Filed 6/3/20 Welch v. Welch CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BRENDON WELCH,

Appellant and Real Party in Interest,

v.

FREEMAN H. WELCH,

Petitioner and Respondent.

B295880

(Los Angeles County

Super. Ct. No. ND075582)

APPEAL from a judgment of the Superior Court of Los Angeles County, Randall Pacheco, Judge. Affirmed.

Fem Law Group, F. Edie Mermelstein for Appellant and Real Party in Interest.

Ribet & Silver, Claudia Ribet; Teresa A. Danton for Petitioner and Respondent.

__________________________

In this marital dissolution action, Patricia Ann Welch (wife) died nine days before a scheduled hearing on husband’s motion to enforce a dissolution judgment based on a signed mediation agreement. The hearing was continued after wife’s passing. In the intervening period before the new hearing date, the court entered the proposed judgment that husband had lodged in connection with his motion. Freeman Welch (husband) moved to set aside the judgment on the ground that the court lost jurisdiction once wife died. Brendon Welch, the Special Administrator for wife’s estate (the administrator), opposed the motion. The court agreed with husband and vacated the judgment.

The administrator appeals and contends the trial court continued to have jurisdiction to enter judgment even after wife’s death, because the case had already been submitted to the court for decision. The administrator also argues that the doctrine of judicial estoppel barred husband from seeking to vacate the very judgment he sought to have entered. Husband takes the position that the parties’ dispute over entry of judgment was ongoing and pending a hearing at the time of wife’s passing, and that the court lost jurisdiction upon her death. Husband argues that the doctrine of judicial estoppel is inapplicable.

We find that the cause was not submitted at the time of wife’s passing; the court lost jurisdiction to enter judgment upon her death; and judicial estoppel did not bar husband from seeking to vacate judgment, as he did not take totally inconsistent positions in seeking vacatur. We affirm the trial court’s order vacating judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2015, after 36 years of marriage, husband and wife separated. Husband filed a petition for dissolution of marriage. The petition asked the superior court to end the marriage of the parties due to irreconcilable differences, and for the resolution of property issues. Wife filed a response, also requesting the dissolution of the marriage due to irreconcilable differences, division of their property, and an award of spousal support payable to her from husband.

In October 2017, after two years of litigation, the parties participated in mediation and executed a five-page, mostly handwritten settlement agreement, dividing all of the parties’ property and addressing other financial issues, including spousal support. The agreement provided that the “[p]arties will prepare a formal Judgment for submission to David Weinberg, Commissioner (ret.) who shall serve as the judicial officer regarding all issues arising from the settlement; entry of Judgment and post Judgment matters.”

In November 2017, husband drafted a proposed formal judgment, including the standard two-page court form for dissolution judgments (Form FL-180) and a 16-page typewritten attachment, and sent it to wife. The judgment provided for the dissolution case to procced as an uncontested matter. With the judgment, husband provided wife with some of the forms required in uncontested matters. In January 2018, wife informed husband that she did not agree with the draft judgment and itemized numerous objections to its provisions in a lengthy letter from counsel.

On January 19, 2018, husband filed a request for order to enforce the settlement and enter judgment pursuant to Code of Civil Procedure section 664.6. The motion attached both the mediation agreement and husband’s proposed judgment. The court set a hearing on husband’s motion for March 19, 2018.

On March 6, 2018, wife filed an opposition to the motion to enforce the mediation agreement and to enter judgment. Based on language in the mediation agreement, wife argued that any dispute between the parties regarding the terms of their settlement or entry of judgment must be brought before the mediator, not the trial court. Wife further contended that, even if the trial court were to hear the parties’ disputes over judgment terms, the court had no authority to enter husband’s proposed judgment. Specifically, wife argued that: the parties never agreed that the October 6, 2017 mediation agreement could be entered as a judgment, but required preparation of an agreed-upon formal judgment; husband’s proposed judgment contained additional material terms that were not included in the mediation agreement, and indeed were contrary to it; and the procedure for wife to object to the draft judgment’s provisions necessarily depended on whether the trial court or the mediator would resolve those disputes. The opposition included a 42-page “Separate Statement Listing Conflicting Proposed Judgment Provisions,” in which wife itemized numerous provisions in husband’s proposed judgement that she contended were not supported by, or contrary to, the mediation agreement, as well as her position on what additional provisions should be included in the formal judgment the parties had agreed to draft. She asked the court to deny husband’s request to enforce the settlement terms in the October 6, 2017 mediation agreement and to deny entry of judgment thereon. Wife also requested that the court enforce the provision in the mediation agreement for resolution of disputes, by ordering the parties back to the mediator to resolve any disputes about the settlement terms.

