Marriage of Carrino

Filed 8/18/09 Marriage of Carrino 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Vincent Carrino (Vincent)[1] appeals from a Judgment Reforming and Enforcing Judicially Supervised November 2, 2006 Settlement Agreement in which the trial court reformed a portion of a settlement agreement after finding Vincent failed to provide his former wife Ann Camino (Ann)[2] with information regarding the value of one of their assets. He contends: (1) he had no duty to inform Ann of his opinion regarding the value of the asset; (2) Ann had a duty to determine the value of the asset on her own; (3) Ann knowingly and intelligently waived obtaining [the] information; (4) the language of the [settlement] agreement is clear and not reasonably susceptible to Anns [and the trial courts] interpretation; and (5) the trial court should have set aside the entire settlement agreement instead of reforming only one portion of it. We reject the contentions and affirm the judgment.

Factual and Procedural Background

Vincent and Ann were married in April 1990 and separated in June 2002. They have two minor children. Throughout the marriage, Vincent was a money manager who invested money for individuals, partnerships, and pension plans. Ann worked for approximately one year as Vincents unpaid assistant and was a housewife for the remainder of the marriage. Before the marriage, she obtained a brokerage license (which has since expired) and worked as a sales assistant at a brokerage firm. She has an undergraduate degree in Art History.

One of the issues of contention in the parties dissolution action was their respective interests in C.R. Trader, L.L.C. (the LLC), their ownership portion of C.R. Trader L.P. (the LP), a hedge fund[3] that Vincent formed in January 2002 and funded in October 2002. Although there were other partners in the LP, Vincent alone controlled and managed it and made all of its investments.

A settlement conference on various issues, including division of the LLC, was conducted on November 2, 2006. One of Anns attorneys, Mathew Moore (Moore), and Vincents attorney, John Miller (Miller) exchanged correspondence in anticipation of the settlement conference. On September 21, 2006, Moore wrote to Miller stating his understanding that the LLC was worth around $18 million at present. He stated his belief that the LLC was entirely community property because the source of the investment was community property and because Vincent made the investment without notice to Ann and without court approval, in violation of the statutory fiduciary obligations and [automatic temporary restraining orders]. He further stated: Vince has complete and up to date information, however, and we do not. Please get this to us promptly. On October 2, 2006, Miller responded, You have asked for current information regarding the value of CR Traders. I will provide the most recent value and the most recent documents Vince can get.[4]

On October 5, 2006, Miller wrote to Moore confirming their agreement that Vincent would withdraw $1,527,097 from CR Traders to pay for federal and state taxes. He enclosed an analysis entitled Quarterly Summary (12/31/05-10/20/06) that, according to Miller, showed the amount of federal and state taxes for which CR Traders was responsible. The document showed the LPs equity was $39,933,137.32 on September 30, 2006, and $41,878,581.62 on October 2, 2006. On October 9, 2006, Miller wrote to Moore stating he was enclosing the most current statement for CR Traders. Attached was a document entitled Position Summary by Asset Class showing $41,878,581.62 as the net equity of the LP as of October 2, 2006.

On October 16, 2006, Moore wrote to Miller, stating, We have not received any documents setting forth the current value of Vinces or CR Traders LLCs partnership interest in CR Traders LP. Also, we dont have account statement for the LP this year. Please provide. In response, Miller sent a fax to Moore, stating, Pursuant to our conversation today, here is confirmation of Mr. Carrinos interest in CR Traders. Attached was a worksheet showing that as of September 30, 2006, the LLCs interest was valued at $19,044,840 and the other limited partners interests were valued at $22,339,829, for a total value for the LP of $41,384,669.

On October 25, 2006, Moore wrote to Miller, stating his assumption that the LLC was valued at approximately $17.5 million ($19,044,840 minus the $1,527,097 that Vincent withdrew). He further stated: During our telephone conversation, you stated that Vince is looking at an undefined opportunity for CR Traders to bet the farm, which bet he may place in the next couple of weeks. Annie knows nothing of this. Indeed, as Vince testified, he initially made the enormous investment in CR Traders without any notice to or to the consent of Annie. . . . [] Vince owes strict fiduciary obligations with regard to the community estate. . . . [] . . . [] Absent Vinces agreement to liquidate at least one half, and given your statement that he may soon bet the farm on some new undefined and undisclosed investment, we will be forced to renew our request to the Court that at least of the CR Traders investment be liquidated now. In response, Miller wrote to Moore stating, This letter will confirm my assurances to you relative to CR Traders investment activity. Most of the assets are now in liquid form, so your concern that major losses might occur is without foundation. When my client decides to make significant investments, I will give you notice so that, if you choose, you can make objections.

