Pugliese v. Pugliese

Filed 1/16/08 Pugliese v. Pugliese CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph R. Kalin, Judge. Affirmed and Writ Denied.

The Law Offices of Pease & de Petris, Edgar B. Pease III and Cynthia A. de Petris for Plaintiff and Appellant.

Mooney & Caetano and Keri S. Caetano for Defendant and Respondent Dante J. Pugliese.

Allen Hyman for Defendants and Respondents Florence Pugliese, Jeanette Pugliese, Passport International Productions of California and Passport International Productions of New Jersey.

Plaintiff Michele Noel Pugliese (Michele) filed a marital dissolution petition against her husband Dante Pugliese (Dante).[1] She later joined to the action four non-spousal parties: Dantes mother Florence Pugliese (Florence), Dantes daughter by his first marriage, Jeanette Pugliese (Jeanette), and two corporations, Passport International Productions Inc. of New Jersey and Passport International Productions Inc. of California (collectively the PIP entities). At times in our opinion, we refer to Florence, Jeanette, and the PIP entities collectively as the non-spousal defendants.

As explained in greater detail below, Michele filed a first amended complaint against the non-spousal defendants seeking damages and a constructive trust. All parties stipulated to conduct a bifurcated declaratory relief trial to determine whether Michele had a community property interest in the PIP entities. Following trial, the trial court ruled that Florence wholly owned the PIP entities and that Michele had no community property interest. The court entered judgment to that effect, and dismissed Micheles first amended complaint against the non-spousal defendants.

Michele appeals, contending that the judgment must be reversed because: (1) the evidence does not support the trial courts finding that Florence alone funded and owned the PIP entities; (2) the trial court erred in excluding opinion testimony by Micheles expert witness as to who owned the PIP entities; (3) Dante and the non-spousal defendants failed to serve final disclosures of income and expenses as required by Family Code section 2105, subdivision (a); (4) the non-spousal defendants failed to produce certain UCC filings requested in discovery; and (5) the non-spousal defendants failed to comply with a discovery order regarding production of documents, and Micheles subsequent motions to compel and for sanctions improperly went unheard.

Addressing the preliminary issue of appealability, we conclude that as to the non-spousal defendants, the appeal is from a final judgment that resolves all issues between them and Michele. As to Dante, we deem the appeal to be a petition for an extraordinary writ. Concerning Micheles contentions, we find none persuasive, and therefore affirm the judgment as to the non-spousal defendants, and deny the writ as to Dante.

PROCEDURAL BACKGROUND

Michele and Dante were married on January 14, 1989. On April 22, 2002, Michele filed a petition for dissolution of the marriage. The petition was assigned to a family law department of the Los Angeles Superior Court.

In September 2002, Michele filed four motions for joinder, seeking to join Dantes mother Florence, his daughter Jeanette, and the PIP entities. In support of the joinder motions, Michele alleged that the PIP entities held the bulk of the community assets, and that Dante had installed Jeanette as President and Florence as owner in order to create the fiction that he had no interest in the corporations. According to Michele, the parties to be joined were indispensable for a proper distribution of community property. On October 28, 2002, the family law department granted the joinder motions.

Included with the joinder motions was a proposed complaint, later superseded in February 2003 by a first amended complaint. As here relevant, in the first amended complaint Michele alleged that Florence and Jeanette conspired with Dante, without Micheles knowledge, to siphon off funds from the PIP entities in which Michele had a community property interest. Under the scheme, Florence was the nominal owner of the PIP entities, and Jeanette was the nominal president, but Dante actually controlled the companies and directed transfers of funds to third parties and himself in order to deceive creditors (including the IRS) and Michele. Michele alleged causes of action against Florence, Jeanette, and the PIP entities for fraud, conversion, and money had and received, seeking actual damages, punitive damages, and a constructive trust.

Because the non-spousal defendants had a right to a jury trial on the at-law claims in the first amended complaint, the family law court severed the first amended complaint from the dissolution action for trial. In August 2004, the action on the first amended complaint was transferred to a general civil department.

In the civil department, Florence moved for trial preference (Code Civ. Proc.,  36) based on her age (89) and medical condition (chronic cardiac abnormalities). The civil department granted the motion and set a December 2004 trial date. However, because Dante petitioned to reopen a prior bankruptcy in New York, the action was subject to a bankruptcy stay until March 2005, when the bankruptcy court denied Dantes petition to reopen.

Upon the stay being lifted, the civil department set a June 2005 trial date on Micheles first amended complaint. After the final status conference, however, the court determined that the case was not ready for trial. The court concluded that the first amended complaint was improperly framed, because the issue underlying the at-law claims was an issue of declaratory relief not pled in the complaint -- whether Michele owned a community property interest in the PIP entities, or whether Florence owned the entities outright. The court found the case further complicated because Michele was seeking to file a second amended complaint, and the non-spousal defendants were seeking to file a cross-complaint. Based on the uncertainty of issues to be tried, and because the key dispute concerned whether the PIP entities were marital assets, the civil department transferred the case back to the family law court.

The family law court, in an attempt to clarify the issues, ordered the parties to file briefs on, inter alia, what pleading was the operative complaint and whether Florence was entitled to a trial preference under Code of Civil Procedure section 36. On July 20, 2005, the entire case the dissolution action between Michele and Dante, and the at-law claims by Michele against Florence, Jeanette, and the PIP entities -- was transferred to a long cause trial court. The trial court set a hearing date of August 9, 2005, and requested further clarification on the status of the case. It presided over the case for the remainder of the proceedings involved in this appeal.

