Filed 9/12/19 Marriage of Bustillo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of KARI and TODD C. BUSTILLO.

KARI BUSTILLO,

Respondent,

v.

TODD C. BUSTILLO,

Appellant.

D075354

(Super. Ct. No. 09D010394)

APPEAL from orders of the Superior Court of Orange County, Lon F. Hurwitz, Judge. Reversed.

Todd C. Bustillo, in pro. per., for Appellant.

Michel & Rhyne and Karen A. Rhyne for Respondent.

Appellant Todd C. Bustillo (Todd), appearing in propria persona, appeals from postjudgment orders made by the family law court (i) granting in part the motion of respondent Kari Bustillo (Kari) to divide what it found was an omitted community asset under Family Code section 2556 that allegedly was not covered by the parties’ nine-page “Attachment to Judgment,” which the record shows they largely negotiated themselves and which was made a part of their dissolution of marriage judgment entered on April 8, 2011 (Stipulated Judgment); and (ii) denying his motions for sanctions under Code of Civil Procedure (CCP) section 128.7 and section 271.

As we explain, we independently conclude the court erred when it granted in part Kari’s motion under section 2556. The alleged omitted asset, a $26,000 gift made by Todd to his parents shortly before he and Kari separated (sometimes, $26,000 asset), was the subject of previous litigation in Kari’s separate motion to set aside the Stipulated Judgment with respect to “spousal support and the division of property” (sometimes Set-Aside Motion). Division 3 of this court in In re Marriage of Kari and Todd Bustillo (May 3, 2013, G046725) 2013 WL 1850769 [nonpub. opn.] (Bustillo I)), expressly ruled the $26,000 asset was known to Kari and her prior attorneys of record before she entered into the Stipulated Judgment; and that Todd at all times considered this asset to be his separate property, which the Bustillo I court appeared to confirm.

We also conclude that, even if the $26,000 asset had not been previously adjudicated in Kari’s Set-Aside Motion, Kari nonetheless knowingly and voluntarily waived her right to seek such postjudgment relief, as she pushed for, and voluntarily entered into, the Stipulated Judgment, which included provisions dividing their property without regard to its character (i.e., separate or community) or value; and which also included broad waiver provisions relied on by Division 3 in deciding Bustillo I. Reversed.

FACTUAL AND PROCEDURAL OVERVIEW

Kari and Todd married in October 2004 and separated on October 1, 2009. They had one son, born in May 2007. Kari filed for dissolution of marriage on November 12, 2009. As noted, they entered into the Stipulated Judgment on April 8, 2011.

A. Provisions of the Stipulated Judgment Relevant to this Appeal

1. Division of Property and Debts

Section 6 of the Stipulated Judgment provided: “The following property, whether community or separate, is awarded and confirmed to [Kari] as the separate property of [Kari], along with any and all encumbrances thereon, and [Kari] shall hold [Todd] harmless from such encumbrance: [¶]

“a. All right, title and interest in furniture, furnishings and appliances in [Kari’s] possession.

“b. All personal property currently in [Kari’s] possession.

“c. 2009 Honda Accord, subject to any encumbrances thereon.

“d. All right, title and interest in all bank, savings, credit union accounts held in [Kari’s] name alone or in [Kari’s] name and any third party including but not limited to the following accounts: [¶] 1. Schools First Checking account number ending 9370[.] 2. Schools First savings account number ending 9301[.] 3. Bank of America checking account number ending 1407[.] 4. Bank of America checking account number ending 1201[.] 5. Bank of America savings account number ending 3128[.]

“e. All right, title and interest in PARS Irvine Unified School District in [Kari’s] name.

“f. All right, title and interest in PARS Palos Verdes in [Kari’s] name.

“g. All earnings and accumulations after the date of separation October 1, 2009.

“h. Any and all debts in [Kari’s] name or incurred after date of separation of October 1, 2009, including but not limited to . . . [10 items].” (Italics added.)

Under this same heading, section 7 provided: “The following property, whether community or separate, is awarded and confirmed to [Todd] as the separate property of [Todd], along with any and all encumbrances thereon, and [Todd] shall hold [Kari] harmless from such encumbrance:

“a. All right, title and interest in real property located [on] E. Edinboro Circle, Anaheim, California, subject to any encumbrances thereon.

“b. All right, title and interest in real property located [on] Orange Avenue, Cypress, California.

“c. All right, title and interest in furniture, furnishings and appliances in [Todd’s] possession.

“d. All personal property currently in [Todd’s] possession.

“e. 2001 Toyota Tacoma, subject to any encumbrances thereon.

“f. 2004 Honda XR-400, subject to any encumbrances thereon.

“g. All right, title and interest in all bank, savings, credit union accounts held in [Todd’s] name alone or in [Todd’s] name and any third party including but not limited to the following accounts: [¶] 1. Bank of America checking account number ending 0439[.] 2. Bank of America checking account number ending 2710[.] 3. Bank of America saving account number ending 9730[.] 4. Chase checking account number ending 8677[.] 5. Chase savings account number ending 2852[.] 6. Citibank checking account number ending 5485[.] 7. Citibank checking account number ending 2040[.] 8. ING Direct saving account number ending 9020[.] 9. Emigrant Direct account number ending 5565[.]

“h. All right, title and interest in the T. Rowe Price 401(k) Plan in [Todd’s] name.

“i. All right, title and interest in TD Ameritrade account number ending 6561.

“j. All right, title and interest in TD Ameritrade ROTH IRA account number ending 3599.

“k. All right, title and interest in The Gas Company Pension Plan in [Todd’s] name.

“l. All earnings and accumulations after the date of separation October 1, 2009.

“m. Any and all debts in [Todd’s] name or incurred after date of separation of October 1, 2009, including but not limited to [¶] 1. Chase credit card account number ending 9928.” (Italics added.)

2. Waiver of Final Declaration of Disclosure

Section 10 of the Stipulated Judgment provided: “The parties, and each of them, waive service of the Final Declaration of Disclosure as provided in . . . section 2105.[ ] The parties, and each of them, acknowledge execution of a formal Waiver of Final Declaration of Disclosure, an independent document filed contemporaneously with this Judgment of Dissolution.”

