Wiles v. Pratt























Filed 4/25/13 Wiles v. Pratt CA4/3

















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

GARY ALAN WILES, Plaintiff and Appellant, v. DAVID PRATT, as Executor, etc., Defendant and Respondent.

G047286 (Super. Ct. No. 30-2012-00585595) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Randall J. Sherman, Judge. Affirmed.
Motion for judicial notice.
Denied. Motion for sanctions. Denied.

S.A.
Myaskovsky and Sousan Myaskovsky Alemansour for Plaintiff and Appellant.

Hagan & Associates,
Cara J. Hagan and Shannon C. Whitman for Defendant and Respondent.

*
* *

Introduction

Melinda
Julie LaMere and Gary Alan Wiles were married in April 2012. They did not, either before or after their
marriage ceremony, obtain a marriage license.
LaMere died less than a month after the wedding ceremony. Wiles filed a petition to establish the fact,
date, and place of the marriage. The
trial court denied the petition, and Wiles appeals.

We
conclude California law mandates
issuance of a marriage license, as well as consent of the parties and href="http://www.fearnotlaw.com/">solemnization, in order to have a valid
marriage. Lacking a marriage license,
the marriage of LaMere and Wiles was not valid.
We therefore affirm.



Statement of Facts and Procedural History

On
April 28, 2012, Reverend
Agustin Cortes performed a marriage ceremony for Wiles and LaMere; at the time,
LaMere was hospitalized. It is
undisputed that Wiles and LaMere never obtained a marriage license. LaMere died on May 24, 2012.

On
July 24, 2012, in the
Orange County Superior Court, Wiles filed a petition to establish the fact,
date, and place of the marriage. The
trial court denied the petition on the ground there was no marriage license
and, therefore, no valid marriage. Wiles
timely appealed.



Discussion

I.

>Standard
of Review

The
issue before us is whether California law
requires a marriage license be issued to have a valid marriage. This is a legal issue involving statutory
interpretation, which we review de novo.
(Estate of DePasse (2002) 97
Cal.App.4th 92, 98-99.)



II.

>Justiciable
Controversy

David
Pratt, LaMere’s brother and the proposed executor of her estate, argues there
is no justiciable controversy, and the appeal should be summarily
dismissed. Pratt contends that the only
reason Wiles filed his petition was to gain control of LaMere’s remains to bury
them in the cemetery where he also intends to be buried. Because the Riverside County Superior Court
ordered LaMere’s remains turned over to Pratt, and her remains have been buried
next to those of her first husband, Pratt contends the case has been rendered moot. If this court were to reverse the trial
court’s order, there would be no reason LaMere’s remains could not be
reinterred at a different cemetery. More
importantly, the issue whether LaMere and Wiles were validly married will have
an impact on Wiles’s ability to recover as a surviving spouse. We therefore conclude there is a justiciable
controversy on appeal.



III.

>A
Valid Marriage Requires, Among Other Things, Issuance of a Marriage License.

Wiles filed a
petition for an order to judicially establish his marriage to LaMere because no
official record of their marriage existed.
Such an order is authorized by Health and Safety Code section 103450,
subdivision (a), which provides: “A verified petition may be filed by any
beneficially interested person with the clerk of the superior court in and for
(1) the county in which the birth, death, or marriage is alleged to have
occurred, (2) the county of residence of the person whose birth or marriage it
is sought to establish, or (3) the county in which the person was domiciled at
the date of death for an order to judicially establish the fact of, and the
time and place of, a birth, death, or marriage that is not registered or for
which a certified copy is not obtainable.”href="#_ftn1" name="_ftnref1" title="">[1]

California
law expressly requires that a license be issued in order for a marriage to be
valid. Indeed, many statutes so require:

>Family
Code section 300, subdivision (a): “Marriage is a personal
relation arising out of a civil contract between a man and a woman, to which
the consent of the parties capable of making that contract is necessary. Consent alone does not constitute
marriage. Consent must be followed by
the issuance of a license and solemnization as authorized by this
division . . . .”

>Family
Code section 350, subdivision (a): “Before entering a
marriage . . . , the parties shall first obtain a marriage
license from a county clerk.”

>Family
Code section 306: “[A] marriage shall be licensed, solemnized,
and authenticated, and the authenticated marriage license shall be returned to
the county recorder of the county where the marriage license was issued, as
provided in this part. Noncompliance
with this part by a nonparty to the marriage does not invalidate the marriage.”


>Family
Code section 421: “Before solemnizing a marriage, the person
solemnizing the marriage shall require the presentation of the marriage
license. If the person solemnizing the
marriage has reason to doubt the correctness of the statement of facts in the
marriage license, the person must be satisfied as to the correctness of the
statement of facts before solemnizing the marriage. For this purpose, the person may administer
oaths and examine the parties and witnesses in the same manner as the county
clerk does before issuing the license.”

