Opinion
G052397
04-09-2018
In re Marriage of ERIC WINTEMUTE and VENUS SOLTAN. ERIC WINTEMUTE, Respondent, v. VENUS SOLTAN, Appellant.
Krieger, Sullivan, Troung, Spagnola & Klausner, Siobhan Marie Bishop and Richard P. Sullivan for Appellant. Minyard | Morris and Lonnie K. Seide; Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10D004337) OPINION Appeal from orders of the Superior Court of Orange County, Claudia Silbar, Judge. Affirmed. Krieger, Sullivan, Troung, Spagnola & Klausner, Siobhan Marie Bishop and Richard P. Sullivan for Appellant. Minyard | Morris and Lonnie K. Seide; Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Respondent.
INTRODUCTION
This is the second appeal in this case. Soltan's first appeal was from a judgment entered in June 2014 after she and her ex-husband, Eric Wintemute, had settled numerous issues of property division at the end of a month-long trial. Notwithstanding the comprehensive nature of the settlement agreement, Soltan wanted to keep on litigating. We affirmed the judgment, observing that "[o]ne point is clear from the record. The settlement was a global one; there were no remaining issues."
In re Marriage of Wintemute and Soltan (Apr. 6, 2016, G050607) [nonpub. opn.].
Now Soltan has returned, after at least 10 more trial court hearings - hearings punctuated by remarks from the bench such as "absurd," "unbelievable," "delay and delay and delay," "out of control," "disingenuous" and "filled with inaccuracies" when referring to declarations filed under penalty of perjury, and thinly-veiled findings that Soltan and her counsel were lying. Soltan asks us to review both appealable and nonappealable issues, without even a nod toward the standards of review.
The notice of appeal identifies two postjudgment orders as requiring our scrutiny. One dealt with several issues. The second assessed sanctions against Soltan for failing to comply with a requirement of the June 2014 judgment.
We affirm the orders. Although Soltan has ignored the standards of appellate review for trial court orders, we cannot. The rulings she has identified on appeal - to the extent they are reviewable at all - are reviewed for substantial evidence or abuse of discretion. This record contains substantial evidence to support the rulings for which this is the correct standard, and we cannot find abuse of discretion anywhere.
Wintemute has requested sanctions against Soltan and her counsel for a frivolous appeal. After hearing argument on this subject, and in light of the record before us, we grant the motion.
FACTS
Wintemute filed for divorce from Soltan in 2010, after a 30-year marriage. The court granted a status-only decree in 2012. Division of property issues were tried to the court in late 2013.
As the trial was drawing to a close in December 2013, the parties settled, barely avoiding rulings unfavorable to Soltan. After multiple hearings and objections, the trial court entered a formal judgment six months later, on June 24, 2014.
The details of the trek from the December 2013 settlement to the June 2014 judgment can be found in our earlier opinion.
The settlement agreement/judgment dealt with a number of issues; the main one for the first appeal was the division of stock in American Vanguard, a company of which Wintemute was the CEO. Based on an objection we termed "questionably motivated," Soltan managed to create enough confusion regarding the finality of the stock distribution to fuel an appeal.
We affirmed the trial court's judgment, which repudiated Soltan's underlying contention that the settlement agreement was not final and comprehensive, that there were still issues to be adjudicated. We also agreed with the trial court and with Wintemute regarding the distribution of the American Vanguard stock. We issued our opinion on April 6, 2016.
Notwithstanding the then-pending appeal, litigation continued in the trial court at least through June of 2015. The record for this appeal contains transcripts of 10 more court hearings between October 2014, after the formal judgment had been entered, and June 2015. The orders from which Soltan now appeals were entered on June 12 and July 30, 2015.
The notice of appeal actually identifies the first order as being entered on June 12, 2014. Wintemute disclaims any argument that this is not a typographical error.
Proceedings Between October 2014 and June 2015
In August 2014, Soltan filed two motions seeking to set aside or correct the June 2014 judgment. She claimed that (1) there was a pretrial discovery order continuing a request for sanctions against Wintemute and his counsel dating from October 2011 on which the court had not ruled and (2) the settlement/judgment left open an issue concerning Wintemute's postseparation employment contract. She asked for a case management conference and a hearing to deal with these purportedly unresolved issues. Wintemute opposed the motions and asked the court to award him the attorney fees incurred in opposing them.
