecessary delay," section 271 "is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.)

A party moving for relief under section 271 need not "show harm as a prerequisite to an award of sanctions." (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1480.) But an award of sanctions under section 271 must be "tethered to attorney fees and costs." (Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 351 (Menezes).) And while the statute plainly requires that the award be based upon attorney fees and costs related to a party's conduct that frustrates the policies of promotion of settlement and, where possible, reducing litigation costs, "the party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct. [Citation.] In part, this flexibility exists because the misconduct may increase attorney fees in ways that are indirect and difficult to prove." (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155-1156 (Sagonowsky).) And the court need not wait for the litigation to be concluded to award attorney fees and costs as sanctions under section 271. Rather, "to promote cooperation a trial court must be able to apply sanctions during the course of the litigation when the uncooperative conduct arises in order to encourage better behavior as the litigation progresses." (In re Marriage of Feldman, supra, at p. 1495, original italics.)

An award of attorney fees and costs as sanctions under section 271 is "reviewed for abuse of discretion. [Citation.] . . . [W]e will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] 'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.' [Citation.]" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226; see also In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478.) In short," '[w]e will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it.' [Citation.]" (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828.)

IV. DISCUSSION OF CLAIMS OF ERROR

A. Valuation of Truckee Properties

1. Introduction

The valuation of the South Shore and Sierra properties was a major issue at the real estate trial. The key witnesses were Julia's real estate appraisal expert, Jeff Hartley, and Mark's real estate appraisal expert, Tony Cole. Hartley opined that the fair market value of South Shore was $1,742,000, while Cole valued it at $1,150,000. Further, Hartley opined that the fair market value of Sierra was $425,000, while Cole testified that its fair market value was $355,000.

2. Evidence-Valuation of South Shore Property

a. Testimony of Jeff Hartley

Jeff Hartley is a certified residential real estate appraiser. Hartley conducted an appraisal of South Shore, and he prepared a formal appraisal report.¹⁴ He opined that South Shore had a fair market value of $1,750,000 as of November 1, 2009. Hartley, later in the trial, amended his testimony to state that the fair market value of South Shore was $1,742,000.¹⁵ He stated that if anything, his opinion on South Shore's value "was conservative." Hartley based his appraisal on an analysis of recent comparable sales and listings of other properties. He acknowledged that the appraisal of South Shore was complicated by the scarcity of sales of lakefront property such as South Shore.

14 None of the four appraisals prepared by the parties' respective experts is part of the appellate record. Indeed, the trial exhibits are not included in the record. At least some of the trial exhibits were released by the court to Mark. With respect to the trial exhibits released by the court to Mark, it was his obligation to ensure their delivery to this court, with a list, within 20 days of his designation of the appellate record on May 30, 2017. (See California Rules of Court, rule 8.224 (b), (b)(2); hereafter, all unspecified rules are to the California Rules of Court.) Furthermore, as the appellant, Mark bears the burden of demonstrating error by an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) It was therefore his duty to make sure that the trial exhibits, whether in his possession or not, were included in the appellate record. There is no record that he did so. And when exhibits have not been supplied, it is not the appellate court's obligation to procure them to bridge the gap. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656-657 (Hiser).)

15 Hartley testified that he had made an error in calculating the lake frontage as 60 linear feet instead of 56 linear feet, a mistake noted by Cole; this error translated into an $8,000 mistake in the appraisal.

Hartley's appraisal work included an inspection of the exterior and interior of the property, ¹⁶ which he described as being "in average condition" for a home that was over 30 years old. He testified that although viewing the property as a home inspector was not within the scope of his duty as an appraiser, after looking at the property, he was not concerned about its condition. Hartley was not aware that the property had any structural defects. Hartley did note that the lowest floor was "maybe bootlegged" and may have been constructed without permits. He also observed that there was exterior paneling that was peeling, and that the metal stairwell was rusted such that the handrails shook.

16 Hartley testified that he was familiar with South Shore before the current appraisal because he had previously appraised it in 2002 or 2003.

Hartley testified that he had reviewed the South Shore appraisal performed by Mark's appraiser, Tony Cole, noting that he and Cole had "some fairly significant differences of opinion on this property." Hartley stated that "Cole was operating with a document that [described] a massive amount of repairs that were not obviously needed from an exterior or interior inspection of the immediately visible areas of the home." Hartley disagreed with Cole's approach of using "the contractor's [repair] bid as a verbatim dollar for dollar adjustment" to the value of the property. Hartley testified that he had not been provided any engineering reports concerning potential structural defects or any contractor's bids for potential repairs of South Shore.

Hartley also took issue with several aspects of Cole's appraisal, including his (1) inclusion of one comparable that was "a pretty dramatically inferior lot and home," (2) using a low per-square-foot value for comparable homes, and (3) assigning no value to the dock at South Shore because all or some portion of it may have been constructed without a permit. Hartley testified further that Cole had overstated the existence of an easement running through South Shore. He testified that such easements are very common to properties on Donner Lake. Hartley acknowledged the existence of the easement and took it into consideration in his appraisal.

b. Testimony of Anthony Cole

Anthony Cole is a real estate appraiser. He conducted an appraisal of South Shore at Mark's request. Mark told Cole that South Shore had some defects; Mark provided documents to Cole consisting of records from the Town of Truckee, a structural engineer's report, and a contractor's cost estimate. Cole reviewed the documents and relied on them for his opinion concerning the value of South Shore. He considered three letters from the Town of Truckee advising that (1) the lower level of the home had been either added as or converted to a secondary home that constituted a code violation; (2) a bear box had been improperly erected on the property over Truckee's right-of-way; and (3) a dock or additions to a dock had been constructed without permits. Cole opined that these three issues significantly diminished the value of the property.

Cole did a walk-through of the property, concluding that the home was in fair to poor condition. He testified that "there [were] significant portions of the home that you looked at and you were pretty question[ing] as to what the ramifications [were]." From his observation of South Shore, he noticed that the living room had visible sloping, cracks in the ceiling, dual-paned windows displaying broken seals, and exterior siding that was becoming detached.

Cole's opinion was that the fair market value of South Shore was $1,150,000. He testified that South Shore was lakefront property with an older home, and that "the majority of the value . . . [was] in the land." He treated the structure of the property as a "tear down" for purposes of the appraisal. He described the site as being "extremely steep," and it had an access easement running through it that reduced the utility of the property and therefore its value. Cole assigned no value to the dock because all or part of it was unpermitted. He agreed with Hartley that the site value was approximately $925,000. Cole concluded that the structure was worth approximately $225,000.

On cross-examination, Cole testified that he had reviewed Williams's report indicating that there were needed repairs totaling $529,260. Cole adopted that repair amount; he did not know how the total repair figure was determined or who had prepared the list of repair items. Cole testified that the Williams report was "a fundamental piece of information" relied upon for his appraisal.

Cole reviewed Hartley's appraisal of South Shore. He took issue with Hartley's failure to reduce the size of the property from approximately 14, 000 to 7, 000 square feet to take into consideration that there was no utility to portions of the land represented by the access easement and the steep upper portion of the property. Cole also disagreed with Hartley's valuation of the structure of more than $670,000.

c. Testimony of Douglas Gadow

Douglas Gadow is a licensed structural engineer whom Mark retained to inspect South Shore because of structural problems. Gadow confirmed independently after inspecting South Shore that the home had construction defects. He prepared a written report on October 5, 2009, detailing his findings regarding five main defects. The conditions, Gadow reported, were "significant because: they have signs of distress associated with them; as-constructed, they do not appear to conform to the plans; and/or they do not appear to be built to the building code enforced at the time of construction." The five defects were cantilever support; cantilever back span and tiedowns; the lower floor joist; the front upper deck; and the front entry roof.

First, Gadow explained that the upper level of the home is cantilevered so that there is no lower structure supporting it. It is supported by glulam beams. Steel posts that were specified in the plans to support the glulam beams where they leave the building were omitted in construction. Wooden posts were substituted for the steel posts, but the wooden posts were not continuous; they were interrupted by horizontal wall framing (plates). Those plates were overstressed beyond what was allowed by code, resulting in compression and deflection. Gadow explained: "There's crushing of it which causes that support at this location to be compressed, and a great deal of deflection occurs as a result of that. As . . . the snow loads the roof and then melts off every season, there's cyclic loading on this upper structure that's causing cracking, windows to jam up, maybe bumps in the floor and noticeable slope across the floor. There may also be some uplift there, too." Gadow recommended in the report that the recommended steel posts be installed and that during that installation, "the deflected cantilevers be jacked up to bring the building back to level."

Second, Gadow found that the cantilevered portion of the building was designed so that the glulams would have specific backspan lengths and tiedowns at the end of the backspans. "These requirements [were] apparently to prevent the glulam from rotating and lifting up inside the building." Gadow reported that two of the glulams did not have the specified length of backspan and the glulams did not have visible tiedowns continuous to the foundation. Gadow recommended installation of longer glulams and the specified tiedown assembly to rectify the problem.

Third, Gadow observed that in the crawlspace, the lower floor joists had different displacements at various locations of the house, and one floor joist was fractured. The floor joist displacements were believed to have been the result of the cantilever issues. Gadow recommended that the floor joists be supplemented and the matter investigated further after addressing the cantilever issues.

Fourth, Gadow described poor engineering associated with the installation (after original construction and without approval) of the upper front deck. The deck was supported by diagonal kickers attaching to the side of the building; there was "significant crushing at their attachment." The diagonal kickers "weren't engineered, they weren't [designed] to go there, so the structure's not supporting them adequately." Gadow recommended that the deck be engineered with a new support system.

Fifth, Gadow found there was an unsupported beam at the edge of the front entry roof that cantilevers toward the driveway. The drawings called for the beam to have been supported. Gadow recommended that the supporting posts recommended in the plans be installed.

In addition, Gadow noted that the exterior siding was deteriorated and peeling and should be repaired. The siding was important because it provided lateral resistance for the structure "to keep [it] from racking during lateral loading . . . during an earthquake or wind." He recommended that decks and stairs be repaired and that structural elements such as handrails that were deteriorating be repaired so that they would provide support.

d. Testimony of James Williams

James Williams is a licensed general contractor, who testified as Mark's expert witness. Williams first inspected South Shore in 2006. He understood that Mark's family had built the house. Williams observed that the house was "sinking down" and the house was not "built level." The main (second) floor was not level, and at its worst point, it dipped three and seven-eighth inches. On the floor below, Williams observed the glulams were "dipping down" and there was sheetrock that had "fractured and come apart because of the weight pushing down." The lower floor was "bowing up and the roof bowing down." Williams described the house as having "severe structural problems with it." He testified that the house was not built structurally in accordance with the plans. Williams believed the foundation was moving in the front of the house. He also stated that he had observed a large standing water issue underneath the house that had caused a mold problem.

Williams prepared a repair estimate for South Shore. The list of items requiring correction was prepared by Mark; Williams supplied the pricing for the list of items, but he did not determine whether the work needed to be done. Williams did not rely on Gadow's engineering report in preparing the estimate.

The total repair estimate for South Shore was $529,260. Williams testified that the estimate was based upon what he "knew about the property and . . . was worst case scenario" without having had a soils report or a structural engineering report on the foundation. Williams qualified his testimony by stating that the work could cost more than the estimate, depending upon further engineering, but that the estimate could be adjusted downward, perhaps significantly, ¹⁷ depending upon whether a certified engineer ultimately determined that significant foundation work Williams thought was required was not necessary.

17 Williams testified that the bid might be reduced by as much as $225,000 if engineers advised that there were no problems with the foundation, soil drainage, or issues requiring modification of glulams.

e. Testimony of Julia Maynard

Julia testified that South Shore was purchased by the parties as a vacation home from Mark's mother. The family spent time there in the summer and winter. It has large windows that look out over Donner Lake. She described it as "a gorgeous place to stay" and that the house was in average to above average condition. Julia had never noticed any structural problems or sloping of the floor. A portion of the property was often rented out, and they had received very positive feedback from renters.

f. Testimony of Mark Maynard

Mark testified that before becoming disabled, he was a contractor. He is a licensed electrical contractor, but he has not held a B license as a construction contractor. He has extensive knowledge about construction. Mark testified that South Shore was built from the ground up by his family when he was 13 years old. He stated that the property had "numerous problems that [his] family [had] been unable to solve for 30 years." Mark testified that the main issue was that when the house was built, the glulam beams were positioned improperly during the framing and they had to cut them; the inspector advised that that action was improper and the property was red-tagged. Mark testified that the family completed construction despite the red-tagging, and the house had never received final inspections. His family also built a platform in the early 1980's to compensate for a sloping living room floor; Julia was not aware of this action. Mark testified that he had been aware of the problems with South Shore when he and Julia purchased it from his mother in or about 2003.

Mark testified there were structural problems with South Shore, and there was "a bootleg apartment downstairs" that was unpermitted and not code-compliant. Mark said that the dock had been red-tagged, and it was not well-constructed. He testified that South Shore also had ongoing plumbing issues and significant drainage problems. Mark testified that he had not talked to Julia about the problems with South Shore.

4. Evidence-Valuation of Sierra Property

a. Testimony of Jeff Hartley

Hartley also performed a formal appraisal of Sierra. He concluded that its fair market value was $425,000 as of October 30, 2009. Hartley used comparable sales close in location to Sierra for his appraisal.

Hartley personally observed the interior and exterior of the property, concluding that its condition was "[v]ery good." Given the upgrades, updated kitchen, new windows, and new siding, he viewed it as 37-year-old home that was "comparable to a 10-year-old home." Hartley did not see any condition issues that caused him concern. He had not been provided a copy of a repair estimate by Williams that identified significant repairs, and he was unaware of any code violations. He was also unaware that the property did not have heat or hot water. Hartley testified that he had learned the day before his testimony by speaking with a Truckee official that there had been "an active open permit . . . applied for after[-]the[-]fact"; it thus appeared to Hartley that the Town of Truckee was upset that unpermitted work had been performed.

Hartley testified that he had reviewed Cole's appraisal of Sierra. He questioned Cole's methodology, including the use of "a big [repair] bid" of $121,000, given Sierra's good condition. Hartley explained: "I would not trust a contractor's bid for $121,000 and transfer it verbatim into an appraisal report. . . . Every comparable sale in this report has a downward adjustment for $121,000. So if this bid is inaccurate, this report is inaccurate."¹⁸

18 Hartley specifically questioned as high the bid of $15,000 for roof repairs.

b. Testimony of Anthony Cole

Mark also hired Cole to appraise Sierra. Cole visited the property. He observed no structural defects, and he concluded that it was in good condition and was a good quality house. He understood the home had been completely remodeled in 2005, and that the work had included adding a lower floor and doubling the square footage of the property.

Mark provided Cole with information about Sierra, including code violations identified by the Town of Truckee and an unpermitted addition to the residence, a punch list of work needed to cure code noncompliance, and a repair estimate from Williams to cure the issues at the property. Cole took these matters into consideration in completing his appraisal. He did not do any investigation concerning the repair costs, and he accepted Williams's opinion of the estimated cost of repairs. Cole opined that the fair market value of Sierra was $355,000.

Cole testified that the chief explanation for the difference between his assessment of Sierra' value of $355,000 and Hartley's valuation of $435,000 was Williams's estimate of $121,000 to cure the code compliance issues. Cole understood that the renovation work was done without permits, so that in order for the Town of Truckee to confirm that the work was code-compliant, all interior and exterior coverings (e.g., drywall and siding) would need to be removed and restored. Cole testified that he understood Sierra was not at the time rentable because of the code compliance issues; no certificate of occupancy had been issued after the renovations. Cole testified that, were it not for the code violations, Cole's appraisal would have been slightly higher than Hartley's appraisal.¹⁹

19 In May 2008, Cole had done an appraisal of Sierra when it was being refinanced. At that time, he appraised Sierra as having a value of $525,000. At the time of that appraisal, Cole was not aware of, and therefore did not take into consideration in the appraisal, any code violations. Cole testified that the May 2008 appraisal was $170,000 higher than his current appraisal because of the cost to cure the code violations, as well as the fact that the market had significantly declined between May 2008 and October 2009.

c. Testimony of James Williams

Williams prepared an estimate to repair defects at the Sierra property. The list of items requiring correction was prepared by Mark; Williams did not determine whether the work needed to be done. Williams estimated that the total cost of repairs to Sierra was $121,000.

Williams had not been to the Sierra property since approximately 2003 and had not been there since significant work had been performed.²⁰ Williams had reviewed a Truckee Building Department report indicating that corrective action was needed for Sierra due to prior work having been performed without inspections. He relied on that report in preparing his estimate. Williams noted that the interior and exterior wall coverings would have to be removed for inspections; the stairwell required renovation because it failed to meet height requirements under the California Building Code; a header in the front of the house required replacement; and windows that were placed in violation of the local building would have to be blocked.

20 Williams had done some work for Mark on Sierra in or about 2003. He had raised the house 14 to 16 inches off the foundation and had worked with carpenters to install tiedowns as recommended by engineers.

d. Testimony of Julia Maynard

Julia testified that she and Mark had purchased the Sierra property from Mark's mother. Their intent at the time was to renovate the property and sell it. Sierra was significantly upgraded after the couple purchased it. Julia acknowledged that they had not obtained permits and that a final inspection was not done after the renovations; there had thus been no approval to connect the gas line, and the house was heated with electric space heaters. She testified that they had rented Sierra out every winter since 2005, and they had received positive feedback from renters. Julia acknowledged that Sierra had not been signed off for occupancy.

e. Testimony of Mark Maynard

Mark testified that before he and Julia purchased Sierra, the property had been the subject of various remodeling work done by inexperienced workers. In 2002, Mark began doing significant renovations that included establishing a proper foundation, doubling the living space of the property, and reconstruction of the house that included replacement of most of the electrical and plumbing items. Because of time constraints and the Truckee Building Department's having advised Mark that it could not look at his remodeling plans for four months, Mark went ahead and finished the project without permits. Mark testified that after the work was done, he had conversations with building officials about the work that would need to be done to make the property code-compliant. Mark testified that he would be required, inter alia, to remove sheetrock and insulation; remove the carpet; remove the stonework from the stairs because the stairwell was not compliant; replace the entry beams; replace a window with tempered glass; remove the roof to address a support issue, leaking, and a ventilation issue; upgrade electrical circuitry; and otherwise reverse the renovation process to confirm to building inspectors that the work had been done properly.

4. Order

The trial court divided the five properties by distributing: to Julia, 5348 Elrose (net value $139,075), and 5372 Elrose (net value $136,075); and to Mark, Vista Loop (net value $0), South Shore (net value $792,561), and Sierra (net value $89,759). The court recited that the parties had stipulated to the net values of the Vista Loop and the Elrose properties, and that the Vista Loop property should be distributed to Mark.

The court recited that Julia's real estate appraisal expert, Hartley, had opined that the fair market value of South Shore was $1,742,000. Mark's real estate expert, Cole, testified that the fair market value of South Shore was $1,150,000, pointing out that Hartley had failed to make downward adjustments to South Shore's value to account for an access easement, code violations, and work performed without permits. The court recited further that James Williams, a contractor called on Mark's behalf, had testified that necessary corrective work for South Shore had an estimated cost of between $529,260 and $585,260. The trial court found that Hartley's appraisal represented the value of South Shore but for the defects existing at the time the property was purchased from Mark's mother that were known by Mark but not disclosed to Julia. Accordingly, the court determined that South Shore should be awarded to Mark at the fair market value as determined by Hartley ($1,742,000), ²¹ less the combined mortgage balances ($944,586) and an adjustment for Mark's Walrath claim ($4,853), for a net value of $792,561.

21 The Real Estate Order contains a typographical error in its conclusion that Hartley's determination of South Shore's fair market value should be utilized, indicating that this figure was $1,472,000. Nonetheless, the conclusion on the final page of the order calculated the net value by utilizing the correct number in Hartley's appraisal, $1,742,000.

Further, the court recited that Hartley had testified that the fair market value of Sierra was $425,000. Cole testified that Sierra's fair market value was $355,000. Cole acknowledged that he had a copy of Williams's repair estimate-indicating repair costs estimated at between $111,000 and $121,000-when he prepared the appraisal. The court found that Hartley's appraisal represented the value of Sierra that the community should have possessed but for defects in the property at the time of its purchase and defects "caused by Mark in disregard of the best interests of the community." It accordingly found that Sierra should be awarded to Mark at the fair market value determined by Hartley ($425,000), less that outstanding mortgage balances ($335,421), for a net value of $89,759.²²

22 This appears to be a typographical error in the order. Based upon the figures recited by the court, the net value should have been recited as $89,579. The proper net value, however, was assigned when the court made its final calculations in the Real Estate Order to determine the amount of the net equalizing payment of $127,126 owed by Mark to Julia.

After considering (1) the division of the five properties and their respective valuations, (2) Mark's separate party contribution claim under section 2640, and (3) the parties' respective real estate reimbursement claims, the court concluded that Mark owed Julia a net equalizing payment of $127,126. This sum was ordered "payable upon completion of the division of the parties' remaining property."

5. Mark's Claim of Error

Mark asserts that the trial court erred in its determination of the fair market values of South Shore and Sierra, and that this error resulted in an unequal division of the parties' community property interests in the five real estate parcels. He argues that he "was awarded [the Truckee] properties at artificially high appraised values not accounting for known deficiencies," and that the court used Hartley's appraisals that "were several-hundred-thousand-dollars higher than [the fair market value] a willing buyer would actually pay." Mark contends that Hartley's appraisals did not consider the existence of any defects or code violations to the Truckee Properties that required correction, and that Hartley, in fact, was unaware of any such defects before completing his appraisals. Mark argues that the court's determination of the values of the Truckee Properties greatly in excess of their actual fair market values was an improper "assign[ment of] fault . . . to Mark for [his] possible errors in judgment in [the] community property's acquisition, management, and repair, [resulting in an] award [of] disproportionate shares to Mark and Julia, dividing [the] community estate unequally."

It is true that Julia's valuation evidence was problematic. Her expert, Hartley, was not informed of the existence of any potential structural issues or unpermitted work having been performed at the South Shore home, although he suspected that the lowest floor had been "bootlegged." Similarly, Hartley was not apprised that renovations of the Sierra property were done without permits, that there were code violations, no certificate of occupancy had been issued, and that there was an outstanding estimate for a significant amount of repairs. And Julia provided little evidence to rebut Mark's evidence concerning significant condition issues with respect to South Shore and unpermitted work and code violations with respect to both Truckee Properties.

But certain aspects of Mark's valuation evidence were also problematic. Cole testified that, in preparing the appraisals, he relied on Williams's repair estimates with respect to both Truckee Properties without scrutinizing them. Cole's opinions were also subject to question-as noted by the trial court-for his tying the repair costs very closely with the valuation of the properties. Further, Williams's testimony was weakened by his uncritical reliance upon Mark's preparation of the scope of work for the Truckee Properties in Williams's assignment of costs in the repair estimates. And although Williams demonstrated sufficient knowledge about the condition of South Shore, he had not personally observed Sierra since 2003, prior to the significant unpermitted renovations that were the subject of the repair estimate Williams had prepared.

Were the issue simply one of the trial court's assessment of the credibility of the parties' respective experts in the valuation of the Truckee Properties, Mark's appellate challenge to the Real Estate Order would lack merit. The trial court has broad discretion in reaching valuation determinations regarding community assets if those findings are "within the range of the evidence presented. [Citation.]" (In re Marriage of Nichols, supra, 27 Cal.App.4th at p. 670; see also In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 632 ["trial court 'makes an independent determination of value . . . [and] is not required to accept the opinion of any expert as to the value of an asset' "].) As we discuss, however, the trial court's valuation of the Truckee Properties was not one that involved an equal division of community assets predicated on their fair market value. (In re Marriage of Campi, supra, 212 Cal.App.4th at p. 1572.)

The trial court, in agreeing with Julia's proposed fair market values for South Shore and Sierra, offered a rationale that directly undermined any findings that Julia's numbers represented the fair market value of the properties. The court stated: "I find the appraisals performed by Jeff Hartley to represent what the values of the properties should have been but for the defects known to Mark at the time of the purchases of the properties, or, in the case of Sierra Drive, caused by Mark in disregard of the best interests of the community." (Italics added.) Other language in the order that preceded this finding confirms that the court's determination of value was not based upon the true fair market value of the Truckee Properties. The trial court found: "Mark did not share his particular knowledge about the defects in the [South Shore] Drive property with Julia before acquiring that property from his mother. Mark also testified about his knowledge of the original construction of the Sierra Drive property, and apparently did not share any of that knowledge with Julia. After acquiring Sierra Drive . . . Mark started work to obtain the proper occupancy permit from the Town of Truckee, but became tired of the delay of four months to obtain building inspections and reinstalled sheetrock before the inspections could be completed. Mark also hired an unlicensed mason who performed substandard and defective work on Sierra Drive. [¶] Mark's testimony presents him as a highly intelligent and somewhat impetuous person with a strong sense of what he wants to achieve. His failure to place the interests of the community before those of other members of his family resulted in his decision to buy the [South Shore] Drive property. Similarly, Mark failed to place the interest of the community first in acquiring the Sierra Drive property and his inability to wait for a building inspection has further impacted the value of the property and served no community purpose. He must bear the consequences of these actions." (Italics added.)