3. Advice of Counsel

The parties in section 15 acknowledged that Kari was then in propria persona, and that Todd was represented by counsel. Section 17 of the Stipulated Judgment also included a broad waiver provision, as noted ante, which provided as follows: “All financial information addressing the extent, nature and value of the community estate, including assets and liabilities, obligations and debts, and each party’s separate estates as provided solely by the parties. [Kari] and [Todd] have agreed to abstain from engaging in any investigation, discovery, appraisals, due diligence, accounting or financial analysis and/or evaluation of any kind. [Kari] and [Todd] have each been advised of their right to engage in discovery, to complete appraisals, to demand accounting and other financial disclosures. [Kari] and [Todd] have each made a full and complete waiver of these rights.” (Italics added.)

4. Other Orders

Under this section, the Stipulated Judgment provided that the prevailing party in any action to “enforce or modify any provision of this Judgment or any corresponding provision of a subsequent Judgment into which the provision is merged, will be awarded reasonable attorney fees and costs.” (Italics added.)

B. Circumstances Leading Up to, and the Issuance of, Bustillo I by Division 3

As noted ante, during the negotiation and execution of the Stipulated Judgment, Kari was self-represented. Shortly after its entry, Kari retained legal counsel (who are the same attorneys of record in this appeal and in Bustillo III). Kari on July 15, 2011, filed her Set-Aside Motion under CCP section 473 and under section 2122. Kari alleged in her Set-Aside Motion that Todd was “not honest in disclosing his assets in his Final Declaration of Disclosure” with respect to his “pension and their community bank accounts”; that Todd had been “withdrawing sums of monies from the community bank accounts around the time of separation, yet he never accounted for these withdrawals in the final Judgment”; and that, as a result, he breached his fiduciary duty to her.

Kari additionally alleged in her Set-Aside Motion that throughout their marriage, “all the financials were controlled by [Todd]”; that she was “not allowed to have access to any of the financial materials and [Todd] refused to allow [her] to access the accounts online”; and that, because she retained legal representation, Kari “finally feels that she has the ability to stand up against [Todd] and his controlling ways and not allow him to influence or govern her life and her actions any longer.”

As particularly relevant here, Kari in her declaration in support of her Set-Aside Motion stated under penalty of perjury that, after they agreed to separate in September 2009, Todd in a meeting “revealed he previously [had] gifted his parents $13,000 each and paid down the Home Equity Line of Credit on his town home with $100,000 from community funds. Neither of these issues were disclosed by [Todd] in his Final Declaration of Disclosure nor dealt with in the [Stipulated] Judgment.” She also declared that in February 2011 she was “reluctant to sign anything because [she] knew nothing about [their] finances and assets”; that if she did not agree to Todd’s demands, he would “take [her] to trial and win because ‘any judge would [side] with him’ “; and that she agreed to the Stipulated Judgment because she was without legal representation, and because she allegedly was fearful of, and felt very intimidated by, Todd.

Todd, who then was represented by counsel, opposed the Set-Aside Motion arguing that, other than between January and June 2011, Kari at all times had been represented by counsel; and that Kari’s Set-Aside Motion lacked merit because all information Kari claimed was withheld had in fact been disclosed not only to her, but to her prior attorneys of record, who also had engaged in substantial discovery, as subsequently confirmed by Division 3 of this court in Bustillo I. Such discovery included interrogatories, production of documents, and subpoenas to “all banking institutions,” and was concluded before Kari executed the Stipulated Judgment. Todd also requested an award of sanctions and attorney fees against Kari and her new attorneys of record for attacking the Stipulated Judgment just months after it had been entered.

Todd, in support of his opposition, filed a detailed, 14-page responsive declaration. Todd’s declaration included myriad exhibits comprising hundreds of pages of record evidence, some of which Division 3 of this court relied on in affirming in Bustillo I the order denying Kari’s Set-Aside Motion as it pertained to the parties’ property settlement.

As relevant to this appeal, Todd declared that the Stipulated Judgment reserved the issues of child custody, visitation, and child support only; that he and Kari had submitted to an Evidence Code section 730 evaluation on these limited reserved issues; that he then had “primary custody” of their son pursuant to a June 21, 2010 stipulation and order; and that Kari’s allegations that he failed in multiple ways to “disclose certain accounts and values of other accounts” were undermined by multiple e-mails between the two in which they discussed the details of their proposed stipulation, which evidence—as we address momentarily—Division 3 specifically relied on in Bustillo I in upholding the court’s order denying Kari’s Set-Aside Motion with respect to the Stipulated Judgment’s division of property.

Somewhat unexpectedly, particularly when considered in light of the myriad allegations in Kari’s declaration in support of the Set-Aside Motion and the overall litigiousness of this case, the e-mail exchanges between Kari and Todd show a great deal of civility between the two parties, as they matter-of-factly discussed and negotiated the terms of what would become the Stipulated Judgment. The e-mails also show that beginning in early January 2011, it was Kari who was pushing to finalize the division of property as she “wanted the divorce over with as quickly as possible.”

After substantial additional briefing by the parties, Kari’s Set-Aside Motion was heard in late November 2011, resulting in the court’s February 6, 2012 order. As relevant to this appeal, the court denied Kari’s motion to set aside the division of property agreement in the Stipulated Judgment, finding that “people have a right to make a bad decision,” and that “[s]imply because they make a bad decision does not mean that every time they do, the Court should correct it for them.”

The court also found that Kari had entered into the Stipulated Judgment without legal representation “because she wished to avoid attorney’s fees,” and thus “chose” to be self-represented; that the property division agreement between her and Todd involved “an apparent arm’s[-]length bargaining transaction”; and that it was unnecessary for the court to determine whether there was an “equal and fair distribution of the assets and liabilities” between the parties because Kari, who in the past had been represented by counsel and knew “she could seek the advice of counsel [but] chose not to,” “implicit[ly] waive[d]” such a determination.