Although Soltan's declarations implied that her request for sanctions had been continued without a ruling, her counsel maintained at the hearing that sanctions had been imposed, with only the amount to be determined.
The court heard these motions on October 3, 2014. One of the first issues was the date of the purported order regarding Soltan's request for discovery sanctions. Soltan's counsel was unable to supply it, and the court scrolled through the pretrial docket looking for a likely candidate. There was none.
The second issue was the finality of the December 2013 settlement agreement and the June 2014 judgment. Recalling the 27 days spent on trial, the additional days spent on settlement discussions, and the record made by the parties and counsel at the end, the court was quite clear that no issues remained to be resolved. The court also recalled that Wintemute's employment contract had been discussed multiple times before settlement was reached. The court also remarked on the inaccurate statements in Soltan's declarations supporting the motions. The court denied both motions.
Wintemute also filed a motion in August 2014. As relevant to this appeal, the issues he raised were related to the June 2014 judgment, with which Soltan had not complied. Specifically, the June 2014 judgment required her to dismiss a civil lawsuit against Wintemute and American Vanguard entities (the civil suit). She had not done so, and Wintemute was incurring attorney fees in the civil suit. Wintemute wanted access to the family residence, awarded to Soltan, to retrieve his personal property as well as the portion of the community wine collection awarded to him. The judgment also required him to purchase a social membership for Soltan at the Shady Canyon Golf Club. The club had rejected Soltan's application for a social membership, and Wintemute proposed to give her $10,000 toward purchasing a membership somewhere else. Finally, he sought the court's assistance with the paperwork required to transfer stock in various accounts to fulfill the stock distribution and cash dividend distribution requirements of the June 2014 judgment.
This motion was heard first on October 17 and continued to October 24, 2014. It was then continued three more times, and the court made its final rulings after a hearing on December 5, 2014.
The court ruled that Soltan's share of the undistributed cash dividends from the community stock would be paid to her, per the judgment, after Wintemute had paid the taxes on them. According to counsels' explanations at the hearing, only 418 bottles, out of the approximately 950 bottles in the collection as of the date of separation, remained in the wine collection. The court awarded the remaining bottles to Wintemute. Because the social membership in the golf club had fallen through, the court designated it an unadjudicated asset and gave a tentative ruling as to how it would be adjudicated: the court would award the membership to Wintemute, order it appraised, and divide the equity in half. The court urged the parties to settle the matter between themselves and warned Soltan that if the court had to get involved in so trivial an issue and the final adjudication matched the tentative ruling, she might wind up paying for it.
On October 14, in response to a remark the court made at the October 3 hearing, Wintemute filed a declaration regarding the fees and costs incurred in defending against Soltan's two August motions. The fees incurred totaled $16,615. A declaration filed on November 26 increased the amount of fees by $1,500.
At the December 5 hearing, the court imposed sanctions under Family Code section 271 in the amount of $25,000 on Soltan for bringing the two meritless motions in August, which motions she had supported with declarations full of inaccuracies and untruths. With regard to the separate request for attorney fees incurred in the civil suit, which Soltan had not dismissed until October 15, 2004, the court stated, "As far as the civil attorney [fees are] concerned, I don't have enough information on that, and I'm imposing sanctions [i.e., pursuant to Family Code section 271] that I believe is [sic] sufficient to deter future conduct such as this. [¶] If it doesn't, you'll have to revisit another motion, I guess." The minute order of December 5, 2014, did not include any ruling by the court on attorney fees for failing to dismiss the civil suit.
In March 2015, Wintemute moved for reconsideration of civil suit attorney fees issue. He pointed out that the court had left the issue in a somewhat suspended state in December and had subsequently expressed regret that it had not been more severe on Soltan in the matter of sanctions.
The court heard this motion on April 17, 2015. The court inquired first whether the motion before it was actually a motion for reconsideration or simply a request to rule on an unadjudicated issue. After studying the transcript of the December 5 hearing, the court concluded it had not ruled on the request for the civil suit attorney fees. It was, therefore, an unadjudicated issue.