On August 9, 2005, an oral stipulation was reached among all parties Michele, Dante, Florence, Jeanette, and the PIP entities to have a declaratory relief trial on the issue whether the PIP entities and their assets were community property, or were owned outright by Florence. Although Dante was not a party to Micheles first amended complaint, he stipulated that he would be made a party to the declaratory relief claim, and would be bound by the declaratory relief determination. All other issues in the dissolution action, including spousal support, would be reserved for later proceedings. Dante and Michele had earlier stipulated that any interest Dante had in the PIP entities during the marriage until separation would be deemed community property.

The trial was held from August 22 through September 29, 2005.[2] The trial courts final statement of decision was filed on December 1, 2005. Forty pages in length, the statement of decision summarized the lengthy testimony and concluded that Florence owned the PIP entities in their entirety. Because the marital estate had no ownership interest in the PIP entities, the court concluded that the causes of action alleged in Micheles first amended complaint against the non-spousal defendants were without basis [and] should be dismissed with prejudice. The court entered judgment on December 8, 2005, declaring that Michele had no community property interest in the PIP entities, and dismissing her first amended complaint with prejudice. Michele filed a timely notice of appeal.

FACTUAL BACKGROUND

The record in this case consists of 13 volumes of reporters transcript and appellate appendices of 27 volumes. We have been left to digest this record largely on our own, because Micheles appellate briefing contains no coherent summary. We summarize below the salient facts in accord with the standard on appeal -- the light most favorable to the judgment. (See Baxter Healthcare Corp. v. Denton(2004) 120 Cal.App.4th 333, 369 (Baxter).)

A. Micheles Evidence

At trial, Michele contended that the PIP entities were either corporations owned by Dante, or were partnerships or joint ventures in which Dante was a partner or co-venturer with Florence. Although Michele called Dante, Jeanette, and Florence as adverse witnesses, her case rested primarily on her own testimony, and that of her expert witness, Eric Steinwald.

According to Michele, she and Dante were married on January 14, 1989. In July 1989, Dante formed Passport International of New Jersey to produce copyrighted videos for sale. He told her that he owned the company, and that he wanted it to grow so that they could retire and live off residuals from the companys productions. He never said that Florence owned the company. When Michele saw a stock certificate for 1000 shares in Passport International of New Jersey in Florences name, Dante told her that the document was bogus, created for the purpose of preparing a tax return. Jeanette Pugliese, who worked for the PIP entities, also told Michele that Dante was the owner. The first time Michele was told that Dante did not own the PIP entities was around the time of separation in 2001, when Dante said that Florence had owned the company for 15 years and that Michele would get nothing.

Michele testified that during the marriage she and Dante maintained a lavish lifestyle of travel and entertaining, and that Dante would draw funds from the PIP entities as he pleased. Michele had no idea that he or his companies had any financial problems. In this litigation, Michele learned that Dante had filed for personal bankruptcy in 1992, but she was unaware of the bankruptcy at the time, even though they were then married and living together and correspondence about the bankruptcy was received at their residence. According to Michele, she knew only that Dante had had past problems with creditors. Likewise, although she later learned that Dante was personally liable for IRS tax liens relating to his failure to pay withholdings for employees of his companies, at the time she knew nothing of the liens. Michele admitted that in 1991, a $92,000 lien wiped out the balance in their joint bank account. However, she denied discussing the lien or their financial situation with Dante. Michele also admitted that in 1993, when she and Dante were operating a horse boarding facility named Pine Hollow Breeding Farm, they were evicted from their home on the property when creditors foreclosed. According to Michele, they were forced to pack as guards watched. Michele denied, however, that she thought the eviction signaled financial difficulty. Dante told her that he had purchased the farm for development and was letting it fall into foreclosure to be rid of it. Michele further admitted that after the eviction, she opened a bank account in her name alone to hold their joint funds, and that Dante never again maintained an account in his own name. But she denied that she participated in this arrangement in order to protect their funds from Dantes creditors.

Michele called Eric Steinwald, a certified public accountant with experience in forensic accounting, as an expert witness. He testified that the PIP entities did not operate as true corporations. The tax returns and financial records he examined showed that the companies moved money around to Pugliese family members in a manner inconsistent with corporate practice. [T]he loan documents were not documented with a fair market value [or] interest rate[,] . . . loans were not paid back, . . . interest was not paid, . . . personal credit cards were used to run expenses through the entity. As a forensic accountant, he also had strong concern as to the authenticity of attachments to tax returns that showed Florence to be the full owner of the Passport entities voting stock. The manner of preparation and type face of the attachments suggested they might not be copies of originals filed with the tax returns.

Steinwald calculated the PIP entities average net cash income for the last three years to be $1.299 million. In his opinion, Dante Pugliese appears to be the owner and the operator of [the PIP entities], and this income is his income. Moreover, he testified that in his opinion, Dantes income in 2004 was $2,192,000 and his income in 2005 was $5,981,818.

B. Dante and the Third-Party Defendants Evidence

Dante and the third-party defendants contended at trial that the PIP entities were corporations wholly owned by Florence, and that Dante ran the companies but had no ownership interest. Their evidence consisted primarily of testimony by Dante, Florence, Jeanette, and Michael Pugliese (Dantes son by his first marriage).

