Filed 11/5/19 Marriage of Veliz and Hoffman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
In re the Marriage of JOSE E. VELIZ and JANIS HOFFMAN. B271839
JOSE E. VELIZ,

Respondent,

v.

JANIS HOFFMAN,

Appellant. Los Angeles County

Super. Ct. No. SD030340

APPEALS from orders of the Superior Court of Los Angeles County, Matthew C. St. George, Commissioner. Dismissed.

Janis Hoffman, in pro. per.; and Merritt McKeon for Appellant.

No appearance for Respondent.

_______________________________________

INTRODUCTION

In this family law case, appellant Janis Hoffman filed six notices of appeal from more than 20 post-judgment orders. We consolidated five of the appeals for purposes of briefing, oral argument, and disposition. Hoffman’s 116-page corrected, amended opening brief consists of a collection of unfocused and undeveloped arguments. And many of her arguments are not supported by reference to the 6,000-plus page appellate record. Although difficult to discern, Hoffman appears to challenge four orders: (1) the February 26, 2016 order denying Hoffman’s motion for reconsideration of a prior order denying her request to move to Massachusetts with the parties’ children; (2) the May 23, 2016 order denying Hoffman’s request for additional attorney’s fees; (3) the October 4, 2016 order denying Hoffman’s request for modification of prior custody and visitation orders; and (4) the March 20, 2017 order modifying child support.

We conclude that Hoffman failed to file an opening brief in conformity with fundamental rules of appellate practice after her prior brief was stricken for noncompliance with the rules, which we deem to constitute an abandonment of the appeals. In any event, we conclude that an order denying a motion for reconsideration is not appealable and Hoffman’s other arguments lack merit. We therefore dismiss the appeals from the February 26, 2016, May 23, 2016, October 4, 2016, and March 20, 2017, orders.

FACTS AND PROCEDURAL BACKGROUND

Jose E. Veliz and Janis Hoffman (collectively, the parties) got married in 2005. They have two minor children. Both children were born in December 2009. The children have been diagnosed with ADHD and sensory processing disorder, and have difficulty with fine motor skills.

In May 2013, the court entered a judgment dissolving the parties’ marriage. As part of their stipulated settlement agreement incorporated into the dissolution judgment, the parties were awarded joint legal custody of the children. Although Hoffman was given primary physical custody, Veliz had continuing and frequent contact with the children. According to Veliz, he saw them approximately 20 days every month.

1. February 26, 2016 Order Denying Reconsideration of Hoffman’s Move-Away Request
2.
In June 2015, Hoffman filed a request for orders to allow her to relocate to Massachusetts with the children. Hoffman explained she was accepted to Mount Holyoke College on a full academic scholarship, and the move would allow her to achieve a more secure financial position. Hoffman also sought $20,000 in attorney’s fees and costs. Veliz, a firefighter with the City of Los Angeles, opposed Hoffman’s relocation request. According to Veliz, the children had stability and continuity in California, “and most importantly they have both their parents here.” Although he had custody of the children 25 percent of the time, he sought an equal parenting plan. Veliz also opposed Hoffman’s request for fees and costs because after paying child and spousal support, Veliz does not have any additional earnings or funds.

In August 2015, the court awarded Hoffman $5,000 in attorney’s fees, and continued the hearing on Hoffman’s move-away request to allow a child custody evaluator to report on the best interests of the children.

On December 3, 2015, the court conducted an evidentiary hearing on Hoffman’s move-away request. The court-appointed evaluator, Dr. Diana Devilliers, recommended against allowing Hoffman to move to Massachusetts with the children. Dr. Devilliers found “serious deficits in parenting on both sides.” Hoffman, who had the majority of time and overnights with the children, allowed them to miss almost one-third of their school days. And if Hoffman were allowed to move to Massachusetts with the children, they would be taken out of school in the middle of the school year. Dr. Devilliers explained that a move to Massachusetts would be “very challenging” for the children because Hoffman would be preoccupied with her own education, she could not meet the needs of the children as a single parent, the children’s support structure was in California, the children were “really attached to both parents,” and Hoffman would not foster a relationship between the children and Veliz.

Dr. Devilliers characterized Hoffman’s behavior with the children as “infantilizing or babying the boys, and the boys in turn acted more like babies with [Hoffman] as well.” Dr. Devilliers also recommended that Veliz get more time with the children if Hoffman decided to stay in California. Because Hoffman was scheduled to start college in mid-January and needed a ruling quickly, Hoffman’s counsel waived the parties’ testimony. The matter was argued and submitted on December 18, 2015.