Soltan's counsel complained that he thought he was appearing on a motion for reconsideration (Code of Civil Procedure section 1008), and now it was a different motion for which he was not prepared. To avoid yet another court appearance, the court ordered him to submit additional written argument and declarations and stated it would hold off ruling until these additional documents had been submitted. The court's tentative ruling was to award fees in the amount of $22,276.
The June 12 Order
On June 12, 2015, the court entered a formal order regarding issues on which it had actually ruled the previous December. The ones relevant to this appeal are (1) the community's wine collection, (2) the purchase for Soltan of a golf club membership, (3) sanctions awarded under Family Code section 271, and (4) the taxation of cash dividends.
These last two issues did not appear among those identified in Soltan's initial list, but they were included in the argument section of the opening brief.
The June 2014 judgment had awarded Wintemute half of the community's wine collection, which the attached Community Balance Sheet (CBS) pegged at approximately 950 bottles. Over half had disappeared on Soltan's watch. Only 418 bottles were left. Accordingly, the court awarded all the remaining bottles to Wintemute.
The second issue was the golf club membership. The settlement agreement awarded Wintemute the community's membership in the Shady Canyon Golf Club, on condition that he purchase a social membership for Soltan. The evidence at the hearing established that Shady Canyon rejected Soltan's individual membership application, so it was not possible to fulfill this aspect of the settlement agreement/judgment. The court therefore decided to treat the golf club membership as an unadjudicated asset.
The third issue was the imposition of sanctions under Family Code section 271 for making two motions in August 2014 to nullify the December 2013 settlement by asserting there were still some issues to be decided and filing declarations full of false statements to support the motions. The court imposed sanctions in the amount of $25,000.
The final issue was the taxes on undistributed cash dividends. The judgment of June 2014 provided, "Existing, undistributed cash dividends will be distributed equally after 37.1% taxes are paid off the top by [Wintemute]." Soltan argued that this provision applied only to dividends issued before the December 2013 settlement or within 30 days after the settlement. Dividends issued after that should be distributed to her before taxes. The court ruled that "all undistributed cash dividends are taxed to [Wintemute], and half of the net (after deducting 37.1% for taxes) to be/have been paid to [Soltan]." (Italics added.) This order included dividends issued after December 2013.
The July 30 Order
The settlement agreement/judgment required Soltan to dismiss the civil suit she had filed against Wintemute and various American Vanguard parties. It also required her to indemnify Wintemute and the American Vanguard parties against costs, claims, or liabilities arising from the civil suit. The judgment was entered in June 2014, but Soltan did not dismiss the civil suit until October 15, 2014. In the meantime, however, Wintemute and the other parties were incurring legal fees. The trial court awarded Wintemute $18,000 in sanctions against Soltan for failure to comply with this aspect of the judgment, to compensate Wintemute for these fees. The amount was reduced from the $22,000 Wintemute had requested because it took him several tries to get adequate proof of the fees, resulting in some continuances of the hearing.
Soltan's notice of appeal, filed on August 11, 2015, identified the orders of June 12 and July 30, 2015, as the orders from which she appealed. She also checked the "other" box on the form and added "and all motions/requests made by [Soltan] since 12/12/13 upon which no orders have been issued." She did not specify the code section that authorized this aspect of the appeal.
DISCUSSION
Soltan initially identified nine issues on appeal, some of which are not candidates for review. And not all of these issues were accompanied later by argument and citation to authority. We do not address those that fell by the wayside. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, fn. 3 [points asserted without argument or authority not discussed].) Moreover, some issues were not listed in the initial identification, but made their first appearance in subsequent pages.
We can dispose of several issues at the outset. Our jurisdiction on appeal is limited to reviewing judgments and appealable orders. (Code Civ. Proc., § 904.1.) We cannot review something that did not happen. So we cannot review on appeal the trial court's "refusals" to set hearings on issues of interest to Soltan unless they are incorporated into an order. None was. We also cannot review a failure "to issue numerous [unspecified] orders in a timely manner."
Our jurisdiction is also limited to judgments or orders identified in the notice of appeal. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504.) The only orders Soltan identified were the orders of June 12 and July 30. Orders not specified in the notice, such as the one issued on October 3, 2014, are not reviewable.