Thus, the court's determination of value, relying on Hartley's appraisals, was not based upon the true fair market value of the Truckee Properties. Rather the findings were essentially penalties imposed upon Mark for his saddling the community with (1) property (South Shore) that had structural problems, defective construction, code violations, and unpermitted improvements, and (2) property (Sierra) which, after its purchase, was substantially renovated and improved by work overseen by Mark that was unpermitted, not code-compliant, in part performed by unlicensed workers that was substandard, and which created significant problems, including making the property not legally habitable.

Generally, section 2550 requires that the court, absent the parties' agreement, make an equal division of community property. (Walrath, supra, 17 Cal.4th at p. 924.) "In satisfying this mandate, 'the court must distribute both the assets and the obligations of the community so that the residual assets awarded to each party after the deduction of the obligations are equal.' [Citations.]" (Ibid.) An equal division of the community estate must be predicated on fair market value. (In re Marriage of Cream, supra, 13 Cal.App.4th at pp. 88-89.) The trial court's failure to effect an equal division of community property is reversible error. (See In re Marriage of Cooper (2008) 160 Cal.App.4th 574, 580-581 [allocation of survivor pension benefit entirely to wife with no offsetting payment to husband held reversible error]; In re Marriage of Bell (1996) 49 Cal.App.4th 300, 310-311 [court's unexplained failure to include husband's automobile in division of community assets held reversible error].)

Because of the equal division mandate of section 2550, fault may not be a consideration in the division of community property. (See Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 474 (Diosdado) ["family law court may not look to fault in dissolving the marriage, dividing property, or ordering support"].) As explained by the court in Diosdado, "[w]ith certain exceptions (such as child custody matters or restraining orders), 'evidence of specific acts of misconduct is improper and inadmissible' in a pleading or proceeding for dissolution of marriage. (Fam.Code, § 2335.) Fault is simply not a relevant consideration in the legal process by which a marriage is dissolved. Recovery in no-fault dissolution proceedings 'is basically limited to half the community property and appropriate support and attorney fee orders-no hefty premiums for emotional angst.' [Citation.]" (Id. at pp. 473-474.) Based upon this underlying principle, the court in Diosdado held that the parties' contract providing for the payment of liquidated damages to the nonoffending spouse was contrary to public policy and unenforceable. (Id. at pp. 474-475; see also In re Marriage of Mehren and Dargan (2004) 188 Cal.App.4th 1167, 1171 [postmarital contract providing that husband would grant all community interest in certain property if he used illegal drugs was unenforceable because it "purport[ed] to award a community property premium because of the behavior of husband"].)

There are no exceptions to section 2550's requirement that the court divide community property equally that would apply here. The closest possible fault-based exception is where the wrongdoing spouse has "deliberately misappropriated" the community asset to the exclusion of the other spouse. (§ 2602.)²³ The statute requires" 'calculated thievery'" by the wrongdoing spouse. (In re Marriage of Partridge (1990) 226 Cal.App.3d 120, 126.) Simple negligence, or" 'the mishandling of assets'" does not permit an unequal division of community property. (Ibid.) Thus, although the trial court alluded to some conduct by Mark that may have constituted negligence-such as proceeding with the substantial renovation of Sierra without inspections by the Town of Truckee and the hiring of an unlicensed contractor to perform some of the work-there was no evidence of misappropriation. No such misconduct was argued by Julia, and this exception was not cited by the court.

23 "As an additional award or offset against existing property, the court may award, from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate." (§ 2602.)

"Generally speaking, a trial court's division of the community interest in retirement rights" 'will not be interfered with on appeal unless an abuse of discretion is shown.'" . . . But, except as otherwise agreed by the parties or specifically provided by statute, no trial court has discretion to divide the community estate unequally and if it does so, the trial court errs as a matter of law. [Citation.]" (In re Marriage of Cooper, supra, 160 Cal.App.4th at p. 580.) Here, the trial court determined values for the Truckee Properties distributed to Mark by using assumed figures based upon-as the court stated-what the properties "should have been [worth] but for the defects known to Mark at the time of the purchases of the properties, or, in the case of Sierra Drive, caused by Mark in disregard of the best interests of the community." This was done, as the court stated, because "Mark failed to place the interest of the community first" in his dealings with respect to the Truckee Properties. The valuation findings did not reflect a determination of the true fair market value of either property at the time of trial. Rather, they reflected a penalty based upon the conclusion that Mark should "bear the consequences of [his] actions." The court thus abused its discretion. The matter must be reversed and remanded for findings as to the actual fair market values of the South Shore and Sierra properties.²⁴

24 Sometime after the Real Estate Order was filed, the Sierra property was lost to foreclosure. In the section of his brief addressing the claimed error in the valuation of the Truckee properties, Mark asserts that the court awarded him Sierra with a net value of $89,759, but that the court, upon the property's later foreclosure, should have readdressed the issue and assigned it a value of zero. Mark, however, does not cite to any part of the record in which he made a request that the trial court modify the Real Estate Order by reducing the value of Sierra assigned to him. From our review of the record in addressing Mark's various claims, we are aware of no such request. We note that two of Mark's breach of fiduciary duty claims in the Remaining Issues Trial concerned the Sierra property. Mark alleged that Julia, in breach of her fiduciary duties to him, arranged for a loan against Sierra shortly before the parties separated. Mark also claimed that Julia breached her fiduciary duty to him by failing to pay for community obligations, and by failing to cooperate with a loan modification by providing a quitclaim deed, resulting in his loss of the Sierra property through foreclosure. The court denied both of those breach of fiduciary duty claims. In that trial, Mark did not ask that the court revalue Sierra because of the foreclosure. "[I]ssues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal. [Citations.]" (In re Marriage of King (2000) 80 Cal.App.4th 92, 117.) Mark has waived any appellate claim based upon the failure of the trial court to reconsider and revalue the Sierra property after its foreclosure.

B. Mark's Reimbursement Claim Under Section 2640

1. Evidence Presented

a. Background

As was recited in the Real Estate Order, one of the issues for trial concerned "the validity and extent of Mark's [section] 2640 claims." In her pretrial statement, Mark's counsel summarized that the essence of Mark's claim under section 2640 for reimbursement of his separate property contributions to the community was as follows: (1) the two Elrose Properties were his separate property acquired before marriage; (2)during the marriage, Mark obtained a second loan secured by 5348 Elrose and another loan secured by 5372 Elrose to fund improvements²⁵ made to Vista Loop, which was the community property family residence; (3) an additional loan of $300,000 was obtained by the parties from Mark's longtime employer, Ed Hansen, to fund additional improvements to Vista Loop; and (4) the Hansen loan was repaid in part by the subsequent sale of the Elrose Properties to Hansen.

25 Throughout the proceedings, the parties used the terms "improvements" and "repairs" interchangeably to the work done on the Vista Loop property. To the extent that the repairs involve the maintenance of the property and do not increase its value, they are not reimbursable under section 2640(b). (See § 2640, subd. (a) [excluding "payments made for maintenance . . . of the property"]; In re Marriage of Nicholson and Sparks, supra, 104 Cal.App.4th at p. 296 [excluded payments are ones that "do not contribute to equity acquisition, despite the fact that they are expenses necessary to retain ownership or preserve and protect the owner's interest"].) At the conclusion of the trial, the court itself expressed concern that the parties had not paid sufficient attention to this distinction, i.e., whether evidence had been presented that demonstrated that the expenditures for the Vista Loop property actually increased its value. We will generally use the term "improvements" in discussing Mark's 2640 claim here.

b. Testimony of Michael Thompson

Mark's 2640 claim was based largely upon reports generated by, and the testimony of, his accounting expert, Michael Thompson. Prior to testifying on January 29, 2010, Thompson submitted his initial report dated January 4, 2010, which was utilized at trial. Thompson opined in the report that Maynard had "a separate property claim of at least $441,956." (Boldface omitted.) This total was comprised of a second loan secured by Mark's separate property, 5348 Elrose, with the funds used to improve Vista Loop ($90,341); cash received from the refinancing of Mark's separate property, 5372 Elrose ($56,415); funds from the sale of the Elrose Properties ($119,000 and $155,000) used to pay down the $300,000 Hansen loan; and funds obtained from the sale of Mark's separate property, i.e., a car, boat, and trailer ($21,200).

At trial, Thompson, tracking his January 4 report, testified that the total claim, as amended, was $408,000.²⁶ As to two components of the claim-funds used to pay down the Hansen loan by selling the Elrose Properties that were Mark's separate property-he explained that the two properties were collateral for that loan. At the time the properties were transferred to Hansen to pay down the $300,000 loan, there was equity of $119,000 and $155,000 in the Elrose Properties.

26 On cross-examination, Thompson testified that there may have been other expenses that should not have been considered in the 2640 claim, thereby reducing the claim further, including $38,100 in interest charges and a $21,000 expense for Bobcat construction equipment.

On cross-examination, Thompson testified that he had no records indicating a direct tracing of the proceeds of the second loan on 5348 Elrose or of the refinancing of 5372 Elrose into payments for the Vista Loop improvements. Likewise, although he testified that it was his "contention" that the proceeds of the $300,000 Hansen loan were used to pay for improvements to the Vista Loop property, he did not directly trace any of those loan proceeds to the Vista Loop construction payments.

Thompson testified that he understood that the Vista Loop improvements were paid from a joint bank account maintained by the parties. He understood the expenses were paid from "a commingled fund." He did not know what types of expenses other than Vista Loop improvement expenses were paid out of the joint account. Nor did he know whether income, such as income derived by Mark, Julia, or LTE, was deposited into the joint account. Thompson testified that he did not recall whether he had seen bank statements from the joint account, and he did not rely on bank statements in conducting his analysis. He also testified that he did not know where the Hansen loan proceeds were deposited, or if any of those proceeds were used to pay directly any of the Vista Loop improvement expenses. Similarly, his analysis did not contain any direct tracing from the proceeds of either the loan on 5348 Elrose or the refinancing of 5372 Elrose to payments for Vista Loop improvements.

c. Testimony of Mark Maynard

Mark testified that he purchased the Elrose Properties prior to the marriage (1987). He and Julia purchased the Vista Loop property in 1990. After discovering that Vista Loop "needed substantial repairs," the couple started using funds from a home equity line of credit on 5348 Elrose to make improvements to Vista Loop. Mark testified that he "borrow[ed] money against [his] other properties" and used them as security for the loans to pay for the Vista Loop improvements. The line of credit funds from 5348 Elrose was $91,000. Mark refinanced 5372 Elrose in or about 1993 to pay for Vista Loop improvements. Mark also borrowed a total of $300,000 from Hansen in separate payouts; he testified that the proceeds were used to pay for Vista Loop improvements. The Hansen loan was secured by three properties, i.e., the two Elrose Properties and Vista Loop. They could not repay the loan, and Hansen foreclosed on the Elrose Properties after Mark and Julia had filed for bankruptcy protection. Hansen immediately resold the Elrose Properties to Julia's mother under an arrangement that she would hold title until Mark and Julia could repurchase them. Mark and Julia ultimately bought the Elrose Properties from Julia's mother.

d. Testimony of Julia Maynard

Julia testified that the parties maintained a joint bank account into which they deposited their employment income and paid family expenses. Julia managed the checkbook, and if additional funds were needed to pay bills, she would advise Mark and he would procure the funds. She generally did not know the source of the additional funds Mark provided as he "was intensely private about what was going on financially." Julia testified that there was no segregation of the parties' respective income, loan proceeds, or other sources of income, and as bills were accrued, they were paid without a particular source of income tied to them. When she and Mark bought the Elrose Properties from her mother in 2006 or 2007, they were valued at $700,000 and $715,000; they paid $432,500 for each property.

e. Testimony of Tom Dowling

Tom Dowling, Julia's accounting expert, testified that he had reviewed Thompson's January 4, 2010 report, and Dowling had prepared a report in response dated January 28, 2010.²⁷ Dowling concluded that Thompson had not established a link between income procured from Mark's separate property and expenses for improvements made to Vista Loop. Other concerns that Dowling had with respect to Thompson's report and findings included (1) it appeared that the amount of the 2640 claim exceeded the total cost of the improvements ($328,000); (2) there was a lack of documentation of the improvements, including the absence of bank statements; and (3) the inclusion of interest and foreclosure fees in the claim.

27 This letter authored by Dowling, trial exhibit 34-a potentially valuable piece of evidence in connection with this court's review of the court's order concerning Mark's 2640 claim-is not part of the appellate record. Mark, as the appellant, bears the burden of demonstrating reversible error based upon an adequate record. (Jameson, supra, 5 Cal.5th at p. 609.)

2. Procedural Background and Order

The trial on Mark's 2640 claim occurred over two days. At the conclusion of the trial and after hearing argument of counsel, the court ruled that Mark had not met his burden of proof, with the exception "of the expenditures that were paid directly from the [5348 Elrose] credit lines to contractors and other providers" who made improvements to the Vista Loop property." The 2640 claim, to the extent it sought reimbursement of the proceeds from the Hansen loan, was disallowed. The court ruled that "[n]o reimbursement claim will be allowed for any deposits that were made to joint accounts . . . [or] for repayment of loans for which the court cannot determine the use of the funds that were originally received." The court directed Mark's accounting expert, Thompson, to prepare a supplemental report limiting his findings to the items for which the court ruled were subject to reimbursement.

Pursuant to the court's ruling, Thompson prepared a supplemental report dated February 25, 2010, that was thereafter filed by Mark's counsel. As stated in the supplemental report, Mark's 2640 claim, as limited by the court, sought reimbursement of $115,079.68 for improvements to Vista Loop. Julia, through counsel, presented written opposition, and Mark, through counsel, filed a reply (including a supplemental letter from Thompson).

In the Real Estate Order, the court acknowledged that Mark, through Thompson's supplemental report, sought reimbursement of $115,079.68 paid to contractors directly from the 5348 Elrose line of credit for improvements to Vista Loop. Based upon the court's prior ruling that Mark would not be permitted to claim reimbursement for the proceeds of the Hansen loan as a basis for his section 2640 claim, the court reduced the amount of allowable reimbursements to $71,957.20. In so concluding, the court considered and rejected Julia's argument that Mark's reimbursement claim should be strictly limited to expenses that were directly related to foundation work on the Vista Loop property.²⁸

28 Under the approach urged by Julia, $39,931 would have been deducted from Mark's total claim.

As recited by the court, Mark asserted that he should be allowed to claim, by tracing his separate property contributions to the improvements made to the Vista Loop property, separate property interests in specific real property owned by the community, namely, the South Shore property and the Elrose Properties (which were acquired by Mark and Julia subsequent to their sale to Hansen).²⁹ As also recited by the court, this approach, permitted under Walrath, supra, 17 Cal.4th 906, involves "calculating the separate property component on a proportionate basis to the amount of the separate property interest in the source property [Vista Loop] divided by the fair market value of the source property at the time of the loan." The court-utilizing the fair market value of Vista Loop as proposed by Mark's expert, Thompson, and rejecting the figure proposed by Julia-calculated Mark's separate property interests in South Shore and the Elrose Properties to be $4,853.08 and $26,299.64, respectively.³⁰

29 Mark's request for tracing the separate property interest from the improvements to Vista Loop to other properties was necessitated by the fact that there was no equity at the time of trial in the Vista Loop property.

30 Although, as we discuss, Mark challenges the court's conclusion restricting the amount of his 2640 reimbursement claim to $71,957.20, he does not challenge the methodology used by the court in determining, under Walrath, his separate property interests in the South Shore and the Elrose Properties. Accordingly, we need not address that methodology here.

3. Mark's Claim of Error

Mark contends that the court erred in denying the majority of his 2640 claim. He argues that the court improperly "disallow[ed] family expense tracing" he presented in support of his claim, and it required instead that there be direct tracing of the expense used to improve Vista Loop to a separate property source. Mark emphasizes that under section 2640(b), the court was required to reimburse him for his separate property "contributions to the acquisition of property of the community property estate." (Italics added.)

Under section 2640(b), a "party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source." (Italics added.) Mark, in establishing a section 2640 right of reimbursement here, was required to trace the contributions to the Vista Loop improvements to a separate property source, either through direct tracing or family living expense tracing. (Braud, supra, 45 Cal.App.4th at p. 823.)

a. Direct Tracing Method

Direct tracing is accomplished where "the disputed asset [the Vista Loop property] . . . is traced to the withdrawal of separate property funds from the commingled account. This method requires specific records reconstructing each separate and community property deposit, and each separate and community property payment as it occurs." (Braud, supra, 45 Cal.App.4th at p. 823, original italics.)

Here, Thompson testified that he had no records that established a direct tracing of the proceeds from the Elrose Properties loans, or the $300,000 Hansen loan, into payments for the Vista Loop improvements. It is clear that Mark failed to establish his claim by the direct tracing method.

b. Family Living Expense Tracing Method

Mark argues that he presented sufficient evidence-through his own testimony and the testimony of his expert, Thompson-that he used his separate property to fund the Vista Loop improvements under the alternative family living expense tracing method. He argues that he showed "that community income was depleted by living expenses on the community family residence and litigation costs, leaving only Mark's separate funds for the improvements." We thus consider Mark's argument to be that there was no substantial evidence for the trial court's rejection of his 2640 claim purportedly established through the family living expense tracing method.

" 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, original italics (Foreman & Clark).) "In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (Estate of Young (2008) 160 Cal.App.4th 62, 76.)

Furthermore, an appellant asserting a substantial evidence challenge to a judgment has the obligation to present a fair description of the underlying evidence. (Foreman & Clark, supra, 3 Cal.3d at p. 881 [appellants must" 'set forth in their brief all the material evidence on the point and not merely their own evidence' "].)" 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' [Citation.]" (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, original italics (Schmidlin).)

As noted, Mark argues that he presented sufficient evidence to support his entire 2640 claim under the family living expense tracing method. For procedural and substantive reasons discussed below, his argument fails.

Mark's claim that he presented substantial evidence of family living expense tracing is based upon the following evidence recited in his brief: (1) Thompson's testimony "that community income was depleted by living expenses for the community family residence and litigation costs, leaving only Mark's separate funds for the improvement"; and (2) Julia's testimony that "she managed the family books and signed loans (secured by Mark's separate property), [and] deposited and managed funds from Mark for property improvements, not knowing where those funds came from." As we discuss below, this is a fraction of the evidence presented below that is relevant to whether there was substantial evidence to support the court's finding that Mark had failed to meet his burden of proving the majority of his 2640 claim by adequate tracing. Mark has, therefore, failed to satisfy his obligations as an appellant to" 'set forth in [his] brief all the material evidence on the point and not merely [his] own evidence'" (Foreman & Clark, supra, 3 Cal.3d at p. 881, original italics.) We may therefore deem Mark's argument that no substantial evidence supported the court's adverse finding concerning family living expense tracing as waived. (Schmidlin, supra, 157 Cal.App.4th at p. 738.)

The evidence that was relevant to the court's finding concerning tracing included the following.³¹ As noted, Thompson testified that he had no records showing a direct tracing of payments for the Vista Loop improvements to any of the proceeds from the loans secured by the Elrose Properties or the Hansen loan. Although he understood the parties maintained a joint bank account that was "a commingled fund," and that expenses for the Vista Loop improvements were paid from that account, Thompson knew little about the account. He did not know the types of expenses, other than the Vista Loop improvements, that were paid from the joint account, or whether income derived by Mark, Julia, or LTE was deposited into that account. Thompson further did not know whether any of the proceeds of the Hansen loan were deposited into the joint account to pay for the Vista Loop improvements. Thompson testified that he did not recall whether he had even seen bank statements from the joint account, and he did not rely on bank statements in conducting his analysis.

31 In the interests of justice, we will nonetheless address the merits of Mark's claim, thus overlooking his failure on appeal to present all material evidence relevant to his substantial evidence argument.

Thompson testified that he "did not do a line-by-line tracing" of funds from the bank account used to pay for Vista Loop improvements back to Mark's separate property contributions. He opined that he did not need to do so because it was known that Mark had borrowed the money and that "there was no other use of his separate property funds. And we know that there were[n't] sufficient community funds to pay all these payments [for improvements]."³² He admitted on cross-examination that he did not know (1) when the last improvement charge for Vista Loop was incurred; (2) the date the parties moved into the property after the completion of the improvements; (3) on any given day, whether separate property funds were used to pay living expenses (i.e., a nonreimbursable payment under section 2640); (4) what the family expenses were during the time the Vista Loop improvements were performed; or (5) the total income of the parties or their total expenses (outside of the Vista Loop improvements) for 1991 or subsequent years.

32 The reporter's transcript reads, "And we know that there were sufficient funds to pay all of these payments." From a review of Thompson's entire testimony, we believe that this was a transcription error, and that the transcript should have actually read "weren't" or "were not" rather than "were."

Mark testified that his earnings, Julia's earnings, and "[p]robably the loans" were deposited into the parties' joint account. He testified that when improvements were made to Vista Loop, the source for the funds was either the joint account, the line of credit account of $91,000 associated with 5348 Elrose, or credit cards. Mark also testified that he refinanced 5372 Elrose in or about 1993, obtaining a $165,000 loan; a portion of the loan proceeds was used to pay loan costs, a portion was used to pay credit card debt for Vista Loop improvements ($50,000 or $60,000), and the balance was deposited into the joint account. And he testified that he borrowed $300,000 "in chunks" from Hansen to "continue with the improvements at Vista Loop" by paying expenses out of the joint account. Mark explained that "the only way [they] had the money to do all [the Vista Loop improvements] was to borrow these monies."

Julia's expert, Dowling, concluded from reviewing Thompson's January 4, 2010 report that Thompson had not established that there was a link between income procured from Mark's separate property and expenses for improvements made to Vista Loop. Dowling testified that he understood that Thompson's claimed link was that funds procured through Mark's separate property were deposited into the parties' joint account. Dowling testified that it was thus a commingled account, and in analyzing the payment of improvements to the jointly-owned Vista Loop property, if "[t]here were sufficient community funds at the time of the improvement, [those] community funds would be used first." Dowling did not see that Thompson had provided any indication in his report as to which bank account was used to fund any improvement.³³

33 Mark takes issue with Dowling's testimony, in which he opined that "a line-byline, transaction-by-transaction-tracing would be required through [the joint] bank account" to establish that the expenditures for improving the Vista Loop property were from Mark's separate funds. He argues that "line-by-line" tracing differs from direct tracing and that the trial court mischaracterized Dowling's testimony as being that no direct tracing had been established. This argument is unavailing. First, it is unclear whether Dowling was, in fact, referring to direct tracing when he used the terminology "line-by-line tracing." He did opine that he had not seen a link in Thompson's report between money coming into the joint account from Mark's separate property sources and funds used to make the Vista Loop improvements. Second, Thompson admitted that he did not use a direct tracing method. Third, there is no record that the court relied upon a supposedly improper requirement of "line-by-line tracing" in concluding that Mark had failed to meet his burden of proving the majority of his 2640 claim by adequate tracing.

"Under the 'family living expense' . . . [tracing] method, it is assumed that family living expenses are paid out of community property funds. [Citations.] Payments may be traced to a separate property source by showing community income at the time of the payments or purchase was exhausted by family expense, so that the payments or purchase necessarily must have been made with separate property funds. [Citations.] The recapitulation must be sufficiently exhaustive to establish not only that separate property funds were available to make the payments, but that they were actually used. [Citation.] . . . [T]he record must demonstrate that community income was depleted at the time the particular asset was acquired. [Citations.]" (Braud, supra, 45 Cal.App.4th at pp. 823-824, italics added.) Mark was therefore required to show that, after payment of living expenses with community funds, those funds in the joint bank account were exhausted at the time of the expenditure claimed to have been made from a separate property source.

The absence of evidence to support family living expense tracing, as seen from the testimony of Mark's expert, Thompson, is noteworthy. Thompson did not rely upon the joint account in conducting his analysis, nor did he even have any familiarity with it, having acknowledged that he did not review the bank statements. Nor did he analyze the details of the parties' daily or annual income or family expenses. And he did not-and could not-have performed family living expense tracing with respect to the joint "commingled" account because, in addition to not relying on the bank statements, he did not know whether the proceeds from the loans involving the Elrose Properties or the Hansen loan were deposited into that account.

From our review of the record, it would appear that the essence of Thompson's opinion concerning the applicability of the family living expense tracing was the following testimony: "I didn't say there couldn't have been family money left. I'm just saying that I know that moneys were taken out of the separate property account, and they didn't go anywhere else. and, therefore, if all the moneys, community and separate, were spent during that time period, that the separate moneys were spent-would be spent on improvements rather than family living expenses."³⁴ This evidence does not satisfy "the exacting standards of proof required for tracing funds in a commingled account." (Braud, supra, 45 Cal.App.4th at p. 824.)

34 Additionally, when asked for his expert opinion on the type of tracing required under section 2640(b), Thompson responded: "I think the tracing that's required is the best tracing you can present given the information that you have."

Mark, as the party claiming the right of reimbursement under section 2640, bore the burden of tracing the contribution to a separate property source. (In re Marriage of Cochran, supra, 87 Cal.App.4th at pp. 1057-1058.) There was substantial evidence to support the trial court's finding that Mark did not sustain that burden.

c. Mark's Additional Contentions

Mark makes several additional contentions related to his claim that the court erred in denying a substantial portion of his 2640 claim. We briefly address some of those arguments here.

