Filed 11/18/19 Marriage of Sinha and Sahay CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of RAJESH SINHA and SHRUTI SAHAY.

RAJESH SINHA,

Appellant,

v.

SHRUTI SAHAY,

Respondent.

A151769

(Sonoma County

Super. Ct. No. SFL-68401)

Rajesh Sinha (Rajesh), in propria persona, appeals from the trial court’s judgment in his and his former spouse Shruti Sahay (Shruti)’s marital dissolution action. He contends the court erred in: (1) precluding him from presenting certain evidence regarding the parties’ apartment in India; (2) finding he breached his fiduciary duty to Shruti; and (3) finding the parties’ date of separation was September 23, 2009. We reject his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Rajesh and Shruti were married in India in 1996 and came to the United States in 1999. They have two children. In 2014, Shruti filed a petition for dissolution of the marriage and the parties litigated a number of issues including child custody and support.

At a January 31, 2017 trial on all remaining issues, the trial court bifurcated the issue of the date of separation and found the parties separated on September 23, 2009. After a trial on the issues of property division, spousal support, and attorney fees, the court issued a judgment on reserved issues on May 24, 2017. In its judgment, the trial court first noted the “gaping holes in the availability of documentary evidence as a result of [Rajesh’s] ongoing failure to comply with multiple [discovery] orders . . . .” The court found Rajesh “breached his fiduciary duty to [Shruti] by failing to produce documents that he had an affirmative duty to produce” and “directly failed to comply with the Court’s multiple orders to produce documents,” thereby “plac[ing] [Shruti] at a distinct disadvantage . . . .” The court also found Rajesh was not credible, stating that “to the extent that [he] offered oral testimony that was contrary to the limited documentary evidence and [Shruti’s] testimony . . . his testimony lacked credibility.”

The trial court found the apartment the parties owned in India (the India Apartment) was community property because both parties’ names were on title, they purchased it during the marriage, and they used their earnings to pay the down payment and mortgage. The court accepted $153,000, converted from rupees, as the value of the India Apartment based on a certified appraisal submitted by Shruti. Rajesh claimed the India Apartment was worth 20 percent less than $153,000 and also claimed that his mother, whose name was added to title during the marriage, had an ownership interest in the property. The trial court rejected these claims, stating: “[Rajesh] further testified that his mother was also on the deed, but has failed to produce all deeds to real property as part of the multiple Request[s] for Production of Documents propounded by [Shruti].” “Whether [Rajesh] actually obtained [his own] appraisal . . . is unknown because [he] failed to exchange any documents with opposing counsel prior to the discovery cut-off and was precluded from admitting any late discovery given his complete disregard of all discovery orders prior to trial.” The court ordered that the India Apartment be sold, with each party receiving one-half of the proceeds from the sale.

DISCUSSION

1. Evidentiary Sanctions – India Apartment Appraisal

a. Background

During the dissolution action, Shruti filed multiple motions to compel responses or further responses to her discovery requests. The trial court granted many of her motions and in some cases issued sanctions, including evidentiary sanctions against Rajesh. For example, in an order dated November 7, 2016, the court stated: “Dating back to October 1, 2015, . . . [Rajesh] has committed several violations of the California Discovery Act . . . and the court has previously issued monetary sanctions against him.” The court noted that when Rajesh responds to discovery and court orders, his responses are late, incomplete, and/or without verification. “[Shruti], on the other hand, has produced timely, complete, and thorough responses and documents” and has, in good faith, extended the time for Rajesh to produce documents. The court issued evidentiary sanctions precluding Rajesh from introducing certain documentary evidence regarding his income and ordered Shruti “shall be permitted, without rebuttal, to present evidence and argument of [Rajesh’s] ability to pay spousal support, child support, or attorney fees, by default prove up.”

At the January 31, 2017 bifurcated trial on the issue of the parties’ date of separation, the trial court noted that Rajesh’s “behavior throughout this case has been deplorable.” “He has not complied with anything the Court ordered him to do with regard to discovery and has simply just sat on his hands, defied Court orders, not complied with anything the Court’s orders had to do, not even after being ordered to provide documents in response to a motion to compel and being sanctioned, so there are issue sanctions already in place in this case.” At the end of the bifurcated trial, the court scheduled the trial on the remaining issues for April 25, 2017 and ordered an exchange of documents intended to be used at trial: “You both would be required to exchange any evidence, documents that you intend to present at the time of trial no later than March 24th which is 30 days prior to the trial date.”