I. Due Process
Soltan categorized each of the nine issues on appeal as a violation of her due process rights. Procedural due process, as we observed in the prior opinion, consists of notice and an opportunity to be heard. (See In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 236; In re Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429 [due process satisfied by party's presence and opportunity to object]; Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1329 [due process requires timely and adequate notice and effective opportunity to be heard].) Due process does not require the court to agree with a litigant. It also does not require a court to re-adjudicate issues that have already been decided or take evidence on irrelevant matters.
The record contains transcripts of 10 hearings - some of them quite protracted - that Soltan had between October 2014 and June 2015. In each of these hearings, her views were thoroughly aired and debated. The fact that the court did not always rule her way does not indicate a denial of due process. Indeed, the court went out of its way to ensure that Soltan had ample time and opportunity to present her arguments and showed admirable patience.
For example, Soltan argues on appeal that the trial court deprived her of due process because it did not allow her to present evidence and argue about her interest in Wintemute's postseparation employment agreement. Her own motion put the issue of the finality of the June 2014 judgment before the court. (See e.g., In re Marriage of O'Connell (1992) 8 Cal.App.4th 565, 574-576.) So she certainly had notice that the court would rule on this subject. After hearing her arguments, the court held that the employment contract had been discussed ad nauseam before the parties settled in December 2013 and was encompassed by the settlement agreement. There was therefore no point in hearing evidence on an issue that had already been put to rest.
II. Sanction Award (Civil Suit Attorney Fees)
The judgment entered on June 24, 2014, required Soltan to dismiss her civil suit against Wintemute and related American Vanguard companies. She did not comply until October 2014. In the meantime, Wintemute was incurring attorney fees for court appearances.
Wintemute moved on August 28, 2014, to sanction Soltan for her failure to comply, requesting that she be required to pay the fees. At a hearing on December 5, 2014, the same hearing at which the court sanctioned Soltan $25,000 for bringing meritless motions (and lying in declarations), the court stated, "As far as the civil attorney [fees are] concerned, I don't have enough information on that, and I'm imposing sanctions [i.e., $25,000] that I believe is [sic] sufficient to deter future conduct such as this. [¶] If it doesn't, you'll have to revisit another motion, I guess."
On March 10, 2015, Wintemute moved the court to reconsider the sanctions for civil suit attorney fees. This motion was first heard on April 17, 2015, at which time the court acknowledged that it had not ruled on the request during the December 2014 hearing.
Soltan's arguments on this issue falsify the record. Contrary to her characterization, the court did not deny Wintemute's request for attorney fee sanctions. As it later recognized, it had failed to rule on the request. The court did not recharacterize the request as a "motion for adjudication of an omitted asset." Having realized its omission, the court dealt merely with the matter as an issue on which it had failed to rule. Sanctions for civil suit attorney fees could not possibly be an unadjudicated asset of the community.
Soltan becomes considerably tangled up in recharacterizing what happened in the trial court. First she claims that the court did not deny the motion for reconsideration, as it should have done. On the next page, however, she claims that the court recognized the motion for reconsideration as improper and denied it. Instances such as this have made this a difficult appeal to analyze.
Soltan has ignored the standard of review, which for the imposition of sanctions is abuse of discretion. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 (Corona).) She also claims that there was insufficient evidence to support the amount of the award. We review factual findings under the substantial evidence standard. (Id. at p. 1226.) This means we affirm if there is any substantial evidence, viewing it in the light most favorable to the prevailing party, to support the order. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds (Bickel).)
In this case, Wintemute eventually submitted a declaration from the attorney handling the civil suit as to the amount of fees incurred after Soltan was supposed to dismiss it. That is substantial evidence to support the amount. We also cannot say that the court abused its discretion in tagging Soltan for the fees incurred because of her tardy dismissal. The judgment not only required Soltan to dismiss the civil suit, it also required her to indemnify Wintemute and the American Vanguard parties for any costs arising from it after the entry of judgment. The award of attorney fees simply enforced the judgment.
Soltan neglected to mention that the court did not simply approve the request, but reduced the award by over $4,000 because it took Wintemute several tries to produce an acceptable declaration.