The court denied Hoffman’s move-away request on December 28, 2015. After considering eight factors under In re Marriage of LaMusga (2004) 32 Cal.4th 1072, plus four additional factors, the court found the proposed move-away to Massachusetts was not in the best interests of the children. If Hoffman decided to remain in California, the parties were ordered to meet and confer on a visitation schedule that would allow Veliz to have overnight visits with the children. The court clerk served the parties with notice of entry of the court’s order on December 28, 2015.

On February 9, 2016, Hoffman filed a motion for reconsideration of the court’s December 28, 2015 order under Code of Civil Procedure section 1008. Hoffman argued, among other things, that the court failed to analyze the detriment to the children if she moved to Massachusetts without them. The court denied the motion for reconsideration on February 26, 2016.

3. May 23, 2016 Order Denying Hoffman’s Request for Additional Attorney’s Fees
4.
In November 2015, Hoffman filed a request for orders seeking, among other things, an additional $30,000 in attorney’s fees. This request was heard and decided on May 23, 2016. In denying Hoffman’s request for additional fees, the court stated that Veliz has already been ordered to pay Hoffman $15,000 to cover her attorney’s fees. The court also stated that Hoffman had unnecessarily complicated the litigation by filing unmeritorious ex parte applications and motions.

5. October 4, 2016 Order Denying Hoffman’s Request for Modification of Prior Custody and Visitation Orders
6.
After determining it would be in the children’s best interest, the court appointed Amir Pichvai as minor’s counsel on May 16, 2016.

On May 16, 2016 and June 7, 2016, Hoffman filed requests for orders modifying prior child custody and visitation orders. Hoffman’s requests were heard on September 6, 2016. As a preliminary matter, the court overruled Hoffman’s objections to Pichvai’s ability to present evidence. The court explained that Pichvai was not presenting evidence; instead, “he’s here as [the children’s] attorney to advocate for what he believes is in their best interest, and that’s what his report is aimed at.” Notwithstanding the court’s ruling, it allowed Hoffman to ask Pichvai questions.

On October 4, 2016, the court denied Hoffman’s requests for modification of prior child custody and visitation orders because she did not show a substantial change of circumstances warranting modification of prior orders.

7. March 20, 2017 Order Modifying Child Support
8.
In August 2016, Veliz filed a request to modify child support based on imputing minimum wage income to Hoffman, reallocation of payments for uninsured medical expenses, and payments to be made directly to service providers. The request was argued on January 27, 2017. Towards the end of the hearing, Hoffman asked, “[C]an I request that there be a statement of decision for this order?” The court responded, “You can, but it would be denied. I’ll be writing a decision, so you will get that. You will get that. [A] Statement[] of decision is a term of art, and it’s a lot more trouble than you want at this point.” Hoffman then responded, “Okay.”

On March 20, 2017, the court issued an eight-page, single-spaced written decision with an attached dissomaster report. The court found that Veliz’s health care plan offered sufficient in-service network providers to meet the children’s extraordinary medical needs. The court also found that it would not be in the children’s best interests to impute minimum wage income to Hoffman while she attends UCLA. After taking into account changes in Veliz’s annual income, the court ordered him to pay Hoffman $2,261 in monthly child support starting on April 1, 2017. Although Hoffman disagreed with some of the court’s findings and calculations, she did not bring any omissions in the decision to the court’s attention.

9. The Appeals and Briefs
10.
Hoffman filed her first notice of appeal on April 25, 2016, purporting to appeal from 13 orders, including the February 26, 2016 order denying her motion for reconsideration of a prior order denying her request to move to Massachusetts with the children. Hoffman filed a second notice of appeal on June 13, 2016, challenging the May 23, 2016 order denying her request for additional attorney’s fees. Hoffman filed a third notice of appeal on November 16, 2016, challenging the October 4, 2016 order denying her request for modification of prior custody orders and purporting to challenge the constitutionality of statutes providing for the appointment of minor’s counsel. Hoffman’s fourth notice of appeal, filed on May 9, 2017, and fifth notice of appeal, filed on May 15, 2017, challenged the March 20, 2017 order modifying child support. We consolidated the five appeals for all purposes.

Hoffman filed her original opening brief on January 9, 2019. Later, she filed a motion to strike her own brief with leave to file a corrected opening brief. Hoffman explained that her original brief was “slightly defective” and contained only 75 percent of the points she had intended to brief. We granted her request and Hoffman filed her second opening brief on February 19, 2019.