1. Dantes Financial History Before the Marriage

Before his marriage to Michele in January 1989, Dante had a checkered financial history related to various businesses in New Jersey and New York. In 1962 (at age 24), he created Apex Records, which purchased closeout phonograph records from recording companies and resold them. In 1971, he created Springboard International Records, which acquired master recordings (or licenses to them), reproduced the recordings, and marketed them. Despite early success, Apex and Springboard filed for bankruptcy protection in 1978, and the bankruptcy court liquidated them in 1979.

In the meantime, in 1975 Dante created MAJ music, which acquired copyrights to musical compositions. He continued to own this company after the 1979 demise of Apex and Springboard. In 1980, he created Phoenix Entertainment and Talent, Inc., which acquired master recordings and licensed them. He also purchased a controlling interest in Autofidelity Records, a recording company, but later sold his interest in 1986 at a loss and never received payment. Also in 1986, he created Amvest Video, which manufactured and distributed public domain films and cartoons in a VHS format.

2. Dantes Financial Condition During the Marriage

In January 1989, Dante eloped with Michele, telling no one in his family about the marriage. At the time, he owned Amvest Video, Phoenix Entertainment, and MAJ Music. He spent the majority of his time working for Amvest, but by 1989 Amvest was losing money because of increased competition. The company was sued for nonpayment by its suppliers, resulting in sizeable judgments. In addition, Dante paid no payroll taxes for the companys employees for 1989 and 1990. In 1990, he received notice from the IRS of a tax lien against Amvest in the sum of $288,000. An additional tax lien of more than $32,593 was levied in 1991. Without credit or capital, Amvest filed for bankruptcy protection in January 1993. Suffering similar problems, Phoenix Entertainment had earlier filed for bankruptcy in August 1992.

Dantes financial difficulties resulted in his having bad credit. Therefore, in 1988 he twice used his son Michael Pugliese, a newly admitted attorney in New Jersey, as a nominal buyer of homes in which Dante and Michele lived. The first occasion was when Michael was the nominal buyer of a house in Red Bank, New Jersey. The first and second mortgages on the house were in Michaels name. Dante and Michele moved into the house before marriage, and lived there for a time after the wedding in 1989.

In the second purchase, Michael was the nominal buyer of a five-bedroom house on a lake in Matawan, New Jersey. Once again, the first and second mortgages on the property were in Michaels name. Dante and Michael agreed on an oral partnership under which Dante and Michele moved into the house, and were to pay rent to Michael equal to his mortgage payments. Michael would subdivide the lot and build a house there or sell the subdivision at a profit. The plan failed, however, because by mid-1989 Dante was unable to make the rent payments to Michael. Dante and Michele moved out, and the property went into foreclosure, ruining Michaels credit.

In 1991, as the Matawan house went into foreclosure, Dante and Michele moved to a farm in Pine Bush, New York. The property had been purchased in 1990 or 1991 by Dantes mother Florence. After moving in, Dante and Michele operated a horse boarding facility there named Pine Hollow Breeding Farm, with funds supplied by Florence. The operation was unsuccessful, and in 1993 creditors foreclosed, evicting Dante and Michele.

Meanwhile, in 1992, Dante declared personal bankruptcy, listing assets of $10,500 and liabilities of $5,468,222. Among the listed personal liabilities were non-dischargeable liens from the IRS totaling $624,710, and judgments in approximately 13 lawsuits. Following his bankruptcy discharge, Dante and Michele kept bank accounts in Micheles name only to protect their funds from Dantes creditors.

Dante and Michele moved for a brief time to Middletown, New York, and then to a home that Florence bought for them in Tinton Falls, New Jersey, where they lived from 1994 to 2000. In 2000, they moved to a rented house on Cahuenga Boulevard in Hollywood, California, where they lived until separation.

3. The Creation of the PIP Entities

In 1989, as Amvest and Phoenix were failing and his personal finances were in shambles, Dante conceived the idea for what later became the PIP entities (first incorporated in 1989 as Passport International of New Jersey, and later in 1998 as Passport International of California). Dante planned for the PIP entities to create videos that could be copyrighted and sold at a higher markup than the products made by Dantes former businesses.

As he had in the past, Dante turned to his mother Florence to finance the planned company. Florence had long been loaning funds to keep Dantes various businesses afloat. She had loaned $300,000 to $400,000 to Springboard and $200,000 to Apex -- funds for which she was never repaid when the companies were liquidated in bankruptcy proceedings in 1979. Later, she loaned approximately $300,000 to Amvest, Phoenix Entertainment, and MAJ Music. In these loans, learning from the past mistake of being an unsecured creditor, and acting on the advice of her grandson Michael Pugliese, Florence perfected liens by filing financial statements under the Uniform Commercial Code. In 1992, as Amvest, Phoenix and MAJ were failing, she foreclosed on the liens, taking possession of various assets, including the companies music and video properties.

In the formation of the Passport entities, Florence likewise wanted to protect her investment. She discussed the situation with Michael Pugliese, who expressed reservations about her even getting involved, given his fathers precarious business history and financial dealings. Michael advised, however, that if Florence were to provide financing, she should be the owner of the new business rather than a creditor. As owner, she would have a measure of control, and be able to keep Dante from making decisions she thought unwise.

Florence agreed, and told Dante that she would not loan him any more money because of his past losses. Rather, she reached an agreement with Dante whereby she would contribute the capital and be the owner of the new company, and Dante would run it.

Passport International Productions, Inc., was incorporated in New Jersey in July 1989. Michael Pugliese drafted the incorporation documents, and created the stock certificate that gave full ownership (1000 shares) of the corporation to Florence. Dante was the incorporator of the company and its president, but received no shares.