Mark argues that the court "improperly denied [him the] opportunity to provide evidence to account for [his] separate funds," namely approximately $160,000 received in refinancing 5372 Elrose. In a similar vein, Mark contends the court "excluded most funds obtained through loans on Mark's separate property" in presenting his 2640 claim. Mark misapprehends the court's ruling. Mark's citation to the reporter's transcript involves a discussion between the court and counsel after the matter was submitted following two days of testimony and occurred after the court had made its ruling that Mark had not, in substantial part, met his burden of proof with respect to his 2640 claim. Mark was not deprived of the opportunity to present evidence in support of his 2640 claim, including evidence concerning the 5372 Elrose refinancing.

Mark also contends that the court erred by the exclusion of evidence concerning the Hansen loan as a basis for Mark's 2640 claim. Mark points to nothing in the record that supports the claim that the court excluded evidence regarding the Hansen loan. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [challenge to exclusion of evidence waived on appeal where appellant's brief failed to develop the issue or support claim with appropriate citations to the record.].) In fact, from our review of the trial proceedings, there was no exclusion of evidence. Rather, what occurred is that the court permitted Mark to present evidence in support of his 2640 claim, including the theory, expressed through his expert, Thompson, that the Hansen loan was a significant component of that claim. After Mark rested his case and the court heard argument, it ruled that Mark had not met his burden of proof of the 2640 claim as it related to the Hansen loan.

Further, Mark argues that there was evidence, in the form of communications regarding loans secured by his separate property, that established that the funds from the loans were intended to improve community assets, and that there was insufficient community income to pay for the improvements. This argument cannot be considered. It is apparently based upon two documents that were not authenticated and were apparently not exhibits introduced at trial, namely, (1) a "Loan Analysis" dated March 4, 1993, author unspecified; and (2) a letter from Mark dated March 17, 1993. Mark, having failed to establish that these documents were exhibits at trial, or that they were even part of the superior court file, cannot rely on them in support of his appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 (Doers) [generally, "documents not before the trial court cannot be included as a part of the record on appeal"]; see also Moore v. Regents of University of California (1990) 51 Cal.3d 120, 182-183, Mosk, J., dis. [documents in appendix which were not before trial court cannot be considered].)

Lastly, Mark contends that the court "should have shifted [the] burden of proof to Julia[, ] who never contested [that] Mark's property was invested or that the community did not have funds for improvement without Mark's separate property." He apparently bases this argument on his allegation that Julia exerted undue influence upon Mark by reason of her "disorganized and reckless record keeping," "her oppression in restricting access to the records, attempts to suppress the records available to the court, and [by being a] substantial beneficiary of these actions." Mark relies on the following in making this burden-shifting argument:" 'If one spouse secures an advantage from [an interspousal] transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside. [Citation.]' [Citations.] 'Generally, a spouse obtains an advantage if that spouse's position is improved, he or she obtains a favorable opportunity, or otherwise gains, benefits, or profits. [Citation.]' [Citation.]" (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1519.)

There is no indication in the record that he made this burden-shifting argument at the trial of his 2640 claim. His claim for reimbursement of separate property contributions was based upon his testimony and the testimony of his accounting expert, Thompson. There was no claim by Mark's counsel that inadequacies in his proof should be dealt with by the court by requiring Julia to disprove that he was entitled to reimbursement for separate property contributions to the community. This argument cannot be considered here. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal. [Citations.]" (In re Marriage of King, supra, 80 Cal.App.4th at p. 117.)

Mark, in any event, fails to provide a reasoned argument, with citation to applicable legal authority, identifying the interspousal transaction, and describing the specific alleged acts by Julia that constituted undue influence in connection with that transaction. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 (20th Century Ins.) [failure to cite legal authority for position in appellate brief "amounts to an abandonment of the issue"]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 (Dills) [an appellate court has no obligation to "develop the appellants' arguments for them"].)

Additionally, Mark fails to provide citations to the record of evidence introduced at the trial on his 2640 claim that supports his allegation that Julia exerted undue influence over him.³⁵ His general assertions that Julia allegedly acted with oppression, allegedly restricted Mark's access to records, or allegedly attempted to suppress records, absent citations to the reporter's transcript demonstrating the existence of these alleged facts, cannot be considered. A party to an appeal, under rule 8.204(a)(1)(C), must provide citations to the appellate record in support of points made in the brief. The court may disregard any unsupported contentions. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 (Barringer).) Moreover, the citations to the record upon which Mark apparently relies in support of his claim that Julia exerted undue influence over him in a transaction cannot be considered by this court. They include citations to the record of matters that were not introduced at the trial of Mark's 2640 claim.³⁶ Rather, the documents cited include a prior court order, a September 2008 declaration by Mark which would in any event have been inadmissible at trial (see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354, abrogated by statute on another ground as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840), and excerpts from Mark's December 2009 deposition, which also could not have been introduced by the witness, Mark, at trial (see Code Civ.Proc., § 2025.620).

35 The only citations that are to the record of the trial on the 2640 claims and which Mark apparently contends supports his undue influence contention do not support his theory. The record Mark cites concerns (1) Julia's testimony that from 1991 to 1993, she managed the family checkbook, paid the bills, balanced the account, and maintained computerized accounting, she would ask Mark for additional funds for community expenses and he would provide them without her knowing their source, and she signed a note for the Hansen loan; and (2) Mark's testimony that Julia prepared a document tracking moneys received from the Hansen loan, and she tracked the check registers on the computer that included several accounts and that listed Vista Loop expenses. These cited portions of the reporter's transcripts do not support Mark's claim of undue influence.

36 Mark also cited a portion of the Real Estate Order. This order has no bearing on Mark's claim here that Julia exerted undue influence over Mark.

Mark's claim that the court, in the Real Estate Order, erred in limiting his 2640 claim to reimbursement of $71,957.20 of his separate property contributions to the Vista Loop improvements is without merit.

C. Bypass of Case Manager and Temporary Judge

Mark contends that the court below erred regarding the administration of the dissolution proceedings in general. He asserts that the parties stipulated in 2009 to a case manager and a temporary judge, but the court in 2010 issued procedural orders that resulted in the "bypassing" of the case manager and temporary judge. Mark argues that this action "threw the case into a perpetual state of confusion and [resulted in a] denial of due process for six years." He contends that this was "structural error," and that he is entitled to have all orders after the "bypassing" of the case manager reconsidered.

There are several stipulations that were entered in 2008 and 2009 that are or may be the stipulations to which Mark refers. On October 27, 2008, Mark, Julia, and their respective attorneys stipulated to the appointment by the presiding judge of attorney Edward F. Mills as temporary judge in the case. On January 21, 2009, Mark, Julia, and their respective attorneys stipulated to the appointment by the presiding judge of Mills or J.F. Cox as temporary judge in the case. On May 19, 2009, the court issued an order appointing Mills as temporary judge for "all proceedings relating to the maintenance, sale or transfer of the real properties owned by the parties or either of them." On the same day, the court issued an order, also signed by the parties and their counsel, appointing Mills as case manager pursuant to section 2032.

Mark complains that the court issued a March 16, 2010 order "bypassing" Mills and Cox in which "remaining trials" were vacated and "[u]nfinished issues were sent to Department 1." The order to which Mark refers was a minute order entered after a settlement conference before a temporary judge sitting in Department 76. It was stated in that minute order that there had been unreported proceedings attended by the parties and their counsel; the matter was continued to April 19, 2010, for a trial setting in Department 1 with a five-day estimate; and that five trial dates previously set (for April through June 2010) were vacated.

Mark asserts further that a year later, after "the court ignored him," Cox withdrew as case manager. The record reflects that Cox filed a notice of termination of case management assignment in the case on April 1, 2011, reciting that he had "completed the Case Management services for which [he] was engaged pursuant to the stipulation of the parties and counsel." Mark cites to a page of the appendix containing a March 2011 e-mail from Cox to Julia, which was apparently an exhibit to a motion filed by Mark. Cox stated-noting that he had been informed that both Mark and Julia were now self-represented-that he had understood that his "duties as Case [Manager] were limited to the discovery function prior to trial on the real property, and therefore when that trial was commenced . . . [his] appointment expired." Cox stated further that he was "no longer serving as the case manager . . . as the Court [had] reasserted [its] plenary power over the case, and [his] further service would not be economically advantageous for [the parties]." There is nothing cited by Mark in the record reflecting that Cox withdrew because "the court ignored him."

Mark's claim of error cannot be sustained. First, Mark has failed to cite to anything in the record indicating that he raised a specific objection concerning any alleged "bypassing" of the case manager or that the court overruled such objection." 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method.'" (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.) Mark has waived the right to assert this appellate claim. (In re Marriage of King, supra, 80 Cal.App.4th at p. 117.)³⁷

37 We are aware that, in a motion filed in April 2011, Mark asserted that after his attorney withdrew from the case, Julia acted improperly by bringing motions and other matters before the court rather than directing them to the case manager, Cox. There is no indication in the record, however, that Mark asserted an objection to, or obtained a ruling from, the court on any claim by Mark that all proceedings had to be brought by the parties before the case manager.

Second, Mark has not cited any legal authority that supports the proposition that where, after a case manager is assigned to the case, subsequent orders issued in proceedings held without the case manager's involvement are subject to being vacated or reconsidered. (20th Century Ins., supra, 86 Cal.App.4th at p. 284 [appellant's failure to cite legal authority for position "amounts to an abandonment of the issue"])³⁸

38 Mark's reliance on Code of Civil Procedure section 664.6, dealing with the enforcement of a settlement of litigation by entry of judgment, is misplaced.

Third, there is no legal basis for Mark's challenge relating to the administration of these proceedings. Trial courts are vested with "substantial discretion in the conduct of judicial business. [Citation.]" (People v. Rodriguez (2016) 1 Cal.5th 676, 682 (Rodriguez).) "[C]ourts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) The California Rules of Court provide that "[a]pportion[ing] the business of the court, including assigning and reassigning cases to departments" is within the authority of the presiding judge of the superior court. (Rule 10.603(b)(1)(B); see also Gov. Code, § 69508, subd. (a) ["the presiding judge shall distribute the business of the court among the judges, and prescribe the order of business"].) Thus, "[a]ssignments of the 'business' of the court among judges of the court is wholly discretionary." (Anderson v. Phillips (1975) 13 Cal.3d 733, 737; see Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 422 [no error in presiding judge's discretionary reassignment of request for public access to former prospective committee's confidential Lanterman-Petris-Short files to the judge presiding over criminal proceedings pending against the prospective committee].) Therefore, any unpreserved claim by Mark that the court below abused its discretion in the judicial assignments of different issues in this proceeding is without merit. (Rodriguez, supra, at p. 682.)³⁹

39 Mark is incorrect in his assertion that the issue should be reviewed de novo rather than for abuse of discretion. (See Rodriguez, supra, 1 Cal.5th at p. 682.)

D. Personal Property Reimbursement Claims

After a seven-day trial on the parties' reimbursement claims, the court filed the Reimbursement Order on February 20, 2015. Included among the matters decided were reimbursement issues related to a Ford F-550 truck, a 2005 Porsche Cayenne automobile, a Chris Craft boat, and a Polaris watercraft.

Mark contends that the court erred in denying his reimbursement claims for his postseparation expenditures made relative to these four items of personal property. These reimbursement claims are commonly referred to as "Epstein credits," referring to Epstein, supra, 24 Cal.3d 76. (See In re Marriage of Mohler (2020) 47 Cal.App.5th 788, 797, fn. 4.) We address each reimbursement claim below.

1. Ford F-550 Truck

a. Evidence

Mark sought reimbursement of postseparation expenses he incurred for the parties' Ford F-550 truck. The claimed expenses were apparently listed in a document not part of the appellate record; they were identified as items 4 (loan payments) and 5 (repair and other expenses).⁴⁰ The loan payments Mark made on the truck for which he sought reimbursement totaled $49,346.99. Mark challenges the court's denial of reimbursement of these expenses.⁴¹

40 It is apparent from the reporter's transcript that the court utilized Mark's amended trial exhibit list in addressing each of Mark's 43 categories of reimbursement claims. That exhibit list is not part of the appellate record. Mark offered exhibits in support of the two categories of truck expenses for which he sought reimbursement, but those exhibits are also not part of the appellate record. (See Jameson, supra, 5 Cal.5th at p. 609 [appellant bears the burden of demonstrating error by an adequate record].)

41 The repair expenses and miscellaneous expenses for which Mark sought reimbursement totaled $6,859.91. Mark does not challenge on appeal the court's denial of reimbursement of these expenses. Any appellate challenge to this ruling is deemed abandoned. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 (Tiernan).)

Mark testified that the 2008 Ford F-550 truck was originally purchased for towing a boat. Mark described the truck as "a custom vehicle" that had barely "been used," having between 3, 000 and 5, 000 miles on the odometer. After the parties purchased the truck, it was sent to specialists to place a custom box in the back, and to customize the suspension for a smoother ride on long trips and so the truck could be lowered to accommodate a Mini Cooper vehicle. Mark made the decisions on how to customize the truck. He testified the specialist did not perform the work properly. After the truck was returned from the original customizer's shop, Mark hired a person to perform additional customizing work, which represented the additional repair cost for which he sought reimbursement.

Mark testified that the loan payments relative to the truck totaling $49,346.99 had been deducted from his checking account, and that the loan had been paid off. He had possession of the Ford F-550 at the time of trial and it had been nonoperational and unregistered "for quite a few years." In response to the court's questioning, Mark confirmed that the truck was purchased for approximately $50,000, plus customization. Mark testified that the truck's present value was approximately $25,000 to $28,000, explaining that the value of a new truck decreases significantly immediately after its purchase, and any customization is usually of little value to a prospective purchaser.

Julia testified that she had not used the truck at all since separation. She had asked Mark, through attorneys, in 2008, to use the truck for moving; Mark declined because he wasn't comfortable with her driving it.⁴² Julia's position was that she should not be held responsible for any postseparation expenses for the truck since she had had no use of it.

42 Mark explained that Julia had only driven the truck once and it was "a very expensive vehicle." He had offered to drive the truck after Julia loaded it.

b. Reimbursement Order

The court recited that the parties purchased the Ford F-550 truck in 2007 with financing through Ford Credit. Mark sought reimbursement of one-half of the postseparation loan payments he made on the truck that totaled $49,346.98. The court denied Mark's reimbursement request, reasoning that although a spouse who uses postseparation earnings to pay an existing community debt is ordinarily entitled to reimbursement from the community, the rule is not inflexible. One exception noted by the trial court was "when the paying spouse is using the asset and the amount paid does not substantially exceed the value of the use. [Citations.]" The court reasoned that it was inappropriate here to require Julia to reimburse Mark for any amounts paid on the community debt, based upon Mark having (1) "asserted and maintained exclusive use" over the truck, (2) effectively excluded Julia from using it, (3) "continued to tinker with [it] so as to customize it to his particular desires."

c. Mark's Claim of Error

Mark argues that the court erred in denying reimbursement of his postseparation loan payments for the Ford F-550 truck. He contends that the Reimbursement Order was effectively an unequal division of a community debt.

Mark contends that the parties arrived at an agreement for an equal division of personal property at a settlement conference on May 1, 2014. He argues that pursuant to their "stipulation[, the parties] divided the property as an equal division without offset, with full right of reimbursement for community debts prior to that division." (Original underscoring.) In support of this contention, Mark cites to the reporter's transcript in which the settlement was recited and the order thereafter filed on July 28, 2014, memorializing the settlement. Although his position is somewhat unclear, it is apparent that Mark contends that the court's denial of his reimbursement claim relative to the Ford F-550 loan expenses was error because it was contrary to the parties' stipulation concerning the division of personal property.⁴³ This claim is without merit. The parties at the settlement conference agreed to the division of certain personal property, including vehicles and water vessels, all at zero value to avoid further litigation concerning the value of any such asset. This agreement included a provision that Julia would retain possession of the Porsche Cayenne with no offset, with Mark receiving the remaining seven vehicles (that were either community property or in some instances Mark's separate property) with no offset. The parties' settlement did not include an agreement that each party would receive reimbursement of their postseparation contributions to obligations and maintenance of the community vehicles. Rather, they agreed that the settlement involving the disposition of the vehicles without offset was without prejudice to the parties assertion of reimbursement claims that were under submission before Judge Johnson.

43 Mark, citing the reporter's transcript of the May 1, 2014 settlement conference, asserts in his opening brief that the "[s]tipulation equally dividing property at zero value without offset, and with full right of reimbursement for community debts prior to that division, was ignored."

Generally," 'a spouse who, after separation of the parties, uses earnings or other separate funds to pay preexisting community obligations should be reimbursed therefor out of the community property upon dissolution." (Epstein, supra, 24 Cal.3d at p. 84.) But because" 'there are a number of situations in which reimbursement is inappropriate, . . . reimbursement should not be ordered automatically.'" (Ibid.) The trial court thus correctly noted that this principle of reimbursement "is not an inflexible rule." As stated in Epstein, one circumstance under which reimbursement may be denied is" 'where the payment was made on account of a debt for the acquisition or preservation of an asset the paying spouse was using and the amount paid was not substantially in excess of the value of the use.'" (Id. at pp. 84-85.) The trial court relied on this exception in its denial of Mark's reimbursement claim for expenses related to the loan for the Ford F-550 truck, reasoning that Mark had had exclusive use of the vehicle postseparation and had "effectively prevented Julia from using [it]." In light of the "broad discretion" vested in the trial court in determining whether to award Epstein credits, we conclude the trial court did not err in denying Mark's claim for reimbursement of postseparation loan expenses of $49,346.98 for the Ford F-550 truck. (Hebbring, supra, 207 Cal.App.3d at p. 1272.)

2. Porsche Cayenne Automobile

The Porsche Cayenne (Porsche) was purchased during marriage. Mark sought reimbursement of loan payments for the Porsche of $4,259.85. It is apparent that Mark also sought reimbursement for servicing the car and its registration. The amounts of these expenses are not disclosed in the record.

Julia testified that she had "never thought [they] could afford the Cayenne." She testified that she had wanted to sell it for years.⁴⁴

44 There were ongoing proceedings concerning the Porsche that were litigated below. They are discussed in detail in part H.1.a, post.

In the Reimbursement Order, the court recited that both parties sought reimbursement of one-half of the postseparation expenditures each made on the Porsche. Julia sought one-half of $22,688, representing installment payments made between August 2008 and November 2009; Mark paid $6,373, 60, which consisted of two months of installment payments ($4,254), registration for two years, and repair expenses. The court ruled that since the sales contract for the Porsche represented a community obligation, and Julia had made postseparation installment payments totaled $18,434 (after deducting the postseparation payments by Mark), Julia was entitled to reimbursement of one-half that amount. The trial court held further that the postseparation repair and maintenance expenses for the Porsche were not community debts, and neither proved they were for a common necessary of life. It therefore denied any reimbursement claims as to these expenses.

Mark contends the court erred in denying his reimbursement claim for postseparation expenses he incurred for repair and maintenance of the Porsche. He identifies the amount of this expenditure as $2,113.75.

Mark's argument appears to be that the court should have reimbursed one-half of the postseparation repair expenses he incurred for the Porsche because Julia was the party who used the vehicle. In asserting this position, Mark alludes to a stipulation and order entered December 1, 2009, in which it was ordered that "Respondent [Mark] will assume all remaining debt on the 2005 Porsche Cayenne . . . . Pending further resolution, Petitioner [Julia] shall have the use, possession and control of the vehicle. Respondent shall be responsible for the cost of all reasonable maintenance on the vehicle. All issues regarding characterization and reimbursement are reserved." He also refers to the May 1, 2014 stipulation for settlement in which the parties agreed, inter alia, that Julia would receive the Porsche without offset, and with full rights of reimbursement reserved.

Mark has failed to show that the court erred. He has not cited the evidence, including citation to the appellate record as required under rule 8.204(a)(1)(C), that was presented at trial on the question of reimbursement of postseparation expenses incurred for the Porsche. One of the only alleged facts he presents in his brief, unsupported with a record cite, is the claim that "[d]uring marriage and post separation[, the] 2005 Porsche Cayenne . . . was Julia's primary vehicle." (See Barringer, supra, 102 Cal.App.4th at p. 1239 [appellate court may disregard party's unsupported contentions in its brief].) "[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal." (Jameson, supra, 5 Cal.5th at p. 609.) Mark, as the appellant, has failed to meet this burden.

The trial court, in ruling on claims for reimbursement of postseparation expenses for the maintenance and repair of the Porsche, held that "[n]either party proved that these expenses were for a common necessary of life." Accordingly, pursuant to section 2623, subdivision (b), ⁴⁵ the court denied the reimbursement claims, holding that "these expenses should be confirmed to the party who incurred them, without offset." The court did not abuse its discretion by denying this reimbursement claim. (Hebbring, supra, 207 Cal.App.3d at p. 1272.)

45 "Debts incurred by either spouse after the date of separation but before entry of a judgment of dissolution of marriage or legal separation of the parties shall be confirmed as follows: [¶] (a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred. [¶] (b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt." (§ 2623.)

3. Chris Craft Boat; Polaris Watercraft

Julia testified without contradiction that a Chris Craft boat was Mark's separate property acquired before they were married. In response to the court's specific inquiry, Mark confirmed that he had owned the boat before marriage. After later confirmation from Julia that she regarded it as Mark's separate property, the court-without objection by Mark-ordered the Chris Craft boat "take[n] . . . off the list" of Mark's reimbursement claims.

Mark testified that the Polaris watercraft (Polaris) was "a small boat, if you will" that was a community purchase. He testified that he had kept the Polaris maintained and insured. He sought reimbursement of his postseparation expenditure of $363.66. Julia testified that the watercraft had been in Mark's exclusive possession for four years.

The court observed in the Reimbursement Order that there was no dispute that the Chris Craft boat was Mark's separate property acquired before the marriage. It denied Mark's claim for reimbursement, holding that Mark had not introduced evidence of expenses incurred relating to the boat. The court found further that the Polaris expenses identified by Mark were not community obligations as they were incurred after the parties separated. It concluded that the expenses were not incurred "for a common necessary of life," and because no evidence had been offered concerning the value of the Polaris at the time of separation, "it would be speculative to say that these expenses were necessary to maintain the value to the community." Lastly, the court found that "Mark [had] failed to prove any circumstances that would make it appropriate to order Julia to reimburse him for any portion of these expenses."

Mark challenges the court's rulings. He contends that he should have received a credit of one-half of the $880 and $210 he paid for postseparation insurance on the Chris Craft boat and the Polaris, respectively.⁴⁶ His argument is apparently that during the proceedings, Julia had disputed that the Chris Craft boat was Mark's separate property, and she had "insisted Mark insure the boats." (Original underscoring.) He alludes to a stipulation involving Mark's being required to pay for insurance. Mark argues conclusorily that the court erred in denying reimbursement for one-half of his expenditures to insure the Chris Craft boat and the Polaris because it "should not [have] overrid[den the] stipulation to reimburse insurance expenses."

46 Mark apparently does not challenge the denial of reimbursement as to the remainder of his expenditures for the Polaris ($153.66) that he claimed at trial.

Mark does not include a citation to the record in support of his contention that Julia "insisted" that he insure the boats. (See rule 8.204(a)(1)(C).)⁴⁷ The stipulation to which Mark refers was a December 1, 2009 stipulation and order which addressed various matters, including the Porsche, credit card debt, and boat insurance. The parties stipulated that the Pro-Line boat-found later by the court to be community property- would not be insured, and that "Respondent [Mark] agrees to maintain insurance on all other watercraft in his possession, subject to reimbursement."

47 Mark contends that Julia "heavily disputed" the separate property characterization of the boat by "listing it as community property in her Schedule of Assets and Debts [citation]." (Original underscoring.) Mark cites an attachment to the schedule. Neither the schedule nor the attachment to it corresponding with Mark's citation to the appellate appendix contains an indication by Julia that the boat was community property.

Mark's appellate claims fail for several reasons. Mark affirmatively waived the Chris Craft boat claim at trial. Once it was established that Julia agreed the boat was Mark's separate property, the court removed the Chris Craft boat expenses from the list of reimbursement claims submitted by Mark, and he offered no objection to the court's doing so." '[A]n appellant may waive his [or her] right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal.' [Citations.]" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.)

Further, as to both appellate claims, Mark failed to develop them with an adequate discussion of the basis for his challenges with citation to applicable legal authority. We may deem Mark's undeveloped argument forfeited on appeal. (Stuard v. Stuard (2016) 244 Cal.App.4th 768, 780; see also Dills, supra, 28 Cal.App.4th at p. 890, fn. 1 [no obligation of appellate court to "develop the appellants' arguments for them"].)

Moreover, we reject Mark's apparent claim that the court erred because, under the prior stipulation of the parties, he was entitled to reimbursement of the insurance expenses for the Chris Craft boat and the Polaris. In the first place, from our reading of the record, Mark did not advance this argument below. The argument is waived. (In re Marriage of King, supra, 80 Cal.App.4th at p. 117.) Further, our reading of the December 2009 stipulation is that Mark agreed to maintain postseparation insurance coverage on the boats in his possession (other than the Pro-Line boat), subject to his right to seek reimbursement of those insurance expenses at a future date.

Lastly, Mark does not address the court's reasoning that it was not proper to grant his reimbursement claim concerning the Polaris insurance because (1) the expense was not incurred "for a common necessary of life" (see § 2623, subd. (b)); (2) there was no evidence the expenses were required to maintain the value of the community asset; and (3) Mark did not present any circumstances that rendered it appropriate for the court to order Julia to reimburse Mark for any portion of the expenses. Mark, as appellant, has failed to meet his burden of demonstrating error. (Jameson, supra, 5 Cal.5th at p. 609.)