Kari appealed the court’s February 6 order to Division 3 of this court, as noted ante. Perhaps in response to the court’s “invitation” in its February 6 order, Kari also moved in April 2012 for an “adjudication of omitted assets” (Omitted Assets OSC)—the subject of the instant appeal. The family court stayed the Omitted Assets OSC pending resolution of the appeal of the Set-Aside Motion by Division 3.

In support of her Omitted Assets OSC, Kari alleged under penalty of perjury some of the same allegations she previously had alleged in support of her Set-Aside Motion, to wit: that Todd had “complete control” over their finances during their marriage, which control he maintained during their divorce proceeding; that he withheld “key information regarding assets and bank accounts” leading up to the entry of the Stipulated Judgment; that he withdrew a “large amount[] of money” shortly before they separated; and that the “total amount of known assets that were omitted from the Final Judgment [was] $425,437.39.” Included in this large number was the $26,000 asset, which Kari alleged was community property arising from Todd’s sale of a “Chevy Blazer.” Kari also requested an award of attorney fees based on Todd’s (alleged) “constant refusal to compromise in this matter” and his actions of “drag[ging] out this process and . . . do[ing] everything in his power to thwart a resolution to this case.”

As noted ante, Division 3 of this court decided Bustillo I on May 3, 2013. In affirming the court’s denial of Kari’s Set-Aside Motion with respect to the division of property, the Bustillo I court rejected Kari’s argument that Todd failed to “disclose to her community assets, including retirement funds, bank accounts, and substantial transactions within the bank accounts.” (Bustillo I, supra, 2013 WL 1850769, at p. *1.) Specifically, the court instead found in part as follows: “Our review of the record . . . shows counsel apparently overlooked or did not obtain discovery by the attorneys and firms formerly representing Kari, which established she knew of the assets and indeed closed one of the bank accounts herself more than a year before the divorce. Kari waived an evidentiary hearing below on her motion to reopen the judgment, and counsel retreated to the position that Todd failed to disclose specific transactions or to specifically identify the potential community portion of his employer-based retirement funds. But the record shows Kari and Todd expressly discussed the transactions Todd supposedly never revealed, and that he made full disclosure of his pension and retirement funds to Kari and her attorneys.” (Ibid.)

The Bustillo I court also found that the parties “engaged in extensive discovery throughout 2010 and 2011,” as noted ante, including demands for document production to each other and to their respective financial institutions; (Bustillo I, supra, 2013 WL 1850769, at p. *1); that they “voluntarily exchanged financial information, submitted sworn declarations of disclosure in June and November 2010 concerning their assets, and proposed ways to fairly divide their property, including using software-generated ‘Propertizer’ spreadsheets” (ibid.); that they “also e-mailed each other frequently to discuss specific topics in dividing their property” (ibid); and that “[n]either had to resort to a motion to compel the other to produce any discovery.” (Ibid.)

Regarding Kari’s myriad accusations in her declaration in support of the Set-Aside Motion that, while unrepresented, Todd pressured her to agree to the division of assets that was incorporated into the Stipulated Judgment, the Bustillo I court instead found it was Kari who wanted to get the division done as quickly as possible, noting: “In late 2010, Kari’s attorney notified her she could not continue working on the case without payment for arrears, and Kari e-mailed Todd that she was ‘thinking [about] finalizing my decision to unretain’ her attorney and proceed in propria persona. Kari later asserted Todd pressured her with constant demands to ‘get rid’ of her attorney.

“The record reflects Kari soon began to pressure Todd to resolve their property division quickly. E-mails she sent Todd over the next few months included the following: ‘Jan. 6, 2011: “I really think it’s important that we meet to finalize the divorce rather than waste our time and money in court. I think if we can schedule a meeting we can hammer it all out in one sitting and be done.” [¶] Jan. 11, 2011: “When can I expect the proposed settlement offer from your attorney?” [¶] . . . [¶] Jan. 24, 2011: “Any word from Ann [i.e., Todd’s attorney] on [the] settlement proposal? It’s been almost 3 weeks . . . .” [¶] Jan. 24, 2011: “Okay. .[.] maybe it would help if I emailed them??” [¶] . . . [¶] Feb. 3, 2011: “[W]here’s the settlement proposal??” [¶] Feb. 3, 2011: “Well then get on Ann to get the settlement out so we can be done! I mean, its been almost a month already and of course fees are going to keep incurring the more time that goes by without a settlement proposal.” [¶] Feb 10, 2011: “Any word from Ann on the draft that you should have received a week ago?[“] [¶] Feb. 25, 2011: “Okay. .[.] I would prefer it be a meeting with all 3 of us present. That way maybe we can just get it all done in one shot.” ‘

“[¶] . . . [¶]

“[¶] The property division portion of the agreement specified particular property and debts, ‘whether community or separate, is awarded and confirmed to’ Kari or Todd, respectively, enumerating each vehicle, real or personal property interest, bank account identified by its last four digits, debt, or other item. The agreement specifically awarded Kari all ‘right, title and interest’ in her school district retirement accounts, and gave Todd the same interest in his gas company pension and retirement accounts. The property division did not specify the value of any item awarded to either party. The parties expressly waived in the agreement their right from each other to a ‘Final Declaration of Disclosure as provided in Family Code section 2105.’ They also waived in the agreement any right to ‘[a]ll financial information [as summarized ante]. . . .’ The agreement further noted: ‘[Kari] and [Todd] have agreed to abstain from engaging in any investigation, discovery, appraisals, due diligence, accounting or financial analysis and/or evaluation of any kind. [Kari] and [Todd] have each been advised of their right to engage in discovery, to complete appraisals, to demand accounting and other financial disclosures. [Kari] and [Todd] have each made a full and complete waiver of these rights[, as also summarized ante].’

“Two months later, in late June 2011, Kari hired new attorneys and filed a motion to set aside the judgment’s property division. She asserted Todd committed perjury in his sworn declarations of disclosure concerning property assets, and that his failure to disclose all financial assets, retirement funds, bank accounts, and substantial transactions within those accounts resulted in a unilateral mistake on Kari’s part concerning the marital estate and the couple’s division of property in their agreement. The parties submitted competing declarations, replies, and voluminous supporting evidence for a hearing held in late November 2011. At the outset, the parties declined the court’s invitation to present evidence, so the court heard argument and decided the matter on the parties’ submissions. . . .” (Bustillo I, supra, 2013 WL 1850769, at pp. *2–3.)