>Family
Code section 359, subdivisions (a)‑(e): “(a) . . . [A]pplicants
to be married shall first appear together in person before the county clerk to
obtain a marriage license. [¶] (b) The contents of the marriage
license are provided in Part 1 (commencing with Section 102100) of Division 102
of the Health and Safety Code. [¶] (c) The issued marriage license
shall be presented to the person solemnizing the marriage by the parties to be
married. [¶] (d) The person solemnizing the marriage shall complete the
solemnization sections on the marriage license, and shall cause to be entered
on the marriage license the printed name, signature, and mailing address of at
least one, and no more than two, witnesses to the marriage ceremony. [¶] (e) The
marriage license shall be returned by the person solemnizing the marriage to
the county recorder of the county in which the license was issued within 10
days after the ceremony.”

In Estate
of DePasse, supra, 97 Cal.App.4th
at page 95, based on an interpretation of those same statutes, the appellate
court concluded, “the issuance of a license is a mandatory requirement for a
valid marriage in California [and a] petition to establish the fact of marriage
pursuant to Health and Safety Code section 103450 did not cure [a] failure to
obtain a license.” (See also >In re Marriage of Ramirez (2008) 165
Cal.App.4th 751, 756-757 [if marriage license is invalid, marriage itself is
invalid].) We conclude that, based on
the relevant statutes and Estate of
DePasse, the trial court’s order must be affirmed.

Wiles’s arguments to the contrary do not
change our conclusion. First, Wiles
agrees, as he must, the statutory language clearly states a valid marriage
requires consent, issuance of a license, and solemnization. Wiles argues, however, the statutes do not
state that the lack of a license means the marriage is not valid. We see this claimed distinction as
meaningless.

Wiles also argues that a ceremonial marriage
is presumed to be valid, citing Evidence Code section 663. As Wiles admits, however, that presumption is
one affecting the burden of proof, and is a rebuttable presumption. (Evid. Code, § 660.) In this case, any presumption was rebutted by
Wiles’s admission that no marriage license was ever issued, which, as noted >ante, makes the marriage invalid.

Wiles next argues that Estate of DePasse was wrongly decided. That opinion correctly notes that the
statutes require three elements to make a marriage valid: consent, issuance of a license, and
solemnization.href="#_ftn2" name="_ftnref2"
title="">[2] Estate
of DePasse is hardly contrary to law, as Wiles suggests. One of the leading California treatises on
California family law provides as follows:
“A valid marriage under California law requires the consent of the parties to that civil contract. [Citation.]
But the parties’ consent does not alone constitute a marriage. To validate
the marriage, the consent must be followed by issuance of a >license [citation], solemnization [citation] and authentication
[citation]; and the authenticated marriage license ‘shall be returned to the
county recorder of the county where the marriage license was issued.’ [Citations.]
[¶] . . . The conditions for the creation (or
termination) of a valid marriage lie within the sole province of the Legislature.
[Citations.] [¶] Noncompliance
with the Fam.C. §300 et seq. requirements by a nonparty to the marriage does not invalidate the marriage. [Citation.]
For instance, an otherwise valid marriage would not be invalidated by
the failure of the person solemnizing the marriage to return the certificate of
registry. [Citation.] [¶] On the other hand, a marriage will be >invalidated by the parties’ failure to
comply with the statutory requirements.
[Citation.]” (Hogoboom &
King, Cal. Practice Guide: Family Law (The
Rutter Group 2012) ¶¶ 19:2.20 to 19:2.21, pp. 19-6 to 19-7 (rev. #1, 2012).) “The issuance of a marriage license is a >mandatory prerequisite to a valid
marriage in California.” (>Id., ¶ 19:7.5, p. 19-9 (rev. #1,
2012).)

Wiles also argues the Judicial Council of
California exceeded its authority by declaring on Judicial Council form MC-362A
(the declaration in support of a petition to establish fact, date, and place of
marriage) that “[a] marriage license is required for a valid marriage in
California. The procedure described in
Health and Safety Code sec. 103450, et seq., cannot establish the validity of a
California marriage if no marriage license was obtained.” (Italics omitted.) As explained ante, this is a correct statement of California statutory and case
law. Including a correct statement of
the law on a standardized form did not cause the Judicial Council to exceed the
powers granted to it under the California Constitution.



IV.

>Motion
to Take Judicial Notice

Wiles filed a
motion asking this court to take judicial notice of the reporter’s transcript
from a July 25, 2012 hearing in the Riverside County Superior Court, in the
case entitled In re Estate of Melinda
LaMere, No. MCP1200342. Wiles asks
that we take judicial notice of this document to “ensure that the appeal of
Gary Alan Wiles will not be affected or dismissed for want of service of the
Petition upon David Pratt.” Wiles
contends that the transcript will show Pratt received notice at the July 25
hearing that Wiles’s petition to establish the fact, date, and place of the
marriage was pending in the Orange County Superior Court.