III. Sanction Award (Family Code section 271)
In the argument section of her opening brief, although not in the initial list of issues, Soltan disputed an award of $25,000 in sanctions. The court made this award pursuant to Family Code section 271, for frustrating the policy of reducing the cost of litigation by making motions based on false and inaccurate declarations. These declarations supported two motions Soltan made in August 2014, in which she argued that the December 2013 settlement agreement and June 2014 judgment did not resolve all the issues. Although the court made the award at the hearing on December 5, 2014, the award was incorporated into the order of June 12, 2015.
Family Code section 271, subdivision (a), 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."
Once again, Soltan ignores the standard of review. We review an award under Family Code section 271 for abuse of discretion. (Corona, supra, 172 Cal.App.4th at p. 1225.) "Accordingly, we 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." (Id. at pp. 1225-1226.) Given the long list of falsehoods in Soltan's declarations as recited by the court, we certainly cannot say the court abused its discretion in determining that Soltan qualified for sanctions.
Soltan also argues that the evidence does not support a finding that Soltan's conduct frustrated the policy of the law to reduce the cost of litigation, again without reference to the standard of review. We review factual findings under the substantial evidence standard. (Corona, supra, 172 Cal.App.4th at p. 1226.) "'Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.' [Citation.]" (Bickel, supra, 16 Cal.4th at p. 1053.)
The numerous falsehoods in the Soltan declarations, as recited by the court, provided the substantial evidence required to qualify for sanctions under Family Code section 271. Making motions supported by lies to undo a settlement frustrates the policy of the law to promote settlement and reduce the cost of litigation. As the court later stated more than once, Soltan was lucky to get away with the modest penalty of $25,000.
IV. Wine Collection
Soltan asserts two issues with respect to the allocation of the remnants of the community wine collection to Wintemute. She claims that the court erred, first, in finding the collection consisted of approximately 950 bottles at the time of the settlement and, second, in giving what was left at the time of the hearing in December 2014 (418 bottles) to Wintemute.
By now, it is no surprise that Soltan again ignores the standard of review we must follow when assessing a factual determination of a trial court. We affirm the ruling if substantial evidence supports it. We disregard contrary evidence. (Bickel, supra, 16 Cal.4th at p. 1053.)
In this case, substantial evidence supported the court's determination that the collection consisted of around 950 bottles at the time of the settlement agreement. The CBS, incorporated into the December 2013 settlement agreement, listed the wine collection at approximately 950 bottles. This is substantial evidence of the number of bottles in the collection, even if it is an approximation. After listening to argument of counsel regarding what happened to the wine after Wintemute moved out of the family home, the basic facts of which were undisputed, the court determined that Soltan was responsible for the loss of over half of the total.
Soltan claims the court violated her due process rights by not acceding to her request to present evidence about the value of the remaining bottles or to appoint a special master to appraise their value. The value was immaterial. The judgment identified "1/2 wine" as Wintemute's separate property and characterized it in terms of number of bottles, not value. Soltan arranged matters so that well over half of the collection was gone. Substantial evidence supported the trial court's conclusion that Wintemute was entitled to what was left. It was not a denial of Soltan's due process rights to refuse to entertain testimony about the value of what remained of the wine - especially since it could not be compared to the value of what had disappeared.
V. Dividend Taxes
The June 2014 judgment provided that "[e]xisting, undistributed cash dividends will be distributed equally after 37.1% taxes are paid off the top by [Wintemute]. The approximate $15,000 in a sequestered account at Merrill Lynch is awarded to [Wintemute] to pay taxes and fees on what is still in account."
This language duplicates the handwritten settlement agreement signed by both parties, their counsel, and the judge on December 12, 2013.
Soltan argued that the cash dividends should have been distributed within 30 days after the settlement agreement. Therefore she should get all subsequent cash dividends without any deduction for taxes. The order of June 12, 2015, provided that "[p]ursuant to the Judgment filed June 24, 2014, all undistributed cash dividends are taxed to [Wintemute], and half of the net (after deducting 37.1% for taxes) to be/have been paid to [Soltan]."
The judgment as set out in this record did not set a time limit on the distribution of the cash dividends, and substantial evidence supports the trial court's determination that Soltan herself was at least partly responsible for any delay in their distribution. Wintemute also presented evidence that he was required to pay taxes on the dividends until title to them changed. If they were distributed to Soltan before the taxes were paid, she would be getting a windfall. The court properly decided to stick to the plain language of the judgment, into which, by that time, the December 2013 settlement had merged. (See In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 656; In re Marriage of Jones (1987) 195 Cal.App.3d 1097, 1104.)