On March 2, Shruti filed a request for an order directing Rajesh to provide her with a copy of the key to the India Apartment so that she could obtain an appraisal in time for the discovery cutoff date. Shruti declared that Rajesh had refused to give her a key after having agreed to do so by the end of February, and despite her attorney’s repeated requests. At the March 29 hearing on the matter, the trial court ordered Rajesh to provide the key to Shruti by April 3. When Rajesh and his attorney informed the court that they had obtained an appraisal of the India Apartment and would be able to provide it to Shruti’s attorney “[b]y Monday,” the court told Rajesh to provide “[b]oth the key and the appraisal,” stating that if the appraisal was “certified and acceptable” to Shruti, it could eliminate the need for Shruti to obtain her own appraisal and “might resolve that issue.”

Shortly before the April 25 trial, Shruti filed another motion to compel discovery. At the hearing on the motion, Shruti’s attorney informed the trial court that Rajesh had failed to provide any of the financial documents she needed “for there to be a fair division” of property. The court asked whether Rajesh had provided any documents between the January 31 bifurcated trial and the March 24 discovery cutoff date; counsel responded, “No, absolutely nothing.” The court ordered that Rajesh would be precluded from introducing any documents at trial that were not timely provided. The court stated, “I was very, very clear when we left here at the bifurcation trial that . . . there was a cutoff and that discovery had to happen by that cutoff. [¶] The reason that the India apartment evaluation did not happen is because you wouldn’t provide the key[.] So you don’t get to benefit by that.”

At the start of the April 25 trial, the trial court stated it had “precluded the business evaluation report from being introduced, or any other documents that were not produced timely before the March 24, 2017, deadline.” Shruti’s counsel asked the court for clarification, noting Rajesh had not provided his India Apartment appraisal to her before the discovery cutoff date. The court confirmed, “Any documents that he did not provide prior to March 24th, 2017 he may not produce today.” “I think that’s about as clear as it can get.” The court then stated, “If there are documents that were not produced before March 24th, with the exception of the appraisal, for the reasons I talked about the other day, those still would not come in. So if you did not give the documents to [Shruti’s attorney] before March 24th, you may not use them today at trial.” The court confirmed Rajesh could testify so long as his testimony was not based on untimely produced documents. The trial court explained, “So if you have an appraisal that you had done that you provided to [Shruti or Shruti’s attorney] previously, then you may use that, but not any other documents that were not produced by the March 24th cutoff date. [¶] The Court did not again re-open discovery by that order on March 29th, with the exception of the apartment—[Shruti] being able to go and have someone physically enter the apartment for an appraisal, because they had not been able to previously obtain the keys from you. So the other documents would [not be] admissible unless they were provided prior to March 24th.”

During trial, Rajesh challenged Shruti’s appraisal on several grounds, stating the appraiser made incorrect assumptions and that the calculations were incorrect. He cross-examined Shruti regarding the appraisal and also testified that the government certified appraisal company he used was more reputable. He explained his delay in obtaining an appraisal by testifying that it took time to negotiate the cost of his appraisal down to $600. At that point, the trial court interjected, “I’m going to interrupt you at this point, because you’re testifying about a document and an appraisal that has been excluded as evidence. So what you’ve already admitted, it wasn’t timely. The Court has excluded it, and so how that [appraisal] all happened is not going to play into the Court’s ultimate decision.” Rajesh responded, “Yeah. I wish a continuance . . . of a couple of weeks could have been given. . . .” The court replied, “So we’ve already had that hearing and the motions have been granted.” Rajesh argued in closing that Shruti’s appraisal had “glaring mistakes,” that the value should be reduced by 20 percent, and that the property should be split among the parties and his mother.

b. Rajesh’s Contention

Rajesh contends the trial court erred in precluding him from introducing into evidence, or testifying about, the appraisal he obtained for the India Apartment. We disagree.

California discovery law authorizes a range of penalties including monetary and evidentiary sanctions for conduct amounting to “misuse of the discovery process,” including “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., §§ 2023.030, subd. (e), 2023.010 (g); Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.) “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply, . . . ; and (2) the failure must be willful. [Citation.]” (Ibid.)