On March 14, 2018, husband filed a reply, arguing there was no need for additional mediation because the proposed judgment faithfully reflected the mediation agreement.

On March 19, 2018, the parties appeared for the hearing on husband’s motion. The hearing on the motion to enforce settlement and enter judgment was continued to June 25, 2018. The court set a trial setting conference for the same day in June.

On May 21, 2018, husband filed a declaration of his counsel in support of the pending motion for entry of judgment. In the declaration, husband’s counsel noted: “This is a dispute about (1) who has the authority to resolve this Motion for Entry of Judgment and (2) a dispute about the contents of the Judgment. [Husband] contends this Court has the authority to resolve the dispute and enter the Judgment filed concurrently herewith and that this Judgment is consistent with the terms of the parties’ written agreement dated October 6, 201[7]. [Wife] disagrees and/or has refused to respond.” Counsel’s declaration recited husband’s efforts to reach an agreement with wife on the terms of a formal judgment and complained that wife had failed to meet and confer despite having been ordered to do so by the trial court on March 19, 2018. Counsel made legal arguments in the declaration, including that the trial court, and not the mediator, has the authority to decide the disputed issues. Counsel informed the court that husband would present a written statement from Commissioner Weinberg as evidence at the upcoming hearing. With the declaration of counsel, husband lodged a second proposed judgment. Counsel stated in the declaration that husband had “agreed to adopt nearly all of [wife’s] changes to Judgment #1” and the second proposed judgment was “the mirror-image of the parties’ agreement [reached in mediation].” Husband’s counsel further stated that counsel had personally delivered a copy of the second proposed judgment to wife’s attorney, along with husband’s final declaration of disclosure, and a waiver of wife’s final declaration of disclosure. Husband asked the court to “enter proposed judgment #2 at this hearing” “[p]ursuant to Code of Civil Procedure 664.6 and Los Angeles County Local Rule 5.16 (ten-day rule).” Husband urged the court to enter the judgment “so that [wife] does not further delay the dissolution of marriage and further endeavor to cause [husband] economic harm by postponing the dissolution of status past the year 2018.”

The second proposed judgment, which was prepared using the court form “FL-180,” states on its face that the judgment of dissolution proceeded by “Agreement in court” on “6/25/2018” in the presence of husband, wife, and their respective attorneys. It further provides that for good cause appearing, “Judgment of dissolution is entered. Marital or domestic partnership status is terminated and the parties are restored to the status of single persons” on “6/25/2018.” The superior court’s Case Information system includes an entry for May 21, 2018, that states, “Judgment (PROPOSED. PLACED IN . . . TICKLER 6/25/18).”

In the ensuing three and a half weeks, wife did not file anything in response to husband’s counsel’s declaration, including any objection to the second proposed judgment lodged therewith. On June 16, 2018, wife died.

Neither the hearing on the motion nor the trial setting conference occurred on June 25, 2018, but appear to have been continued to August 6, 2018.

On July 6, 2018, two weeks after the wife’s death, and one month prior to the continued hearing date, the trial court signed and filed the second proposed judgment dissolving the parties’ marriage and distributing their property. The judgment entered states that dissolution was heard and granted pursuant to an agreement in court on June 25, 2018, in the presence of husband, wife, and their counsel. The clerk of the court served a notice of entry of judgment by mail on both husband’s and wife’s counsel.

On August 6, 2018, counsel for both parties appeared in court on the date scheduled for the trial setting conference and motion hearing. Wife’s counsel informed the court that her client had died, and the court and counsel engaged in the following relevant colloquy:

“The court: I believe that moots the trial, doesn’t it?