Pratt, however,
does not argue on appeal that he was not served with Wiles’s petition, and does
not argue the appeal should be dismissed on that ground. We therefore deny the href="http://www.fearnotlaw.com/">motion for judicial notice because the
transcript is irrelevant to any issue on appeal. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089 & fn. 4.)

Wiles also
submitted additional documents to this court, without including them in his
motion for judicial notice. Those
documents are not properly before this court for a ruling. They are offered for the same reason as the
reporter’s transcript, discussed ante,
and we would therefore deny the motion for judicial notice as to those
documents on the same grounds, in any event.



V.

>Motion
for Sanctions

Wiles
seeks sanctions against Pratt and/or Pratt’s appellate attorneys on the grounds
Pratt’s request for an extension of time to file his respondent’s brief was
based on a “misrepresentation of events” and Pratt’s respondent’s brief
“contains misrepresentation of facts, omission of material facts and of records
of the Superior Courts of Orange County and of the [sic] Riverside County.”
Pratt timely opposed the motion for sanctions.

It
would be easy for this court to deny the motion for sanctions on the simple
ground that it is not properly supported.
It is black letter law in this state that a declaration must (1) be
supported by a certification “‘under penalty of perjury that the foregoing is
true and correct’” (Code Civ. Proc., § 2015.5, subd. (a)); (2) be
limited to facts, not legal arguments (In
re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3); and
(3) be based on the declarant’s personal knowledge and contain facts
establishing the basis of the declarant’s information (Evid. Code, § 403,
subd. (a)(2)). Wiles’s appellate
counsel’s declaration in support of the motion for sanctions fails in each of
these respects.

First,
the declaration does not include either of the standard jurats specified in
Code of Civil Procedure section 2015.5.
The declaration includes the following language, which does not
suffice: “I am an attorney duly licensed
to practice before all courts of The State of California. I am in good standing with The State Bar of
California and I am competent to testify to the following, under penalty of
perjury.”href="#_ftn3" name="_ftnref3" title="">[3]

Second,
Wiles’s counsel peppers the declaration with argument. For example:
“[I]t became clear, that the intent of Respondent’s Brief was simply to
mislead the appellate court.” Later, the
declaration states: “Respondent’s
attorney simply disregarded the correct and true nature of documents on file
with two Superior Courts and misrepresented the facts to the appellate court.”

Third,
the declaration fails to establish the declarant’s personal knowledge of many
of the stated facts. Again, merely by
way of example, the declaration makes statements about the manner in which
LaMere signed her name on the petition for dissolution of marriage from her
first husband, and in which she executed her will, without any statement that
the declarant had reviewed or was competent to testify about those documents.

We
could also deny the motion for sanctions because the amount of sanctions
sought—$2,000—is nowhere supported by a declaration that this amount somehow
corresponds with the reasonable attorney fees incurred by Wiles due to the
allegedly sanctionable conduct of Pratt or his counsel.

We
choose, however, to deny this motion for sanctions on its merits, in order to
highlight the continuing problem of incivility by lawyers demonstrated by
Wiles’s counsel’s behavior. (See >Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 293-294.) On the
merits, the motion for sanctions is frivolous.
In the motion for sanctions, Wiles and his counsel irresponsibly accuse
Pratt’s counsel of making misrepresentations in order to obtain an extension of
time to file Pratt’s respondent’s brief.
What is clear from Wiles’s counsel’s own declaration is that with full
knowledge that an attorney had substituted in to represent Pratt, Wiles’s
counsel refused to serve that attorney with Wiles’s opening appellate brief (or
even provide a courtesy copy of the brief) because the substitution of attorney
form had been filed in the trial court, not in this court. Wiles’s counsel then refused to stipulate to
an extension of time to file the respondent’s brief. Finally, Wiles’s counsel requested this court
to award sanctions against Pratt and his counsel for alleged misrepresentations
made in the request for an extension of time to file the respondent’s
brief. There was no misrepresentation by
Pratt’s counsel. A higher standard of
professionalism and civility is required from Wiles’s counsel.

Generally,
sanctions may be awarded on appeal when the appeal was prosecuted for an
improper motive and was indisputably without merit. (In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 646, 650.) We conclude Wiles has failed to establish an
unreasonable violation of the rules of court by Pratt or his attorneys, and we
deny the motion for sanctions.

Sanctions
may also be awarded for filing a frivolous motion on appeal. (Cal. Rules of Court, rule 8.276(a)(3).) Had Pratt filed a motion to recover sanctions
against Wiles and his counsel, based on the filing of Wiles’s motion for
sanctions, we would have given serious consideration to granting such a
motion. However, Pratt did not file a
motion; he did file an opposition to Wiles’s motion for sanctions. In opposing that motion, Pratt’s counsel
included a request for sanctions and a declaration detailing the reasonable
attorney fees incurred in opposing Wiles’s motion. Regrettably, that is insufficient.



Disposition

The order is
affirmed. Respondent to recover costs on
appeal.







FYBEL,
J.



WE CONCUR:







MOORE, ACTING P. J.







ARONSON, J.