Jeanette Pugliese, who had a degree in accounting, began working for the company in 1989 as an independent contractor doing accounting work. In September 1994, she became controller, and ultimately became co-president with Dante. In 1998, Passport International of New Jersey ceased operation, and Passport International of California was incorporated and took over the operations and assets of the former company.

Florences Financing of the Passport Entities

From 1993 through 2000, Florence put approximately $4 million into the PIP entities. Her contributions funded the companys purchases of equipment and office space. In 1993, Dante opened an office for Passport International of New Jersey on Burbank Boulevard in North Hollywood. In August 1995, he convinced Florence to purchase a building on Magnolia Boulevard in North Hollywood to which the PIP entities moved operations in October or November 1995.

Florence obtained the funds to finance the PIP entities primarily through real estate dealings and stock investments. As of the late 1980s, she was actively buying and selling securities (on some of which she received dividends) worth several hundred thousand dollars. In 1982, at Dantes suggestion, she purchased APZ, Inc., for $775,000. She obtained the funds for the purchase by selling some of her stock holdings. APZ owned a thoroughbred training and boarding facility on 70 acres in Colts Neck, New Jersey, called Meadows Run Breeding and Training Center. Florence moved to a house on the property in 1983. In 1984, she sold approximately 20 acres of the property for $1,000,060. In 1996, she sold approximately 54 acres to a developer for $2.85 million, keeping her home and 4 acres. In July 1999, she sold her home and the remainder of the property for approximately $422,500, and moved to a home on Auchland Avenue in North Hollywood, California, which she had earlier purchased on Dantes recommendation. The home was located across the street from the Magnolia building where the PIP entities operated. Later, Jeanette Pugliese moved into the guest house (a renovated garage) on the Auchland property.

C. The Trial Courts Statement of Decision

In its lengthy statement of decision, the trial court found Micheles testimony, which suggested that Dante was financially successful during the marriage and that Michele had no knowledge of any financial difficulties, to be incredible. The court concluded, rather, that Dante and Micheles marital estate was insolvent at its inception, and remained so throughout the marriage. Florence, on the other hand, accumulated several million dollars, and wholly financed the creation and operation of the PIP entities. According to the court, [a]ll of the evidence leads to the conclusion that [the PIP entities] were corporations 100% owned by [Florence], and that Michele owned no community property interest.

DISCUSSION

I. Appealability

In her opening brief on appeal, Michele states that the judgment is appealable under Code of Civil Procedure section 904.1, subdivision (a)(1), which provides in relevant part that an appeal may be taken [f]rom a judgment, but not from interlocutory judgments. In his respondents brief, Dante notes that the judgment in the instant case might be considered nonappealable as an interlocutory judgment on a bifurcated issue relating to the characterization of alleged marital property. However, he urges that we entertain the case either as an appeal or as a writ petition.

We granted permission to the non-spousal defendants and Michele to file separate briefs on the issue of appealability. In their respective briefs, the non-spousal defendants and Michele note that because the judgment dismissed Micheles first amended complaint, it thereby finally resolved all issues between them. Therefore, they contend that the judgment is final and appealable. Alternatively, they ask that we deem the appeal to be a writ petition.

We conclude that at least as between Michele and the non-spousal defendants, the judgment is appealable because it finally resolved all issues between these parties. (See Estate of Gonzales (1990) 219 Cal.App.3d 1598, 1601 [appeal lies where judgment resolves all issues between a plaintiff and one defendant, even though action remains pending between the plaintiff and other defendants].) Although the dissolution action between Dante and Michele remains pending, and hence as between them the judgment is interlocutory, we nonetheless exercise our discretion to entertain Micheles appeal as a writ petition as to Dante and resolve it on the merits. (See In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403 [appellate court has discretion to treat premature appeal as a petition for an extraordinary writ within the appellate court's original jurisdiction].)

II. Sufficiency of the Evidence

Michele contends that no reasonable judge would have refused to recognize the clearly established proof that Florence Pugliese could not have possibly funded [the PIP entities] during the formative years. (Capitalization omitted.) Michele undertakes a detailed examination of Florences tax returns, and concludes that Florence could not have accumulated sufficient wealth to support a finding that she alone financed the PIP entities.

Micheles contention is, in substance, a challenge to the sufficiency of the evidence to support the trial courts finding that Florence owns the PIP entities and that Michele has no community property interest. On the following grounds, Michele has forfeited her claim: (1) Michele relies only on evidence supporting her claim, and fails to summarize all the relevant evidence, such as the evidence of Dante and Florences agreement on ownership and Dantes insolvency (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 749-750); (2) the evidence on which Michele relies, derived from Florences tax returns, is a series of schedules not presented at trial (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 631-632); and (3) the schedules themselves are nearly incomprehensible, supported by lengthy, inexact citations to the appellate appendix inadequate to permit effective appellate review (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166-167).

In the alternative, we reject Micheles challenge to the sufficiency of the evidence on its merits. There was substantial evidence of Dantes insolvency, leading to the conclusion that he did not fund the Passport entities. There was also substantial evidence, in the testimony of Florence and Dante, that Florence was to be the owner of the enterprise and supplied all the financing. At best, the evidence cited by Michele merely raises a conflict in the trial record. On appeal, such conflicts are resolved in favor of the judgment. (Baxter, supra, 120 Cal.App.4th at p. 369.) We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this substantial evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. [Citations.] (Ibid.)