VI. Remaining Issues
In the argument section, Soltan tweaked some of the issues identified at the beginning of her brief. Instead of maintaining that the court erred by refusing to set a hearing regarding whether she had an interest in Wintemute's postseparation employment contract, she argued that the court erred in finding that she had no such interest. The golf club membership issue at the beginning of the brief was lack of evidence. In the argument section the complaint was a purported threat by the court to impose sanctions if the matter had to be adjudicated. Finally, in the argument section Soltan criticizes the trial court's failure to address the issue of whether Wintemute also breached the settlement agreement by failing to transfer stock to her within 30 days.
The status of Wintemute's postseparation employment contract was the subject of a motion filed on August 22, 2014. The court heard oral argument about it on October 3, 2014, and issued an order on the same day denying Soltan's motion to litigate this issue, observing that it was encompassed in the global settlement agreement and judgment. The order of October 3, 2014, is not one of the orders from which Soltan has appealed, and the time to appeal that order has long expired. Accordingly we do not address this issue.
The August 22 motion also included a request to rule on a motion for discovery sanctions left over from before trial. This request was denied because counsel could not find a copy of the proposed sanction order.
As to the purported threat to impose sanctions on Soltan over the golf club membership, the record does not support her contention. The issue consumed an enormous amount of time, especially considering its trivial nature, and the trial court was justifiably frustrated with the inability of the parties to come to some agreement about it.
"I have spent 30 to 40 days on the economic issues of these two parties, maybe 50. [¶] I have multiple other issues involving custody, domestic violence, children with eating disorders, children trying to kill themselves over their parents' divorce. [¶] I'm not spending any more time on this golf membership today."
What the court held on December 5, 2014, was that the golf club membership was an unajudicated asset, because Soltan could not obtain an individual membership in the Shady Canyon club, as had been expected. The court urged the parties to settle the issue. If they did not, the court gave them a heads up as to how it planned to rule. The membership would be awarded to Wintemute and then be appraised. Whatever net value it had would be divided, with Soltan receiving half. At the hearing, the court stated, "If we have to adjudicate that, it will cost a lot of money and we end up with the same result. Ms. Soltan will pay for it."
Regarding the golf club membership, the minute order of December 5, 2014, stated, "Court notes if the issue has to be litigated and the outcome is the same, [Soltan] might pay for it." At oral argument, Soltan asserted that the trial court's remark at the hearing amounted to a threat to sanction her regardless of the outcome. We believe the minute order reflects the court's true meaning.
Regardless of what the court said, or meant, by this remark, the issue is not reviewable. The June 12 order deleted proposed language relating to who was to pay for adjudicating the golf club membership. The record therefore contains no order adjudicating the golf membership, let alone sanctioning Soltan or requiring her to pay attorney fees because of it. As we stated at the beginning of this opinion, we cannot review something that did not happen.
The last of these issues is an example of the newly popular sport of whataboutism. Soltan was sanctioned for not dismissing the civil suit, so why wasn't Wintemute penalized for failing to transfer stock to her? If she disobeyed the judgment, so did he, so why didn't the court sanction him? What about him?
There is a simple answer to this question. There is no motion from Soltan in the record asking to have sanctions imposed on Wintemute for failing to transfer stock to her. There is, therefore, no order on this subject. Much as we hate to keep repeating it, we cannot review something that did not happen. If you're going to ask "what about him?" you must first ask the trial court.
VII. Motion for Sanctions
Wintemute has moved in the court for sanctions for a frivolous appeal. Code of Civil Procedure section 907 provides, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."
We first note that we issued our opinion in the earlier appeal on April 6, 2016. Soltan filed her opening brief in this appeal on June 14, 2016. So she had had our opinion for over two months before she filed her brief. Notwithstanding our statement in the earlier opinion that "[o]ne point is clear from the record. The settlement was a global one; there were no remaining issues" (In re Marriage of Wintemute and Soltan, supra, G050607, p. 9), Soltan argued in the opening brief in this appeal that the settlement was not global, that issues such as Wintemute's employment contract and the imposition of discovery sanctions were still open to debate. Soltan renewed this argument with respect to the employment contract in the reply brief, filed on September 16, 2016, over five months after our opinion in the first appeal was issued.