In affirming the denial of Kari’s Set-Aside Motion with respect to the division of property, the Bustillo I court ruled as follows: “Preliminarily, Kari claims the trial court ‘recognized that the division of property was unfair and inequitable’ with an express finding that it was ‘a bad deal.’ She insists, ‘This fact, standing alone, requires the judgment to be set aside.’ She is mistaken both in her characterization of the record and her legal conclusion.

“The court did not find the couple’s property division amounted to a ‘bad deal’ for Kari. To the contrary, the court merely observed that ‘[a] deal is a deal’ and that ‘[if] [Kari] thinks [she] made a bad deal, too bad. That is not inadvertent, that is not excusable neglect, that is not mistake.’ (Italics added.)

“More to the point, a ‘bad deal’ by itself furnishes no basis to set aside a judgment under section 2122 or CCP § 473(b). Section 2123 expressly provides that a judgment in dissolution proceedings may not be set aside ‘simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.’ Indeed, if the moving party presents nothing more than an inequitable judgment, the court has no discretion to grant relief under section 2122 or CCP § 473. (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 29–30, 33–34; see Hogoboom & King, [Cal. Practice Guide: Family Law (The Rutter Group 2012)] ¶ 1644, p. 16–12 [per § 2123, marital judgments may not be ‘set aside under any law solely on ground that it was “inequitable” ‘].)

“Conceding, in her words, that whether she was ‘entitled to make a bad deal sadly begs the question’ (original boldface), Kari pivots to her main claim: based on Todd’s lack of disclosure, she ‘can not be held responsible for what she does not know!’ As Kari’s counsel put it in the hearing below, in the course of reaching a marital settlement agreement, a spouse may elect to give up his or her interest in joint assets ‘to buy my p[ea]ce,’ provided ‘there is an informed consent’ and ‘knowledgeable waiver’ of his or her interest in the asset, but ‘this particular case is devoid of that component.’ Not so. Opposing Kari’s set aside motion, Todd presented detailed records showing Kari knew of the accounts and transactions she claimed he hid.

“For example, she claimed in her set aside motion that Todd never disclosed a Bank of America account with an account number ending in 2727. But Todd demonstrated with bank account statements attached to his opposition to Kari’s motion that the account was a joint account in Kari’s name that she accessed over the Internet to make transfers, used regularly for debit card purchases and to write checks, and indeed that Kari herself had closed the account in January 2010, more than a year before the April 2011 divorce judgment finalized the couple’s property division agreement. Todd explained in his opposition that he had sent an ‘entire package’ of bank statements for account number 2727 and another account Kari claimed he never revealed to her, 2710, to ‘Attorney Michael Fisher, [Kari’s] attorney at the time’ in the discovery phase of the dissolution proceedings, but either Kari did not disclose this information to her new attorneys who filed her set aside motion or they ignored it. The record also shows that Kari herself included account number 2710 in her disclosure declaration and that Todd had disclosed it in a Propertizer statement, a software-generated list of assets he provided to Kari and her attorney during discovery. The record also shows Todd and Kari had discussed account number 2710 in e-mails they exchanged.

“The record similarly belied Kari’s claim in her set aside motion that Todd failed to disclose large transactions he made without her consent in the 2727 and other accounts before the couple separated. Kari claimed Todd breached his fiduciary duty as a spouse because he made these transfers solely for his personal benefit, and his failure to disclose the transactions required the court to set aside the judgment because she agreed to the property division on mistaken premises. In his opposition, however, Todd included detailed correspondence with Kari precisely on the transactions she claimed in her motion that Todd hid from her. For example, their e-mails revealed the couple had agreed to purchase their marital home using funds borrowed from a home equity line of credit (HELOC) on the townhome Todd owned before marriage, which the couple agreed was his separate property. Kari further agreed that these separate funds should be paid back, which explained large transactions in account number 2727, including one for $88,000. In their e-mail correspondence during discovery, Kari expressly ‘acknowledge[d] that my consent was given for the HELOC paydown . . . .’

“The correspondence similarly revealed Kari knew of other large transactions she later claimed Todd hid from her, including a $26,000 gift to Todd’s parents for their retirement accounts, financed by Todd’s separate funds and assets obtained before the marriage, including proceeds from the sale of Todd’s separate vehicle. [(Italics added.)] Todd also pointed to the couple’s oral and written agreement before separation that he would make the gift to his parents. Similarly, Todd disclosed to Kari’s attorney and reminded Kari in an e-mail during discovery that a $5,000 disbursement from their 2710 account was to fund the 529 college savings plan they set up for their son. These few examples account for virtually all of the $130,000 Kari claims Todd hid from her in undisclosed transactions, and Todd introduced additional evidence of their detailed communication regarding other transactions and accounts. Moreover, Kari herself acknowledged in her own Propertizer that she knew of the ‘large transactions in 2009’ in account 2727. Despite this evidence, Kari and her new attorneys cited these very transactions and accounts as a basis to set aside the judgment on grounds of mistake because Todd failed to disclose them. Based on Todd’s evidence, the trial court was entitled to take a jaundiced view of her claims, and we may not second-guess the trial court’s credibility determinations.

“For similar reasons, the trial court reasonably could conclude Kari’s perjury claims did not warrant setting aside the judgment. Kari premised her claim on Todd’s declarations of disclosure in June and November 2010 in which he identified his gas company pension and 401(k) balances as separate property. Kari claimed in her set aside motion that Todd committed perjury by stating the balances were his separate property because he knew the assets necessarily had a community property component. (See Pen. Code, § 118 [perjury occurs when a person, ‘contrary to the oath, states as true any material matter which he or she knows to be false’].)

“But Todd reiterated in his opposition, as he had in his interrogatory responses during discovery, that the couple agreed orally and in writing before their separation that his retirement benefits were his separate property, noting he claimed no interest in her retirement plan. He also pointed out Kari and her attorney could not have been misled by his characterization of the funds as separate property because in her May 2010 response to interrogatories, filed before his June and November disclosure declarations, she asserted, ‘I have an interest in [Todd’s] 401(k), pension and deferred compensation related to his employment at Southern California Gas.’