“[Wife’s counsel]: . . . There was a signed mediation agreement, but not a formal judgment. . . . So I’m not sure what to do.

“The court: It is awkward because certainly [husband’s] position is that there was a consummated agreement. It was just a matter of getting the actual judgment entered.

“[Husband’s counsel]: No, Your Honor. My client’s position is that by operation of law, the case is dismissed.

“The court: Well, yes, but because no judgment was ever entered.

“[Husband’s counsel]: Well, because [wife] has passed.

“The court: All right. [¶] Then whatever the issues were about why the judgment, the actual formal written judgment was never totally agreed to become moot.”

Wife’s counsel did not oppose dismissal. Nor did wife’s counsel dispute the court’s statement that the formal written judgment had not been agreed to by the parties, or otherwise suggest the parties had reached an agreement. Wife’s counsel did not argue that the cause had been submitted to the court prior to wife’s passing, thereby preserving the court’s ability to enter the previously lodged second proposed judgment. The court dismissed the case.

On October 22, 2018, husband moved to set aside the judgment under Code of Civil Procedure section 473 and Family Code section 2105. He argued that the court had erroneously entered the proposed judgment and that it should be set aside because “the action abated” when wife died. He contended that his second proposed judgment was for consideration by the court at the June 25, 2018 hearing, and that his motion for entry of judgment was still pending when wife died. He further argued that the matter was never heard, as the June 25, 2018 hearing had been continued. He also contended that the mediation agreement was partial and that it contemplated the parties returning to the mediator to settle any disputed terms. Lastly, husband maintained the court had erred in entering the second proposed judgment because he and wife “had not exchanged Final Declarations of Disclosure.”

The administrator, represented by counsel, opposed the motion, arguing that husband should be judicially estopped from taking the position that judgment should be set aside. The administrator further argued that the case was “fully briefed” when the court entered judgment pursuant to husband’s request, thereby permitting the judgment to be entered even after wife’s death. Finally, the administrator asked the court to correct the judgment nunc pro tunc to correspond to the date of wife’s death, June 16, 2018.

Husband filed a reply arguing the court had lost jurisdiction over the case when wife died because the case was never submitted. Although husband had previously repeatedly urged the court to enforce “the parties’ written settlement agreement of 10/06/2017 and enter[] judgment thereon,” he now claimed that the parties’ settlement agreement was only “partial.” Husband argued that “the ‘proposed’ judgment was disputed by [wife] at all relevant times,” and thus, the matter was never submitted for judgment.

On December 7, 2018, the court held a hearing on the motion to vacate. In opposition to husband’s contention that the court lost jurisdiction when wife died, the administrator argued that the matter was submitted for decision before wife died. Specifically, he contended that husband filed a motion on May 21, 2018, giving wife until June 12, 2018, to file an opposition; when wife did not, the motion was submitted unopposed, giving the court authority to enter judgment even after wife’s death. The administrator contended that the June 25, 2018 hearing did not proceed because husband’s motion to enforce judgment was unopposed. The administrator further contended that the submission date of the cause had to be determined by the last date for the filing of opposing papers, because the hearing was taken off calendar and never occurred, not continued. The clerk and counsel for husband stated that the matter had been continued. The court stated “[the June 25, 2018 hearing] was continued”, and that “[wife’s counsel] did appear on August 6th and that’s consistent with the June 25th hearing being continued out of courtesy for everybody given the unfortunate[] occurrence.” The court found that the matter was still in dispute at the time of wife’s death, and concluded that the case was not under submission when judgment was entered: “There was the ongoing controversy about whether the judgment prepared by [husband] properly reflected the actual orders that had been made. [¶] It was my decision on Ju[ly] 6 to just go ahead and sign off, but by that point . . . I didn’t have any jurisdiction.”