A frivolous appeal is one that any reasonable attorney would agree it is totally and completely without merit, an objective standard. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) "[W]here a party bases an appeal on an argument that has been rejected and sanctioned in another trial court and affirmed on appeal, the principle of 'once burned, twice shy' applies. That is the case here." (Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 192.)
Our holding in the first appeal became the law of the case, whether or not Soltan agreed with it. "Upon a later appeal the appellate court will not inquire into the correctness of the principles of law laid down upon the former appeal, but will only consider the record to determine if said principles have been followed." (United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712.) Any argument based on the notion that the June 2014 judgment did not resolve all prior issues was meritless.
Nowhere in the opening brief does Soltan discuss the standard of review for any of the identified issues. As discussed above, several issues that survived to the argument section were issues reviewed for substantial evidence or abuse of discretion, requiring a very deferential review. "'Arguments should be tailored according to the applicable standard of appellate review.' [Citation.] Failure to acknowledge the proper scope of review is a concession of a lack of merit. [Citation.]" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465, italics added.)
After enlightenment by Wintemute's brief, she finally got around to discussing standards of review in the reply brief, but by that time it was too late to inform the arguments in the opening brief. --------
Several of Soltan's arguments are based on blatant misrepresentations of the record. For example, in discussing the sanctions award for civil attorney fees, Soltan complains that the court recharacterized Wintemute's motion for these fees "as a motion for adjudication of an omitted asset." (Italics added.) This is not a slip of the metaphorical tongue, because this charge is repeated shortly afterward. What the court stated was that the award of civil attorney fees was an unadjudicated issue, that is, the court had not made a final ruling on it.
The court did not recharacterize anything. Instead, it realized at the hearing on April 17, 2015, that it had not ruled on Wintemute's motion for civil suit attorney fees when it was first raised, at the hearing in December.
Soltan also claimed that the court imposed $25,000 in sanctions on her without making any findings as to her income, assets, and liabilities or whether they would impose an unreasonable financial burden. She repeated this claim in her reply brief. Both statements are false. The court made explicit findings regarding Soltan's income, assets, and expenses. The court referred to Soltan's most recent income and expense report, which included $800,000 in checking accounts and an income of $12,500 per month, in deciding that sanctions in the amount of $25,000, payable in monthly installments of $5,000, did not impose an unreasonable financial burden.
These examples are by no means the only misrepresentations of the record included in Soltan's briefs. As we have noted throughout this opinion, inaccuracy is the hallmark of Soltan's briefing.
These factors - ignoring the holding of the previous appeal, disregarding the standards of review, and misrepresenting the record - combine to create an appeal that is meritless and appears likely motivated by a desire to delay or harass. As our Supreme Court has explained, "[T]he total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay. [Citations.] [¶] Both strands of this definition are relevant to the determination that an appeal is frivolous. An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 (Flaherty).)
As the court observed, Soltan is herself an experienced attorney. She was heavily involved in the postjudgment litigation and was present for several of the hearings. We conclude this appeal could not have gone forward without her knowledge and acquiescence, if not her urging. We therefore think it appropriate to impose sanctions on her as well as on her counsel.
DISPOSITION
The orders of June 12, 2015, and July 30, 2015, are affirmed.
We find this appeal to be frivolous and assess sanctions against Soltan and her attorney, Richard P. Sullivan, State Bar number 83025, jointly and severally (1) in the amount of $5,000.00, payable to respondent Wintemute within 30 days of the issuance of the remittitur in this matter; and (2) in the amount of $5,000.00, for the cost of processing this appeal, which sum shall be paid to the clerk of this court within 30 days of the issuance of the remittitur in this matter. Respondent is awarded his costs on appeal.
This opinion constitutes a written statement of our reasons for imposing sanctions, as required by Flaherty, supra, 31 Cal.3d at p. 654.
Pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), the clerk of this court is ordered to forward a copy of this opinion to the State Bar of California upon return of the remittitur and to notify Attorney Richard P. Sullivan that the matter has been referred to the State Bar.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.