“Todd also noted that in the divorce judgment incorporating their property division agreement, he and Kari expressly waived making final declarations of disclosure to each other. He argued their earlier declarations therefore could not support a perjury charge because they were provisional and superseded by their final disclosure waiver; consequently, there was no basis to rely on them. Specifically, the judgment provided: ‘The parties, and each of them, waive service of the Final Declaration of Disclosure as provided in Family Code section 2105. The parties, and each of them, acknowledge execution of a formal Waiver of Final Declaration of Disclosure, an independent document filed contemporaneously with this Judgment of Dissolution.’

“Kari insisted the initial declarations remained relevant despite the couple’s waiver of final declarations. In light of Kari’s indisputable knowledge she might have an interest in Todd’s retirement funds, Kari’s counsel took the position at the set aside hearing that Todd committed perjury in his initial, sworn disclosure declarations by failing to disclose the amount of her potential community property interest. Counsel argued Kari therefore could not make an informed decision to waive her interest in Todd’s retirement funds, and consequently the couple’s property division assigning the funds solely to Todd was invalid. But the record dispelled this argument, too. In their e-mail correspondence and in the Propertizer statement Todd provided to Kari and her attorney in November 2010, Todd estimated the community property component of his retirement funds could be as high as $42,500 for his pension and $95,320 for his 401(k). This exceeded the $39,706 estimate by Kari’s expert in her set aside motion.

“Based on this record, the trial court reasonably could conclude that, even if Todd omitted or misrepresented certain facts in his disclosure declarations (and the court made no finding he did), it would not warrant setting aside the judgment because ‘the facts alleged as the grounds for relief’ must ‘materially affect[ ] the original outcome’ (§ 2121, subd. (b)). Kari premised her set aside motion on CCP § 473(b) and sections 2121 and 2122, but nothing in these provisions aided her. Simply put, the court could conclude Todd’s alleged perjury did not procure Kari’s agreement to the property division in the judgment by withholding information from her, since the record shows he disclosed his estimate of the community property portion of his retirement funds and she still entered the agreement. (See Cal. Const., art. VI, § 13 [no reversal absent prejudice].)

“Given the ample record of Todd’s disclosures in the very matters in which Kari claimed Todd misled her or withheld information, Kari’s reliance on cases in which one spouse fails to disclose information to the other is simply misplaced. (See In re Marriage of Prentis–Margulis & Margulis (2011) 198 Cal.App.4th 1252 [spouse managing couple’s finances has continuing duty of disclosure to nonmanaging spouse]; In re Marriage of Brewer and Federici (2001) 93 Cal.App.4th 1334 [spouse failed to disclose retirement assets].) As discussed, the detailed record of Todd’s disclosures supports the trial court’s decision to deny Kari’s set aside motion. Kari fails to establish the trial court abused its discretion.” (Bustillo I, supra, 2013 WL 1850769, at pp. *3–7, italics added.) The Bustillo I court went on to award Todd his “costs on appeal.” (Id. at p. *8.)

C. Events Transpiring While the Appeal of Bustillo I Was Pending

Kari in early July 2012 filed a “Pleading on Joinder—Employee Benefit Plan” (Joinder), seeking an interest in Todd’s pension plan, despite the court’s prior ruling denying her Set-Aside Motion as it pertained to the division of assets and liabilities, and despite the division of property agreement in the Stipulated Judgment that specifically identified in item k of section 7 Todd’s pension plan as belonging to Todd. The court granted the Joinder on July 6, 2012.

In mid-December 2011/January 2012, Todd became self-represented. On February 4, 2013, Todd filed a “Notice of Intent to Seek Sanctions” against Kari and her attorneys of record pursuant to CCP section 128.7, subdivision (c) and section 271 based on “their bad-faith actions and tactics in over-litigating this case and directing an improper Order for Joinder against [his] 401(k) retirement savings plan,” which Todd argued had been “divided in the Judgment . . . filed April 8, 2011 and disposed of [Kari’s] interest in said plan.”

In support of his request for sanctions, Todd declared under penalty of perjury that on October 24, 2012, his former attorney of record sent a letter to Kari and her attorney of record asking that the Joinder be quashed because Kari had no interest in his retirement plan. Todd further declared he was unable to continue to pay his attorney, as his funds were “exhausted” and he allegedly could not borrow against his pension funds because of the Joinder, forcing him to become self-represented. In addition to sanctions, Todd also requested an award of attorney fees from Kari so he could rehire legal counsel.

Todd submitted another declaration dated February 20, 2013, in support of his sanctions request. Attached to this declaration was a January 6, 2013 letter he had written to Kari’s attorneys of record again asking that the Joinder be immediately withdrawn and advising that a motion to vacate the Joinder would be forthcoming. Todd stated in the February 20 declaration that, in addition to the January 6 letter and the one previously written by his counsel in October 2012 requesting the Joinder be withdrawn, he had “follow[ed] up [with Kari’s] counsel multiple times and assumed they would be cooperative and dismiss the[] Joinder,” which they had not done “despite [having] . . . well over 100 days [to do so] as of the date of this declaration.”

The record shows Kari agreed to dismiss the Joinder at a March 4, 2013 hearing, arguing that she previously had submitted such a request but for some reason it had not been dismissed. The court’s minute order provided Todd’s request for attorney fees was “denied without prejudice” and that the court “reserve[d] on the issue of sanctions.” The following day, Kari filed the dismissal of the Joinder “without prejudice.”

Todd filed a second “Notice of Intent to Seek Sanctions” on May 3, 2013. Todd contended in this filing that he also was entitled to sanctions against Kari and her attorney of record based on Kari’s filing on May 3, 2011 of a “specious” TRO because Kari had been “unhappy with the settlement agreement of April 8, 2011.” Todd further contended that he lost contact with their son for 21 days as a result of the TRO, until the court restored primary physical custody to him; and that he incurred in excess of $6,000 to restore said custody.