The court did not abuse its "broad discretion" in denying Mark's claims for reimbursement of postseparation payments made to insure the Chris Craft boat and the Polaris watercraft. (Hebbring, supra, 207 Cal.App.3d at p. 1272.)

E. Omitted Credits for Sanctions "Paid", Interest on Sanctions

Mark asserts that the Judgment erroneously includes awards (with prejudgment interest) of sanctions against him of $5,000 and $1,500 that were made in two prior orders. He contends that the sanctions were effectively "paid." Mark also claims that the court erred in the Judgment by providing for prejudgment interest on another sanctions award against him in the amount of $10,000.

1. Procedural Background

Mark's claims on appeal relate to three orders imposing sanctions against him: (1) sanctions of $5,000 awarded on February 3, 2010 by Judge Mills; (2) sanctions of $1,500 awarded on April 6, 2012 by Judge Johnson; and (3) sanctions of $10,000 awarded on January 29, 2013 by Judge Johnson.

On December 1, 2009, an order was entered on the parties' stipulation concerning the Porsche automobile.⁴⁸ Under the stipulation and order, Mark assumed all remaining debt on the vehicle; he was responsible for all reasonable maintenance and repair for the Porsche; Julia had the use and possession of the vehicle; and all issues of characterization and reimbursement were reserved.⁴⁹

48 On October 9, 2009, Julia filed papers seeking an order that the Porsche be sold immediately and that the proceeds be used by Julia to obtain a replacement vehicle that was more affordable. Although the court's tentative ruling was to grant that request, the parties entered into a stipulation on the day of the hearing that modified the tentative ruling.

49 On October 25, 2011, sometime after Mark had taken possession of the Porsche, the court ordered that Mark place the vehicle Porsche into working condition and turn it over to Julia for her possession and use within 30 days.

On April 6, 2012, the court entered a further order that the Porsche be sold, with Julia to list it immediately for sale. The court ordered that upon sale of the Porsche, Mark's one-half share of the proceeds would "be used first to satisfy the past due attorney fees [sanctions of $5,000 pursuant to Judge Mills's February 3, 2010 order], and second to pay" fees of $1,500 awarded in the April 6 order for the cost of Julia having to have filed "two unnecessary motions" because of Mark's "lack of cooperation." The court ordered that the balance of Mark's share of the sales proceeds would be paid to Julia for pendente lite fees for part of her cost in defending an appeal brought by Mark.

On January 29, 2013, the court entered an order after hearing requiring Mark to pay to Julia's attorney the sum of $10,000, as and for sanctions under section 271. The court order provided that "[p]ayment is due in full upon the completion of the currently pending trial on the parties['] respective reimbursement claims."⁵⁰

50 The hearing upon which the order was based occurred on November 19, 2012, the fourth day of the trial on the parties' reimbursement claims. At that hearing, Julia's attorney renewed a request for sanctions under section 271 in the sum of $25,000. The sanctions request related to a motion filed by Julia relating to the Porsche. The January 10, 2013 order awarding sanctions of $10,000 is discussed in detail in part H.1., post.

After the Remaining Issues Trial, the court filed its (later amended) final statement of decision and judgment on February 23, 2016. Under the heading "Summary of Financial Rulings" (capitalization and emphasis omitted), the court identified as one of the categories of sums owed by Mark to Julia "For Sanctions" the sum of $41,500. Although not specifically delineated by the court, the components of this sanctions amount consisted of (a) $5,000 ordered on February 3, 2010; (b) $1,500 ordered on April 6, 2012; (c) $10,000 ordered on January 29, 2013; and (d) $25,000 ordered after the trial on remaining issues as reflected in the final statement of decision and judgment. The court also ordered that prejudgment interest on the sanctions award of $10,000 imposed against Mark on January 29, 2013, would accrue from the date of the order until February 1, 2016, in the total amount of $3,010.

Mark thereafter filed a motion for new trial. In his motion, he argued that the first two sanctions awards-$5,000 (February 3, 2010) and $1,500 (April 6, 2012)-were "not owed," because Julia had failed to proceed with the sale of the Porsche as ordered on April 6, 2012.⁵¹ He also contested the imposition of prejudgment interest on the two sanctions awards and on the sanctions award of $10,000 (January 29, 2013).

51 We note that Mark fails to include in his appellant's appendix the opposition of Julia to the motion for new trial. This omission makes our task more difficult, since we do not have the benefit of considering Julia's written opposition to Mark's new trial request. The omission is also in violation of the rules of appellate procedure. An appellant who elects to proceed by an appellant's appendix has the obligation to include in that appendix any document that was filed in the trial court that "is necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on." (Rule 8.124(b)(1)(B).) "Where the appellant fails to provide an adequate record of the challenged proceedings, we must presume that the appealed judgment or order is correct, and on that basis, affirm." (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644.) Although Mark's failure to provide an adequate record here could result in our applying the presumption of correctness regarding the sanctions issue, we will address the merits of Mark's claim of error.

The trial court rejected Mark's challenges in the new trial motion. The Judgment entered April 22, 2016, includes (a) a confirmation of all sanctions awards, including the $5,000 and $1,500 awards, (b) an award of prejudgment interest on the $5,000 sanctions award totaling $3,000; (c) an award of prejudgment interest on the $1,500 sanctions award totaling $462; and (d) an award of prejudgment interest on the $10,000 sanctions award (from January 29, 2013, to February 1, 2016) totaling $3,010.

2. Mark's Claim of Error

Mark contends that the court erred by including in the Judgment the requirement that he pay sanctions of $5,000 and $1,500 from prior court orders. He contends that under the April 6, 2012 order for the sale of the Porsche, the sanctions "were paid." He states further-without citation to the appellate record supporting the assertion (see rule 8.204(a)(1)(C))-that the sanctions of $5,000 and $1,500 "were paid from Mark's share of [the] Cayenne sale proceeds."⁵² Mark contends that because the two sanctions awards were "paid" as of the date of the order for the sale of the Porsche (April 6, 2012), it was error to award prejudgment interest on the respective sanctions of $5,000 and $1,500. Lastly, Mark contests the award of prejudgment interest on the sanctions award of $10,000 of January 29, 2013.

52 These statements in Mark's brief are misleading. They suggest that the Porsche was in fact sold, and that Mark should have received credits from the proceeds Julia received from the sale, resulting in the sanctions no longer being owed. In fact, the Porsche was not sold.

At the hearing on the motion for new trial, the trial court addressed Mark's contention that the two sanctions orders should be deemed paid because the court had previously ordered in April 2012 that the Porsche be sold. Julia argued that the potential sale became "much more complicated than it should have been" because Mark would not provide her with title to the vehicle, and when she attempted to obtain duplicate title from the Department of Motor Vehicles, she learned that Mark had arranged for a lien to be placed on title in favor of Mark's family friend, Hansen. The court denied Mark's request that the sanctions orders of $5,000 and $1,500 be deemed satisfied. It concluded that although there had been a prior order for the sale of the Porsche and that the anticipated sale would have resulted in the sanctions being satisfied, that sale "did not go through, for reasons unrelated to this dispute. [¶] That [nonoccurrence] doesn't set aside the sanctions order . . .[which] existed independently of what the source of funds were to be." Further, the trial court declined to change its rulings regarding prejudgment interest on the sanctions orders, acknowledging Mark's position but stating that it "respectfully disagreed with it."

We do not find fault with the court's reasoning concerning the sanctions orders of $5,000 and $1,500, and Mark provides no legal authority or reasoned argument in support of his claim that the two sanctions orders should have been deemed paid because the sale of the Porsche did not occur. The court did not err. And because the two sanctions awards, contrary to Mark's contention, were not "paid," the court did not err in awarding prejudgment interest on the awards.

Concerning the challenge to the award of prejudgment interest on the $10,000 sanctions award of January 29, 2013, Mark presents no argument beyond the conclusory assertions that because the order provided that payment would be "due in full upon the completion of the currently pending trial on the parties['] respective reimbursement claims," and "the parties' reimbursement claims were being adjusted until" the Judgment was entered on April 22, 2016, no prejudgment interest should have been awarded. We deem this undeveloped argument forfeited. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1247 (Taylor) [argument in appellate brief consisting of "single paragraph . . . devoid of meaningful legal analysis" renders it forfeited].) We conclude, in any event, that the court did not abuse its discretion by awarding prejudgment interest on this previously-ordered award of sanctions under section 271. (See Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 577 (Hewlett-Packard) [prejudgment interest order reviewed for abuse of discretion]; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524 [sanctions awarded under § 271 reviewed for abuse of discretion].)⁵³

53 We note, however, that while we conclude that the court did not err in imposing prejudgment interest on the sanctions award made by Judge Johnson on January 29, 2013, on remand, the base amount of the award must be corrected. As we discuss in part H.1., post, to the extent that the award of sanctions under section 271 was not connected with attorney fees and costs, it cannot be sustained. Therefore, as we discuss, the sanctions award must be reduced from $10,000 to $6,000. Any prejudgment interest must be calculated on the reduced amount. (See part L.5., post.)

F. Breach of Fiduciary Duty Award Against Mark (IRA Distribution)

Mark contends the court erred when it awarded damages to Julia based upon Mark's breach of fiduciary duty in liquidating his retirement accounts in 2010. He argues that the court erred by assigning damages based upon speculation as to what the value of the retirement accounts would have been four years after their liquidation. Thus, Mark contends, the court assigned an inflated value to his retirement accounts that resulted in Julia receiving a greater community interest in the IRAs than was appropriate.

1. Evidence Presented

Evidence concerning the parties' retirement accounts was presented on the first day of the Remaining Issues Trial on November 3, 2014. The trial on Julia's breach of fiduciary duty claim relating to Mark's liquidation of the IRAs on the seventh day of trial on March 10, 2015.

The evidence was that at the time of separation, Julia had three community retirement accounts having an aggregate balance of $83,036. At the time of separation, Mark had three retirement accounts with an aggregate balance of $80,424. All of these retirement accounts were community property.

Mark testified that he was required to liquidate his retirement accounts in January or February 2010 at a total of $78,788.10 to pay community expenses, including real estate, personal property, and insurance. Mark introduced exhibits that he testified showed he had deposited funds liquidated from his IRA to pay community expenses. He stated that Julia had refused to contribute to community expenses. Mark did not file any requests for orders with the court seeking approval to liquidate any retirement accounts.

Julia introduced records indicating that Mark's postseparation withdrawals from the IRA accounts occurred in January 2010. She testified that she was not given notice of Mark's intention to liquidate his retirement accounts. Rather, she learned they had been liquidated on or about March 17, 2010.⁵⁴

54 At the trial, Julia alluded to a declaration she had filed on or about March 5, 2015, in support of her claims for breach of fiduciary duty. She advised that she had no information concerning the claims beyond what she had stated in her declaration. Mark submitted a reply declaration responding to Julia's claims.

2. Procedural History

The trial on the parties' respective breach of fiduciary duties claims occurred on March 10 and 16, 2015. Both parties were self-represented at the trial. The trial commenced with Julia's three claims against Mark, namely, claims based upon the liquidation of the IRA accounts, unauthorized withdrawals from LTE Plan account, and alleged actions by Mark that damaged Julia's credit. The bulk of the trial addressed Mark's numerous claims of breach of fiduciary duty against Julia.⁵⁵

55 In its Judgment, the court identified 11 separate claims of breach of fiduciary duty asserted by Mark against Julia. The court denied all of the claims. Mark does not challenge those rulings. Any appellate challenge to these rulings is deemed abandoned. (Tiernan, supra, 33 Cal.3d at p. 216, fn. 4.)

After trial on the breach of fiduciary duty claims was concluded, the court issued a written statement of decision. The court noted that Julia had conceded at trial that she was not damaged directly by Mark's liquidation of the retirement accounts. The court denied Julia's breach of fiduciary duty claim, concluding that "[t]he fact that Mark drained his accounts after separation, even if wrongful, did not independently damage Julia." The court later reversed that determination, as reflected in both the court's June 2, 2015 proposed statement of decision and judgment, and in the April 22, 2016 Judgment.

3. Judgment

In the Judgment of April 22, 2016, the court concluded that Mark had breached his fiduciary duty by liquidating his retirement accounts while the dissolution proceeding was pending. It found that Julia was damaged in that she was deprived of one-half of the appreciation of the retirement accounts that would have been reasonably achieved between June 30, 2008 and November 4, 2014, but for their January 2010 liquidation by Mark. The court determined that the aggregate balance of Julia's retirement accounts, between June 30, 2008 and November 4, 2014, had grown from $83,036 to $142,600, representing an appreciation of 71.7 percent. Based upon the assumption that, had Mark not liquidated his retirement accounts, the aggregate account balance would have increased by the same percentage, the court determined that Mark's accounts "should have had a[n] [aggregate] value of $138,088." The court concluded that Mark's breach of fiduciary duty damaged the community in the amount of $57,664. It held that the appropriate remedy for the breach of fiduciary duty was to award Julia one-half of the assumed appreciation of Mark's liquidated retirement accounts, i.e., $28,832.

4. Mark's Claim of Error

Mark contends that the court erred in concluding that he had breached his fiduciary duty to Julia by liquidating his retirement accounts and assessing damages of $28,832. He argues that there was no breach because he used the funds withdrawn from his IRAs to preserve community property by paying substantial community obligations. Mark contends further that Julia was not harmed because he disclosed to Julia the fact that he had liquidated the IRAs. Further, he argues repeatedly that the court's award was based on speculation that his retirement accounts, had they not been liquidated in 2008, would have appreciated by 71.7 percent over the period of six-plus years.

We agree with Mark that, for both procedural and substantive reasons, the breach of fiduciary duty finding must be reversed.

a. Procedural Error

The trial on Julia's breach of fiduciary duty claim (liquidation of IRA accounts) was very brief, and it was based almost entirely on the parties' respective declarations. The court asked Julia the following question: "Removal of the funds may have been wrongful, but how have you been damaged?" Julia responded: "That's a good question. I probably haven't been." The court indicated further to Julia that "we've divided these assets [both parties' retirement accounts]. You've gotten your 50 percent of the total retirement accounts, and if Mr. Maynard wrongfully used his, then that's money gone, but that's damage to him, not to you, because that money is gone. That's the way that I look at it." Julia responded: "That's fine. It makes perfect sense." After introduction of exhibits, and without further discussion of the merits of the claim, the case moved on to Julia's presentation of her other breach of fiduciary duty claims, namely, Mark's alleged unauthorized withdrawals from the LTE Plan account, and Mark's alleged actions damaging Julia's credit.

After Julia concluded her presentation regarding the three breach of fiduciary duty claims, the court asked Mark for his position in response to Julia's claim regarding the unauthorized withdrawals from the LTE Plan account, asking Mark a number of questions. In response, Mark referred to his reply declaration. In addressing that declaration, the court focused Mark's attention upon the "factual portion of [Mark's] argument . . . begin[ning] on page 8"; that portion of the declaration concerned Mark's response to Julia's claim regarding his withdrawals from the LTE Plan account. Mark, while he was reading from page 10 of his declaration (concerning Julia's breach of fiduciary duty claim relating to the LTE Plan account), began discussing the IRA account liquidation issue. The court then redirected him, indicating that "we're not talking about the IRAs."

No response from Mark was requested by the court at the trial concerning the breach of fiduciary duty claim based upon liquidation of his IRA accounts, and none was provided by Mark. The court's questions to Mark were focused entirely on the claim related to withdrawals from the LTE Plan account. At the conclusion of the trial on March 16, 2015, the court took the fiduciary duty claims under submission. At that time, the court advised that, as to Julia's three claims, it was probable that it would rule in her favor on the claim related to unauthorized withdrawals from the LTE Plan account.

After submission of all breach of fiduciary duty claims. the court issued a written statement of decision on April 17, 2015, in which it denied Julia's claim based upon an absence of damages. As noted, the court later reversed this ruling. As stated in the Judgment, the court found that Mark had breached his fiduciary duty by liquidating his retirement accounts, and that Julia was damaged in that she was deprived of one-half of the appreciation of the retirement accounts that would have been reasonably achieved between June 30, 2008 and November 4, 2014, but for their liquidation. The court awarded damages of $28,832, representing one-half of the amount representing the appreciation Mark's retirement accounts would have achieved had they not been liquidated.

We conclude that the manner in which these findings adverse to Mark occurred was problematic. At the court's specific direction, including the statement that "we're not talking about the IRAs," Mark limited his opposition at trial on Julia's three fiduciary duty claims to the claim concerning his unauthorized withdrawals from the LTE Plan account. The court's directive was preceded by its announcement during Julia's presentation of her case that she had not sustained damages and therefore, inferentially, she could not recover on her claim that Mark breached his fiduciary duty to her by liquidating his IRA accounts.

Under these circumstances, we conclude that the court-albeit inadvertently- materially and prejudicially limited Mark's presentation of his defense on this issue. It therefore erred. Although, we emphasize, the court's restriction of Mark's defense concerning the breach of fiduciary duty claim was inadvertent, it had the same effect as if there had been a direct ruling limiting or precluding the presentation of his case. (See Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 376 [court's granting of in limine motion finding that defendant "was negligent as a matter of law . . . substantially curtailed [defendant's] presentation of evidence during trial" and was reversible error]; see also Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 266-267 [trial court cannot use its power to control orderly conduct of proceedings under Code Civ. Proc., § 128 to prevent cumulative evidence or "limit the number of expert witnesses . . . if it destroys a plaintiff's evidentiary presentation"].)

b. Substantive Error

Julia was the proponent of the claim that Mark breached his fiduciary duty to her by liquidating his IRA accounts. She therefore bore the burden of proving her claim. (See Bono, supra, 103 Cal.App.4th at pp. 1429-1430; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861 ["[a]s a general rule, the 'party desiring relief' bears the burden of proof by a preponderance of the evidence"].) While the existence of a fiduciary duty and its breach were shown by Mark's admittedly having liquidated- postseparation and without Julia's knowledge or approval-his IRA accounts, Julia did not present evidence of damage. To the contrary, she admitted at trial that she had not been damaged. Therefore, the court's conclusion sustaining Julia's claim for breach of fiduciary duty based upon a finding that she had been damaged was not supported by substantial evidence.

Moreover, assuming arguendo that there was substantial evidence that Julia had been damaged, the trial court's decision cannot be upheld. The court held that Julia was damaged by Mark's breach of fiduciary duty in the sum of $28,832, which represented one-half of the appreciation of Mark's liquidated retirement accounts that it assumed would have occurred between June 30, 2008 and November 4, 2014. This assumed appreciation was not based upon data concerning the performance of Mark's IRA accounts-either their actual, preliquidation (pre-January 2010) performance, or their estimated growth (based upon nature of the investments preliquidation and their actual performance) from liquidation in January 2010 to November 4, 2014. Rather, the assumed appreciation of the liquidated accounts was based upon six-plus years of actual performance of Julia's retirement accounts, which appreciated at the rate of 71.7 percent occurred.

A claim for damages may not be based upon "speculative harm." (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661; see Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750 [" 'mere breach of professional duty, causing only . . . speculative harm . . . does not suffice to create a cause of action for negligence' "].) Further, "[t]he court may not consider speculative factors when valuing community assets. [Citations.]" (In re Marriage of Duncan, supra, 90 Cal.App.4th at p. 634.)

Here, the trial court based its award of damages upon the assumption that the projected performance of Mark's IRA accounts from June 30, 2008 to November 30, 2014, had Mark not liquidated the accounts in January 2010, would have mirrored the actual performance of Julia's retirement accounts for the same time period.⁵⁶This assumption was without evidence as to the similarities and differences between Mark's and Julia's respective accounts, or the similarities and differences in their respective investment strategies. Further, the assumption was without testimony, expert or otherwise, projecting the anticipated growth of Mark's IRA accounts from January 2010 to November 30, 2014.⁵⁷ From the record before us, we are compelled to conclude that the finding that Julia had been damaged in the sum of $28,832 was based upon speculation and was thus not supported by the evidence. (See Sager v. O'Connell (1944) 67 Cal.App.2d 27, 31; see also Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 990 [damage claim for loss of commissions, to extent it was based assumption that investment account would double over time, was improper as it was based on speculation].)

56 In connection with her presentation that Mark had breached his fiduciary duty to her by his unauthorized withdrawals from the LTE Plan account, Julia, in asserting she had been damaged, stated: "There was this substantial amount of money in the account. If Mark had left it intact, it would haveand I realize this is speculative, but it would have grown. It would have been there, first of all, and it would have grown." (Italics added.)

57 It also does not appear there was definitive evidence at trial (e.g., account statements), identifying the actual growth, if any, of Mark's IRA accounts between June 30, 2008 and their liquidation in January 2010. Mark testified that the total amount from his IRA accounts liquidated in January 2010 was $78,788.10, approximately $2,000 less than the aggregate value of the accounts in June 2008.

We therefore find that the Judgment, insofar as it awarded damages to Julia of $28,832 for breach of fiduciary duty in connection with Mark's liquidation of his IRA accounts, must be reversed.

G. Mark's Real Estate Expense Reimbursement Claim

Mark asserts that the court erred in denying his claim for reimbursement of expenses he incurred between February 11 and May 28, 2010, for community-owned real property. These were real estate expenses that Mark claimed he incurred that were not included in his request in the Real Estate Trial. They covered the time between the last day of trial and the issuance of the Real Estate Order.

Mark argues that the claim was not actually litigated in the Reimbursement Trial before Judge Johnson. He argues that the court therefore erred in later ruling in the Reimbursement Order that he had not established his claim. Mark contends further that, although he was later afforded the opportunity to present this claim for reimbursement in the Remaining Issues Trial held before Judge Towery, the court thereafter committed error by rejecting his claim, reasoning that the matter had been previously heard and decided by Judge Johnson.

Before addressing the merits, we will review the rather convoluted procedural posture that is relevant to this appellate claim.

1. Procedural Background

a. Real Estate Trial

At the conclusion of the Real Estate Trial on February 10, 2010, the court (Judge Mills) recited that the issue of the parties' respective Epstein claims-claims for reimbursement of expenses incurred postseparation for community real estate expenses- would be addressed by written submissions. The parties thereafter submitted pleadings in support of their reimbursement claims. Mark, through a report submitted by his accounting expert, Thompson, identified postseparation separate property expenditures for community real estate of $178,004.51, detailing expenditures from June 24, 2008 to February 9, 2010. In the Real Estate Order filed May 28, 2010, the court found that Mark was entitled to reimbursement of the full amount claimed ($178,004.51).⁵⁸

58 We observe that the amount of the reimbursement claim allowed by the court in favor of Mark as stated in the Real Estate Order was $178,004.51. The Judgment, insofar as it uses the total equalizing payment found by Judge Mills to be owed by Mark to Julia ($127,126), incorporates the amount of the real estate reimbursement credit found to exist by Judge Mills. The amount of the expenditures identified by Mark's counsel and accountant expert was $178,004.51. Mark's counsel contended in a statement file March 8, 2010, that Mark was "entitled to reimbursement from [Julia] for ½ of the . . . expenses, which amounts to a reimbursement of $89,002.26." (It is not clear from our review whether there are other reimbursement amounts found in the Real Estate Order, Reimbursement Order, or Judgment that may have utilized the amount of the entire expenditure, rather than one-half the amount, as a credit to the paying party.) On remand, the court shall reconsider whether any reimbursement credits as stated correctly reflect one-half of the total expenditure as may be required under the law.

b. Reimbursement Trial

Prior to the Reimbursement Trial, the court (Judge Johnson) held a case management conference in which it scheduled the trial to commence on May 21, 2012. In response to the court's inquiry as to whether there were any real estate issues still outstanding, Mark stated that there were still reimbursement issues to be determined. The trial commenced on May 21, 2012, and it addressed Mark's reimbursement claims for expenses related to community property other than real estate. Evidence concerning these reimbursement claims proceeded over six trial days. On the sixth day of trial (January 28, 2013), Mark presented testimony that he had incurred expenses during the Real Estate Trial that were related to community real estate. He referred to an exhibit during his testimony. The expenditures totaled $42,685.54, and he explained that they had not been included in the report of his accountant, Thompson, that was submitted to the court in the Real Estate Trial on February 10, 2010. Mark testified they were expenses incurred from the date of the Thompson report to the May 28, 2010. At the end of the sixth trial day, Mark confirmed that he had completed the presentation of his reimbursement claims.

The seven-day Reimbursement Trial was concluded on February 25, 2013. The court took the matter under submission on September 19, 2013. At a status conference on October 31, 2013, Judge Johnson informed the parties that she was leaving her current assignment and was being assigned to a juvenile delinquency department, but she was considering keeping jurisdiction over some, but not all, aspects of the case. At a further status conference on December 11, 2013, Judge Johnson vacated submission on the reimbursement claims to allow for her to address personal property valuation and distribution issues.

Judge Johnson set a hearing on the division of personal property for June 13, 2014. Prior to that date, on May 1, 2014, the parties resolved some of the personal property issues at a settlement conference. The further trial on the personal property issues therefore did not go forward. On December 1, 2014, Judge Johnson deemed the reimbursement claims resubmitted for determination.

