Filed 8/26/20 Marriage of Yarosh 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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 LAURENCE YAROSH and MARIA BLANCO YAROSH. B296896
LAURENCE YAROSH,

Appellant,

v.

MARIA BLANCO YAROSH,

Respondent. Los Angeles County

Super. Ct. No. BD570994

APPEAL from orders of the Superior Court of Los Angeles County, Lynn H. Scaduto, Judge. Affirmed.

Laurence Yarosh, in pro. per., for Appellant.

Law Offices of Richard T. Miller and Richard T. Miller; Law Offices of Constance Bessada and Constance Bessada for Respondent.

_______________________________________

INTRODUCTION

Appellant Laurence Yarosh (appellant) challenges the court’s February 8, 2019 postjudgment order awarding respondent Maria Blanco Yarosh (respondent) $8,500 in legal fees as a sanction. Appellant also appears to challenge the court’s failure on March 22, 2019 to rule on his request for reconsideration of the February 2019 order. We affirm.

BACKGROUND

On November 21, 2018, respondent filed a request for order seeking $22,823.49 in fees and costs from appellant under Family Code section 271 and various civil discovery statutes. Respondent alleged that appellant abused the discovery process, and generated but did not properly serve 18 documents—including notices of deposition for respondent’s current and former attorneys—after an August 2018 hearing. Appellant did not consent to the order.

On February 8, 2019, the court granted respondent’s “request for sanctions” in the reduced amount of $8,500. The court found appellant propounded discovery that did not pertain to issues before the court, and the discovery requests were unreasonable. The court also found that appellant failed to comply with specific procedures for conducting discovery. For example, appellant sent discovery requests by fax without consent, sent deposition notices for respondent’s current and former attorneys without serving the attorneys, and did not comply with notice requirements before scheduling motions.

On March 20, 2019, the court heard argument on respondent’s request to declare appellant a vexatious litigant and for other relief. During that hearing, appellant asked the court to reconsider its February 2019 order. In response, the court noted that appellant’s request for reconsideration was not properly before the court and urged him to file a motion. When appellant asked the court whether he had leave of court to file the motion, the court stated he had “whatever authority you have under the rules to file such a motion.” Ultimately, the court did not resolve respondent’s request because appellant’s appeal from the denial of his application for the sale of respondent’s home was still pending.

The record on appeal does not contain a written motion for reconsideration, and the court’s March 22, 2019 minute order on submitted matters does not reflect any ruling on a request for reconsideration. The record only contains a document titled “Petitioner’s Response to Respondent’s Reply Memorandum” indicating that appellant “will move to reconsider” the order of February 6, 2019. That document, dated March 13, 2019, is not filed-stamped and does not contain a proof of service.

DISCUSSION

The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To overcome this presumption, an appellant must provide a record that allows for meaningful review of the challenged order. (Ibid.)

In addition, parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party’s briefs. When an opening brief fails to make appropriate references to the record to support points urged on appeal, we may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 798–801 [several contentions on appeal “forfeited” because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) “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 Cal. Rules of Court, rule 8.204(a)(1)(C).)

Further, “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.)

An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court’s ruling was prejudicial. [Citations.]” (Ibid.)

Although appellant represents himself on appeal, he is required to follow the basic rules of appellate practice. As an experienced litigant in the Court of Appeal, appellant should now be familiar with these requirements as well as his obligation to comply with them.

Appellant’s briefs are insufficient on a multitude of grounds. First, in the statement of facts in his opening brief appellant presents an incomplete and one-sided recitation of the facts, violating both the California Rules of Court and established standards of appellate practice. (See Cal. Rules of Court, rule 8.204(a)(2)(C); In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)

Second, appellant’s briefs are replete with alleged facts presented in the argument sections upon which he bases his claims that the court erred but he often fails to cite to the record. By way of example, appellant asserts on page 40 of his opening brief that “[t]he documents and interrogatory answers were needed, of course, to refresh the memories of the deponents and to suggest questions to be asked of them.” He also asserts on the next page that “the three declarations were submitted a full week after the hearing, so [appellant] had no opportunity to object in court.” Then, on page 51 of his opening brief, appellant asserts that he knows the parties’ daughter “has long since moved out, is pursuing a career and is self-supporting. … [Appellant] is entitled to examine [respondent] to develop information for impeachment.” And on page 80 of his opening brief, appellant asserts that he has been “forced to expend considerable time and some $6,000 in fees and costs to recover from a wealthy woman [a] judgment that was supposed to have been settled four years ago.” Appellant provides no citations to the record to support these assertions.

Third, appellant does not cite any legal authority to support many of his arguments, including his contention that discovery was properly sought as to issues involving marital misconduct, the tender of a check, the sale of an automobile, the reliability of an attorney’s statements, and the support of the parties’ adult daughter. Further, appellant cites no authority to support his contention that the court erred by not ruling on his reconsideration request. To the extent his briefs contain citations to legal authorities, appellant does not apply those authorities to the facts in this case. (See City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt”].)