On December 17, 2018, the court filed a notice of ruling and order on the motion to vacate judgment, which included the following pertinent findings: “on January 19, 2018 [husband] filed a Motion to Enter Judgment under Code of Civil Procedure 664.6 but this motion was never ‘submitted’ for decision”; “on June 16, 2018 [wife] passed away”; “on July 6, 2018, the Court erroneously signed [husband’s] proposed Judgment submitted in conjunction with the Motion to Enter Judgment filed on January 19, 2018 and at the time the Court did not know [wife] had passed away”; and “[t]he Judgment entered in this matter on July 6, 2018 is void, vacated and set aside.”

The administrator appealed.

DISCUSSION

This appeal presents two questions. First, whether the case had been submitted for decision before wife’s death. If the answer is in the affirmative, the court had authority to enter judgment. If the case had not been submitted, the court lost jurisdiction over the matter upon wife’s death. We agree with husband that the case was not yet submitted, and therefore the court did not have jurisdiction to enter judgment after wife’s death. Second, whether husband should have been judicially estopped from seeking to vacate the judgment, after having sought to have the judgment enforced pursuant to Code of Civil Procedure section 664.6. We see no basis for finding that judicial estoppel applies in this case. The trial court’s order vacating the judgment that had been entered on July 6, 2018 is affirmed.

1. The Law Regarding Entry of Dissolution Judgments Following the Death of a Party
2.

“[T]he death of a party to a dissolution proceeding abates the cause of action, as the status of the parties is no longer before the court, and . . . the court thus loses jurisdiction to make any further determination of property rights, alimony, costs or attorneys’ fees.” (In re Marriage of Shayman (1973) 35 Cal.App.3d 648, 651 (Shayman).) However, under Code of Civil Procedure section 669, if the case is submitted for decision before a party dies, the trial court retains the power to enter judgment. (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1167, 1170 (Mallory) [holding that “the trial court in a marital dissolution action is empowered to enter a judgment nunc pro tunc with respect to all issues, including marital status, submitted to the court for decision prior to the death of a party to the proceeding”].) “A cause is deemed submitted in a trial court when either of the following first occurs: [¶] (1) . . . the court orders the matter submitted; or [¶] (2) . . . the final paper is required to be filed or . . . argument is heard, whichever is later.” (Cal. Rules of Court, rule 2.900(a); see also Fam. Code, § 2346, subd. (d) [the court shall not cause a judgment to be entered nunc pro tunc as of a date before submission to the court of an application for judgment on affidavit pursuant to section 2336].)

“It has been recognized as proper, when applying section 669 of the Code of Civil Procedure, to order entry of a judgment nunc pro tunc to a date prior to the death of the party, so far as necessary to protect the parties’ rights.” (Shayman, supra, 35 Cal.App.3d at p. 652.) The policy behind this rule is that “‘if the parties had done everything they could to put the case in a posture where it was ready for final rendition of judgment, a court delay should not be used to prejudice the parties.’ [Citation.]” (Mallory, supra, 55 Cal.App.4th at p. 1170.)

We review de novo a trial court’s order setting aside a judgment as void. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.)

3. The Court Did Not Err in Finding the Cause Was Not Submitted for Decision Before Wife’s Passing and the Judgment Was Void
4.

On appeal, the underlying premise of the administrator’s argument that the cause was submitted to the trial court for decision is that wife accepted and agreed to the entry of the second proposed judgment prior to her death. There is no affirmative evidence in the record that manifests wife’s acquiescence to enter that proposed judgment. Nevertheless, in the absence of such evidence, the administrator contends that the trial court was required to conclude, as a matter of law, that wife’s silence after receiving the second proposed judgment means she and husband had agreed to entry of that judgment. The administrator bases his contention on various statutes and court rules, as well as the content of the second proposed judgment. The administrator’s arguments have no merit.

a. Code of Civil Procedure, section 1005

As he did in the trial court, the administrator relies on Code of Civil Procedure section 1005 as determinative of the issue of submission. Section 1005 requires that all papers opposing a noticed motion must be filed at least nine court days before the hearing. Here, the administrator contends that husband filed a motion to enforce judgment on May 21, 2018; wife had until June 12, 2018—nine court days before the hearing scheduled on June 25, 2018—to oppose that motion; wife failed to file any opposition; and the failure to file means the matter was submitted unopposed. The argument is baseless.