III. Steinwalds Testimony

Michele contends that the trial court erred in excluding opinion testimony by her expert witness, Eric Steinwald, that Dante owned the Passport entities. Michele asserts that the trial court erroneously excluded such testimony on the ground that it went to the ultimate issue to be decided by the court. A summary of the relevant portions of the record, omitted by Micheles briefing, demonstrates that the claim is meritless.

Steinwald was not on Micheles witness list for trial; a different proposed expert was named. When, during trial, Micheles attorney announced that he intended to call Steinwald, counsel for the non-spousal defendants stated that he would not object, so long as Micheles attorney provided a list of all documents on which Steinwald would be relying for his expert testimony. Noting the voluminous number of exhibits used at trial, the court stated that the non-spousal defendants were entitled to know which of those documents Steinwald had reviewed in preparation for his testimony. Micheles attorney agreed to provide opposing counsel with a list of all documents Steinwald reviewed before Steinwald was called to testify.

When Steinwald was later called as a witness, he first testified on direct examination that in an attempt to determine the owner of the PIP entities, he reviewed trial exhibits 400, 401, 403, 407, and 409 through 413.[3] Relying on these documents, he formed an opinion as to who owned the Passport entities. When asked by Micheles attorney who that owner was, the court sustained the objection of counsel for the non-spousal defendants. The court ruled that the witness could testify that in his opinion the documents he reviewed showed no indicia of ownership by Florence. But he could not testify as to the ultimate issue of who actually owned the Passport entities.

It is this ruling that Michele challenges on appeal. However, as the remainder of the relevant record makes clear, this ruling ultimately had no effect on the extent of Steinwalds testimony.

After the courts ruling, under examination by Micheles attorney, Steinwald testified that the documents he reviewed would not permit him to sign off for Florence Pugliese in California as the owner of Passport on a personal financial statement. Further, in his opinion the documents did not meet generally accepted standards for demonstrating a transfer of stock to Florence, because there was no indication that she provided any consideration in exchange for shares of stock.

At this point, counsel for the non-spousal defendants objected that the documents on which Steinwald relied were not included in the list provided by Micheles attorney as the basis for his opinion testimony. The court agreed, noting that the list did not include exhibits 400 through 413 the exhibits Steinwald had relied upon for his excluded opinion as to who owned the PIP entities, and the ones he was now relying on to give his current opinions. The court therefore struck Steinwalds testimony as to the documents, the 400 series that are not listed.

Thus, to the extent Steinwalds testimony was ultimately limited by the court, the limitation occurred because Steinwald purported to rely on documents that were not listed in his pre-testimony disclosure to opposing counsel. Michele does not mention, much less challenge, the courts striking of Steinwalds testimony on this ground. Yet the ruling is fatal to her contention on appeal. The proposed testimony which she contends should have been admitted Steinwalds testimony on direct examination as to who owned the Passport entities was subject to the same objection as his later stricken testimony, because it, too, was based documents not included in the pre-testimony disclosure. For this reason alone, Micheles contention that the trial court erroneously excluded Steinwalds testimony on the ground it went to the ultimate issue must be rejected.

There is, however, another reason: the remaining portion of the relevant record shows that the precise opinion testimony Michele contends was improperly excluded was later elicited on cross-examination by Dantes attorney. When cross-examined by Dantes counsel, Steinwald testified that he calculated the Passport entities average net cash income for the last three years to be $1.299 million. He testified: Dante Pugliese appears to be the owner and the operator of [those entities], and this income is his income. Thus, even if the trial court had committed error in excluding Steinwalds opinion on direct examination (it did not), the error would be harmless. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801; Evid. Code,  354.) Micheles contention is based either on a misunderstanding or a misrepresentation of the record.

IV. Disclosure Under Family Code section 2105

Michele contends that in violation of Family Code section 2105, subdivision (a), Dante and the third party defendants failed to serve final declarations of income and expenses at least 45 days before trial. She asserts that without the final declarations she was prejudiced in proving Dantes ownership of the PIP entities.

Family Code section 2105, subdivision (a) provides in relevant part: Except by court order for good cause, . . . if the case goes to trial, no later than 45 days before the first assigned trial date, each party, or the attorney for the party in this matter, shall serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council, unless the parties mutually waive the final declaration of disclosure.[4]

We assume, without deciding, that the disclosure requirement of Family Code section 2105 applies to the declaratory relief trial in the instant case and also applies to the non-spousal defendants.[5] To obtain reversal for the failure to provide the final disclosures, Michele must demonstrate prejudice (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 522), meaning she must show that it is reasonably probable that a different result would have been reached in the absence of the error (Wallerv. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) To do so, Michele must present a developed prejudice argument, spelling out exactly how the error caused a miscarriage of justice, and referring to the evidence in the record that supports that argument. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 (Century); Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)

Michele does not meet her burden. She fails to summarize all relevant proceedings and evidence, and never articulates with the required specificity why it is reasonably probable that she would have obtained a better result if the final disclosures had been provided. Having failed to adequately develop her claim of prejudice in an understandable fashion on the whole record, we conclude that she has forfeited the contention.

In any event, several factors lead us to conclude that Michele suffered no prejudice, beginning with the manner in which Micheles counsel handled the issue of the final disclosures in the trial court.

A. Trial Proceedings

The stipulation to hold the declaratory relief trial was reached on August 9, 2005. Although not mentioned by Michele, the record shows that on June 2, 2005, Florence, Jeanette, and the PIP entities filed and served income and expense declarations. When Micheles counsel entered the stipulation for the trial, he did not argue that the non-spousal defendants income and expense declarations were inadequate, and did not complain that the failure of the non-spousal defendants and Dante to provide final declarations under Family Code section 2105, subdivision (a), would impede his ability to try the limited issues involved.