On May 17, 2019, this court, on its own motion, struck Hoffman’s second opening brief under rule 8.204(e)(2)(B). The order striking her brief noted that it did not identify the orders challenged on appeal or state why they are appealable; failed to identify and address the standards of review that apply to each claim of error; failed to set forth, discuss, and analyze all the evidence, both favorable and unfavorable, to Hoffman’s position; failed to direct us to evidence in the record that supports each of Hoffman’s arguments; failed to show prejudice for some of the claims of error; and failed to adequately develop legal arguments or apply the law to the facts of this case in a coherent manner.

The order striking Hoffman’s second opening brief allowed her to serve and file a corrected opening brief. The order specifically directed that the corrected brief identify the orders challenged on appeal, and address when the orders were entered, why they are appealable, and why the appeals from those orders are timely under rule 8.104(a)(1). The order further provided: “A failure to file a corrected opening brief that complies with this order, including but not limited to filing the corrected opening brief within 15 days, will result in dismissal of the appeal without further order of the court. (See Berger v. Godden (1985) 163 Cal.App.3d 1113.)” In response to our order, Hoffman filed a corrected, amended opening brief on June 3, 2019.

DISCUSSION

1. Hoffman’s third opening brief is defective and fails to comply with our May 17, 2019 order.

Hoffman’s corrected, amended opening brief—her third opening brief—purports to raise 11 issues. As we will explain, this brief is also woefully deficient and does not comply with our May 17, 2019 order.

1.1 Inadequate Citations to the Record

“Any statement in a brief concerning matters in the appellate record—whether factual or procedural and no matter where in the brief the reference to the record occurs—must be supported by a citation to the record.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 9:36, p. 9-12, citing rule 8.204(a)(1)(C).) Hoffman’s brief is replete with alleged facts presented in the argument sections upon which she bases her claims that the trial court erred. But she often fails to cite to the 6,000-plus page appellate record.

By way of example, Hoffman asserts the following:

• “Here, the parties had a 90/10 time share plan, with [Hoffman] doing 100% of making appointment for the children and taking them for their doctor visits and testing for their multiple special needs. [¶] [Veliz], on the other hand, denied the children had special needs at all, and only wanted more time with the children if the court ‘allowed’ [Hoffman] to move to Massachusetts.”
•
• “The only criticism from the expert was [Hoffman] not getting the homework ‘done’ though the children could not hold a pencil, could not focus, and had not been found by their school to have special needs, despite assessments done prior to school enrollment, and after, which clearly showed they had need of an IEP and help, from schools which apparently did not find they had any special needs.”
•
• “The trial court had no request by [Veliz] asking for an increase in time with his children. All that was before the court was [Hoffman’s] request, as the primary custodial parent, to be permitted to move with the children for an opportunity to study in a nurturing and affordable environment.”
•
Hoffman provides no citations to the record to support any of these factual assertions. The difficulty presented by Hoffman’s failure to cite to the record is heightened in this case where the clerk’s transcript spans 25 volumes with more than 6,000 pages. (See Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745 [“We are a busy court which cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record” (brackets in original, internal quotes omitted)].)

More troubling is Hoffman’s misrepresentation of the record. For instance, she contends the court only considered Dr. Devilliers’s testimony before denying her move-away request, and “[t]here was no evidence to support the denial of [Hoffman’s] request to move with the children.” Both contentions are false. In its 13-page written ruling after the move-away hearing, the court expressly stated, “In preparing to rule on this matter, the court has conducted an extensive review of the pleadings, points and authorities, and declarations filed in this case as well as its notes on the testimony of the parties relevant to the issue before the court.” And, as noted by the court, Dr. Devilliers testified that the proposed move was not in the children’s best interests because, among other things, Hoffman could not meet the children’s special needs as a single parent, the children’s support structure was in California, the children were attached to both parents, and Hoffman would not foster a relationship between the children and Veliz. Dr. Devilliers also opined that children with special needs require consistency in their lives and the proposed move to Massachusetts would be very disruptive.

Hoffman’s assertion that the court erred by finding she presented no evidence that she obtained a scholarship is also false. In fact, the court stated that “[t]he Mt. Holyoke program, fully funded via a scholarship, appears to be an excellent opportunity for [Hoffman].”