Code of Civil Procedure section 1005 imposed no obligation on wife to file anything in these circumstances, because husband did not file a noticed motion on May 21, 2018. The only noticed motion in this case was husband’s motion to enforce judgment filed on January 19, 2018. Wife timely filed an opposition to that motion in March 2018. On the original hearing date, March 19, 2018, the court continued the hearing on the already opposed, and fully briefed motion, to June 2018. What the husband filed on May 21, 2018, was not a new, noticed motion: it was an additional declaration and a revised judgment in support of the pending motion to enforce judgment. The service of these additional documents did not trigger an obligation on wife to file a second opposition to the pending motion. Nothing in Code of Civil Procedure section 1005 obligates a party to file a written opposition to an additional declaration and an updated proposed judgment provided in connection with a fully briefed motion. Accordingly, we reject the administrator’s contention that by not filing an opposition pursuant to Code of Civil Procedure section 1005, wife manifested agreement to the entry of judgment on June 12, 2018, and an intent for the June 25, 2018 hearing to be taken off-calendar, such that we should conclude the cause was submitted for decision.

b. Los Angeles Superior Court Rule 5.16(b)

The administrator also cites the Superior Court Los Angeles County, Local Rules, rule 5.16 to argue that wife’s failure to file objections to the second proposed judgment lodged with the trial court on May 21, 2018, resulted in the cause being submitted on May 31, 2018, and authorized the court to enter the judgment without a hearing. This argument too has no merit.

First, it is noteworthy that the administrator relies on a snippet of the text in subdivision (b) of the rule: specifically, its language that “a Stipulation for Judgment . . . may be submitted to the court without appearance.” From this, the administrator argues the court could proceed without a hearing. But subdivision (b) concerns “Stipulated Judgments on Further Reserved Issues,” which is wholly inapplicable to this matter, where the parties were not dealing with reserved issues. Even assuming that the terms of subdivision (b) could be read to encompass an initial judgment, it nevertheless only applies to stipulated judgments, “[w]hen all remaining issues have been resolved.” (Super. Ct. L.A. County, Local Rules, rule 5.16(b).) Here, as amply shown by husband’s counsel’s declaration accompanying the second proposed judgment, when the proposed judgment was lodged with the court it did not reflect a stipulated agreement between the parties: husband lodged the second proposed judgment precisely because he and wife had failed to reach agreement on the enforceability of the mediation agreement and the judgment terms, and he was asking the court to enter a judgment over her objections after a hearing. Indeed, not even the administrator contends that, at the time the second proposed judgment was lodged with the court on May 21, 2018, the parties had agreed to its terms; the administrator contends a later failure to object is when wife accepted the judgment. The judgment was not submitted as a stipulated judgment on further reserved issues governed by subdivision (b).

Second, the administrator’s contention that the judgment somehow became a stipulated judgment because wife did not file objections within 10 days after May 21, 2018, also distorts the superior court rule. Subdivision (b), the only provision cited by the administrator, contains no provision for making objections within 10 days. In fact, it has no provision for making objections at all. That is because subdivision (b) applies only where the parties have already stipulated to the judgment being submitted. Where the parties have jointly stipulated to entry of a specific judgment document, providing an opportunity to object would make no sense.

The administrator attempts to rely on a 10-day provision from elsewhere in the Superior Court of Los Angeles County, Local Rules, rule 5.16. But the 10-day provision has no applicability to the cause at issue here. Rather, the 10-day period for objections is part of a procedure in cases where a trial court orders one party to prepare a judgment. The procedure requires the ordered party to serve it on the opposing party “for approval as to form”, and gives the opposing party ten days to make objections. The objecting party may also submit its own version of the judgment to the court. Significantly, the rule requires the court to set an order to show cause hearing regarding entry of judgment at the time it orders the party to prepare the judgment. No appearance at that hearing is necessary, however, “[i]f the judgment approved as to form is received prior to [the] hearing.” (Super. Ct. L.A. County, Local Rules, rule 5.16, italics added.) In the instant case: the court never ordered husband (or wife for that matter) to prepare a judgment; the husband did not seek from wife approval of the second proposed judgment as to form; and the parties never lodged with the court a judgment that had been approved as to form. As such, the 10-day provision in the rule invoked by the administrator provides no basis to argue that wife somehow agreed to entry of judgment without an appearance by not filing objections to the second proposed judgment.