On October 26, 2006, Moore wrote to Miller stating, In preparation for the upcoming settlement conference, . . . [i]n order to make sure we are on the same page with regard to the fundamental elements on property division, I wanted to provide you with the following base line facts from which we are proceeding (with a few confirmation requests). If you think any of these are incorrect, I would hope we can sort out areas of disagreement before hand. [] 1. Value of CR Traders: $19 million as of 9/30/06 $17.5 million currently . . . . (Underscore in original.)

On October 30, 2006, Miller sent Moore the bate stamped copy of CR Trader Partners, LP YTD totals as of 9/30/2006. On November 1, 2006, Miller faxed settlement judge Neville Spadafore (Judge Spadafore or the trial court) a letter stating, In anticipation for the settlement conference on . . . November 2, I enclose a battery of comprehensive spreadsheets that represent Mr. Carrinos position on the remaining issues. An attached spreadsheet listed the value of the parties interest in CR Traders LP as $19,044,840.

The settlement conference took place as scheduled on November 2, 2006, before Judge Spadafore. Ann and her two attorneys were present, and Vincents attorney and an assistant were present. Vincent did not attend but was available by telephone and conferred with his attorney during the course of the settlement conference. Each side occupied a separate conference room, and Judge Spadafore conducted shuttle diplomacy, going back and forth between conference rooms with questions and proposals.

The parties ultimately reached a hand written settlement agreement that provided with respect to the LLC: 1. The 9-30-06 CR Traders account balance of $19,000,000 (approx), less the approximate withdrawal of $1,527,000 for payment of taxes in October 2006, is agreed to be 72.5% community property and 27.5% the separate property of Vincent Carrino. Next to this paragraph is a statement that reads: 9-30-06 acct value to be verified with appropriate documentation by Vince Carrino. The document continues: 2. Ann Carrinos 50% community property share value existing on 9-30-06 shall accrue interest at the rate of 10.3%, compounded monthly, until distribution to Ann Carrino. . . . [] . . . [] 5. Vince Carrino shall serve as constructive trustee for Ann Carrino until distribution of her share of the CR Traders investment. On November 28, 2006, pursuant to the settlement agreement, Vincent paid Ann her share of the LLC plus interest at the agreed upon rate.

On February 15, 2007, Michael Flicker (Flicker), Anns other attorney, sent an email message to Miller, stating, This is to confirm that you disclosed to our office via a converstation (sic) with me for the first time today . . . [that the LLC had] a September profit of about $3 Million as of Nov. 2, 2006.[5] He stated: If you detect that I feel that Vince tried to take advantage of Annie, you are correct. Vinces failure to disclose the profits at the time is outrageous. On February 16, 2007, Miller sent an email message to Moore and Flicker, stating, I have informed Mr. Carrino of your concerns. . . . He tells me is is (sic) willing to stipulate to set aside the stipulation if you want to do that.

Ann sought payment of her share of the gain the account had seen in October 2006 plus attorneys fees and costs associated with the failure to disclose the true value of CR Traders. Vincent refused, and on April 2, 2007, Ann filed a motion for equitable relief. She alleged Vincent had breached his fiduciary duty to her by not informing her of the actual value of the LLC as of November 2, 2006. She alternatively sought relief under a theory of constructive trustee, and under a theory that the October 2006 gain was an omitted asset that should be divided. The motion was heard by Judge Spadafore, pursuant to stipulation of the parties.