Here, the facts amply support the appropriateness of the evidentiary sanctions imposed by the trial court. Throughout the dissolution action, Rajesh failed to comply with Shruti’s requests for documents and the court’s discovery orders. He refused to produce documents even after monetary and other evidentiary sanctions were imposed. And, despite the court’s explicit order requiring the parties to “exchange any evidence, documents that you intend to present at the time of trial no later than March 24th,” Rajesh produced “absolutely nothing.” In addition, he refused to provide Shruti with a key to the property, thereby precluding her from obtaining her own appraisal before the discovery cutoff date. In light of Rajesh’s obstructive behavior and his repeated and willful refusal to produce documents in a timely manner, the court acted well within its discretion in precluding him from producing, or testifying about, his appraisal.

Rajesh asserts the trial court nevertheless abused its discretion because it “oddly” and “arbitrar[ily]” stopped him from testifying about the appraisal after having previously told him he could present his appraisal at trial. The record shows, however, that the court never told Rajesh that he could present his untimely appraisal at trial; rather, it was consistent in stating that the discovery cutoff date was March 24 and that documents not produced by that date would not be admitted.

Rajesh points to several statements by the trial court he believes shows the court waived the discovery deadline for his appraisal. He asserts, for example, that by instructing him to provide his key and appraisal to Shruti’s attorney by April 3, 2017, the court was saying “he could use his appraisal even though the discovery cut off” date had passed. He asserts the court also made an “exception to [the] discovery cut-off date” for his appraisal when it stated, “If there are documents that were not produced before March 24th, with the exception of the appraisal, for the reasons I talked about the other day, those still would not come in.”

We disagree with Rajesh’s interpretation of the trial court’s statements. The court simply instructed Rajesh to provide his appraisal to Shruti’s attorney to see whether it would assist the parties in settling the issue, thereby eliminating the need for Shruti to obtain her own appraisal. The court did not state it waived the discovery deadline for Rajesh’s untimely appraisal; in fact, it explained: “The Court did not again re-open discovery by that order on March 29th, with the exception of . . . wife being able to go and have someone physically enter the apartment for an appraisal, because they had not been able to previously obtain the keys from you. So the other documents would [not be] admissible unless they were provided prior to March 24th.” (Italics added.) The court’s statements show that the discovery cutoff date was March 24, 2017 and that the only exception it was going to make was for Shruti’s appraisal. Accordingly, it was neither “odd[]” nor “arbitrary” for the court to stop Rajesh from continuing to testify about his appraisal at trial.

Rajesh further argues the trial court violated his due process rights because its order deprived him of the opportunity to present any and all evidence regarding the value of the India Apartment. The court, however, precluded him only from producing or testifying about his untimely appraisal. The court allowed him to provide his own opinion—and also cross-examine Shruti—about the value of the India Apartment. He was also allowed to testify about the ways in which Shruti’s appraisal was problematic, and was free to provide his own opinion about the conversion rate from rupees to dollars. Therefore, the court’s order did not implicate Rajesh’s constitutional rights. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432 [no constitutional violation where the challenged ruling “simply precluded certain arguments or discrete items of evidence”].)

Finally, Rajesh claims the trial court erred by admitting Shruti’s appraisal into evidence because it was not authenticated and was hearsay and because the court improperly relied on Shruti’s opinion regarding the conversion rate from rupees to dollars. Rajesh forfeited this issue by failing to object below to the admission of the evidence. (Evid. Code, § 353 [failure to make timely and specific objections forfeits a claim of evidentiary error].) Moreover, it is the appellant’s burden to affirmatively show error by citing an adequate record to support his summary of the facts and legal authority to support each analytical point made. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Here, Rajesh simply asserts, in a cursory manner, and without citation to the record or to any legal authority, that the court erred. Thus, even assuming there was no forfeiture, we conclude Rajesh has not met his burden of showing error on appeal.

2. Breach of Fiduciary Duty

As noted, the trial court found in its May 24, 2017 judgment that Rajesh breached his fiduciary duty to Shruti by failing to provide documents in response to discovery and court orders. In addition, the court stated as to the India Apartment: “Having found that [Rajesh] has breached his fiduciary duty to [Shruti] by failing to disclose that his mother had been added to title or produce any deeds confirming his assertion that his mother is on title, [Shruti] is awarded 50% of the proceeds pursuant to Family Code § 1101(g). Any interest [Rajesh’s] mother may have in the property shall be paid from [Rajesh’s] share of the proceeds.”