1.2 Undeveloped Legal Arguments

Hoffman’s brief contains numerous undeveloped arguments to support reversing the four challenged orders. For example, she contends the order denying the motion for reconsideration of the December 28, 2015 order should be reversed due to the court’s failure to consider Hoffman’s declarations and exhibits. But nowhere in her brief does Hoffman address the court’s specific statements that it did review all the declarations and evidence admitted in the case.

Significantly, Hoffman’s brief does not cite any legal authority to support her contention that the court’s rulings should be reversed due to its purported failure to consider this evidence, or that she was prejudiced by those rulings. Nor does she cite any legal authority to support her assertions that changing the custodial schedule when none had been requested was clear error, that setting aside the child support order which provided for the children’s needs was error, that the award of joint legal custody was not supported by substantial evidence, and that the court was biased.

To the extent Hoffman’s brief contains citations to legal authorities, she fails to apply those authorities to the facts in this case in any coherent manner. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700 [issue that is not supported by pertinent or cognizable legal argument may be deemed abandoned]; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867 [“an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived”].)

Hoffman’s brief is also deficient because it does not identify and address the standards of review that apply to each of her numerous claims of error. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 [“Failure to acknowledge the proper scope of review is a concession of a lack of merit.”].)

1.3 Hoffman forfeited her claims on appeal.

When Hoffman filed her second opening brief in February 2019 and we found it to be defective, we gave her a third chance to file an opening brief. We are not, however, obligated to give her a fourth chance. Our order striking Hoffman’s brief informed her that we could dismiss the appeals without further notice if her corrected opening brief failed to comply with the pertinent rules or this court’s May 17, 2019 order. On this point, Berger v. Godden is instructive. While applying former rule 18, the Berger court stated: “We hold that while rule 18 does contemplate that an appeal not be dismissed because a party has filed one brief which fails to comply with the rules, nothing in the rules precludes dismissal for failure to file a brief substantially in compliance with the rules after the appellate court has made an order striking one nonconforming brief with leave to file a new brief. Obviously implicit in such an order is the directive that the new brief comply with the rules. The order in the present case expressly provided that if a new brief were not filed as specified, the appeal would be dismissed. When a new brief substantially fails to comply with the rules, as in the present case, the appellate court has both statutory and inherent power to dismiss the appeal.” (Berger v. Godden, supra, 163 Cal.App.3d at p. 1118.)

Hoffman’s third opening brief does not comply with our May 17, 2019 order. Accordingly, she forfeited all her arguments on appeal. We nonetheless briefly address several of Hoffman’s arguments to the extent we can discern specific contentions that are stated with relevant authority and record citations.

2. The trial court’s February 26, 2016 order denying Hoffman’s motion for reconsideration is not appealable and, in any event, was not erroneous.

Hoffman’s appeal centers on whether the court properly denied her motion to reconsider the order denying her move-away request under section 1008. In general, however, an order denying a motion for reconsideration is not an appealable order, even when the motion is based on new facts. (See Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576–1577.) Otherwise, a party would have two appeals from the same decision. (See Tate v. Wilburn (2010) 184 Cal.App.4th 150, 160.) We agree with and follow the prevailing view that an order denying a motion for reconsideration is not an appealable order. Accordingly, we must dismiss the appeal from the February 26, 2016 order.

Even if we had jurisdiction to review the February 26, 2016 order, or the underlying December 28, 2015 order denying the move-away, we would find no error. While we agree with Hoffman that the noncustodial parent—Veliz—had the burden of showing that her planned move to Massachusetts would cause detriment to the children, Veliz met his burden. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 649.) And, based on Dr. Devilliers’s testimony, the court had ample evidence to conclude that the planned move was not in the children’s best interests.

3. The Denial of the Statement of Decision

Hoffman contends the court committed reversible error by denying her request for a statement of the decision in connection with Veliz’s request to modify child support. As noted, Veliz’s request was argued on January 27, 2017. Towards the end of that hearing, Hoffman asked, “[C]an I request that there be a statement of decision for this order?” The court responded, “You can, but it would be denied. I’ll be writing a decision, so you will get that. You will get that. [A] Statement[] of decision is a term of art, and it’s a lot more trouble than you want at this point.” Hoffman then responded, “Okay.”

On March 20, 2017, the court issued a detailed multi-page written decision with an attached dissomaster report. The court found that Veliz’s health care plan offered sufficient in-service network providers to meet the children’s extraordinary medical needs. The court also found that it would not be in the children’s best interests to impute minimum wage income to Hoffman while she attended UCLA. After taking into account changes in Veliz’s annual income, the court ordered him to pay Hoffman $2,261 in monthly child support starting on April 1, 2017. On appeal, Hoffman challenges the court’s March 20 order.