c. The Second Proposed Judgment Did Not Resolve the Disputed Issues in Husband’s Motion to Enforce Pursuant to CCP 664.6

The administrator also argues on appeal that the trial court erred in finding that there was an ongoing controversy with respect to the May 21, 2018 proposed judgment. The argument appears to be that both parties agreed to the October 6, 2017 stipulation in mediation; the May 21, 2018 proposed judgment “reflected the verbatim terms” of that mediated agreement; and therefore wife had nothing left to oppose at the June 25, 2018 hearing, so the cause was submitted before her death. The administrator invites this court to compare the mediation agreement and second proposed judgment to prove the point that there was no material difference between them, and that wife’s agreement to the second proposed judgment can be inferred.

The claim that wife was agreeable to entry of a judgment so long as it reflected the exact terms of the October 6, 2017 mediation agreement is bizarre. In her opposition to husband’s motion to enforce the mediation agreement, wife submitted a declaration stating, “The parties never agreed to have the 4-page mediation stipulation serve as the complete formal judgment in this matter,” but instead included a provision in the mediation agreement requiring “a ‘formal’ judgment would be prepared.” Wife claimed that the parties had to agree on final judgment terms, which would include additional matters. Moreover, wife took the legal position that the trial court did not even have authority to resolve disputes about what additional language to include in the required, formal judgment; any such disputes had to be referred to the mediator under the mediation agreement’s express terms. Wife’s opposition papers asked the court to deny enforcement of the October 6, 2017 agreement. To conclude that, by going back to the verbatim terms of the October 2017 mediation agreement, husband had crafted a judgment acceptable to wife, one would have to ignore the principal arguments wife had pending against entry of judgment.

Further, these disputes remained active at the time husband filed the May 21, 2018 second proposed judgment. This is made clear by the declaration of husband’s counsel, which devotes significant attention to wife’s ongoing refusal to agree that the trial court had authority to resolve the parties’ dispute and authority to enforce a judgment based on the mediation agreement. These were the core matters set for hearing on June 25, 2018. Until argument at that hearing occurred, the matter could not be deemed submitted. (Cal. Rules of Court, rule 2.900(a)(2) [“A cause is deemed submitted in a trial court when [¶] . . . [¶] the final paper is required to be filed or . . . argument is heard, whichever is later” (Italics added)].)

Even if we were to assume wife no longer had objections to entry of a judgment so long as it was a verbatim reflection of the mediation agreement, the May 21, 2018 proposed judgment was not simply a verbatim reflection of that agreement. One significant example of this is the parties’ dispute over the findings that would form the basis for spousal support (and the base from which any modifications to spousal support would be made in the future). The October 6, 2017 mediation agreement stated that “[t]he marital standard of living was upper class” and “[f]actual recitations regarding marital standard of living and income of parties shall be included in the formal judgment.” In her opposition to the motion to enforce judgment, wife noted the absence of the required income figures, and stated that the agreement should include that the marital standard of living for 32 months prior to separation was over $39,000 per month. The May 21, 2018 proposed judgment includes a lengthy description (not included in the mediation agreement) of facts that husband drafted about the marital standard of living. The May 21, 2018 proposed judgment omits the language that wife proposed, including any reference to an income figure. Further, rather than including the verbatim language from the mediation agreement that the marital standard of living was “upper class”, the agreement reduces that to a representation by wife, and adds husband’s position that the standard of living was “upper-middle class.”