To the contrary, at the August 9, 2005 hearing, Micheles attorney noted that Dante and the non-spousal defendants had not filed disclosures, but stated: We want this case tried. . . . We dont even need to get into the issue of preliminary declarations of disclosures. If they want to serve those this week, well waive time. The fact is we know the issues, were ready to go. Weve served our declarations of disclosure, so theres no reason not to go forward. (Italics added.)

The first time Micheles counsel objected to proceeding with the trial without the final disclosures was August 30, 2005, in the middle of the trial, when the trial court stated that it intended to expand the trial to include all the issues in the dissolution action. (See fn. 2, ante.) (RT 1872-1887) At that time, Micheles counsel noted that because he had just been informed of the courts intention to try the family law issues, he was calling to the courts attention the fact that none of the parties had complied with Family Code section 2105, subdivision (a). He stated that Michele would not waive the final disclosure requirement, and that if the court chose to proceed with trying the family law issues, Michele would seek a stay and a writ from the appellate court. Micheles attorney clarified that he objected only to trying the family law issues; he did not object to continuing to try the declaratory relief claim.

Moreover, his motivation was not that he needed the final declarations in order to show that Dante owned the PIP entities. Rather, he was concerned that whoever is unhappy with the outcome of this entire trial has the absolute 100 percent slam dunk winner code section that will set aside the entire matter because . . . the family portion, even spousal support, was joined with it [the declaratory relief issue concerning ownership of the PIP entities] and intermixed, and that would cause us to not only have to do all these other things, but to repeat these proceedings.

Over Micheles objection, the trial court decided it would try the family law issues along with the declaratory relief claim. Michele then petitioned for an extraordinary writ. As a result, we stayed the trial on the family law issues, the trial court ultimately did not expand the trial, and Micheles writ petition was dismissed as moot. (See fn. 2, ante.) The trial court proceeded to rule only on the declaratory relief issue concerning ownership of the PIP entities.

Thus, the record shows that Micheles counsel was ready to try the stipulated declaratory relief issue without the final disclosures, and that he considered the final disclosures important only if the trial were expanded to include the family law issues. That expansion did not occur. Micheles contention on appeal that the absence of the disclosures prejudiced her in the declaratory relief trial is thus belied by the conduct of her trial counsel.

B. Additional Reasons Michele Suffered No Prejudice

Several additional reasons persuade us that Michele was not prejudiced by the failure of Dante and the non-spousal defendants to serve final disclosures. First, as we have noted, the issue at trial was whether Dante or Florence was the owner the PIP. It is entirely speculative whether any information that might have been provided by Dante, Florence, and Jeanette in the final disclosures would have been any different from the lengthy evidence they presented at trial. It is also entirely speculative that any such information would have made any difference in Micheles ability to prove that Dante owned the PIP entities.

Second, at trial, Michele testified to her version of the opulent lifestyle she and Dante enjoyed, and to the purported admissions by Dante and Jeanette that Dante owned the PIP entities. The trial court found Micheles testimony not credible. Nothing that might have been provided in the final disclosures would have changed that finding, which was based on Micheles questionable testimony that she had no inkling Dante was in financial distress, despite his bankruptcy, their eviction from the Pine Hollow Breeding Farm, and the attachment of a lien to their joint bank account.

Third, to the extent Michele contends that she was surprised by evidence of Dantes insolvency and was unable to confront it, the trial evidence is to the contrary. As we have noted, Micheles expert witness, Eric Steinwald, testified that Dante was the apparent owner of the PIP entities and that those entities average net cash income for the last three years by Steinwalds calculations, $1.299 million -- was Dantes income. He further calculated that Dantes income in 2004 was $2,192,000 and his income in 2005 was $5,981,818.

Fourth, any problems Michele faced in countering Dante and the non-spousal defendants evidence through Steinwalds testimony arose not from the absence of final disclosures, but from Micheles late designation of him as an expert, and the fact that she did not comply with the courts order that she inform opposing counsel of which documents Steinwald would rely on in expressing his opinions.

Fifth, to the extent Michele complains that she was deprived of evidence to attack Florences claim of ownership, we note that Steinwald testified that the PIP entities handled their funds in a manner inconsistent with corporate formality (for instance, not documenting alleged loans by Florence). He also questioned the authenticity of attachments to tax documents stating Florence to be the owner of the PIP entities.

Finally, Dante and the non-spousal defendants presented compelling evidence that Dante was unable to finance the PIP entities, that Florence financed the bulk of all his business ventures, including the PIP entities, and that Florence protected her investment in the PIP entities by securing sole ownership. In light of all these circumstances, we conclude that it is not reasonably probable Michele would have achieved a more favorable result on the issue of ownership of the PIP entities if the final disclosures had been made.[6]

VI. UCC Financial Statements

At trial, the non-spousal defendants presented evidence that Florence perfected liens for her loans to Amvest, Phoenix and MAJ by filing financial statements under the Uniform Commercial Code. In 1992, as Amvest, Phoenix and MAJ were failing, she foreclosed on the liens, taking possession of various assets, including the companies music and video properties.