Preliminarily, we question whether Hoffman properly requested a statement of decision. Although she asked whether she could request a statement of decision before the hearing ended, she did not make a specific request or, more importantly, renew her request after she received the court’s written and detailed decision. In any event, Hoffman’s request was defective because it did not specify any controverted issues. Thus, it did not place a duty on the trial court to address any issue whatsoever. (See City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292–1293 [“[A] general, nonspecific request for a statement of decision does not operate to compel a statement of decision as to all material, controverted issues.”]; see also Atari Inc., v. State Bd. of Equalization (1985) 170 Cal.App.3d 665, 675 [“Failure to request findings on specific issues results in a waiver as to those issues.”].)

Even assuming the court erred, Hoffman has not shown the error was prejudicial. She claims that a trial court’s failure to issue a statement of decision when properly requested is reversible error, citing In re Marriage of Sellers (2003) 110 Cal.App.4th 1007. Sellers was effectively overruled, however, by F.P. v. Monier (2017) 3 Cal.5th 1099, which held that “a trial court’s error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review.” (Id. at p. 1108.) In this case, Hoffman does not explain how she would have been any better off if the court had issued a statement of decision and, given the court’s detailed ruling, it is not apparent to us that she would have been. In short, any error was harmless.

4. Minor’s Counsel and Family Code Section 3151

Hoffman attacks the qualifications of the children’s court-appointed counsel, Amir Pichvai. The court appointed Pichvai under the authority of Family Code section 3150, subdivision (a), on May 16, 2016.

Based on the May 16 minute order, the court also addressed Hoffman’s requests for a restraining order and modification of custody and visitation at the same hearing. Notably, the minute order states that Hoffman and Veliz were present at the hearing and represented by counsel. The minute order, however, does not reflect any objection to Pichvai’s appointment by the parties. And the record on appeal does not contain a reporter’s transcript, settled statement, or agreed statement concerning what occurred on May 16.

Error is never presumed on appeal; instead, the judgment or order is presumed correct. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) An appellant has the burden of overcoming that presumption by providing an adequate appellate record demonstrating the error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.” (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.) On the incomplete record before us, we cannot evaluate Hoffman’s contention that the court erred by appointing Pichvai, or whether Hoffman raised an objection to Pichvai’s appointment on May 16, 2016.

Finally, Hoffman contends that Family Code section 3151 (Section 3151) is constitutionally infirm because that statute prevented her from cross-examining minor’s counsel at the September 6, 2016 hearing.

Section 3151 and rule 5.242 are quite detailed with respect to the rights and obligations of counsel for a child. And, as noted by Hoffman, counsel may not be called as a witness. (Fam. Code, § 3151, subd. (b); rule 5.242(i)(14).) Instead, counsel is to “gather” and “present” evidence to the court bearing on the best interest of the child by interviewing or observing the child, reviewing court files and relevant records, and making other investigations “necessary to ascertain evidence relevant to the custody or visitation hearings.” (Fam. Code, § 3151, subd. (a); rule 5.242(j)(1), (k)(1).)

Here, the court overruled Hoffman’s objections to Pichvai’s ability to present evidence at the September 6, 2016 hearing. As noted, the court explained that Pichvai was not presenting evidence; instead, “he’s here as [the children’s] attorney to advocate for what he believes is in their best interest, and that’s what his report is aimed at.” Notwithstanding the court’s ruling, it allowed Hoffman to ask Pichvai questions. Specifically, the court asked Hoffman if she had “any questions to [Pichvai] that you think need to be—would eliminate his report, perhaps elaborate on it?” To that end, Hoffman asked Pichvai whether his written report had been shown to Santa Monica Family Services and whether Pichvai observed the children’s reluctance when getting into Veliz’s car during the parties’ exchange of the children. Accordingly, Section 3151, as applied to the facts presented, did not unconstitutionally infringe on Hoffman’s due process right to examine Pichvai. Regardless, Hoffman has not shown why additional questioning would have made a difference—i.e., that the court would have granted Hoffman’s requests for modification of prior child custody and visitation orders if she could have examined Pichvai in more detail.

DISPOSITION

The appeals from the February 26, 2016, May 23, 2016, October 4, 2016, and March 20, 2017 orders are dismissed. No costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA J.