The Reimbursement Order by Judge Johnson was filed on February 20, 2015- while the Remaining Issues Trial was ongoing. Judge Johnson recited in the order that Mark had sought "reimbursement of half the $43,685.54 in real estate expenses he allegedly incurred between February 11, 2010 and May 27, 2010. (Mark's exhibit NN.) [¶] Mark's spreadsheets reflect his factual contentions. . . . [T]hey do not contain any admissible evidence of any evidentiary facts. Mark failed to prove this reimbursement claim at trial. Accordingly, this reimbursement claim is denied."

c. Remaining Issues Trial

In the meantime, the court (Judge Towery) in July 2014 set the Remaining Issues Trial for September 8, 2014, with the parties to exchange lists of what they believed to be the remaining issues to be considered by the court. Mark included in his list a claim for reimbursement of real property expenses paid between February 10 to May 28, 2010; Mark specifically indicated that "Judge Johnson did not address these items in [the] personal property reimbursement trial." In a subsequent order, the court indicated that it believed Mark's real estate reimbursement claims had been previously adjudicated, and they would not be tried unless Mark established otherwise.

In the Remaining Issues Trial before Judge Towery on November 24, 2014 (day 4), Mark provided testimony concerning a claim for reimbursement of community real estate expenses incurred by him prior to the May 28, 2010 Real Estate Order. He claimed that he had expended $62,894.59 from February 10 to May 28, 2010, and an additional $1,243.60, submitting an exhibit with this information. In response to an inquiry by Judge Towery, Mark stated that this reimbursement claim had not been adjudicated by Judge Johnson.

The court filed a statement of decision concerning this reimbursement claim on December 15, 2014. Confirming his tentative decision announced previously at the trial, Judge Towery concluded that Mark's claim for real estate expenditures made prior to the date of the Real Estate Order totaling $62,894.59 was a proper subject for reimbursement.

After this statement of decision was filed on December 15, 2014, Judge Johnson filed the Reimbursement Order on February 20, 2015. As noted above, that order addressed Mark's claim for reimbursement of real estate expenses incurred between February 11 and May 28, 2010, and the court concluded that Mark had failed to present admissible evidence to support this claim.

After the Remaining Issues Trial was concluded and the case submitted on March 16, 2015, the court filed a proposed statement of decision on June 2, 2015. Judge Towery reversed his prior December 15, 2014 statement of decision-based upon the Reimbursement Order filed afterward-and denied Mark's real estate reimbursement claim. Judge Towery found that the claim of $62,894.59, to the extent that it was for expenses incurred between February 11 and May 27, 2010, was previously bifurcated and heard by Judge Johnson as a claim for reimbursement of $43,685.54 in real estate expenses. That request was denied by Judge Johnson, based upon the finding that Mark had failed to present evidence to support the claim. Judge Towery held that the Reimbursement Order was "a full and complete order on the merits," and that Mark had not shown good cause for reopening the trial on this reimbursement claim.

On September 2, 2015, after receiving a declaration from Julia and objections from Mark to the proposed statement of decision, Judge Towery filed an order reopening the proceedings on the Remaining Issues Trial, effectively vacating the June 2, 2015 proposed statement of decision. The court reopened the case to permit further evidence and argument regarding five of Mark's claims, including his claim for reimbursement of real estate expenses incurred between February 11 and May 28, 2010.

The court conducted further proceedings pursuant to this order on December 17, 2015. Mark contended that Judge Towery erred by concluding that the reimbursement issue had been heard by Judge Johnson. The court recited that it had reopened the case because of Mark's claim that he had never had a hearing on his reimbursement claim for real estate expenses. Mark asserted that the issue "came up briefly with Judge Johnson, and she deferred it to here." The court responded to Mark that, reviewing the matter after reopening the proceedings, it appeared that the issue "was specifically litigated before Judge Johnson. And you didn't like her ruling. . . . You had the right and opportunity to challenge Judge Johnson's order."

Judge Towery did not change his ruling on this issue as a result of Mark's presentation in the further proceedings. The language in the court's Judgment filed April 22, 2016, relating to the claim for reimbursement of real estate expenses (February 11 to May 27, 2010) was identical to the language in the proposed statement of decision and judgment previously filed on June 2, 2015.

2. Mark's Claim of Error

Mark asserts that the court erred in denying his claim for reimbursement of expenses he incurred between February 11 and May 28, 2010, for community-owned real property in the amount of $62,894.59. In essence, Mark argues that there were multiple errors by the court by two different judges that resulted in the denial of his reimbursement claim.

Mark's reimbursement claim was not addressed by Judge Mills, who presided over the Real Estate Trial. Rather, Mark argues, Judge Mills was "inexplicably bypassed" and real estate and personal property reimbursement claims were referred to Judge Johnson to be determined in the Reimbursement Trial.

Mark contends further that, although his claim for reimbursement of these real estate expenditures was "mentioned" at the Reimbursement Trial, it was not argued before, taken under submission by, or adjudicated by Judge Johnson. Before rendering her decision after the Reimbursement Trial, Judge Johnson was reassigned to a different department, with the remaining issues in the case to be heard by a different judge in the Family Law Court. Mark argues that, based upon this development, Judge Johnson indicated that she would not be deciding the real estate reimbursement issues that had been previously raised at the multiple-day trial held before her. He contends that the matter was properly before Judge Towery in the subsequent Remaining Issues Trial. He notes that the reimbursement issue was in fact presented to Judge Towery, and that he initially ruled in Mark's favor. After the Reimbursement Order issued, Judge Towery reversed his decision, determining that the issue had been previously heard and decided by Judge Johnson. Mark claims that Judge Towery erred in reaching this conclusion.

a. Claimed Error by Judge Johnson (Procedural)

As we perceive Mark's position, there are procedural and substantive aspects to Mark's appellate challenge to the ruling of Judge Johnson in the Reimbursement Order. He argues that procedurally, Judge Johnson did not undertake to address Mark's real estate reimbursement claim as part of the Reimbursement Trial. Rather, Judge Johnson elected to hear only nonrealty reimbursement claims, and she did not hear Mark's claims concerning reimbursement of community real property expenses. We disagree with Mark's contentions.

As recited in the procedural discussion above, before the Reimbursement Trial commenced, Mark advised Judge Johnson that, although the Real Estate Trial had concluded, there were outstanding real estate reimbursement issues. Six of the seven days of the Reimbursement Trial were consumed with Mark's presentation of his reimbursement claims. While much of the trial involved Mark's nonrealty reimbursement claims, Mark presented testimony on the sixth trial day (January 8, 2013), that he had incurred expenses related to community real estate during the Real Estate Trial, referring to "number 41" on his spreadsheet exhibit. He identified the total amount of the expenditures as $42,685.54, and he explained that they were not part of his request for reimbursement at the Real Estate Trial because they were expenses from the last trial day until the Real Estate Order was filed on May 28, 2010. Additionally, after addressing the $42,685.54 reimbursement claim, Mark presented a reimbursement claim totaling $244,000 for ongoing real estate expenses he incurred after May 28, 2010; he referred to the claim as "number 42" of his spreadsheet exhibit.

In the Reimbursement Order, Judge Johnson addressed specifically the presentation Mark made at trial on January 28, 2013, concerning his claims for reimbursement of real estate expenses, including those incurred between February 11 and May 28, 2010. The court identified the amount claimed and Mark's spreadsheet exhibit. The record, therefore, belies Mark's contention that Judge Johnson did not hear evidence or adjudicate his claim for reimbursement of real estate expenses incurred between February 11 and May 28, 2010.

Mark argues that statements made by Judge Johnson at an October 31, 2013 status conference-nine months after the trial proceedings in which Mark presented his real estate reimbursement claim-support his contention that Judge Johnson never adjudicated the claim. At that status conference, Judge Johnson addressed whether, notwithstanding her reassignment, she might continue to exercise jurisdiction over a portion of the case. She suggested she might continue to preside over Julia's request for attorney fees, "all the reimbursement claims" by the parties that she had under submission, and the division of personal property that was related to the reimbursement issues. Judge Johnson proposed that matters that would remain with the department she was leaving and that she would not address might include spousal support, pension issues, and real estate issues. During her dialogue with Julia's counsel, Judge Johnson made the following comment: "But there are some ongoing reimbursement claims on the real property, which I'm not worried about at this point, because that's not what I've got under submission."

Mark argues that Judge Johnson's comments about "real estate issues" and "some ongoing reimbursement claims on the real property" which were not under submission establish that Judge Johnson, in fact, did not hear and decide his real estate reimbursement claim. But this argument fails because Judge Johnson had heard Mark's real estate reimbursement claim nine months earlier, and she expressly decided it in the Reimbursement Order. Moreover, Mark's contention that Judge Johnson reserved the real estate issues, including his real estate reimbursement claim, for decision by a different judge after her reassignment is plainly contradicted by the Reimbursement Order. A review of that order discloses that Judge Johnson heard and decided at least seven discrete issues (including the one at issue here) that could be characterized as claims by Mark for reimbursement of real estate expenses.⁵⁹

59 In addition to the claim related to real estate expenses incurred between February 11 and May 28, 2010, the court addressed claims for reimbursement of expenditures that Mark presented at trial (1) for the fees of an accounting trustee used for rental expenses related to the community real property, (2) to protect the Truckee Properties, (3) to protect the Vista Loop property, (4) for insurance for community property protection and storage, (5) for real estate insurance (which expense was omitted from another reimbursement category), and (6) for ongoing real estate obligations incurred after May 28, 2010.

The record does not demonstrate error. The comments Mark references were made more than eight months after Judge Johnson had completed the trial presenting the reimbursement claims of the respective parties. The court's comments do not establish Mark's position that Judge Johnson transferred real estate reimbursement claims she had already heard to a different department for trial and determination. An appellate court "will not consider the court's oral comments or use them to undermine the order ultimately entered. [Citations.]" (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451.) We therefore reject Mark's procedural challenge to the Reimbursement Order.

b. Claimed Error by Judge Johnson (Substantive)

It is apparent that Mark also makes the substantive challenge to the Reimbursement Order that Judge Johnson's denial of his real estate expense reimbursement claim was "based on insufficient evidence, evidence which she had previously reserved for hearing with [Judge] Towery." This challenge also lacks merit. We have already addressed Mark's position that Judge Johnson deferred the matter for hearing before Judge Towery; the record does not support this claim. To the contrary, Judge Johnson afforded Mark significant time to present all reimbursement claims over the course of six trial days, with the seventh day of trial devoted to hearing Julia's response to Mark's claims and to present her own reimbursement claims. And at the end of the sixth trial day, the court inquired of Mark whether he had presented his reimbursement claims, and Mark confirmed that he had done so.

Mark asserts that Judge Johnson did not have sufficient evidence to rule on the real estate expense reimbursement claim because she allegedly rejected or deferred Mark's offers to present backup documentation in support of the claim. The record does not support this contention. None of the portions of the reporter's transcript that Mark cites on the issue relate specifically to backup documentation concerning real estate expenditures. In fact, the excerpts from the trial transcripts to which Mark refers are trial days in which Mark's reimbursement claims for real estate expenses were not discussed at all. "A ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance. [Citations.]" (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.)

Notwithstanding the manner in which Mark articulated his challenge, from our review of the entire record, we are persuaded that the matter should be remanded for the court to reconsider the evidence presented at the trial before Judge Johnson concerning the real estate reimbursement claim. This is based upon at least three factors.

First, there is uncertainty in the Reimbursement Order as to the basis of the court's denial of Mark's request for reimbursement of one-half of the $43,685.54 expended on community real estate obligations. The court noted that Mark had presented documentary evidence at trial, specifically, a spreadsheet identified as exhibit NN, but that this did not constitute "any admissible evidence of any evidentiary facts," thereby compelling the denial of the claim.⁶⁰ This conclusion suggests that a party may not rely on an exhibit summarizing a large group of payments, in support of a claim for damages-or, in this instance, a claim for reimbursement of separate property, postseparation expenditures made for community obligations. But under "[w]hat is commonly known as the voluminous writing rule[, the] . . . admission of a statement or summary reflecting numerous accounts or documents' "which cannot be examined in court without great loss of time"' [citations.]" is proper. (Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 1008-1009; see also Heaps v. Heaps (2004) 124 Cal.App.4th 286, 293 [schedule of assets prepared by party held admissible because it "was a general compilation of documents that could not be examined individually by the court without great loss of time"].) Mark testified that the summary, exhibit NN, identified the real estate expenses of $42,685.54 that he had incurred after the Real Estate Trial was concluded. He explained that the prior report upon which reimbursement expenses had been allowed by Judge Mills had been submitted on February 10, 2010, "but the [Real Estate Order] didn't come until May 28th, 2010." Based upon a clarifying question from the court, Mark testified that these were the same kinds of expenditures that had been approved by Judge Mills but were for a different time period. It thus appears to this court that Mark, in fact, presented admissible evidence in support of his claim.

60 The trial exhibits, namely the spreadsheet (Exhibit NN), and additional documents that the court permitted as an attachment to the exhibit, to which Mark referred in support of his real estate reimbursement claim, are not part of the appellate record.

Second, in the Real Estate Trial, Judge Mills granted Mark's claim for reimbursement of postseparation expenditures that he made for community real property obligations in the sum of $178,004.51. This finding was based upon a report submitted by his accounting expert, Thompson, which identified and detailed postseparation separate property expenditures for community real estate of $178,004.51 made from June 24, 2008 to February 9, 2010. Thus, the basis for Judge Mills's determination that Mark's reimbursement claim should be approved-a report summarizing the expenditures-appears to have been similar to the kind of proof found by Judge Johnson to have been inadmissible and thus grounds for denial of a similar claim. It thus appears that Judge Johnson's ruling was inconsistent with Judge Mills's ruling on a similar claim.

Third, we cannot ignore the events after the Reimbursement Trial and before the filing of Judge Johnson's Order of February 25, 2015. As noted, during the Remaining Issues Trial on November 24, 2014, Mark presented testimony, including documentary evidence, in support of a claim for reimbursement of community real estate expenses incurred by him after the completion of the Real Estate Trial to the date of the Real Estate Order (May 28, 2010). Based upon Mark's representation that this reimbursement claim had not been adjudicated by Judge Johnson, Judge Towery initially ruled in Mark's favor in a statement of decision filed on December 15, 2014. Judge Towery later reversed that initial decision, after learning, through the filing of the Reimbursement Order on February 25, 2015, that Mark had, in fact, litigated the claim before Judge Johnson. While Judge Towery's reversal on this issue was correct, his initial decision was nonetheless inconsistent with Judge Johnson's decision on the same claim.

Based upon our review of the record, we conclude that the matter should be remanded to the trial court for reconsideration of Judge Johnson's denial of Mark's real estate reimbursement claim. We will therefore direct that the court, on remand, reconsider the issue, based solely upon the testimony and documentary evidence presented concerning the claim at the trial proceedings held on January 28, 2013.⁶¹

61 We note that 21 months after the trial before Judge Johnson, Mark, in essence, presented a revised claim before Judge Towery, in which he increased his reimbursement amount by over $20,000. Because it was inappropriate for Mark to have submitted this later, duplicative claim, we indicate that the court in reconsidering this reimbursement claim should not consider the evidence presented at the Remaining Issues Trial held before Judge Towery.

c. Claimed Error by Judge Towery

Mark contends that (1) the real estate expense reimbursement issue was properly before Judge Towery in the subsequent Remaining Issues Trial, (2) the issue was in fact presented in that proceeding, and (3) Judge Towery initially ruled in Mark's favor. Mark argues that Judge Towery erred by later reversing his decision and by rejecting Mark's claim on the ground that it had been previously heard and decided by Judge Johnson.

Our discussion concerning alleged error by Judge Johnson disposes of Mark's appellate claim. Because Judge Johnson, in fact, heard and decided in the Reimbursements Trial Mark's claim for real estate expense reimbursements, Judge Towery did not err by ultimately concluding that the matter had been decided and should not have been considered in the later Remaining Issues Trial. As noted above, before the latter trial commenced, Judge Towery had expressed concern as to whether he should consider Mark's real estate reimbursement claims, believing they had "been previously adjudicated." Mark, both before and during the Remaining Issues Trial, assured Judge Towery that the real estate expense reimbursement claims had not been addressed previously by other judicial officers. The court therefore proceeded to hear the issue in the Remaining Issues Trial. Two months after Judge Towery rendered a statement of decision favorable to Mark on the real estate reimbursement claim at issue here, Judge Johnson filed the Reimbursement Order specifically deciding that claim (which she had heard long before Judge Towery had heard the matter).

Under these circumstances, Judge Towery did not err by concluding that Judge Johnson had previously adjudicated the real estate expense reimbursement claim at issue here and that Mark had not established good cause for it to be considered anew. Indeed, Judge Towery's conclusion to recognize the Reimbursement Order of Judge Johnson was consistent with the principle that" '[a] party litigant is entitled to a decision upon the facts of his [or her] case from the judge who hears the evidence, where the matter is tried without a jury.'" (European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, 1214.)

Moreover, Mark cannot claim an entitlement to reversal based upon the initial favorable ruling by Judge Towery in the Remaining Issues Trial embodied in his statement of decision (filed before Judge Johnson's Reimbursement Order)." 'Until a judgment is entered, it is not effectual for any purpose [citation], and at any time before it is entered, the court may change its conclusions of law and enter a judgment different from that first announced. [Citations.] Moreover, a judge who has heard the evidence may at any time before entry of judgment amend or change his findings of fact. [Citations.]' [Citation.]" (Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 141 [where judgment has not yet entered, trial court has the "inherent power to amend its statement of decision"].)

H. Sanctions Awards Against Mark (§ 271)

Mark challenges two orders requiring him to pay attorney fees as sanctions under section 271. In the first order of January 29, 2013, the court (Judge Johnson) required Mark to pay $10,000 in attorney fees to Julia's counsel. The second award of sanctions was made during the Remaining Issues Trial, and it was confirmed in the Judgment. The court (Judge Towery) ordered Mark to pay Julia $25,000 in attorney fees.

1. Order of January 29, 2013 ($10,000 Sanctions)

a. Procedural Background

The interim order challenged here by Mark under which he was required to pay $10,000 attorney fees under section 271 was filed on January 29, 2013. The order resulted from a rather lengthy procedural history involving the Porsche automobile, which we present here.

(1) Order (December 1, 2009)

There was a stipulation and order concerning the Porsche entered early in the proceedings on December 1, 2009. Pursuant to that stipulation and order, (1) Mark assumed all debt for the vehicle and would be responsible for all reasonable maintenance; (2) Julia would have use, possession, and control of the Porsche; and (3) all issues of characterization and reimbursement were reserved.

(2) Order (October 25, 2011)

The court (Judge Johnson) filed an order on October 25, 2011, following a hearing on August 25 concerning possession of the Porsche. The court noted that Mark had possession of the Porsche, and he had "state[ed] various conditions on the transfer of the automobile." The court ordered that Mark place the Porsche in working condition and transfer it to Julia for her possession and use.

(3) Order (April 6, 2012)

A third order was filed by the court (Judge Johnson) on April 6, 2012, after a January 11 hearing concerning Julia's requests for orders authorizing the sale of the Porsche and for attorney fees. Julia had sought attorney fees under section 271 in connection with her having filed motions to obtain a status-only judgment and to obtain Mark's compliance with a prior order concerning possession of the Porsche. In the April 6, 2012 order, the court granted Julia's request for authorization to sell the Porsche, and it ordered Mark to pay attorney fees to Julia of $1,500 as a sanction under section 271 resulting from his "lack of cooperation regarding the possession of the Porsche and bifurcation of the status of the marriage."⁶²

62 On appeal, Mark does not challenge this sanctions order. Any appellate challenge to this ruling is deemed abandoned. (Tiernan, supra, 33 Cal.3d at p. 216, fn. 4.)

(4) Order (October 11, 2012)

A fourth order concerning the Porsche was made at an October 11, 2012 hearing on Julia's request for an order requiring Mark to cooperate in having a lien against the Porsche released. She also requested that Mark pay fees and costs under section 2030 and pay sanctions of $25,000 under section 271. The court ruled on the issue concerning the Porsche at the October 11 hearing, and it deferred the sanctions issue to a later hearing.

At the October 11 hearing, Julia, through her counsel, Hector Moreno, reiterated that she was requesting attorney fees of $25,000 pursuant to section 271 in connection with her request for order regarding the Porsche. Moreno asserted that after the parties had separated, Mark, in violation of the automatic temporary restraining orders (ATROS) in place, had placed a lien on the Porsche in favor of Hansen that had prevented Julia from selling the automobile in accordance with the prior order of April 6, 2012.⁶³Moreno argued that Mark had impeded the implementation of that April 6 order. Specifically, Julia-through offer of proof by Moreno and by testimony at the hearing- explained that she had obtained a release of lien against the Porsche from the lienholder, Hansen. She had intended to present the lien release to the Department of Motor Vehicles (DMV) in preparation to sell the Porsche. Julia visited Mark, and she asked him to sign a duplicate title form so that the Porsche could be sold. He asked to see "the rest of the papers," and Julia showed him the signed lien release. Mark then ripped up the document in her presence and laughed when he did so. Mark denied Julia's account of what had transpired but admitted that he had destroyed the lien release during his encounter with Julia.

63 At the November 19, 2012 hearing discussed, post, Hansen testified that the lien against Porsche was created after the parties had separated. Hansen testified further that the placement of the lien on the Porsche had arisen out of his dealings with Mark, not with Julia.

Mark requested a continuance of the hearing on Julia's sanctions request. The court (Judge Johnson) indicated that in its previous dealings in the case concerning the Porsche, it had not been advised about Hansen's holding a lien against the vehicle. Mark responded that this was the case "[b]ecause the question never came up." The court ordered that Mark make a request to Hansen that he sign a new lien release. It also requested that Moreno take steps to join Hansen in the proceedings. Further, the court deferred its ruling on the sanctions request because it needed to make a finding on Mark's income and ability to pay.

(5) Sanctions Order (January 29, 2013)

The continued hearing before Judge Johnson on Julia's request for attorney fees as sanctions under section 271 occurred on November 19, 2012. Julia's counsel, Moreno, argued-based upon the evidence presented at the prior October 11 hearing-that Mark's conduct of attempting to thwart the sale of the Porsche by his "forcibly" destroying in her presence the lien release voluntarily executed by Hansen was a violation of the court's prior order. Moreno argued that sanctions under section 271 were appropriate in this instance for conduct of a party that frustrates the policy of the law to promote settlement and, where possible, to reduce litigation cost by encouraging cooperation between parties and attorneys.

Moreno stated that Julia had expended "well over $6,000" in attempting to resolve the issue of the sale of the Porsche. He requested that sanctions of $25,000 be imposed and indicated that it would be appropriate for the court to defer payment of sanctions until the conclusion of the ongoing Reimbursement Trial. Moreno argued that Mark owned three parcels of real property, owned over 15 vehicles, and received $15,000 of monthly income (according to a 2011 income and expense declaration).

Mark presented a new income and expense declaration to be filed at the November 19 hearing. In that declaration, Mark indicated that he received total monthly income of $13,000, and he claimed total monthly expenses of $26,636.⁶⁴ He argued that Julia had filed three unnecessary motions concerning the Porsche, and therefore she should not receive attorney fees under section 271 for those matters.

64 Mark indicated in four locations of his declaration that the figures listed were from a 2011 declaration, and that he had not had time to update them.

The court indicated that it had made three previous orders concerning the Porsche before she was informed that Hansen held a lien against the automobile. The court ordered that Mark pay $10,000 in attorney fees under section 271, payable to Moreno, with payment deferred until the conclusion of the Reimbursement Trial. A formal order imposing sanctions of $10,000 against Mark under section 271, with payment due upon completion of the Reimbursement Trial, was filed on January 29, 2013.

b. Mark's Claim of Error

Mark contends that the order imposing sanctions of $10,000 under section 271 was improper. He argues, inter alia, that the award created an unreasonable financial burden upon him, and the amount awarded exceeded Julia's attorney fees and costs.⁶⁵

65 In support of his position that the court erred with respect to the $10,000 sanctions order and the later $25,000 sanctions order, Mark presents a lengthy recitation of the procedural history of this case that is not relevant to our review of the sanctions orders.

It is not clear from his appellate brief whether Mark challenges the existence of a factual basis here for the court's imposition of sanctions under section 271. As seen from the foregoing discussion of the procedural history relevant to Julia's sanctions request, there was a substantial factual basis for the award. The circumstances that led to the filing in September 2012 of Julia's request for order, including sanctions under section 271, included the following. After the court filed its order on April 6, 2012, authorizing the sale of the Porsche-an order issued as a result of Julia's having filed a prior request for order-Julia was thwarted in her efforts because of Mark's undisclosed actions in creating a lien against the automobile in favor of Hansen. Julia's counsel argued that such action was in violation of the ATROS in the case. As a result, Julia was required to go to the effort of obtaining a lien release from Hansen. After obtaining the lien release, Julia showed it to Mark at his request, and, according to her testimony, he then ripped up the document in her presence, laughing while doing so.

Additionally, the court expressed frustration concerning Mark's belated disclosure of the Hansen lien against the Porsche. At the October 11, 2012 hearing, the court indicated that in its previous dealings in the case concerning the Porsche, it had not been advised about Hansen's holding a lien against the vehicle. Mark responded that this was "[b]ecause the question never came up" and he "wasn't given a chance." The court disagreed with Mark. And at the November 19, 2012 hearing, the court reiterated its concern that it had made previous orders concerning the Porsche before being informed that Hansen held a lien against the automobile that impacted its disposition.