On appeal, Michele contends that the trial court should have excluded the UCC filings themselves because they were not disclosed during discovery. However, she has forfeited the contention on appeal because: (1) at trial, she did not make a specific and timely objection on this ground to introduction of the documents (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13 (Broden); Evid. Code,  353); and (2) on appeal, she fails to support her claim that the documents should have been excluded with any citations to relevant legal authority (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie)).

In the alternative, we reject the contention on the merits. Michele cites to nothing in the record showing a discovery violation by Dante or the non-spousal defendants with regard to the UCC filings. Indeed, Michele appears to concede that she did not seek discovery of these documents from the opposing parties. Rather, she served a subpoena for production of the documents on Michael Pugliese, a non-party, in New Jersey. Michael responded that he did not possess them. Michele was also unsuccessful in attempting to obtain the documents from the State of New Jersey. Micheles ineffectual attempts to obtain the UCC filings from non-parties do not constitute a ground on which to preclude Dante and the third-party defendants from presenting the documents at trial.

Moreover, even assuming that the UCC filings were improperly admitted, Michele fails to explain how it is reasonably probable she would have obtained a more favorable judgment had the UCC documents been excluded. Indeed, she concedes that in pretrial discovery she obtained copies of letters from Michael Pugliese foreclosing on the UCC filings on Florences behalf. Thus, Michele could not have been surprised at trial by evidence that the foreclosures occurred.

V. Discovery Violations

Michele contends that the non-spousal defendants willfully violated discovery orders of the family law court entered on April 21, 2004 regarding production of documents. She argues that certain documents her attorneys identified were not produced documents that, according to her, were critical to proving Dante owned the PIP entities. She also asserts that the trial court rebuffed her repeated requests to rule on her further motions to compel production of the missing documents or impose sanctions. Michele concludes that [g]iven the inequities in this matter [and due process], this chronology alone should mandate a setting aside of the trial courts judgment and a remand to [the] Family Law Court for proceedings in accordance with the protections of law and equity.

Confusingly, in both her opening and reply briefs, Michele states that she had completed Discovery only as to the issue of the ownership of [the PIP entities] and their assets at the time of entering into the Stipulation for a bifurcated trial on this issue. Of course, because the trial was limited to the issue of ownership, this concession is fatal to Micheles claim that the asserted discovery violations prejudiced her and require reversal. Nonetheless, we will assume that this concession is somehow an oversight, and address Micheles contention on the merits. We conclude that the record does not support Micheles claim.

A. The April 2004 Discovery Order In the Family Law Court

On April 21, 2004, the family law court ruled on a motion to compel filed by Michele. We cannot locate the motion in the record, and Michele fails to cite to it. We have, however, examined the reporters transcript of the ruling. The family law court ordered the non-spousal defendants to produce copies of their prior three years tax returns, and of the PIP entities general ledger and check register for January 1, 2002 to date. The court further ordered that Michele may send a person into the office of [the non-spousal defendants] to review the portions of the document production that relate to the intellectual property claims; that [the non-spousal parties] are ordered to cooperate with that person; and that if the parties have a dispute regarding the payment of cost of copies, the court will resolve that dispute on an ex parte application. The court further stated that if Micheles counsel later believed that he needed additional documents, the court would hear ex parte requests for individual documents.

B. Purported Motions to Compel in the Family Law Court

To the extent Michele bases her contention on the purported failure of the family law court to rule on further requests to compel compliance with the April 2004 order, the record does not support the contention.

Michele asserts that in the family law court she made subsequent motions to compel further production of documents from the non-spousal defendants and that the motions went unheard. She fails to direct us to those motions in the record. We have examined the record, and are unable to find them.

Michele also asserts: On no less than three (3) occasions, [her attorney, Edgar B. Pease III] asked the court to schedule a hearing on the Motions to Compel. The court refused to do so. In support, she cites us to a single page in the Appellants Appendix, which is a page from a declaration by Pease in support of a August 2005 order to show cause for attorney fees. In the declaration, Pease declares: I have been to court three times requesting orders to effectuate discovery compliance, including a Motion to Compel, and further clarification. Please see Exhibit A. The exhibit referred to, Exhibit A, is simply a letter to counsel for the non-spousal defendants stating Peases intent to make an ex parte request for certain discovery orders on December 7, 2004, including production of documents.

Even if we assume that the cited portion of Peases declaration is sufficient to show that Pease made three requests for additional orders to compel, we do not know what those requests were, and Michele makes no showing that the purported requests were meritorious. Further, Peases declaration is notsufficient to show that the family court improperly failed to consider any such requests. In short, Micheles claim that the family law court failed to rule on additional motions to compel is not supported by the record.

C. The June 2005 Untimely Motion In Limine in the Civil Department

In August 2004, the family law department severed Micheles first amended complaint against the non-spousal parties from the dissolution action, and the matter was transferred to a general civil department for jury trial. The civil department ultimately set a final status conference date of June 3, 2005, and a trial date of June 13, 2005.

On the final status conference date of June 3, 2005, Michele filed a motion in limine (not a motion to compel) seeking special jury instructions and sanctions. The requested jury instructions would have informed the jury that Dante and the non-spousal defendants have deliberately delayed and withheld evidence that would prove Dante owned the PIP entities and would allow Michele to determine the value of the PIP entities and their assets. Michele also requested the following sanctions: (1) an evidentiary sanction precluding Dante and the non-spousal defendants from presenting any evidence that Dante did not own the PIP entities; (2) an issue sanction establishing conclusively that Dante owned the PIP entities; and (3) an order awarding Michele all assets connected with three named televisions series produced by the PIP entities.