Rajesh does not appear to dispute the trial court’s general findings regarding breach of fiduciary duty—i.e., that he failed to provide Shruti with requested or court-ordered documents—but he challenges the finding that he breached his fiduciary duty “by failing to disclose that his mother had been added to title or produce any deeds confirming his assertion that his mother is on title.” He argues this portion of the breach of fiduciary finding “is not supported by substantial evidence.” We reject his contention.

Under the substantial evidence standard, the appellate court’s “authority begins and ends with a determination of whether, on the entire record, there is any ‘substantial’ evidence, contradicted or uncontradicted, which will support the judgment. [Citations.]” (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 507.) “We must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] We must accept as true all evidence and all reasonable inferences from that evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trial court.” (Id. at pp. 506–507.)

Family Code section 721, subdivision (b), provides that spouses have a duty to each other that is “of the highest good faith and fair dealing.” Neither spouse “shall take any unfair advantage of the other,” and each spouse shall “[r]ender[] upon request, true and full information of all things affecting any transaction that concerns the community property.” (Id., subds. (b), (b)(2).) Section 1100, subdivision (e), provides that each spouse has an “obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest.” “ ‘Remedies for breach of the fiduciary duty by one spouse, including those set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs.’ ” (In re Marriage of Schleich (2017) 8 Cal.App.5th 267, 277; § 1101, subd. (g).)

Here, in a declaration dated October 21, 2016, Rajesh stated, “When I go to India again, I can get a copy of the Deed. I don’t have a copy at this time.” He acknowledged, and did not dispute, Shurti’s representation that she does “not have access to any documentation for [the India Apartment].” Despite this, there is no indication in the record that he ever obtained or provided the deed to Shruti. Thus, there was substantial evidence to support the trial court’s finding that Rajesh violated his fiduciary duty to Shruti by failing to “[r]ender[] upon request, true and full information of all things affecting any transaction that concerns the community property.” (§ 721, subd. (b)(2).)

Rajesh argues the trial court’s other breach of fiduciary finding that he “fail[ed] to disclose that his mother had been added to title” is not supported by substantial evidence because Shruti testified at trial that she went to the bank with Rajesh to add his mother to title. Shruti, however, testified that Rajesh took her to the bank just before leaving for the United States, told her he needed to add his mother’s name to title, and “pressured” her into signing something. She felt there would be consequences if she did not sign, and she signed “because he was saying it. . . .” Her testimony shows that Rajesh unilaterally made the decision to add his mother to title and that he did not disclose the reasons for doing so nor the effect it would have on Shruti’s community property rights.

As noted, a spouse’s fiduciary duty is “of the highest good faith and fair dealing” (§ 721, subd. (b)) and includes the “obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest” (§ 1100, subd. (e)). Neither spouse “shall take any unfair advantage of the other.” (§ 721, subd. (b).) In light of Rajesh’s failure to disclose the reasons for adding his mother to title and the evidence of the pressure he placed on Shruti to sign her name, the court could reasonably find Rajesh breached his fiduciary duty to Shruti by taking “unfair advantage” of Shruti and failing to provide her with full disclosure regarding the change in title. Accordingly, the court did not err in deeming the India Apartment a community property asset to be divided equally between the parties.

3. Date of Separation

a. Background

At the January 31, 2017 bifurcated trial, Shruti testified that she believed the date of separation was April 1, 2006. That day, at a ceremony for the parties’ newborn daughter, Rajesh told Shruti he was “done with [her]” and “done with the marriage.” Thereafter, the parties began living “separate lives” and no longer had “marital relations.” The parties closed their joint account and Shruti began supporting herself and the children from her earnings. In about August 2006, Rajesh left the home with his parents, who had been visiting from India, and began spending a lot of time away from the family. On many occasions, Shruti did not know where he was.

The parties went on a few weekend trips together with the children in 2007 and 2008. Shruti testified that she allowed Rajesh to come when he was available because she felt it was good for the children to spend time with their father. During vacations, the family sometimes shared a room but the parties did not sleep in the same bed. When the family home went into foreclosure in August 2008, the family moved into an apartment and Rajesh spent about 20 percent of the year at the apartment, sleeping on a sofa in the living room. On September 23, 2009, Shruti leased an apartment at the Capri Creek Apartments. She signed the rental contract in her own name only and paid all property expenses including rent. In March 2011, Shruti terminated the lease of her apartment and purchased a house in her name only; escrow closed in June 2011.