Based upon the record, the court could have properly found that Mark's action constituted "obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase." (In re Marriage of Daniels, supra, 19 Cal.App.4th at p. 1106.) The court did not abuse its discretion in finding a factual basis for imposing sanctions under section 271.

In addressing Mark's contention that the order presented an unreasonable financial burden, "we indulge all reasonable inferences to uphold the trial court's order. [Citations.]" (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177-178.) The court heard argument and evidence on this issue, including the submission of Mark's income and expense declaration. As discussed, Julia's counsel argued that an order would not pose an unreasonable financial burden because Mark owned three parcels of real property and over 15 vehicles, and he received $15,000 of monthly income (according to a 2011 income and expense declaration). Mark indicated in his declaration that he had monthly income of $13,000 monthly expenses of $26,636. His declaration was somewhat equivocal, however, insofar as he stated in several places that the figures listed were from a 2011 declaration and he had not had time to update them. At the November 19, 2012 hearing, Mark did not directly argue, apart from submission of his income and expense declaration, that a sanctions award would be an unreasonable financial burden.

Section 271 requires the trial court to consider "all evidence concerning the parties' incomes, assets, and liabilities . . . [and it] shall not impose a sanction . . . that imposes an unreasonable financial burden on the [sanctioned] party." (§ 271, subd. (a).) Although the statute requires the court to consider various factors, it does not require the court to make specific findings on the record. (See In re Marriage of Falcone & Fyke, supra, 203 Cal.App.4th at p. 981 [court is not required to issue statement of decision on attorney fee award under § 271]; see also In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [written order detailing reasons not required under predecessor statute to § 271].) There is sufficient evidence in the record from which the trial court could have reasonably concluded that the imposition of sanctions of $10,000 against Mark would not be an unreasonable financial burden. (See In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291 [no showing trial court failed to consider sanctioned party's ability to pay].)

Lastly, we address Mark's claim that the sanctions award was improper because it exceeded the amount of Julia's attorney fees and costs. Julia, through counsel, filed a request for order requesting that Mark pay her attorney fees and costs pursuant to section 2030, and that he pay sanctions under section 271 in the amount of $25,000. In the memorandum and declaration of counsel accompanying the request for order, Julia indicated that she was seeking an order that Mark pay (1) "her attorney's fees arising from this motion [under section 2030] in the amount of $5,000," and (2) "additional sanctions . . . in the amount of $25,000" under section 271.

An award of sanctions under section 271 must be "tethered to attorney fees and costs." (Menezes, supra, 44 Cal.App.5th at p. 351.) An award under section 271 that is not based upon attorney fees and costs incurred by the moving party cannot be sustained. (See Sagonowsky¸ supra, 6 Cal.App.5th at pp. 1152-1156.)

Here, Julia, in her request for order-although presented in connection with her request under section 2030-indicated that she was seeking "her attorney's fees arising from this motion in the amount of $5,000." Her attorney's statement at the November 19, 2012 hearing that Julia had incurred more than $6,000 in an attempt to resolve the matter of the sale of the Porsche may be reasonably construed as a representation to the court that since the filing of the request for order in September, she had incurred additional attorney fees of at least $1,000. Therefore, to the extent the court's award of sanctions under section 271 was no more than $6,000, it was properly "tethered to attorney fees and costs." (Menezes, supra, at p. 351.) But based upon this record, there was no support for a sanctions award exceeding $6,000. In so concluding, we acknowledge that Julia was not required "to establish with great precision" the amount of the harm caused by Mark's improper conduct. (Sagonowsky, supra, 6 Cal.App.5th at p. 1155.)

We will therefore reverse the January 29, 2013 order imposing sanctions of $10,000, and direct that upon remand, sanctions be imposed under section 271 in the amount of $6,000.

2. Judgment of April 22, 2016 ($25,000 Sanctions)

a. Procedural Background

In the Remaining Issues Trial, Julia filed a declaration in support of her request for attorney fees and sanctions. She requested that sanctions under section 271 be imposed against Mark for his "unreasonable conduct" throughout the proceedings. Julia asserted that "Mark ha[d] forced [her] to spend several hundred thousand dollars in attorney fees just to defend [her]self against his unrelenting attacks." Mark filed a declaration opposing Julia's request for sanctions under section 271.

Julia's request for attorney fees as sanctions was heard on the eighth day of the Remaining Issues Trial on March 16, 2015. The court (Judge Towery) acknowledged having reviewed Julia's supporting brief and having received and reviewed on the day of the hearing Mark's declaration opposing the request. Judge Towery indicated that there had been conduct-which he stated he had pointed out at various stages of the trial-that violated the purposes of section 271.⁶⁶ He stated while Mark was not to be blamed "exclusively for the delays, the lack of settlement or the cost of attorney's fees, at the same time . . . he ha[d] engaged in some conduct that ha[d] been prejudicial and merit[e]d [section] 271 fees." Judge Towery described the conduct generally as "over-litigation" of the case. The court determined that sanctions of $25,000 was appropriate under section 271.

66 From a review of the transcripts of the Remaining Issues Trial, this court located one instance in which the court indicated that specific actions by Mark may have constituted sanctionable conduct under section 271. On the fifth day of trial (December 19, 2014), Julia objected to Mark's late service of papers, stating that the documents were served either the night before, or the morning of trial. The court found that Mark had violated a prior order requiring service of documents seven days before trial, and it reserved the issue of sanctions until the end of the multiple-day trial.

After the Remaining Issues Trial was completed, the court issued a statement of decision on April 17, 2015, confirming the imposition of sanctions under section 271 of $25,000. The Judgment entered on April 22, 2016, likewise confirmed the sanctions order. As recited in the Judgment: "The Court finds that Mark breached the policy of the law set forth in section 271 by re[]litigating issues even after they were fully adjudicated. . . . One prime example is that Mark has been dissatisfied with the May 28, 2010 Order re: Real Estate Issues. Although Mark is entitled to be dissatisfied with that ruling and to seek appellate review, he is not entitled to re[]litigate the same issues that were finally adjudicated in that order. Another example is Mark's re[]litigation in this trial of many of the reimbursement claims he litigated in the bifurcated reimbursement trial."

b. Mark's Claim of Error

Mark contends that the court erred in imposing sanctions of $25,000 under section 271 at the end of the Remaining Issues Trial. He argues that he was denied due process because the court "simply announced [its] ruling and refused any oral argument or additional evidence." Mark also contends that the court incorrectly found that he had relitigated claims. He asserts further that the sanctions award imposed an unreasonable financial burden upon him. And Mark argues that the court erred because the amount of the award exceeded the attorney fees and costs related to sanctionable conduct. We address the last argument because it is dispositive.⁶⁷ (Hiser, supra, 111 Cal.App.4th at p. 655 [appellate courts generally "decline to decide questions not necessary to the decision"].)

67 Mark did not argue below at the last day of the Remaining Issues Trial that the imposition of sanctions would be improper because Julia had not shown that she had incurred attorney fees and costs associated with the sanctionable conduct. We will nonetheless "address the issue on appeal as it is a question of law based on undisputed facts. [Citation.]" (In re Marriage of Erndt and Terhorst (2021) 59 Cal.App.5th 898, 904, citing Ward v. Taggert (1959) 51 Cal.2d 736, 742.)

Julia filed a declaration in support of her sanctions request, arguing that sanctions under section 271 were appropriate "to provide a deterrent to Mark" for his engaging in unreasonable conduct in the proceedings. She argued that the matter could have been resolved in a reasonable time had Mark acted in good faith. She contended that, instead, Mark had "mis[]used the Court system to try and obtain reimbursements from [her] for his own financial actions," and had breached his fiduciary duties under section 1100 by "cashing out his retirement accounts and raiding the LTE Profit Sharing Plan." Julia did not identify-either in her declaration or at the trial-the amount of sanctions that she sought, nor did she specify the amount of attorney fees or costs she had incurred as a result of Mark's conduct that she claimed merited sanctions.

As noted, the court granted Julia's request for sanctions under section 271, articulating that the sanctionable conduct generally stated was his "over-litigation" of the case. As the court later stated in the Judgment, "Mark breached the policy of the law set forth in section 271 by re[]litigating issues even after they were fully adjudicated." The court cited Mark's repeated challenges to the Real Estate Order and his renewed assertion of reimbursement claims previously addressed in the Reimbursement Trial as examples of Mark's relitigation of issues. In determining that an award of sanctions of $25,000 was appropriate, the court did not articulate a link between that amount and attorney fees or costs incurred by Julia as a result of the sanctionable conduct.

As we indicated above, an award of sanctions under section 271 must be "tethered to attorney fees and costs." (Menezes, supra, 44 Cal.App.5th at p. 351.) In Sagonowsky, supra, 6 Cal.App.5th at page 1151, the wife (Sagonowsky) appealed from an order granting sanctions under section 271 in the total amount of $767,781.23. The award was comprised of six components, including "$180,000 for the reduction in sales price of the Ashbury [community-owned rental] property . . . [and] $500,000 for Sagonowsky's 'relentless and culpable conduct' in driving 'up the cost of litigation against Kekoa' and 'purposefully frustrat[ing] the final settlement of this post-judgment case.'" (Ibid.) The appellate court reversed the sanctions order in part, finding that the inclusion of these two components in the award was improper. (Id. at pp. 1152-1156.) The court held that "[s]ection 271 'means what it says'-sanctions available under the statute are limited to 'attorney fees and costs.' [Citations.]" (Id. at p. 1153.) Based upon this reasoning, the Sagonowsky court held that "the plain language of section 271 did not authorize the court to award $500,000 to punish Sagonowsky for her culpable conduct, or $180,000 for the reduction in the sales price of the Ashbury property, because those amounts bear no relationship to Kekoa's attorney fees and costs. [Citation.]" (Id. at p. 1156.)

A recent case following Sagonowsky, supra, 6 Cal.App.5th 1142 is instructive here. In In re Marriage of Erndt and Terhorst, supra, 59 Cal.App.5th at page 903, the husband (Terhorst), who was an attorney representing himself in the proceedings, brought a motion for sanctions under section 271 for $6,102 in attorney fees and $180 in costs. The trial court concluded that $800 was a reasonable amount of attorney fees for the matter at issue, and it granted Terhorst's section 271 motion, as modified, by awarding him sanctions of $980. (Ibid.) The appellate court reversed the sanctions order in part. It held that the order awarding sanctions, to the extent it included $800 in attorney fees, was error. (Id. at p. 905.) Relying on case law construing other statutes involving attorney fee awards, the court held that "attorney fees" under section 271 did not include legal work performed by a self-represented litigant who was an attorney. (Id. at pp. 904-905.) Accordingly, the appellate court held that because the $800 portion of the award was "not tethered to any attorney fees . . . [it could not] stand." (Id. at p. 905; see also Menezes, supra, 44 Cal.App.5th at p. 351 [section 271 sanctions could not be awarded to a party for travel expenses to attend court hearings and vacation time, used for relief from work obligations, where expenses were not tethered to attorney fees and costs].)

Similarly, the $25,000 in sanctions awarded by the court here was "not tethered to any attorney fees" or costs as required under section 271. (In re Marriage of Erndt and Terhorst, supra, 59 Cal.App.5th at p. 905.) Julia presented no evidence of the attorney fees or costs she had incurred because of Mark's sanctionable conduct. Indeed, based upon the rationale of the trial court for the award, it appears there were no attorney fees incurred by Julia relating to the allegedly sanctionable conduct. The court based its decision that sanctions should be imposed upon Mark's relitigation of issues, specifically, issues that had been decided either in the Real Estate Trial before Judge Mills or the Reimbursements Trial before Judge Johnson. But such relitigation would have taken place during the Remaining Issues Trial before Judge Towery. Julia was a self-represented litigant throughout that nine-day trial. Therefore, putting aside the absence of evidence presented by Julia in support of the sanctions award, it was clear that she could not have incurred attorney fees in defending Mark's relitigation of issues in the Remaining Issues Trial. Therefore, because it was not tethered to attorney fees and costs incurred by Julia, the imposition of sanctions against Mark in the sum of $25,000 at the conclusion of the Remaining Issues Trial must be reversed. (In re Marriage of Erndt and Terhorst, supra, at p. 905.)⁶⁸

68 In reversing the order, we do not question that the trial court had substantial grounds for concluding that Mark's conduct "frustrate[d] the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys" under section 271, subdivision (a). Our reversal is based simply on the fact that the record did not show in any respect a correlation between the sanctions award and attorney fees and costs incurred by Julia as a result of Mark's sanctionable conduct.

I. Mark's Child Support Overpayments Claim

Mark contends that, although the court granted reimbursement of a portion of child support paid by Mark after the children had reached the age of majority and were no longer full-time high school students, the court erred in denying reimbursement for overpaid child support in the principal amount of $17,084.72.

1. Procedural Background & Evidence

a. Procedural Background

On or about August 7, 2008, the court entered an order based upon the parties' stipulation that provided, inter alia, that Mark would pay monthly child support for the two children, Evan and Maxwell, totaling $2,306. Such support was to continue "until further order of the court, or until the child marries, dies, is emancipated, reaches age 19, or reaches 18 and is not a full-time high school student, whichever occurs first." That order did not include a provision that Julia notify Mark of the happening of a contingency that would terminate the child support obligation for either child. Included with the issuance of this child support order was an earnings assignment order (EAO) requiring the employer of the obligor (Mark) to pay the obligee (Julia) the amount of the support ordered from the obligor's earnings. (See § 5230.) There was a subsequent modification of child support; as reflected in an EAO of February 2009, the total monthly child support obligation was $1,525.

Mark's claim for reimbursement of overpaid child support was heard on November 18, 2014 at the Remaining Issues Trial (Day 3) before Judge Towery. The claim was (1) for amounts paid for Evan after his emancipation (August 14, 2009), and (2) for amounts paid for Maxwell after his emancipation (August 6, 2012).⁶⁹ The total claim asserted by Mark was $31,651.98.

69 The court below used the term "emancipation" as a shorthand reference to the circumstance under which the child support obligation for either child ceased. Here, under the terms of the child support order, since both children graduated from high school in or about June of the year of their 18th birthdays (which were both in the month of August), the circumstance under which the child support obligation for each child ceased was Evan's and Maxwell's respective 18th birthdays. We will adopt the trial court's term "emancipation" here to refer to the date the child support obligation ceased as to the two children.

b. Evidence Presented

The court noted at the time it announced its decision from the bench that "the facts of this case are not in material dispute. What is in dispute are the inferences drawn from those facts." The court also noted that "the outcome [of this issue] of the trial is really dictated by the chronology of what happened." We summarize the evidence presented by the parties at trial that is relevant to the court's determination of this issue.⁷⁰

70 Mark's appellate brief is deficient in that he fails to set forth the evidence, both favorable and unfavorable to his position, that was the basis for the court's decision. (Foreman & Clark, supra, 3 Cal.3d at p. 881 [appellants must" 'set forth in their brief all the material evidence on the point and not merely their own evidence' "].) Although we may therefore deem Mark to have waived this claim of error (Schmidlin, supra, 157 Cal.App.4th at p. 738), in the interests of justice, we will nonetheless address the merits of his argument.

Mark testified that the monthly child support he was required to pay was $551.25 for Evan and $973.25 for Maxwell. The EAO under which this total monthly child support was deducted from Mark's disability payments was in effect until April 1, 2013.

Mark testified that on September 4, 2009, his attorney, Elaine Honjas, wrote to Julia's counsel, Julie Emede, indicating that Evan had graduated in June 2009 and had turned 18 in August. Honjas requested in the letter that Emede sign a stipulation to modify child support. Julia's counsel responded to this letter on September 9, 2009. In it, Emede raised a number of issues, including questions about tax status, Mark's nontaxable disability income, and tax exemptions. Emede also noted in her September 9, 2009 letter that if there were a modification of child support, there would logically be a correlative modification of spousal support. Emede stated that she awaited Honjas's response.⁷¹

71 The September 9, 2009 letter, which was an exhibit introduced at trial, is not part of the appellate record. The substance of the letter, as presented here, was recited in the court's statement of decision announced from the bench and later confirmed in a document signed by the court on December 16, 2014.

Honjas did not reply to Emede's September 9, 2009 letter for more than six months. On March 22, 2010, Honjas sent another letter to Emede concerning child support modification. Julie Saffren, an attorney in Emede's office, responded on March 24, indicating to Honjas that her office had" 'never gott[ten] a response regarding some of the questions we raised [in our prior letter].'" The record does not show that Honjas or Mark himself ever responded to this March 24 letter.

Julia testified that her understanding had been that it was Mark's responsibility to file appropriate papers to modify support. And the court found that "[n]either Mark nor his attorney ever formally requested the court to modify the EAO."

At a case management conference on February 29, 2012, before Judge Johnson, Mark, who was self-represented, raised the issue of the continued withholding of child support for Evan, who had emancipated. The court inquired of Julia's counsel, Andrew Westover, as to whether the child support EAO was still in effect as to the older child, Evan, who had turned 18 in 2009. Westover responded: "I can represent to the Court that I will check my file, and if it appears that there's child support for a child [who] has reached the age of majority, then we will submit the proper forms to correct that." Julia testified at the Remaining Issues Trial in November 2014 that she did not have an explanation as to what happened afterward relative to Westover's statements at the February 29. 2012 hearing that he would file forms to correct the continuation of child support.

In December 2012, Mark sent a letter to Julia indicating that neither she nor her counsel had taken action to terminate the process under which his income was garnished for child support, notwithstanding that Evan and Maxwell were no longer minors. Mark requested that Julia sign a stipulation that was enclosed to terminate child support. Julia testified that she did not sign the stipulation.

As noted, the EAO under which monthly child support for both children was deducted from Mark's income remained in effect until April 1, 2013.

c. Trial Court's Decision

The court, after hearing the evidence on November 18, 2014, granted Mark's reimbursement request, in part. As reflected in the Judgment, the court divided Mark's request for overpaid child support payments into two groups. The court selected the date of March 29, 2012-when, the court found, "[Mark] clearly indicated, on the record, he was not voluntarily paying child support for any child who had emancipated"-as the dividing point between the two groups of overpayments.⁷²

72 This March 29, 2012 date selected by the trial court as the dividing point between the two groups of overpayments was based upon the date (as indicated by the court in the Judgment) that "Mark [first] informally raised the issue [of modifying the EAO] at a hearing on March 29, 2012." It is clear from the record that this hearing took place on February 29, 2012. When the court announced its tentative decision at the conclusion of the November 18, 2014 trial, it tied the actual hearing date of February 29, 2012, to the division between nonrecoverable and recoverable overpayments, indicating: "The court hearing that the Court is using as the bright line demarcation occurred on February 29th, 2012." The court stated further: "If we take 2/29/12 [as] being the point at which collectable overpayment[s] began, therefore, this would apply to all payments due on or after that date. So the first payment for which there should be repayment is that [payment] that occurred on March 30th, 2012." The court, in announcing its tentative decision, referred to both dates-February 29 and March 29, 2012-as the date of the hearing in which Mark raised the issue of modifying the EAO.) Thus, although the trial court in the Judgment incorrectly identified the March 29, 2012 demarcation as having been the hearing that occurred on February 29, 2012, this error did not impact the court's reasoning or its determination of the amount of overpayment that was subject to reimbursement, since the first reimbursable child support overpayment after that February 29 hearing occurred on March 30, 2012.

The first group-the matter at issue on appeal-involved child support paid for Evan after he turned 18 (August 15, 2009) up to March 29, 2012. The record reflected that during that period there were 31 instances in which $551.25 was overpaid, for a total amount withheld of $17,084.72. The second group concerned overpayments for support for both children between March 30, 2012, and April 1, 2013 (i.e., the end-date that the EAO was effective), that totaled $14,957.26.⁷³

73 As we discuss in section 3 of this part, post, there were discrepancies in the Judgment as to the figure determined by the court to constitute the total amount of child support overpayments that were recoverable by Mark. We conclude that the amount found by the court was $14,957.26.

The court denied Mark's reimbursement claim as to the first group of child support overpayments ($17,084.72). It found that Mark had taken no action to remove the EAO during that period of the overpayments, and that it was not until March 29, 2012 [sic] that "Mark informally raised the issue at a hearing." The court held that on that date, Julia's counsel, Westover, indicated he would investigate the issue and would complete the appropriate forms if a child had reached the age of majority. Because, the court held, the reasons for Mark's allowing child support for Evan to continue being withheld after he turned 18 until the hearing in 2012 when he raised the issue were unclear, the reimbursement request for child support paid up to March 29, 2012, was denied.

As to the second group of overpayments ($14,957.26), the court found that Mark had not voluntarily made these child support payments "because, on March 29, 2012 [sic], he [had] clearly indicated, on the record, that he was not and would not be paying child support for any child who emancipated." Accordingly, the court granted the full amount of Mark's reimbursement request as to this second group of child support overpayments.

2. Mark's Claim of Error

Mark argues that the court erred in denying his reimbursement request relative to the overpayments made for Evan's child support between August 15, 2009 and March 29, 2012. He argues that he was no longer obligated to provide child support as of the date of Evan's emancipation, i.e., August 15, 2009. Mark contends that under section 4007, subdivision (b), overpayments of child support that have been made "on a terminated support order shall be repaid." (Original emphasis.) He therefore argues that "[r]efund [was] mandatory."

The court, in denying Mark's claim for reimbursement of child support overpayments prior to March 29, 2012, concluded that the relevant starting point in the analysis was determining which party, the obligor or the oblige, had the burden of taking action to modify or terminate an EAO. The court, conducting a statutory analysis, noted that where the court orders a party to pay support, it is required to "include in its order an earnings assignment order for support that orders the employer of the obligor to pay to the obligee that portion of the obligor's earnings due or to become due in the future." (§ 5230, subd. (a).) After service of an EAO, the employer must deliver to the obligor a copy of the EAO and a statement of the obligor's legal rights to move to quash, modify or stay the EAO. (§ 5234.) A child support obligor, under former law, was required to file a noticed motion to terminate an EAO due to the death or emancipation of a supported child. (Former § 5240, amended by Stats. 2012, ch. 77, § 1, eff. Jan. 1, 2013.) Under the present statute in effect as of January 1, 2013, as an alternative to filing a noticed motion, the child support obligor may elect to seek termination of an EAO due to the death or emancipation of a supported child by seeking relief ex parte. (§ 5240, subd. (b).) As the trial court properly concluded, "[u]nder both the former and the current versions of section 5240(b), a child support obligor has a straightforward means of requesting termination of [an] EAO for support of a child for whom the duty of support has terminated by operation of law."

The court concluded, based upon the statutory scheme, that "it is the child support obligor's responsibility to request termination of an EAO that withholds earnings for support of a child for whom the duty of support has ended. It is also in the best interest of the support obligor to timely request modification or termination, as may be appropriate. A delay of such a request can be very prejudicial to the supported party, who may not have the means of repaying support if there has been a substantial delay in a request for termination of the EAO." We agree with the trial court's conclusion and find its reasoning to be sound.

Based upon the fact that the original support order had no requirement that Julia notify Mark when either child emancipated, the court held that Mark bore the initial burden of requesting that the court modify the EAO when Evan emancipated and to terminate the EAO upon Maxwell's emancipation. (See § 4007. subd. (a) [in original support order, court may require obligee to notify obligor "of the happening of the contingency" resulting in the support obligation being terminated].) We agree with the court's conclusion on this point as well.

The court found that Mark and his counsel were aware of Evan's August 2009 emancipation, as evidenced by the September 4, 2009 letter of Honjas, Mark's attorney, requesting a modification of child support by stipulation. It determined that the record was unclear as to the reason Mark never made a formal request of the court to modify the EAO at any time after Evan emancipated. The court observed: "There are several possibilities. For example, Mark may have wanted to continue to provide support for Evan despite his emancipation, or he may have wanted to provide above[-]guideline support for Maxwell. . . . [¶] Another possibility is that Mark may have wanted to stave off the possibility that Julia would file a request for an increase in spousal support based upon a change of circumstances." The court observed that Mark would not be entitled to reimbursement under either scenario. A third explanation, the court indicated, was "that Mark and his attorney simply neglected to request the Court to modify the EAO."⁷⁴ It held that under this circumstance, Mark's reimbursement request was not precluded, but that he was not "automatically entitled to reimbursement."

74 This court is aware that on May 6, 2010 (shortly before the Real Estate Order was filed), the court granted Honjas's motion to be relieved as counsel for Mark, and thereafter he was self-represented.

The court concluded that "regardless of the actual reason that Mark failed to request the Court to modify the EAO in August 2009 when Evan emancipated," Mark's reimbursement request as to overpayments made through implementation of the EAO on or before March 29, 2012, should be denied. It found that "[i] was not until March 29, 2012 [sic] that Mark clearly indicated, on the record, he was not voluntarily paying child support for any child who had emancipated. As a result of Mark's delay in requesting modification of the EAO, Julia [cannot] bring a motion for modification of [spousal] support based upon changed circumstances . . . [and] there are no future support payments against which this amount can be offset, and Julia has presumably spent the $17.084.72. In these circumstances, the Court finds it would not be just and reasonable to order Julia to reimburse Mark for any portion of the $17,084.72."