Fourth, appellant’s arguments are undeveloped or are not supported by the cited legal authorities. For instance, he contends that the deposition notices directed to respondent’s current and former attorneys were justified and necessary. Depositions of opposing counsel are, however, presumptively improper, and appellant did not show that he lacked other practicable means of obtaining this information and that the information was crucial to a pending motion or request for order. (See Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) Appellant also cites no pertinent legal authority to support his argument that a party’s attorney is a “managing agent” for purposes of deposition and, therefore, can be noticed to appear without a subpoena. The case cited by appellant on this point, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, involved a member of a governing body of a church, not a party’s attorney. Indeed, later in his opening brief, appellant appears to acknowledge that at least as to respondent’s former attorney, it is unclear whether she is respondent’s managing agent. And although appellant argues that service was effected by fax for the challenged discovery, he does not point to anything in the record confirming that he could serve the 18 documents referenced in respondent’s sanctions request by fax, or that the subsequent service of those documents was timely. (See Cal. Rules of Court, rule 2.306(a)(1) [fax service is permitted only if the parties agree and a written confirmation of the agreement is made].)

In accordance with the appellate law principles just stated, we conclude appellant failed to carry his burden to demonstrate prejudicial error. In any event, as we discuss below, the court did not err in imposing a sanction against appellant.

At bottom, this appeal centers on whether the court erred in finding that appellant’s discovery requests exceeded the scope of permissible discovery under Family Code section 218. Section 218 requires that a motion or request for order be filed and served before commencement of postjudgment discovery. Here, the challenged discovery involved several deposition notices, as well as interrogatories and document requests. The discovery sought, among other things, information concerning appellant’s arrest, and directed respondent’s attorney to produce her computer at her deposition.

To the extent appellant argues that discovery was needed in connection with an August 23, 2018 hearing on appellant’s request to sell respondent’s home, or an October 3, 2018 order to show cause why a writ of execution should not be quashed, the written discovery requests and two of the depositions were not served or scheduled until after those proceedings. Appellant’s contention on page 53 of his opening brief that the court’s order to show cause was returnable at “the November hearing” is not supported by the cited record. The cited record states that the order to show cause was returnable on October 3, 2018.

If appellant intended to argue that the challenged discovery was needed for a November 28, 2018 hearing on his motions to compel discovery and for sanctions, those motions are dated October 23, 2018 or November 8, 2018—i.e., after the written discovery was served and depositions were scheduled. And because the motions were not calendared for hearing, the court declined to rule on them. We also cannot determine when or if the motions were served on respondent. Discovery was not, therefore, reopened under Family Code section 218 in connection with those motions.

Regardless of the date of the hearing on the order to show cause, much of the discovery sought information beyond the narrow set of issues raised in the order to show cause. That is, the discovery lacked any tendency in reason to show whether appellant’s writ of execution should be quashed because “all amounts respondent was obligated to pay under the judgment had already been satisfied” when appellant obtained the June 2018 writ of execution. For example, appellant sought documents received by respondent from the Los Angeles Police Department involving his arrest, and documents concerning respondent’s request for a domestic violence restraining order during their marriage. But, according to appellant’s opening brief, that arrest occurred in 1994 or 2004, and the parties’ marriage was dissolved in 2014. We also note that allegations concerning appellant’s arrest and domestic violence were made by respondent in a July 2018 declaration opposing appellant’s request to sell respondent’s home; that request was heard on August 23, 2018 and denied by the court on September 10, 2018.

In sum, appellant failed to show that the challenged discovery was directed to unresolved issues raised in pending postjudgment pleadings before the court. In addition, the challenged discovery exceeded the scope of permissible discovery, and appellant engaged in conduct that did not promote cooperation and settlement of relevant issues. Under these circumstances, the court acted within its discretion in imposing a sanction against appellant for his misuse of the discovery process and for engaging in conduct that increased litigation costs. (See In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) And nothing in the record suggests the court was biased.

DISPOSITION

The orders are affirmed. Respondent’s motion to dismiss or strike the appeal, filed on November 14, 2019, is denied as moot. While several of appellant’s arguments border on frivolous, we cannot say the entire appeal was frivolous or that it was taken for an improper purpose. Therefore, respondent’s request for sanctions on appeal is denied. Respondent shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA J.

Parties and Attorneys
Yarosh v. Yarosh
Division 3
Case Number B296896
Party Attorney

Laurence Yarosh : Petitioner and Appellant
1824 Mount Shasta Drive
Suite 201
San Pedro, CA 90732-1527 Pro Per

Maria Blanco Yarosh : Respondent
Richard T. Miller
Law Office Of Richard T. Miller
7120 Hayvenhurst Ave
Suite 108
Van Nuys, CA 91406

Constance Bessada
7120 Hayvenhurst Ave
Ste 108
Van Nuys, CA 91406