Todd in this same filing also sought sanctions as a result of Kari’s Set-Aside Motion, stating he had spent in excess of $22,500 in fees and costs in connection with that motion. Todd also claimed to have spent about $7,122 in fees and costs as a result of the pending Omitted Assets OSC. In his request for order filed on May 6, 2013, Todd sought an award of $15,180 in sanctions against Kari and her attorneys of record. As before, Todd also sought an award of attorney fees and costs based on Kari’s “breach” of the Stipulated Judgment.

In opposition to his request for sanctions, Kari contended Todd’s request was a “frivolous filing and [a] waste of the Court’s time” because the Joinder had been dismissed on March 5, 2013. Kari also threatened to seek sanctions against Todd if he did not withdraw his own such requests.

In June 2013, Todd filed a motion to strike Kari’s Omitted Asset OSC, after Bustillo I was decided. Todd argued Kari was barred under the doctrine of res judicata to pursue any alleged omitted or unadjudicated claims as set forth in the Omitted Asset OSC. Accompanying his motion to dismiss was Todd’s objections to, and request to strike portions of, Kari’s declaration in support of the OSC; and his request for judicial notice. Kari opposed Todd’s motion and sought her own award of sanctions against Todd.

D. Hearing and Decision on Omitted Asset OSC

The hearing on Kari’s Omitted Asset OSC, and other issues that are not the subject of this particular appeal, began on August 8, 2013, and continued for multiple days thereafter, as the litigation of Kari’s claims and the parties’ competing requests for sanctions against each other dragged out. Kari’s August 1, 2013 trial brief identified three assets she claimed had been omitted from the Stipulated Judgment: her engagement ring, which she claimed was her separate property; $258,000 in an account ending 8677 that she alleged had “never been accounted for in the Judgment”; and the $26,000 asset.

At the outset of the August 8 hearing, Todd, who was self-represented, argued that Bustillo I resolved many—if not all—of the issues raised in the Omitted Asset OSC because Division 3 of this court found there were “no undisclosed assets.” The court disagreed, noting the only issue before the Bustillo I court was the denial in part of the Set-Aside Motion, and thus, the Bustillo I court did not decide the issue of whether there “were . . . undisclosed assets that were not addressed by the Judgment.” The record shows the court then bifurcated the issue of sanctions and/or requests for attorney fees and went forward on the Omitted Asset OSC.

The court ruled Kari’s engagement ring was not omitted for purposes of section 2556. In reaching its decision on this asset, the court relied on the “catchall provisions” of the parties’ Stipulated Judgment, noting such provisions were unambiguous. The court found the ring was not an omitted asset because Kari “knew about its existence before she entered into th[at] agreement.”

The record shows the parties next addressed the Chase account ending 8677, which was the source of the alleged missing $258,000. On questioning by Todd and over a relevance objection by her attorney, Kari testified that she “stipulate[d] and agree[d]” that this particular account “was awarded and confirmed to [Todd] as [his] sole and separate property in the Judgment” because she “signed” this document. Despite this bank account being specifically identified in the Stipulated Judgment and disclosed in Todd’s previous declaration of disclosure, Kari nonetheless testified the money from this account was omitted for purposes of section 2556 because she allegedly was unaware of its existence.

The record shows Kari also testified she allegedly had been unaware of various large transactions that took place in connection with this account. The record further shows that Todd asked myriad detailed questions of, and went through various transactions (identified in trial exhibit 25) from this account with, Kari; that Kari testified she had little or no knowledge of such transactions and/or the purpose of such transactions before she entered into the Stipulated Judgment; that the court then extensively questioned Todd regarding the various transactions in connection with the $258,000; and that the court found that Kari’s prior attorneys of record had expressly indicated in October 2010 – months before she signed the Stipulated Judgment—that more information was needed from Todd before the parties could reach agreement over the division of their property.

With respect to this latter issue, the record shows Todd noted this was a similar, if not the same, argument Kari had made in her Set-Aside Motion that had been rejected by the Bustillo I court; namely, that because Kari was self-represented when she entered into the Stipulated Judgment, and because she allegedly was unaware of this account and the large transactions involving it, she allegedly was not bound by its terms.

In ruling the account ending 8677 was not omitted for purposes of section 2556, the court found that Kari, through her former attorneys of record, was on notice of this account; that such notice was “imputed to [Kari]”; and that to the extent Kari’s former attorneys “didn’t do what needed to be done, that [was] an issue between [Kari and her former attorneys],” but it was “not an issue between Ms. Bustillo and Mr. Bustillo because [this account and the money in it] was obviously disclosed and identified in exhibit 41 of the propertizer under item 25” in October 2010. The court thus reasoned, “So to the extent that there are unexplained expenditures of funds that [Kari’s] counsel were aware of—clearly aware of and nothing was done about it, [Kari] enters into a voluntary marital settlement agreement, I don’t see how it is not an adjudicated asset that she didn’t have notice of.”

The court and the parties then turned to the $26,000 asset—the subject of this appeal. Kari testified that she did not consent to Todd’s gift of $13,000 to each to his parents, or $26,000 in total, shortly before their separation; and that she allegedly did not know Todd had made such gifts when he wrote the two checks on August 21, 2009.

Todd, however, argued the $26,000 asset was known to Kari before she signed the Stipulated Judgment; that this asset was specifically identified on a propertizer prepared by Kari’s former attorneys of record; that he also had produced copies of the two checks he wrote to his parents in response to discovery propounded by Kari’s former attorneys; that this money came from the sale of his Chevy Blazer in 2005, which his parents had bought for him as a graduation gift before he and Kari had wed; that before marriage, he had spent a great deal of money to “customiz[e]” it, because it was a “show vehicle”; that the issue of the $26,000 was also discussed in a “ton of emails” that were provided to Kari’s prior attorneys; and that the Bustillo I court already had identified the $26,000 asset as Todd’s separate property.