The court did not err. There was no explanation for Mark's failure to take action to modify the EAO between August 2009 and formally raising the issue in court on February 29, 2012. Indeed, the court, as noted in its statement of decision announced after the trial, found it "remarkable . . . that between March 24th, 2010 [the date of the second letter from Julia's counsel to Honjas indicating that she had never responded to questions in the prior letter of Julia's counsel], and February 29th of 2012, . . . there [was] no apparent activity on this until the matter is raised at a court hearing before Judge Margaret Johnson on March 29th, 2012 [sic]." Further, under two reasonable explanations identified by the court-Mark's voluntary overpayment to provide additional support for Maxwell, or a concern that modifying the EAO would trigger a request to increase spousal support-there would clearly be no entitlement by Mark to reimbursement of the overpayments occurring on or before the first payment made after the February 29, 2012 hearing (i.e., on or about March 30, 2012). (See fn. 72, ante.) Indeed, there was significant evidence supporting the view that Mark eschewed a formal request to modify the EAO because of a concern that his spousal support would increase if he made the request. This potential issue was highlighted in the September 9, 2009 letter of Julia's attorney to Mark's attorney; Honjas did not respond to that September 9 letter for over six months. (See § 4326, subd. (a) [termination of child support when child reaches age of majority constitutes a change of circumstances that may be basis of modification of spousal support].) Moreover, the court reasonably concluded that, even if Mark's two-and-one-half-year failure to request a court modification of the EAO was due to mere neglect, Mark's inaction resulted in prejudice to Julia. The court did not abuse its discretion in denying reimbursement of overpaid child support occurring on or before March 29, 2012. (See In re Marriage of Starr (2010) 189 Cal.App.4th 277, 290-291 [denial of request for reimbursement of child support overpayments did not constitute abuse of discretion].)

Mark argues conclusorily that reimbursement of overpaid child support is "mandatory," and, citing section 4007, subdivision (b), he contends that "[o]verpayments collected pursuant to [an EAO] on [a] terminated support order shall be repaid." (Original emphasis.) Mark has abandoned these appellate arguments. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018 [arguments in briefs raised in perfunctory fashion will be deemed abandoned by appellate court].) In any event, the arguments lack merit. Mark, the supporting spouse-with knowledge of the contingency resulting in the cessation of a child support obligation, and notwithstanding the existence of available statutory remedies (see § 5240)-took no action to terminate or modify the EAO for two and one-half years. Under the unusual circumstances presented here, there was no "mandatory" right of reimbursement of the overpaid child support.

The court did not abuse its discretion by denying Mark's request for reimbursement of child support overpayments occurring on or before March 29, 2012. (In re Marriage of Starr, supra, 189 Cal.App.4th at pp. 290-291.)

3. Clarification of Overpayment Recoverable

In considering Mark's claim of error with respect to the denial of recovery of child support overpayments made prior to March 29, 2012, we have noted an ambiguity in the Judgment regarding the court's decision as to overpayments made after that date. In the section of the Judgment concerning overpayments made from March 29, 2012 to April 1, 2013, the court initially identifies the total amount recoverable as $14,206.35. Later in the same section, the court twice identified the amount of the reimbursement award as $14,957.26. Under the heading, "Summary of Rulings on All Remaining Issues," the court stated the total amount recoverable as $14,206.35. Further, under the heading, "Claims of Mark Maynard to Prejudgment Interest," the court reiterated that "Mark should be reimbursed the sum of $14,206.35" for overpaid child support from March 29, 2012 to April 1, 2013. But in the final section of the Judgment under the heading "SUMMARY OF FINANCIAL RULINGS," the court stated a figure of $14,927.26 as the amount of overpayment of child support for which Mark was entitled to reimbursement.

We conclude that the total amount of the child support overpayment that the court found to have been subject to reimbursement was $14,957.26, and that any other figures stated in the Judgment were clerical errors. The court-in the proposed statement of decision and judgment filed in April 2015, and in the (superseded) final statement of decision and judgment filed in February 2016-consistently identified the amount awarded as reimbursement for overpaid child support as $14,206.35. At the hearing on Mark's motion for new trial on April 20, 2016, the court announced that it intended to deny the motion, but it would amend the judgment to address four matters raised by Mark, one of which being a claim that the amount of the child support overpayment subject to reimbursement should be increased. After hearing argument, the court indicated that it intended to modify the judgment it had previously filed-capturing additional overpayments and interest not previously accounted for-to provide that the amount of the reimbursable overpayment would be $14,957.26, rather than $14,206.35.⁷⁵The fact that the higher amount appears in the Judgment reflects the intention of the court to implement the modification announced at the hearing on the motion for new trial. Accordingly, we will direct that, upon remand, any new final judgment entered shall consistently identify the amount Mark is entitled to recover for overpaid child support from March 30, 2012 to April 1, 2013 is $14,957.26. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order trial courts to correct clerical errors in criminal or civil cases].)

75 The court specified that the additional figures were a $551.25 overpayment involving Evan, a $32.66 overpayment for Maxwell, and $167 prejudgment interest as to both overpayments.

J. Mark's Reimbursement Claim (Insurance Premiums)

Mark asserts that the court erred in denying his claims for reimbursement of post-separation expenditures made by LTE to satisfy certain community obligations. As identified in his brief, these community obligations consisted of medical, dental, and disability insurance premiums. The expenses were paid by LTE, and Mark claims that he advanced the funds to LTE for those payments.

1. Procedural Background

The procedural history involving this reimbursement claim is unclear from the record before us. Although Mark presented 43 categories of claims at the Reimbursement Trial, Mark's claim for reimbursement of postseparation payments by LTE for medical and dental premiums was not decided by Judge Johnson in that trial. This reimbursement claim involved the assertion by Mark that the payments were made by the family business, LTE (a subchapter S corporation), and Mark, in turn, had provided the funds to LTE for those payments. Because of this circumstance, the court ruled that "[t]hese claims and all other claims relating to LTE are reserved for further hearing."

On February 20, 2015, Judge Towery heard evidence and argument at the Remaining Issues Trial (Day 6) concerning LTE, including the disposition of that asset. The parties agreed that LTE would be assigned to Mark at a present value of zero. Mark also asserted claims for reimbursement relating to LTE. He alleged that after separation, he transferred his separate funds to LTE, which LTE, in turn, utilized to pay community obligations. As presented at trial by Mark, these community obligations involved real estate (Southshore and Sierra), vehicles (Ford F-550, Mini Cooper, and Suburban), and boats (Pro-Line, and Polaris). The question of LTE payments for medical, dental, and disability insurance premiums that were community obligations was not raised at the Remaining Issues Trial.

After hearing evidence and argument, the court denied Mark's claim for reimbursement based upon his assertion that he had provided personal funds to LTE that LTE used to pay postseparation community obligations. The court ruled that the Reimbursement Order "fully adjudicates Mark's request for reimbursement for the same categories of post-separation expenses" that Mark claimed at the Remaining Issues Trial (Day 6). The court reasoned that, "[r]egardless of whether Mark actually paid these expenses directly or whether LTE paid them using funds derived from Mark's separate property income or credit cards, the merit of the reimbursement request was previously adjudicated and there is no basis for any further consideration." The court thereafter filed the proposed statement of decision and judgment on June 2, 2015, in which it confirmed its conclusion that there was no legal basis for Mark's claim for reimbursement of one-half of the funds he infused into LTE after the parties separated.

In Mark's objections to the proposed statement of decision, he argued, inter alia, that the February 20, 2015 trial was terminated before he had the opportunity to present evidence concerning expenditures for medical and dental insurance premiums. Mark sought reimbursement in the total amount of $16,465.

As a result of the parties' objections to the proposed statement of decision, the court, on September 2, 2015, issued an order reopening the proceedings. In making the order, the court expressed concern that, because the dissolution proceedings had been heard by multiple judicial officers and the case had proceeded over a long period of time, Mark "may not have been given a full opportunity to present evidence on certain of his claims." It therefore reopened the proceedings for a limited purpose, i.e., to hold further proceedings on five discrete issues. One of those issues was "[Mark's] request for reimbursement of post-separation dental and health insurance premiums . . . ."

Mark filed a declaration in connection with that further proceeding on December 11, 2015. In it, Mark reiterated his claim for reimbursement in the amount of $16,465 for LTE's expenditure of funds (provided by Mark) for medical and dental insurance premiums. He also requested reimbursement in the amount of $18,958.16 for LTE's expenditure of funds (provided by Mark) for disability insurance premiums.

The court (Judge Towery) conducted a further trial on December 17, 2015. The court considered Mark's request for reimbursement of LTE's expenditure of funds for medical, health and disability premiums that he claimed was funded from his personal assets. The court noted that it appeared that the subject of these expenditures had not been specifically addressed at the Remaining Issues Trial.

Mark presented a number of exhibits at the trial that were received into evidence, including ones that related to the health and dental premium reimbursement issue. Mark confirmed that the premium payments were made by LTE, and that the funds used to make those payments came from his personal account. He explained that "LTE had the contract," so the premium payments had to be made by LTE.

Julia responded that the matter was confusing, and that it was unclear whether there was a correlation between any payments made by LTE for insurance premiums and any transfer of funds from Mark's personal account to LTE. After the matter was submitted, the court announced from the bench that it was denying Mark's claim.

In the Judgment, the court confirmed that after conducting a further hearing, it had concluded that Mark was not entitled to reimbursement of the postseparation expenditures for medical, dental, and disability insurance premiums because they had been made by LTE, not by Mark personally. The court found further that Mark had "failed to introduce any admissible evidence that LTE [had] paid any amount for Julia's post-separation health insurance premiums." It made the same finding as to the minor children's post-separation health insurance premiums. The court concluded that this failure was "fatal to Mark's claims for reimbursement of Julia's [and the minor children's] post-separation health insurance premiums . . ., regardless of whether he paid the premiums directly or whether LTE paid them using funds derived from Mark's separate property income and/or separate property credit cards."

2. Mark's Claim of Error

Mark argues that "[Judge] Towery abruptly ended [the] trial before Mark [had] finished his presentation," thereby preventing him from adequately asserting his reimbursement claim. Mark further takes issue with the trial court's conclusion that Mark had failed to introduce any admissible evidence in support of his reimbursement claim, arguing that he in fact "was prepared to and did introduce [evidence]."⁷⁶

76 Mark's brief includes nearly two pages of purported facts that he labels as "Background" (boldface omitted). Other than one citation, this recitation of purported facts is devoid of any citations to the appellate record. This contravenes the requirements of under rule 8.204(a)(1)(C). We will therefore disregard the unsupported contentions made by Mark in his brief. (Barringer, 102 Cal.App.4th at p. 1239.)

We reject Mark's claim that the trial court deprived him of the right to present his claim for reimbursement of insurance premium expenses. The record shows that after the Remaining Issues Trial was concluded and the court received and considered Mark's objections to the proposed statement of decision and judgment, it reopened the proceedings specifically so that Mark, inter alia, could present the insurance expense reimbursement claim. The court acknowledged at the further proceedings on December 17, 2015, that the reimbursement claim had not been considered previously in the Remaining Issues Trial. Mark was allowed to submit papers in support of this claim and other claims before the proceedings, and the court heard testimony, received evidence from Mark, and heard argument from the parties on December 17, 2015. After reviewing the record, including the transcript of the further proceedings on December 17, 2015, we conclude that Mark was, in fact, afforded the opportunity to present the reimbursement claim.

The trial court denied Mark's reimbursement request, inter alia, on the basis that Mark had failed to establish the claim through the introduction of admissible evidence that LTE had made the premium payments. This conclusion is consistent with the principles that "reimbursement is not automatic," and that the party must demonstrate to the court his or her entitlement to reimbursement. (In re Marriage of Feldner, supra, 40 Cal.App.4th at p. 625.) Here, although the record indicates that Mark introduced documentary evidence in support of his reimbursement claim-and he specifically referred to Exhibits 29 and 30, which the court described as voluminous-the exhibits are not included in the appellate record. As appellant, Mark bears the burden of demonstrating error by an adequate record. (Jameson, supra, 5 Cal.5th at p. 609.) The failure to provide an adequate record on an appellate issue requires that the matter be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see also Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [appellate court "cannot presume error from an incomplete record"].)

It is a fundamental principle of appellate practice, as well as an element of the constitutional doctrine of reversible error, that" '[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.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.) Mark, as the appellant, had the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) He has not met that burden. Accordingly, we conclude that the trial court did not abuse its "broad discretion" (Hebbring, supra, 207 Cal.App.3d at p. 1272) in denying Mark's claim for reimbursement of his claimed use of postseparation separate property (indirectly, by funding LTE) to satisfy community obligations, namely, the payment of medical, dental, and disability insurance premiums.⁷⁷

77 At times in the section of his appellate brief devoted to his claim for reimbursement of postseparation insurance premium payments made by LTE (which he claims were funded from his separate property), Mark refers more broadly to his claims below for reimbursement of expenditures made by LTE (funded indirectly by Mark) for postseparation community obligations. But he does not support that argument; rather, his argument is limited to error in connection with the denial of his reimbursement claim with respect to LTE's postseparation payment of medical, dental, and disability insurance premiums. To the extent that Mark's claim for reimbursement of postseparation LTE expenditures for other community obligations was rejected below, he has abandoned any appellate challenge to that ruling. (See People v. Combs (2004].) 34 Cal.4th 821, 845 [party abandons claim of error by failing to raise it on appeal]; see also Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [appellate arguments "neither timely nor fully made" deemed forfeited].)

K. Mark's Claim Based Upon Julia's Use of Community Cash

Mark contends that prior to separation, Julia withdrew $4,000 in community funds to pay her family law attorney. He asserts that the court erred in denying reimbursement to him of one-half that amount.

1. Procedural Background

While the Remaining Issues Trial was pending, Judge Johnson filed her February 20, 2015 Reimbursement Order. In that order, the court referred to Mark's contention that Julia had made withdrawals from a joint account of $8,200 between March 18 and May 6, 2008, and he had "allegedly paid [$7,500] to Julia's attorney on June 25, 2008." The court ruled that Mark's claims would be "reserved for trial on property characterization and division."

It is not apparent from the record that Mark's claims based upon Julia's pre-dissolution withdrawal of funds from the joint account were litigated before Judge Towery in the first eight days of the Remaining Issues Trial held between

November 2014 and March 2015. After the court filed its proposed statement of decision and judgment on June 2, 2015, Mark filed objections. One of his objections was that there had been no adjudication of his claim related to Julia's pre-dissolution withdrawal of $15,700 in joint funds. Mark contended he was entitled to an equalization payment of one-half of the withdrawals, i.e., $7,850.

In its September 2, 2015 order reopening the proceedings, one of the issues the court identified upon which it would receive further evidence and argument was Mark's "claims concerning the $8,200 [Julia] allegedly withdrew from a joint account in March 2008, and the $7,500 he allegedly paid to [Julia's] attorney on June 25, 2008." Mark submitted a declaration in connection with that further proceeding. He stated that on June 25, 2008, Julia had drawn a check for $7,506 to pay for her attorney, and that she had made additional withdrawals from the joint account between March 18 and July 8, 2008 that totaled $8,200.

Mark's claim was addressed by the court at the further proceedings held on December 17, 2015. After hearing testimony and argument from the parties, the court held that Mark was entitled to a portion of the amount claimed. It reasoned that to the extent community funds were accessed by Julia before the date of separation-which was June 24, 2008-the expenditure for attorneys was appropriate and the community was not entitled to reimbursement. But the court also concluded that Julia's postseparation accessing of community funds to pay attorneys was subject to a right of reimbursement by the community.

The court addressed the payments in three categories. One category involved three preseparation payments totaling $4,000; the court held the community had no right of reimbursement. The second category was the amount of $4,200 that was withdrawn after the parties separated; $4,000 was withdrawn on June 26, 2008, and $200 was withdrawn on July 8, 2008. The community was entitled to reimbursement of one-half of this amount, or $2,100. The third category was the postseparation amount of $7,506, drawn by Julia on June 26, 2008, and paid to her dissolution attorneys. Based upon evidence from Julia that the source of $7,292 of the total amount ($7,506) was from her separate property assets, the court held that the community was entitled to reimbursement of one-half of the balance paid (i.e., one-half of $214 or $107). Accordingly, the court found that Mark was entitled to a total credit of $2,207.

The court confirmed this ruling in the Judgment. Identifying the matter as "omitted reimbursement claims," the court found that Mark was entitled to reimbursement in the amount of $2,207.

2. Mark's Claim of Error

Mark challenges Judge Towery's ruling denying, in part, Mark's claim for reimbursement of Julia's pre- and post-separation withdrawal of joint account funds to pay attorneys. Specifically, Mark contends the court erred by denying reimbursement of one-half of the $4,000 that Julia withdrew before separation. He makes the conclusory argument that the "[c]ourt correctly found post-separation use of community funds for Julia's attorney must be reimbursed, however[, it] erred [in] ruling [that] pre-separation payments [were] not reimbursable." Mark's challenge fails for several reasons.

First, Mark's argument challenging the court's denial of reimbursement for preseparation payments is entirely conclusory. We will deem the appellate claim abandoned. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach) ["conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of th[e] case, is inadequate," resulting in issue being treated as abandoned].)

Second, there is evidence in the record from which the trial court could have reasonably concluded that the $4,000 withdrawn by Julia before the parties' separated was not used for attorney fees. During argument, Julia explained that the three preseparation withdrawals of $1,000, $1,000, and $2,000 were due to her practice of doing errands for Mark and his frequently asking her "to withdraw cash from the bank because he liked having cash on hand." The court then interrupted Julia, stating, "What I hear you saying is that you're disputing these were used for attorney's fees. But it doesn't make a difference what they were used for, because [the] tentative is . . . that the community does not have the right of reimbursement for those, regardless of what they were used for." The denial of Mark's claim for reimbursement of one-half of the Julia's $4,000 preseparation withdrawal from the joint account was supported by substantial evidence that the funds, contrary to Mark's assertion, were not used to pay Julia's attorneys. "As an appellate court, we generally review the trial court's ruling, not the reasons it gave for that ruling. [Citations.]" (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 870.)

Third, Mark cites no authority for the specific proposition he argues here: that where one spouse, shortly before separation, withdraws a relatively modest amount of community funds to pay for an attorney in prospective domestic proceedings, the other spouse, as a matter of law, is entitled to reimbursement of one-half the amount expended. Mark cites no legal authority compelling reimbursement. (See Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [appellate courts "need not consider an argument for which no authority is furnished"].) We are aware of no such authority requiring reimbursement under the circumstances presented here.

Orders concerning reimbursement requests are reviewed for abuse of discretion. (See In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1127; Hebbring, supra, 207 Cal.App.3d at p. 1272.) The trial court did not abuse its discretion by denying Mark's request for reimbursement of one-half of the community funds withdrawn by Julia before separation that were allegedly used to pay her attorneys.

L. Prejudgment Interest

Mark contends that the trial court erred with respect to the following matters: (1) undercalculating the amount of prejudgment interest on his recovery for overpaid child support; (2) omitting prejudgment interest on his recovery for overpaid spousal support; (3) overstating the amount of prejudgment interest on sanctions of $5,000 imposed on February 3, 2010; (4) imposing any prejudgment interest on sanctions of $1,500 awarded on April 4, 2012, where he allegedly paid the award on April 6, 2012; and (5) overstating the amount of prejudgment interest on sanctions of $10,000 imposed against him on January 29, 2013.

1. Overpayment of Child Support: Interest Calculation

Mark contends the court erred in its method of calculating prejudgment interest on the child support overpayments recoverable by Mark. He contends that the correct amount of interest should have been $4,895.52, rather than the $4,034.60 awarded by the court.

As stated in the Judgment, the court determined that it was appropriate to award prejudgment interest on the recoverable amount of overpaid child support. It reasoned that "although the amount of overpayment was not adjudicated until . . . December 16, 2014, the amount was capable of being calculated." The court concluded that it would award prejudgment interest at 10 percent per annum from the date the EAO was terminated, April 1, 2013, to February 1, 2016. Since this period represented 2.84 years, the court found that Mark was entitled to prejudgment interest of $4,034.60.

Mark contends that the trial court understated the amount of prejudgment interest awardable. He argues that because the court initially indicated during trial that interest would accrue as to each payment on the date it was due, the court erred by later awarding interest using a different methodology (i.e., 10 percent on the entire amount overpaid from April 1, 2013 to February 1, 2016). There is no basis for this claim, as the court was not bound by its initial statement concerning the method of calculating interest. (See Key v. Tyler (2019) 34 Cal.App.5th 505, 539, fn.16 [court's comments from the bench "were not final findings and cannot impeach the court's subsequent written ruling"].) Moreover, Mark fails to state in his brief the factual basis upon which he asserts that the amount of interest, properly calculated, should have been $4,895.52.⁷⁸

78 Mark cites to his affidavit in support of motion for new trial, wherein he argued that the amount of prejudgment interest should be $4,895.52. In that affidavit, Mark referred to an "Exhibit 16," which is not part of the appellate record. (See Jameson, supra, 5 Cal.5th at p. 609 [appellant bears the burden of demonstrating error by an adequate record].)

Mark has failed to demonstrate error. The trial court, in awarding prejudgment interest in the amount of $4,034.60, did not abuse its discretion. (See Hewlett-Packard, supra, 65 Cal.App.5th at p. 577.)

2. Overpayment of Spousal Support: Omission of Interest

Mark contends that the court erred in failing to award prejudgment interest on an overpayment of $1,517 of spousal support. He asserts that he was entitled to interest of $224.14.

In his affidavit in support of his motion for new trial, Mark asserted that there had been a prior overpayment of spousal support in the amount of $1,517. He requested that the judgment include this amount as being due from Julia.

At the hearing on Mark's motion for new trial on April 20, 2016, the court addressed a claim by Mark that one month of spousal support ($1,517) had been paid after an order terminating child support. Julia did not object to the court crediting Mark for this overpayment. The court indicated that it would modify the judgment to include this credit. The Judgment reflected the court's finding that Julia owed Mark $1,517 for overpaid spousal support.

The record does not reflect that Mark requested an award of prejudgment interest on this spousal support overpayment. He made no such request in his motion for new trial. Similarly, he made no request for prejudgment interest at the hearing on his motion for new trial. His failure to raise the issue below precludes its assertion here. (In re Marriage of King, supra, 80 Cal.App.4th at p. 117 ["party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal"].)

3. Sanctions Award of $5,000: Interest Calculation

Mark contends that the court erred by overstating the amount of prejudgment interest on the $5,000 sanctions award, calculating interest for a period spanning from February 3, 2010 (the date of the award) to February 1, 2016. He asserts that the sanctions award "was satisfied on 4/6/2012," and therefore interest after that date should be "credited back" to him.

The claim has no merit. As discussed in part E., ante, Mark is incorrect in his assertion that the $5,000 sanctions award should have been deemed "paid" on April 6, 2012, the date the court ordered the Porsche sold. Although, pursuant to that order, the sales proceeds would have been used in part to satisfy the $5,000 sanctions owed by Mark, the sale was not concluded. As the court below properly held, the nonoccurrence of the sale did not result in the prior sanctions award being set aside. Therefore, the court did not err in including the $5,000 sanctions award in the Judgment, and, since the award was not satisfied, the imposition of prejudgment interest from the date of the award until February 1, 2016 was proper.

4. Sanctions Award of $1,500: Interest Calculation

Mark also contends that the court erred by including any amount of prejudgment interest on the $1,500 sanctions award, calculating interest for a period spanning from April 4, 2012 to February 1, 2016. He asserts that the $1,500 sanctions "was both ordered and paid on 4/6/2012," and therefore all interest should be "credited back" to him.

The claim has no merit. As discussed in part E., ante, Mark is incorrect in his assertion that the $1,500 sanctions award should have been deemed "paid" as of the date the court ordered the sale of the Porsche. Although, the sales proceeds would have been used in part to satisfy the $1,500 sanctions owed by Mark, the sale was not concluded. The nonoccurrence of the sale did not result in the prior sanctions award being set aside. Therefore, the court did not err in including the $1,500 sanctions award in the Judgment, and, since the award was not satisfied, the imposition of prejudgment interest from the date of the award until February 1, 2016 was proper.⁷⁹

79 In the Judgment, the trial court, in calculating prejudgment interest, apparently mistakenly selected the date of April 4, 2012, as the date of the order imposing $1,500 sanctions. The actual date of the order was April 6, 2012. This mistake is de minimis and does not impact the propriety of the court's prejudgment interest calculation here.

5. Sanctions Award of $10,000: Interest Calculation

Mark again argues that the court erred in requiring that he pay prejudgment interest of $3,010-interest for 3.01 years (from January 29, 2013 to February 1, 2016)- on the sanctions of $10,000 imposed by Judge Johnson. He contends that because the order provided that the sanctions were "due in full upon completion of the currently pending trial on the parties['] respective reimbursement claims," nothing was owed until entry of the Judgment, and therefore no prejudgment interest was owing. As we previously stated (see part E, ante), we deem this undeveloped argument forfeited. (Taylor, supra, 222 Cal.App.4th at pp. 1247.) And we conclude, in any event, that the court did not abuse its discretion by awarding prejudgment interest on this previously ordered award of sanctions. (Hewlett-Packard, supra, 65 Cal.App.5th at p. 577 [prejudgment interest order reviewed for abuse of discretion].)