Given the substantial record of wife’s objections to use of the mediation agreement as a judgment and the authority of the trial court to adjudicate judgment disputes, her extensive comments in letters and pleadings disputing husband’s proposed language and proposing her own language to be included in any judgment, all of which remained unresolved and was to be ruled upon at the June 25, 2018 hearing, the administrator’s contention that wife’s silence about the second proposed judgment manifests an agreement to that judgment is fantastical. We reject the administrator’s argument that the second proposed judgment resolved all issues, thereby rendering the hearing a nullity for the purpose of determining when the cause was to be submitted pursuant to California Rules of Court, rule 2.900(a).

d. The Issue of Termination of Marital Status was Never Submitted to the Trial Court

Even assuming the issues regarding the division of property, the payment of support, and all other financial matters were no longer in dispute between the parties prior to wife’s passing, the court nevertheless lost jurisdiction to enter the dissolution judgment upon wife’s death. That is because, as husband correctly argues, the parties were required to submit to the court the issue of termination of their status as married persons, prior to wife’s passing. (Mallory, supra, 55 Cal.App.4th at p. 1167 [“the trial court in a marital dissolution action is empowered to enter a judgment nunc pro tunc with respect to all issues, including marital status, submitted to the court for decision prior to the death of a party to the proceeding, notwithstanding the general rule that such a death abates a cause of action for termination of status”].)

One method of submitting the issue of status for decision is through an appearance in court. (Frederick v. Superior Court (2014) 223 Cal.App.4th 988, 992–993 (Frederick) [hearing at which court orally dissolves marital status prior to husband’s death preserves court’s jurisdiction to enter judgment terminating status after husband’s death].)

Family Code section 2336 provides an additional procedure for termination of marital status in uncontested matters: “No judgment of dissolution . . . of the parties may be granted upon the default of one of the parties or upon a statement or finding of fact made by a referee; but the court shall, in addition to the statement or finding of the referee, require proof of grounds alleged, and the proof, if not taken before the court, shall be by affidavit.” (Fam. Code, § 2336, subd. (a).) Under Family Code section 2336, a judgment of dissolution cannot be entered in an uncontested matter solely upon the appearing party’s request for entry of judgment. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶ 12:41 (Rutter).) Instead, the petitioner must offer evidence on the relief requested. (Fam. Code, § 2336, subd. (a).) No personal appearance is required, rather, the petitioner may provide supporting evidence by affidavit or declaration under penalty of perjury. (Rutter, supra, at ¶ 12:42; Fam. Code, § 2336, subds. (a) & (b).)

To implement the requirements imposed by Family Code section 2336, Superior Court of Los Angeles County, Local Rules, rule 5.17 provides that certain forms “must be submitted to obtain a[n] . . . uncontested judgment,” including both an Appearance, Stipulation and Waiver form (identified as FL-130) and a Declaration for Default or Uncontested Dissolution or Legal Separation form (identified as FL-170). This later form, which has been adopted for mandatory use specifically to implement Family Code section 2336, includes the following representation under penalty of perjury: “Irreconcilable differences that have led to the irremediable breakdown of the marriage . . . and there is no possibility of saving the marriage . . . through counseling or other means.”

Here, the first judgment prepared by husband, and attached to the motion to enforce filed in January 2018, expressly contemplated the parties proceeding with dissolution as an uncontested matter. The face of the draft judgment checked the box for a proceeding heard “[b]y declaration under Family Code section 2336,” and the judgment included a paragraph stating that wife agrees that the matter can proceed as an uncontested matter and would provide the required forms to have judgment entered.

When the dispute over the judgment terms persisted, wife did not provide the required forms for proceeding with dissolution as part of an uncontested matter. Accordingly, the second proposed judgment drafted by husband no longer cited to Family Code section 2336. Rather, the face of that second proposed judgment provided for dissolution based on an “[a]greement in court” at the hearing scheduled for “6/25/2018” in the presence of both parties and counsel. Because wife passed away before the hearing date, however, the issue of termination of marital status was not submitted to the court at a hearing before the action was abated by her death.

It bears emphasizing that it was fully within wife’s power to draft and file the documents required for an uncontested dissolution, if in fact, as the administrator argues, she had accepted the second proposed judgment. The requirements of Family Code section 2336 and Superior Court of Los Angeles County, Local Rules, rule 5.17 are clear. But, she did not submit the issue of status to the court for decision by filing the FL-130 and mandatory FL-170 after receiving the proposed second judgment. Accordingly, the cause regarding termination of the marriage cannot be deemed to have been submitted prior her death, as neither of the required papers were filed, nor a hearing on status held, within the meaning of California Rules of Court, rule 2.900(a). This conclusion is consistent with the policy behind Code of Civil Procedure section 669: a nunc pro tunc judgment to a date prior to the death of a party is appropriate where the party “‘ha[s] done everything they could to put the case in a posture where it was ready for final rendition of judgment, . . . [Citation.]’” (Mallory, supra, 55 Cal.App.4th at p. 1170.)