As noted ante, litigation of the $26,000 asset went on for several more hearings. During one of those hearings, Kari retook the witness stand and, on cross-examination, admitted that she knew about the $26,000 asset before separation and before she signed the Stipulated Judgment; that she and Todd had discussed the $26,000 asset “multiple times” in written correspondence between the date the checks were written and the date they signed the Stipulated Judgment; and that they also had negotiated over this asset when Kari e-mailed Todd and suggested they “split the gift 50/50 in exchange for half of [her] credit card balance,” which negotiation took place before the Judgment.

The court nonetheless ruled the $26,000 asset was omitted from the Stipulated Judgment. The court found that the timing of the gifts—about 40 days before Todd and Kari separated—made Todd’s contention the $26,000 asset was his separate property “unbelievable”; that the Stipulated Judgment allegedly did not include the “waive[r of] a right to reimbursement for use of community funds prior to the date of separation”; that the money used by Todd to make the gift came from an account ending 5740, which had not been specifically identified in the Stipulated Judgment; that, even if the money had originated in the account ending 8677 that was listed in the Stipulated Judgment, the $26,000 asset was still omitted for purposes of section 2556; and that Todd therefore was required to make a $13,000 “equalization” payment to Kari.

DISCUSSION

Todd argues the court erred when it ruled the $26,000 asset was omitted from the Stipulated Judgment pursuant to section 2556. We agree.

A. Guiding Principles

Claim preclusion, which is the “primary aspect of res judicata” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN)), ” ‘prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.’ [Citation.]” (Ibid.) “Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of the claim altogether.” (Ibid.)

Issue preclusion, historically known as collateral estoppel (DKN, supra, 61 Cal.4th at p. 824), applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at p. 825.) Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. (Id. at p. 824.) Whether issue preclusion applies is a question of law we review de novo. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 618 (Jenkins).)

The case of In re Marriage of Marjorie M. and Raymond L. Mason (1996) 46 Cal.App.4th 1025 (Mason) informs our analysis on this issue. In Mason, the parties by stipulated judgment allocated $1.6 million in separate and community property to husband and $574,000 in assets to wife. Husband was awarded the family residence. Wife, who operated a residential care facility that she had closed for health reasons, received the business account (containing $6,774), a computer, and a station wagon. The parties stipulated judgment also provided: ” ‘Husband shall pay to Wife as monthly spousal support the sum of $5,500 for the months of April, May, and June, 1993 . . . . After that date, each of the parties irrevocably waives the right to receive spousal support from the other . . . .’ ” (Id. at p. 1027). Judgment was entered in April 1993. (Ibid.)

Two months later, husband moved to set aside the judgment “on the ground that wife had concealed income and was reopening the care facility. Husband claimed that she deceived him concerning the value of the business, her income, and her ability to reopen the business. The trial court denied the motion to set aside the judgment. The court found that wife ‘intended to close down the board and care [facility] which had been operated from their residence. In fact it was closed.’ ” (Mason, supra, 46 Cal.App.4th at p. 1027.)

Much like Kari in the instant case, husband in Mason appealed the court’s denial of his motion to set aside the judgment. The Mason court noted that in a prior unpublished opinion it had held “that husband could not set aside the property division solely because wife was industrious or had the good fortune to locate another place to operate a care facility.” (Mason, supra, 46 Cal.App.4th at p. 1027.) Also like Kari in the instant case, husband in Mason next moved under section 2556 to divide what he termed was the “business goodwill” of wife’s business. (Ibid.)

“Represented by counsel, husband claimed that the goodwill component of the business was an omitted asset and worth $157,000. The trial court, in denying the motion, found that the ‘business was not an omitted asset. It was a known asset. It was a[n] asset of which there was a division. They divided it. They divided the physical assets of this business. And if [husband] . . . didn’t raise the goodwill issue that’s his tough luck. But this is an adjudicated asset, it’s not [a]n omitted asset. [¶] And there’s no way that you can transform this from an adjudicated asset to an omitted asset simply by arguing that your client didn’t raise the issue of goodwill at the proper time.’

“We do not reach the merits of the goodwill issue on this appeal. The prior motion to set aside the property division was based on the theory that wife deceived husband and concealed her ability to reopen the business. Husband lost in the trial court and lost on appeal. The doctrine of res judicata bars husband from resurrecting the fraud claim based on the new theory that business goodwill was an ‘omitted’ asset. ‘ “A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” [Citation.]’ (Henry v. Clifford (1995) 32 Cal.App.4th 315, 321.) Were the rule to the contrary husband could search for yet a new theory and mount a third attack upon the stipulated judgment.” (Mason, supra, 46 Cal.App.4th at pp. 1027–1028.)

B. Analysis

1. Kari Was Barred from Relitigating the $26,000 Asset Following Bustillo I

Turning to the instant case, we conclude that Kari was barred from “resurrecting” her claim that the Stipulated Judgment excluded various assets under section 2556 following Division 3’s decision on her Set-Aside Motion in Bustillo I. (See Mason, supra, 46 Cal.App.4th at p. 1027.) As noted, Kari in that motion claimed Todd allegedly breached his fiduciary duty to her by not disclosing “community assets, including retirement funds, bank accounts, and substantial transactions within the bank accounts,” including but not limited to, the $26,000 asset.

The record, however, shows the following issues were actually litigated and necessarily decided against Kari in Bustillo I: that Todd was dishonest in connection with his disclosure of information leading up to their Stipulated Judgment; that Todd “fail[ed] to disclose all financial assets, retirement funds, bank accounts, and substantial transactions within those accounts” (Bustillo I, supra, 2013 WL 1850796 at p. *3); that Todd also “failed to disclose specific transactions or to specifically identify the potential community portion of his employer-based retirement funds” (id. at p. *1); that Kari did not know of “other large transactions she later claimed Todd hid from her, including a $26,000 gift to Todd’s parents for their retirement accounts, financed by Todd’s separate funds and assets obtained before the marriage, including proceeds from the sale of Todd’s separate vehicle,” which asset the Bustillo I court found had also been the subject of the “couple’s oral and written agreement before separation” (id. at p. *6, italics added); that Todd also “failed to comply with his disclosure obligations . . . when he failed to disclose or to fully disclose marital assets in his two sworn declarations of disclosure” (ibid.); that Todd’s failures in this regard prevented Kari from being ” ‘aware of all the material facts concerning their community assets’ ” (id. at p. *4); that Todd “pressured [Kari] with constant demands to ‘get rid’ of her attorney” before she entered into the Stipulated Judgment (id. at p. *2); that Kari should be relieved from the Stipulated Judgment because she could ” ‘not be held responsible for what she [did] not know[]’ ” as a result of her being self-represented at the time she executed the agreement (id. at p. *5); that the Stipulated Judgment was a “bad deal” for Kari, thus entitling her to relief; and that, in signing the Stipulated Judgment, which included the division of property agreement, Kari gave neither ” ‘informed consent’ ” nor a ” ‘knowledgeable waiver’ ” of Todd’s or her interests in any particular asset. (Ibid.)