When asked at trial why it took her so long to file for divorce, she explained, “Generally in India there is no divorcing [the] husband even if they lead separate lives. [¶] It took me time to understand it is very different in America and it took me time to understand the process and cultural differences here in U.S.A. and I finally needed to file for divorce.”

Rajesh claimed the parties did not separate until June 7, 2011, when the lease on the Capri Creek Apartments ended and escrow closed on the house Shruti purchased in her own name. Rajesh testified that Shruti asked him to move out of the Capri Creek Apartments that day and that he removed his belongings and moved into a hotel. He testified the parties never had separate residences until then, except for a six-month period in 2006 when he stayed in an apartment in Fremont for his job. He explained he was not on the Capri Creek Apartments lease because he had bad credit and needed to rebuild his credit score; he denied it was because the parties were separating.

The trial court ruled the date of separation was September 23, 2009. The court noted the parties’ testimony was “completely inconsistent” and it had to determine the credibility of the parties. The court stated found the “best evidence” was “a neutral document,” which was “the rental agreement from the Capri [Creek] Apartments for [Shruti] solely to rent the apartment commencing on 9/23 of ‘09.” The court stated the rental agreement was “a credible document as to the intent of the parties with regard to who would be residing at the rental property . . . in the Capri Creek Apartments.”

b. Rajesh’s Contention

Rajesh contends there is no “substantial credible evidence” supporting the trial court’s date of separation finding. We disagree.

Family Code section 70 provides in part: “(a) ‘Date of separation’ means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: [¶] (1) The spouse has expressed to the other spouse his or her intent to end the marriage. [¶] (2) The conduct of the spouse is consistent with his or her intent to end the marriage.” The date of separation is a factual issue to be determined by the preponderance of the evidence. (In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1493–1494.) Under that standard, this court’s “review is limited to determining whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion.” (In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1360.)

Shruti testified that Rajesh told her in April 2006 that the marriage was over. Thereafter, she understood their marital relationship was over, and the parties closed their joint account, no longer had “marital relations,” and lived “separate lives.” Although these acts could have indicated an intent to end the marriage, the parties also continued to take family trips and it appears Rajesh did not always maintain a separate residence. Shruti’s act of moving into the Capri Creek Apartments, however, and her act of signing a housing contract in her own name only for the first time in their marriage, indicated her clear intent to end the marriage and have a “complete and final break.” (§ 70.) Shruti testified she took responsibility for the rental payments and all costs related to the apartment. Hence, there was substantial evidence to support the trial court’s finding that the date of separation occurred when Shruti moved into the Capri Creek Apartments on September 23, 2009.

Rajesh asserts the trial court improperly relied on the Capri Creek Apartments rental agreement because it was not properly admitted into evidence. The record shows, however, that Rajesh raised no objection when the rental agreement was marked as an exhibit, with copies provided to him and to the court, or when the court indicated it was relying on the document in making its date of separation finding. He therefore forfeited the issue. In any event, it was undisputed that Shruti signed the rental agreement in her own name only. She testified she signed the rental agreement in her own name only and paid all of the expenses related to the apartment. Rajesh acknowledged this fact when he testified, “The reason why she signed [the rental agreement] . . . [is] I never wanted to deplete my credit score because of renting purposes. So I said this time you go ahead and do it . . . because . . . I needed a better credit score and I didn’t need any kind of more inquiries into it.” Aside from the document itself, ample evidence supported the court’s finding that Shruti signed the rental agreement in her name only.

Rajesh complains he was “precluded from showing evidence supporting his date of separation” because the trial court, at the “last minute,” bifurcated the trial and he was unprepared to present documents related to the date of separation on the first trial date. The record shows, however, that Rajesh stipulated to bifurcation and to limit the first trial date to the issue of the date of separation. Moreover, the date of separation was at issue on the first day of trial, both before and after bifurcation. Thus, the court did not unfairly prejudice Rajesh by requiring him to come prepared with documents he wished to present on the date of separation issue.

DISPOSITION

The judgment is affirmed. Shruti Sahay shall recover her costs on appeal.

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Goode, J.*

A151769/Sinha v. Sahay