5. Husband’s Motion to Vacate is Not Barred by the Doctrine of Judicial Estoppel
6.

“Judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, ‘“prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’”’ [Citation.]” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468.) “[T]he doctrine should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) “Judicial estoppel is an equitable doctrine and its application by the court is discretionary.” (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.)

The administrator contends that husband took inconsistent positions in the litigation by lodging the second proposed judgment and requesting that it be entered, only later to seek vacatur of the judgment signed and filed by the trial court. “[T]he test for judicial estoppel is that the two positions asserted in the judicial proceedings ‘are totally inconsistent.’ [Citation.]” (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1478.)

Here, we see no basis for concluding that husband’s positions before and after wife’s death should be deemed “totally inconsistent” such that he is judicially estopped from challenging a judgment entered on the basis of lack of jurisdiction. To state the obvious: the legal and factual positions that husband took in his effort to obtain a judgment terminating his marriage and resolving marital property and support issues were premised on the fact that he was married. Wife’s passing ended the marriage by operation of law. (Fam. Code, § 310, subd. (a).) When the entire basis for the dissolution action—the marriage—no longer existed, it cannot be said that it was “totally inconsistent” for husband to take a different position (i.e., that no judgment was necessary to dissolve the marriage and resolve property and support issues), than previously (i.e., the court should enter judgment).

We are cognizant of the fact that husband took some aggressive positions in his push to have the trial court enter judgment. For example, when husband served his second proposed judgment in May 2018, his attorney invoked Superior Court of Los Angeles County, Local Rules, rule 5.16, calling it the “ten-day rule,” to support an expeditious entry of judgment. But the erroneous reference to rule 5.16 was made in the context of requesting the court to enter judgment “at the hearing” scheduled more than a month later. In the context of counsel’s declaration, husband’s citation to the rule did not imply the parties had reached an agreement that could be entered 10 days later if wife did not object. Rather husband advocated for an expeditious entry of judgment after argument and favorable rulings on the pending issues at the upcoming June 25, 2018 hearing.

We are also cognizant of the fact that prior to wife’s death, husband argued that the trial court had the full authority to enter judgment based on the mediation agreement, which he argued was a binding agreement resolving all issues. Later, in his motion to vacate, husband suddenly characterized the mediation agreement as “conditional” and “partial,” contending that unresolved issues had to be presented to the private mediator. Although these positions are totally inconsistent, the trial court did not grant the motion to vacate based on a determination that it did not have authority to decide issues that were properly to be considered by the mediator. As such, husband’s change of position on the authority of the trial court vis-à-vis the mediator had no impact on the vacatur of the judgment.

With respect to the issue that did form the basis of the trial court’s ruling, and that is presented on this appeal—whether the cause was submitted to the trial court for decision prior to wife’s passing, such that the court still had jurisdiction to enter judgment following her death—husband has been consistent. At the continued hearing on August 6, 2018, when the issue of the impact of wife’s passing on the litigation was first raised with the court, husband’s counsel stated the position that the case had to be dismissed.

At the hearing on the motion to vacate, the trial court noted the change of positions, not only of husband, but the representative of wife. The court stated: “[I]t is a little ironic that the representative now of the party . . . who had questions about the judgment wants it to remain in effect and the party who was asserting that the judgment should be signed wants it to be vacated. [¶] But it has to be vacated as a matter of law no matter who wants what because there was — nothing was under submission as of July 6th, and the court had no jurisdiction.” As previously discussed, the trial court was correct in its statement of the record regarding submission, and we cannot say the court abused its discretion in denying the administrator’s contentions regarding judicial estoppel.

DISPOSITION

The order setting aside the judgment is affirmed. Each party is to bear its own costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.