Based on the foregoing, we independently conclude under the circumstances of this case that the court erred as a matter of law in allowing Kari’s Omitted Asset OSC to go forward following Bustillo I. (See Mason, supra, 46 Cal.App.4th at p. 1027; Jenkins, supra, 138 Cal.App.4th at p. 618.) As noted, one of the specific transactions Kari raised in her Set-Aside Motion was the $26,000 asset that was the subject of myriad hearings in the Omitted Asset OSC. The Bustillo I court expressly found that the $26,000 asset was known to Kari and her prior attorneys of record before she entered into the Stipulated Judgment; that Todd at all times considered this asset to be his separate property, which the Bustillo I court appeared to confirm; and that Kari, in any event, voluntarily entered into the Stipulated Judgment, which included provisions dividing their assets and liabilities without regard to their character (i.e., separate or community) or value, as also recognized by Division 3 of this court in Bustillo I. Thus, issue preclusion barred Kari from relitigating under section 2556 the character of the $26,000 asset.

We agree with the reasoning of the court in Mason that a party should not be allowed to attack a voluntary settlement agreement incorporated into a judgment of dissolution by claiming that an asset was allegedly omitted under section 2556, as Kari has done here, after that same party failed to set aside the judgment under section 2122 in which the issue of disclosure and treatment of this same asset was actually litigated and necessarily decided against that party. (See Mason, supra, 46 Cal.App.4th at p. 1028; see also DKN, supra, 61 Cal.4th at p. 824.)

The instant case is a “poster child” for why such a rule exits. As summarized in detail ante, Kari chose not to retain an attorney in the months leading up to her agreement with Todd on the division of property. Kari also wanted the settlement completed as quickly as possible. However, shortly after she signed the Stipulation Judgment, Kari hired new counsel, who then attacked the Stipulated Judgment and various terms therein by moving to set it aside, filing the Joinder, and finally, the Omitted Assets OSC.

As the record also shows, and candidly, as Todd persuasively argued in the family court with respect to her Omitted Asset OSC, Kari’s attempts to undo the Stipulated Judgment—ostensibly because it was a ” ‘bad deal’ ” as she unsuccessfully argued in Bustillo I—failed, as summarized ante. Ultimately, the only relief Kari obtained in connection with these attacks on the Stipulated Judgment was the $13,000 equalization payment ordered by the court, which order we have now found was in error.

As a result of Kari’s multiple attacks on the Stipulated Judgment, all while represented by the same attorneys of record (who also are representing her in the instant appeal), Todd filed multiple requests for sanctions, which then led to a motion by Kari to have Todd declared a vexatious litigant, claiming it was Todd who was wasting the court’s time and resources despite the fact she was the party seeking to get out from underneath the settlement based on her various attacks on the Stipulated Judgment. The record shows the litigation on the sanctions issue, among others not relevant here (but relevant in Bustillo III), continued in the family court through January 2017. Clearly, the conduct of Kari (and her attorneys of record) in attacking the Stipulation Judgment by means of the Omitted Asset OSC frustrated the parties’ voluntarily settlement agreement, which had already withstood scrutiny in Bustillo I, and sharply increased the cost of this litigation. (See Mason, supra, 46 Cal.App.4th at p. 1028; § 271.)

2. Waiver

Under the law of the case doctrine, ” ‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301.) The doctrine, which applies to decisions of intermediate appellate courts as well as courts of last resort, promotes finality by preventing relitigation of issues previously decided. (George Arakelian Farms, Inc. v. Agric. Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291.) The scope of the doctrine includes questions that were implicitly determined because they were essential to the prior decision. (Estate of Horman (1971) 5 Cal.3d 62, 73.)

We conclude that Division 3 of this court in Bustillo I found the parties in the Stipulated Judgment had waived their right to challenge not only the character of their assets and liabilities and the valuation of such, but also their rights under the Family Code, including section 2015, that ensure a fair and equitable division of property. (Bustillo I, supra, 2013 WL 1850796 at p. *2.) For this separate reason we conclude the court erred in finding the $26,000 asset was omitted for purposes of section 2556.

Separate and apart from Bustillo I, we independently conclude that the parties waived the right to complain an asset was omitted under section 2556 based on the broad and unambiguous waivers in the Stipulated Judgment, as summarized ante. (See John Siebel Assoc. v. Keele (1986) 188 Cal.App.3d 560, 565 [concluding the interpretation of a stipulated agreement that is later incorporated into a judgment is a question of law].) As Division 3 of this court noted in Bustillo I, when Kari entered into the Stipulated Judgment she had all the information available to her to make an informed decision, including knowledge of the $26,000 asset. Her decision nonetheless to go forward was hers and hers alone. (See Bustillo I, supra, 2013 WL 1850796 at p. *5 [noting that a

” ‘bad deal,’ by itself furnishes no basis to set aside a judgment under section 2122 and CCP § 473(b),” and that section 2123 “expressly provides that a judgment in dissolution proceedings may not be set aside ‘simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate’ “].) We thus conclude the court erred in ordering Todd to make a $13,000 equalization payment to Kari based on the alleged “omitted asset.”

DISPOSITION

The postjudgment orders of the court granting in part Kari’s Omitted Asset OSC in connection with the $26,000 asset, and denying Todd’s request for sanctions against Kari and her attorneys of record, are reversed. Todd to recover his costs of appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.