The motion was supported by, as here relevant, the declarations of Micheles attorney Pease, and an employee of his law firm, Robert Williscroft. According to these declarations, pursuant to the April 2004 discovery order, Pease, Williscroft, and Michele reviewed 350,000 to 500,000 documents, and requested copies of more than 20,000 documents.[7] A dispute ensued over 1,583 designated documents that were allegedly not copied, and the non-spousal parties made a subsequent production. Thereafter, Williscroft determined that 928 documents were still missing. Williscroft declared that the missing documents were critically important to Micheles case, and listed examples.

At the final status conference in the civil department of June 3, 2005, in the course of discussing with the court the issues to be tried, Pease mentioned having filed the motion in limine. The court ruled that the motion was untimely: You dont have any motion in limine in front of me because none was filed until one was filed today. Thats not before me because its not timely filed.

Thus, it is true that the civil department did not consider Micheles June 2005 motion in limine. But the court did not err the motion was untimely. Michele does not discuss the courts ruling, much less demonstrate that the ruling was erroneous. Therefore, to the extent she bases her appellate claim on the civil departments failure to consider her June 2005 motion in limine, her contention fails.

D. The July 2005 Unfiled Motion for Sanctions

On June 9, 2005, having determined that the case was not ready for trial because the claims in Micheles first amended complaint depended on an issue of declaratory relief (ownership of the PIP entities) not pled by Michele, the civil department transferred the case back to the family law court.

The family law court requested supplemental briefing on specified issues for a hearing to be held on July 20, 2005. On July 8, 2005, Michele served on counsel for the non-spousal defendants, by fax, a form order to show cause. Micheles purported order to show cause was not signed by a judicial officer, and did not state a date for a hearing to show cause. Michele has not cited us to this document in the record; we have located it on our own attached to the non-spousal parties ex parte motion to strike the document.

Attached to the document was a motion for evidentiary findings, evidentiary sanctions, issue sanctions, and sanctions for breach of fiduciary duty. The cover of the motion stated a final status conference date of July 20, 2005, in the family law department. The motion itself was a modified version of Micheles June 2005 motion in limine. It sought an order finding that Dante and the non-spousal defendants had deliberately delayed and withheld evidence which would allow Michele to prove that Dante owned the PIP entities, and that would allow her to determine the value of the PIP entities and their assets. It further sought the same sanctions as had been sought in the earlier motion in limine: (1) an evidentiary sanction precluding Dante and the non-spousal defendants from presenting any evidence that Dante did not own the PIP entities; (2) an issue sanction establishing conclusively that Dante owned the PIP entities; and (3) an order awarding Michele all assets connected with three named televisions series produced by the PIP entities.

On July 12, 2005, the non-spousal defendants brought an ex parte motion to strike the purported order to show cause, arguing that it was an improper attempt at reconsideration of the prior untimely motion in limine, and that it went beyond the issues the family law court had ordered to be heard at the July 20, 2005 hearing. At the hearing on the ex parte motion, the family law court informed Pease that he had not properly filed his motion or properly noticed a hearing. Pease responded that he had not intended to file the motion, but rather simply to ask for a date on which the motion could be heard. The court dismissed the ex parte motion to strike because in the courts view, no motion had properly been filed or set for hearing, and the court would not consider at the scheduled July 20th hearing any filings relating to issues beyond those the court had specified.

Thus, Micheles July 2005 motion for sanctions was a nullity it was not properly noticed or filed. The family law courts failure to consider the motion cannot support Micheles appellate contention that discovery issues were improperly overlooked.

E. The August 2005 Motion In Limine Seeking Sanctions

On July 20, 2005, the entire case the dissolution action and the first amended complaint was transferred to the long cause trial court that conducted the trial at issue here.

On August 9, 2005, the trial court held a hearing on the status of the case. Having reviewed the file, the court noted that it contained a request for evidentiary sanctions filed by Michele. Counsel for the non-spousal defendants stated that Micheles June 2005 motion in limine had been deemed untimely when filed, and that the non-spousal parties had filed no response to it because one was not necessary. The court suggested that perhaps the best way to handle the question was to consider objections with respect to individual documents as they were proffered at trial.

Following a lengthy colloquy concerning what the scope of trial might be, the parties stipulated to the declaratory relief trial on the issue whether Michele had a community property interest in the PIP entities or whether Florence owned them outright. There was no suggestion that Michele would seek to preclude Dante and the non-spousal defendants from presenting any evidence to dispute Micheles claim that Dante was the sole owner of the PIP entities.

Nonetheless, on the first day of trial, August 22, 2005, Michele filed a copy of her prior June 2005 motion in limine, prefaced by cover pages which asked for consideration of only the request for evidentiary and issue sanctions. The requested sanctions would have required a finding that Dante owned the PIP entities, and would have precluded Dante and the non-spousal defendants from presenting any evidence to show that Dante did not own them, thus rendering the trial superfluous.

At proceedings on August 22, the trial courts tentative ruling on the motion in limine, consistent with its comments at the August 9 hearing at which the trial stipulation was entered, was not to rule on sanctions, but to consider objections to individual documents as they were offered at trial. Noting the lengthy delay in getting any portion of the case to trial, the court stated that it [did] not want to be spending days going over evidentiary issues before we hear the first witness. If theres any evidentiary issues that come up, theyll be argued to the court, and the court will rule on them in whatever way is appropriate at the time. Micheles attorney submitted to the ruling without comment, and did not request a specific ruling on the request for evidentiary and issue sanctions.