But we have concluded (see part H, ante) that the award of sanctions, to the extent that it exceeded the amount of $6,000, was error. Accordingly, prejudgment interest on the sanctions award must be recalculated using the principal amount of $6,000.

M. Duplicate Abstract of Judgment

Mark argues that an abstract of judgment was prematurely issued on June 27, 2012, and that a second abstract of judgment issued on July 14, 2016, after the Judgment of April 22, 2016. He contends that the first abstract should be ordered removed.

The record reflects that on June 27, 2012, the court, upon application by Julia, issued an abstract of judgment, identifying the amount of the judgment, entered on May 28, 2010, as $127,126. As discussed above, this was the amount of the equalizing payment owed by Mark that the court (Judge Mills) found in the Real Estate Order, which the court ordered was "payable upon completion of the division of the parties' remaining property." A second abstract of judgment, at Julia's request, was issued on July 14, 2016, identifying a judgment entered April 22, 2016 in the amount of $196,725.72, i.e., the net amount indicated in the Judgment that was due from Mark to Julia.

During the Remaining Issues Trial (Day 8) on March 16, 2015, Mark argued that the June 2012 abstract was "prematurely recorded" because at the time, there was no final judgment and Julia had no right to immediate execution. The question was raised in the context of the trial of Mark's various claims against Julia for breach of fiduciary duty; one of those claims was Mark's allegation that Julia "practiced illegal collection and harassment against [him] in . . . breach of fiduciary duty. She recorded an abstract of judgment for the amount of Judge Mills's May 28th order, which was not a final enforceable order."

The court denied Mark's breach of fiduciary duty claim. It concluded that assuming, without deciding, that Julia's act of procuring the issuance of the June 27, 2012 abstract of judgment was wrongful, Mark could assert no claim because (1) the conduct was subject to an absolute privilege (Civ. Code, § 47, subd. (b); O'Keefe v. Kompa (2000) 84 Cal.App.4th 130, 135); and (2) Mark had failed to establish any damage.

Mark does not challenge the court's adverse ruling on his claim for breach of fiduciary duty concerning Julia's procurement of the June 27, 2012 abstract of judgment. Mark instead argues that the abstract "must be expunged, annulled or voided." In making this argument, Mark identifies no motion he made below seeking this relief, nor any order denying such relief. Although, during the trial of Mark's breach of fiduciary duty claims, the court acknowledged Mark's contention that the abstract of judgment should be removed, it concluded that his oral request did not comply with due process requirements and would not be considered. In so ruling, however, the court noted that Mark could at any time file a motion for an order seeking removal of the abstract.

Appellate courts do not decide hypothetical or theoretical controversies. (See In re Joshua S. (2007) 41 Cal.4th 261, 273 [courts do not" 'issu[e] purely advisory opinions, or consider[ ] a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute' ''].) We will not find error here where Mark identifies no ruling in which the court denied a proper request by Mark to remove the June 27, 2012 abstract of judgment.

Notwithstanding the foregoing, as a result of the filing of this opinion, the Judgment will be reversed with directions for the entry of a new judgment after further proceedings are completed. Accordingly, such reversal renders void the prior abstracts of judgment issued June 27, 2012 and April 22, 2016.

N. ADA Issues

Mark asserts that throughout the proceedings, the trial court failed to provide reasonable accommodations to him under the ADA, and that this ongoing failure to provide reasonable accommodations in violation of the ADA prejudiced him through adverse rulings in the proceedings. He asserts that he "is and has been a qualified individual with a disability since 2002 as defined under" the ADA. Mark contends that he sought an ADA accommodation from the court below on May 6, 2009 to permit him to have "additional time for discovery and preparation"; "[t]rials were completed and discovery ordered closed while Mark's ADA request was pending"; he was "[g]ranted accommodation eventually . . . in part [on December 11, 2010] but no completion of discovery was allowed"; "[t]ime to prepare for hearings and trials was not allowed"; and "cognitively disabled pro per [M]ark was not even allowed to prepare . . . just appear [in court] and be stripped of all right to separate and community property and reimbursements."⁸⁰

80 Elsewhere in his brief, Mark states that he "became cognitively disabled in 2002."

Mark filed numerous requests for ADA accommodations below. As discussed, post, Mark's primary argument appears to be that the court erred in denying his initial request for ADA accommodations (ADA request) in May 2009, and that this error, resulting in the denial of necessary accommodations, had a prejudicial impact upon him throughout the proceedings thereafter until the Judgment was entered on April 22, 2016. We address Mark's claim of error below.

1. Requests for ADA Accommodations

Persons with disabilities-those people "covered by California Civil Code section 51 et seq; the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.); or other applicable state and federal laws" (rule 1.100(a)(1))-may apply to the court for reasonable accommodations "to ensure full and equal access to the judicial system." (Vesco v. Superior Court (2013) 221 Cal.App.4th 275, 279; see rule 1.100(b).) The "[a]ccommodations may include making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids and services, equipment, devices, materials in alternative formats, readers, or certified interpreters for persons who are deaf or hard-of-hearing; relocating services or programs to accessible facilities; or providing services at alternative sites." (Rule 1.100(a)(3).)

Requests for accommodations may be presented ex parte by the applicant and must be forwarded to the court's ADA coordinator or designee. (Rule 1.100(c)(1).) The applicant "must include a description of the accommodation sought, along with a statement of the medical condition that necessitates the accommodation. The court, in its discretion, may require the applicant to provide additional information about the medical condition." (Rule 1.100(c)(2).)

The court is required to "promptly inform the applicant of the determination to grant or deny an accommodation request." (Rule 1.100(e)(2).) "The grounds for denying a request for accommodation are limited." (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1273.) The court may deny a request "only when [it] determines that: [¶] (1) The applicant has failed to satisfy the requirements of this rule; [¶] (2) The requested accommodation would create an undue financial or administrative burden on the court; or [¶] (3) The requested accommodation would fundamentally alter the nature of the service, program, or activity." (Rule 1.100(f).) If a decision to grant or deny a request for accommodation is made by a judicial officer, "an applicant or any participant in the proceeding may file a petition for a writ of mandate . . . in the appropriate reviewing court" within 10 days of delivery of the court's ruling. permits a trial. (Rule 1.100(g)(2).)

2. Procedural Background

Mark filed numerous ADA requests for accommodations below. We describe his initial May 2009 request because the court's denial of that request appears to be the focal point of Mark's claim on appeal. We will also identify later ADA requests that Mark submitted.⁸¹

81 The volume of the appellant's appendix pertaining to the ADA issues contains confidential information filed with the court below, and the appendix is, by order of the court, filed under seal. (See rule 1.100(c)(4), (g)(3).)

a. 2009 ADA Request

On or about May 6, 2009, Mark's counsel, Anthony Boskovich, filed a request for accommodations under rule 1.100 (2009 ADA request) on behalf of Mark. The request included a one-page form signed under penalty of perjury by attorney Boskovich, and an attachment to the request. The 2009 ADA request also included a declaration by Mark's counsel, Elainie Honjas, a November 2003 laboratory report, a January 2004 medical report, an undated disability form (apparently generated between January and June 2006) signed by a physician, a March 2009 patient visit verification form, and an August 2006 letter with questions to a physician containing the physician's brief handwritten responses. The 2009 ADA request contained no declaration signed by Mark and included no current medical information pertaining to Mark.

The form request signed by Boskovich identified Mark's disability and described the types of accommodations sought as "[t]rial continuance and discovery order to allow [Mark] to prepare for trial." In the attachment, Boskovich indicated that Mark sought accommodations "in the form of a trial continuance of at least 6 months and implementation of a discovery plan that will allow him to focus on individual requests as opposed to multiple simultaneous requests, including appointment of a discovery master." Counsel indicated that trial had been scheduled for June 3, 2009.

The court (Judge Mary Arand) denied the 2009 ADA request on May 15, 2009. The court ruled that the request "fail[ed] to satisfy the requirements of Rule [1.100] in that there [was] insufficient showing of an impairment that necessitate[d] the type of accommodation requested. Rather, the accommodations sought, continuance of the trial and the appointment of a discovery master, are matters of case management to be addressed by the Court, after notice to the other party." The court ADA administrator sent a letter to Mark confirming the denial of the 2009 ADA request. The letter advised that if Mark wished to review the decision, he could file a petition for extraordinary relief with the Court of Appeal within 10 days of the notice of decision. Mark did not file a petition for extraordinary relief with this court challenging the denial of his 2009 ADA request. (See Maynard I, supra, H035859, [p. 7].)

b. Subsequent ADA Requests

Mark submitted an ADA request on April 26, 2010, in which he sought a continuance of a May 6, 2010 hearing on a motion brought by his attorney to be relieved as counsel, and requested accommodations for all future proceedings, including the scheduling of court events between 10:00 a.m. and 2:00 p.m. for no more than three hours, and the scheduling of trials and hearings that allowed for "recovery time." On April 28, the court granted in part and denied in part Mark's request, authorizing the May 6 hearing to commence after 10:30 a.m., and otherwise denying the request because it failed to satisfy the requirements of rule 1.100 (g). The court also denied without prejudice Mark's request for shorter, one-issue hearings, indicating that Mark should raise the question before the trial judge to be assigned in the future.

On June 23, 2010, Mark signed an ADA request, indicating that the accommodations needed were "[a]dditional time . . . for motions, discovery and filing deadlines and all court proceedings," specifically requesting a continuance of the four- day trial scheduled for September 20, 2010.⁸² On August 5, 2010, the court ADA administrator sent a letter indicating that, under the authority of the supervising judge of family court and the supervising judge of the civil division, this ADA request was granted in part. The court granted Mark's request to continue the long-cause trial scheduled for September 20, 2010 to January 17, 2011, i.e., an approximate four-month continuance. Mark's request to hold hearings between 10:00 a.m. and 2:00 p.m. was granted in part; short cause matters would be so scheduled. The court held further that the scheduling of long-cause matters would be evaluated on a case-by-case basis, and the court in its discretion could provide breaks as an alternative accommodation as necessary. The court held further that other, more general accommodation requests by Mark would be evaluated on a case-by-case basis.

82 The record does not reflect the date that this ADA request was submitted or received by the court.

Mark signed another ADA request on June 24, 2010, seeking "[t]o postpone or deny 7 day shortening notice filed by opposing party." The court granted the request in its entirety.

Mark submitted an undated ADA request seeking copies of all transcripts because, he stated, he did not understand what had transpired at the proceedings and he could not afford the transcripts. The court granted the accommodation in its entirety on July 27, 2010.

On January 11, 2011, Mark signed an ADA request seeking a trial continuance until discovery was completed and until a pending appeal was concluded, ⁸³ and that he be provided real-time reporter's transcripts. The court granted the request in part. The court (1) continued the trial from January 18, 2011 to February 28, 2011; (2) denied real-time transcripts because the proposed accommodation was an undue burden upon the court; (3) ordered the alternative accommodations that Mark would be allowed to use a personal recording device during proceedings, and he would receive transcripts no later than 9:00 a.m. on the next business day after the trial; (4) denied Mark's request that trial be postponed until conclusion of the pending appeal; and (5) scheduled a new trial setting conference for February 22, 2011, when the court would determine whether the February 28 trial would be continued.⁸⁴

83 See footnote 6, ante.

84 From the record before us, it appears that at least seven other ADA requests were filed by Mark: on August 31, 2010, June 13, 2011, September 22, 2011, May 14, 2012, July 9, 2012, September 11, 2012, and October 14, 2014. We note that the Reimbursement Trial ultimately did not commence until May 21, 2012, nearly 15 months after the trial date that had been assigned as of the time Mark submitted his ADA request on January 11, 2011.

3. Mark's Claim of Error

a. Denial of 2009 ADA Request

We perceive from the lengthy discussion in Mark's appellate brief on ADA issues that his principal claim is that the court erred in its denial of his May 6, 2009 ADA request. He argues that his 2009 ADA request "met all requirements of Rule 1.100," including submission of detailed medical records and evaluations; the court did not request further information; and his medical condition did not change between the court's denial of the request in May 2009 and its granting of another ADA request in August 2010. Mark argues, in essence, that by the time the accommodation was granted, the damage had already been done, as he had by that time completed the Real Estate Trial (with an outcome he claims was adverse to him), and an award of $5,000 sanctions had been imposed against him.

Mark has not demonstrated that the court erred in denying his 2009 ADA request. As noted, the court concluded that the request had "fail[ed] to satisfy the requirements of Rule [1.100] in that there [was] insufficient showing of an impairment that necessitate[d] the type of accommodation requested." The premise of Mark's assertion that the court erred is that his 2009 ADA request, beyond question, satisfied the requirements of rule 1.100. We do not agree with this premise.

We have reviewed carefully the 2009 ADA request in its entirety. Without disclosing confidential information contained in the request here, we observe that the request (1) did not include a declaration in support of the relief sought from the central person involved, Mark; (2) included no information concerning Mark's medical circumstances as of May 2009; (3) instead of current medical information pertinent to the request for accommodations, attached a six-year-old laboratory report, a five-plus-year-old medical report, a three-year-old disability form signed by a physician, and a two-month-old patient visit verification form containing no medical information; and (4) contained no information from a medical professional familiar with Mark's medical condition as of May 2009 that could assist the court in evaluating his request for accommodations. Under the circumstances, the court did not err in denying the 2009 ADA request based on the conclusion that Mark had "failed to satisfy the requirements of . . . rule [1.100]" because "there [was] an insufficient showing of an impairment that necessitated the type of accommodation requested." (Cf. In re Marriage of James & Christine C., supra, 158 Cal.App.4th at pp. 1275-1276 [denial of applicant's ADA request, under rule 1.100(f)(1), based upon failure to" 'provide[] the trial judge with any evidence of her then-existing condition'" was error, where applicant, in previous court filings, "had explained in detail she suffered from bipolar disorder and breast cancer," in the ADA request had "described her total physical depletion and mental fatigue requiring an in-hospital stay and daily medicinal and psychiatric treatment," had included a physician's "declaration stating she 'strongly recommend[ed]' that [applicant] be hospitalized," and had submitted a physician's note confirming the applicant's hospitalization].)

Further, Mark argues that it was improper for the court to deny his 2009 ADA request, asserting that, in essence, that denial was based upon the court's improper qualitative analysis of the extent of Mark's claimed disability. He contends that the court's only option under rule 1.100 was to request additional information to rule on the request. This argument lacks merit. First, it is based upon the false premise that he made a prima facie showing in the 2009 ADA request that he had an existing disability for which accommodations were needed. As noted above-and notwithstanding his conclusory assertions in his brief that he "is and has been a qualified individual with a disability since 2002 as defined under [the ADA]"-the court did not err in concluding that Mark had not provided in the 2009 ADA request an adequate description of the nature of his claimed medical condition that necessitated accommodations. Thus, rather than the court here making a qualitative assessment of the extent of the claimed disability-or, as stated by Mark, "decid[ing] the disability is not limiting enough to justify the [accommodation] request"-it reasonably found that Mark's showing of the existence of a current medical condition requiring accommodations was insufficient.

Second, we disagree with Mark's assertion that the court could not deny the request here, and that, under the circumstances, its only option was to request additional information. The rule provides that "[t]he court, in its discretion, may require the applicant to provide additional information about the medical condition." (Rule 1.100(c)(2).) We do not read this portion of the rule as prohibiting the court from denying an ADA request where, as here, the court reasonably concludes that the applicant has failed to make a showing of the existence of a current medical condition requiring accommodations.⁸⁵

85 In so concluding, we acknowledge that a court, in general, should exercise its discretion under rule 1.100(c)(2) by requesting additional information about the applicant's medical condition where the ADA request provides some competent evidence of his or her current medical circumstances for which accommodations are sought, and that it should not make qualitative decisions about the extent of the claimed medical condition in denying outright an ADA request for accommodations.

Moreover, we observe that, although the court denied the 2009 ADA request, the trial continuance Mark sought in the request was, in fact, effectively granted by the court outside of the confidential ADA request proceedings. As stated by Mark's counsel in the 2009 ADA request, trial had been scheduled for June 3, 2009, and Mark sought "a trial continuance of at least [six] months."⁸⁶ The appellate record does not include an order vacating this trial date, or an order setting the new trial date. We surmise from the record before us, however, that the June 3, 2009 trial date was vacated shortly after the court denied the 2009 ADA request.

86 Although the appellant's appendix does not show the original setting of a June 3, 2009 trial date, we have determined from a review of the reporter's transcripts, that, at a hearing on January 29, 2009, upon stipulation of the parties' counsel, a trial on property issues was scheduled by the court for June 3, 2009. At that hearing, Mark's counsel, Honjas, specifically requested that the trial be set in the middle of June 2009, rather than an earlier trial date urged by Julia's counsel.

At a hearing on May 19, 2009, there was extensive discussion between counsel and the court (Judge Arand) concerning trial scheduling, including the anticipated appointment of James Cox as court case manager and Mr. Mills as temporary judge for real estate issues. The court indicated it was signing two orders making these appointments. The orders were filed the same day. Mark's counsel stated that her understanding from speaking with Mr. Mills was that he would be speaking with Judge Arand and that "everything was going to be taken off calendar [on May 19]." Although she did not vacate the trial date at the May 19 hearing, Judge Arand (1) alluded to the fact that she had recently denied Mark's first ADA request, indicating she would not discuss the request due to its confidentiality; (2) indicated that Mark's counsel should file a noticed motion if she sought a continuance; (3) requested that counsel relay to Mr. Cox the judge's belief that he, as case manager, "needs to do whatever it takes to ensure that Mr. Maynard gets the help he needs to get ready for trial"; and (4) stated that she would like to vacate the trial date to allow "this process with Mr. Cox and Mr. Mills to progress a bit."

The trial before Judge Mills ultimately did not commence until January 15, 2010. This was more than seven months after the May 3, 2009 trial date that Mark's counsel sought to continue for six months in the 2009 ADA request. Throughout the year 2009 and through May 2010-when the parties were preparing for trial and participated in the Real Estate Trial-Mark was represented by counsel.

There was no error by the court in its denial of the 2009 ADA request. In any event, Mark received, through the management of the case conducted by the court outside of the confidential ADA request process, the essential relief requested in his 2009 ADA request.⁸⁷ Furthermore, we reject Mark's claim that the denial of his May 2009 ADA request was prejudicial to him in that such denial resulted in adverse rulings in the Real Estate Trial, including the imposition of $5,000 sanctions against him. Although, the denial of the 2009 ADA request was not error, because the six-month trial continuance Mark sought was effectively granted, and he was guided by his counsel throughout the process of trial preparation and the Real Estate Trial, there is no basis for his claim that the denial of the May 2009 ADA request caused him prejudice.

87 We agree with the court that the appointment of a discovery master in the circumstances here was more appropriately a matter to be considered as a case management issue with notice to the other party. The record does not show that Mark's counsel sought the appointment of a discovery master by a noticed motion procedure.

b. Other Arguments

In addition to his contention that the court prejudicially erred in denying his 2009 ADA request, Mark makes a number of conclusory arguments attacking generally the trial court's treatment of his multiple ADA requests for accommodations throughout the proceedings from 2009 to 2016. These arguments are conclusory and undeveloped, and they are therefore abandoned. (Benach, supra, 149 Cal.App.4th at p. 852; see also Taylor, supra, 222 Cal.App.4th at p. 1247.) Because the contentions are also not supported with proper citations to the appellate record as required under rule 8.204(a)(1)(C), we may disregard them. (Barringer, supra, 102 Cal.App.4th at p. 1239.)⁸⁸

88 We include as unsupported contentions those in which Mark provided citations to the appellate record purportedly in support of the claim, where, upon examination, the record does not support the assertion.

The undeveloped, conclusory contentions made by Mark that are not supported with proper citations to the record include assertions that (1) none of the accommodations granted by the court was accomplished in a timely fashion; (2) Mark "was repeatedly subjected to degrading comments from court personnel"; (3) "the court inserted multiple 'emergency' ex parte or other extra motions shortening time [that] Mark could not prepare for"; (4) the court "fail[ed] to appoint a guardian to look out for [Mark's] interests";⁸⁹ (5) "[the c]ourt set up a series of trials spread approximately a month apart as [an] accommodation for Mark to have enough time to prepare and have his pleadings in writing . . . [but] negated this accommodation and filled these dates with multiple additional motions by Julia, not allowing Mark sufficient additional time to prepare for these added tasks"; (6) "Mark had 5 related cases pending at once"; and (7) "[s]ince 2010, the court improperly denied discovery of Julia's assets." We will disregard these, and other, conclusory assertions by Mark that are unsupported by proper citations to the appellate record. (See Benach, supra, 149 Cal.App.4th at p. 852 [conclusory assertions]; Barringer, supra, 102 Cal.App.4th at p. 1239 [claims unsupported by citations to the record].)

89 Mark does not assert that a request for appointment of a guardian ad litem was ever made on his behalf, nor does he cite to the record showing such a request.

One conclusory argument, repeated several times in various forms by Mark, is that the court, after granting the accommodations of providing reporter's transcripts and permitting him to record proceedings with a personal recorder, later "revoked" or "negated" those accommodations. Included among Mark's conclusory assertions is the statement that "[i]t often took weeks to get most transcripts [from the court] and they eventually just stopped sending them [altogether] in 2013." There is no support for this claim.⁹⁰

90 In support of this statement, Mark cites to one page of the appellate appendix consisting of two e-mail communications dated October 11-12, 2012, between Mark and the court's ADA coordinator concerning Mark's request for a transcript to an October 11 hearing; the ADA coordinator's response indicated that the transcript would be available early the following week. The record citation clearly does not support Mark's assertion in his brief.

Our review of the record shows that the court below consistently provided accommodations to Mark, while satisfying its administration obligations to adjudicate all contested matters and render a judgment. The record shows that the court accommodated Mark by providing shortened trial sessions; all but two of the 20 days of trial were approximately three hours or less in duration. And the truncated trials were, in general, scheduled so that there would be more than one week between trial days.

Mark has not shown error by the court with respect to (1) the denial of the 2009 ADA request, (2) the purported denial of any other ADA requests, or (3) the purported revocation of accommodations provided under such requests.

V. DISPOSITION

The April 22, 2016 Amended Final Statement of Decision and Judgment (Judgment) is reversed, and the matter is remanded for further limited proceedings as stated in this opinion.

First, the court shall conduct a limited retrial to determine the fair market value of the Truckee Properties, i.e., the real property commonly known as 4156 South Shore Drive and 13351 Sierra Drive, both in Truckee, California. (See Gray v. Cotton (1913) 166 Cal. 130, 139 [partial reversal and limited retrial appropriate "where the error found to have been committed has affected the determination of but one or more of a greater number of distinct and severable issues or causes of action"].)⁹¹

91 We recognize that the trial court, in determining the fair market value of the Truckee Properties, has considerable discretion in exercising its duty to divide the property of the community equally. (See In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 309-310.) We also note that, in general, property is to be valued "as near as practicable to the time of trial." (§ 2552, subd. (a).) Recognizing these principles, we observe that in the unusual circumstances of this case-where the real property was initially appraised and divided in May 2010 in the Real Estate Order, the parties thereafter proceeded to possess, manage, and occupy the properties in accordance with that division, and one of the five parcels was later lost due to foreclosure-this may be an appropriate case, in the discretion of the court, in which a valuation date other than the time of trial on remand may be a more equitable approach to the valuation of the Truckee Properties.

Second, without conducting a retrial or considering new or additional evidence, the court shall reconsider the evidence provided at the bifurcated trial on reimbursement claims held on January 28, 2013, concerning Mark's claim for reimbursement of expenses paid for community-owned real property for the time period of February 11, 2010 to May 28, 2010, to determine whether Mark provided adequate proof of such claim and should therefore receive reimbursement. After conducting the limited further proceedings, the court shall enter a new judgment, which shall:

(1) utilize the language and findings of the prior Judgment, except insofar as utilizing such language and findings may be inconsistent with holdings and directives contained in this opinion;

(2) utilize the values of the Truckee Properties as determined by the court on remand;

(3) enter a finding in favor of Mark as to the breach of fiduciary duty claim (IRA distribution) based upon the absence of proof of damage, and strike the award of $28,832 in favor of Julia relative to that claim;

(4) if the court determines it appropriate after its reconsideration of the evidence presented at the trial held on January 28, 2013, include a credit to Mark for one-half of the expenses for community-owned real property made between February 11, 2010 and May 28, 2010;

(5) reduce the $10,000 award of sanctions against Mark to $6,000;

(6) strike the $25,000 award of sanctions against Mark;

(7) correct the total amount of sanctions owed by Mark from $41,500 to $12,500;

(8) recalculate the amount of prejudgment interest on the sanctions award of $6,000;

(9) correct the total amount of prejudgment interest owed by Mark on the sanctions awards to reflect the sum of (a) the corrected prejudgment interest on the $6,000 sanctions award, (b) $3,000 (prejudgment interest previously determined on the sanctions award of $5,000), and (c) $462 (prejudgment interest previously determined on the sanctions award of $1,500); and

(10) recalculate the debits and credits applicable to the parties and then recalculate the amount of the equalizing payment, if any, owed.⁹²

92 In preparing the new judgment, the trial court is requested to consider potential typographical errors and potential errors in the inclusion of reimbursement credits in the April 22, 2016 Judgment as identified in this opinion. (See fns. 21, 58, and 73, ante.)

The parties shall bear his/her respective costs on appeal.

WE CONCUR: ELIA, Acting P.J., DANNER, J.