Judge Spadafore issued an Order After Hearing on July 5, 2007. He set forth an undisputed factual background, including, 5. It is undisputed that CR Traders LP is a hedge fund which was created by and solely managed by [Vincent]. [Vincent] made all investment decisions for the hedge fund. He is the individual who had the most intimate and up to date knowledge and understanding of the investments in the hedge funds and the aggregate asset value of the hedge fund at any given point in time. [] 6. Throughout the course of the settlement discussions, both prior to and on November 2, 2006, there was never any dispute that hedge fund investing as practiced by [Vincent] represented a highly speculative and volatile form of investment which carried with it the potential the potential for large profits as well as the very real risk of substantial losses. [] 7. There was never any dispute that [Anns] investment risk tolerance was very conservative compared to the risk tolerance that was acceptable to [Vincent]. As a result, during the course of articulating her settlement position prior to November 2, 2006, [Anns] counsel stated [Anns] goal to reach a settlement which would carve out [Anns] community property interest in the hedge fund with her position liquidated in that investment in order to avoid the extreme investment risks attendant to her continued participation in the hedge fund. [] 8. In an effort to address this stated objective, there is no dispute that [Vincent] took efforts over a period of time to liquidate the CR Traders LP hedge fund put and call positions and other investments in order to provide a readily available liquid asset source of funds to transfer to [Ann] to take her out of the hedge fund as well as to achieve [Vincents] stated goal to amass liquidity in the hedge fund in preparation for a new round of significant investments. This process had been proceeding for some period of weeks or months prior to the November 2, 2006 Settlement Conference. [] 9. During the course of the November 2, 2006 Settlement Conference, no clear information was provided to [Judge Spadafore] or opposing counsel by [Vincents] counsel alerting the Court and counsel to the fact that the November 2, 2006 value [of] CR Traders LP was significantly greater than the September 30, 2006 value information which had been provided for CR Traders LP. As a result, the settlement discussions proceeded utilizing the last articulated stated hedge fund value provided to [Judge Spadafore] on November 2, 2006, namely $17,516,000 which was the September 30, 2006 value of the fund. Nothing in the documentation or oral information provided to the Court on behalf of [Vincent] at the time of the Settlement Conference identified any value information to the contrary.

Judge Spadafore made additional factual findings: 1. Given the evidence presented to the court . . ., the following additional facts are uncontroverted: a. [Vincent] continued to liquidate the holdings in CR Traders LP throughout October 2006 so that, at the time of the November 2, 2006 Settlement Conference, most of the assets in CR Traders LP were in liquid form or were invested in publicly traded equities. This fact was confirmed by a letter from [Vincents attorney, Miller,] to [Anns] counsel dated October 30, 2006, which identified that most of the assets are now in liquid form, so your concern that major losses might occur is without foundation. [] b. Despite this knowledge, the Settlement Conference spreadsheet provided to the Court and opposing counsel by [Miller], on behalf of [Vincent] the day before the Settlement Conference, on November 1, 2006, did not reflect the November 1, 2006 value of the CR Traders LP, but rather only restated the September 30, 2006 values. [] 2. Uncontroverted evidence presented to the Court at the time of the Law & Motion proceeding clearly identified that [Vincent] had the ability on at least a daily basis to ascertain the then current value of the hedge fund assets and liabilities and that this information was readily available to him. As the hedge fund assets were largely liquidated by November 1, 2006, [Vincents] task was even easier, as the overwhelming percentage of the assets in the hedge fund, as of that date, represented cash and cash equivalents and actual stock holdings in public companies with CR Traders long call option and short put option positions either liquidated or minimized. [] 3. Despite [Millers] assertions to the contrary, the Court concludes that it was not a simple matter for [Ann] or her advisors to access accurate and complete current CR Traders LP hedge fund value information. Therefore, the duty to update the CR Traders LP value did not shift to [Ann] in any manner which would have the effect of relieving [Vincent] of this obligation. [] On the contrary, the Court finds that it is undisputed that [Vincent] was uniquely positioned as the most qualified individual to update the CR Traders LP value (and the parties CR Traders LLC value) at all relevant points in time. On November 2, 2006, at the time of the Mandatory Settlement Conference, [Vincent] could have readily provided counsel and the Court with current information as to these values with the expenditure of a minimum of personal effort. [] 4. The Courts comments about the status of CR Traders LP assets as of November 2, 2006 are buttressed by undisputed evidence provided in the Bank of America account statement for CR Traders LP for the period ending October 31, 2006. This statement was never in [the] possession of [Ann] or her counsel until May 31, 2007, nearly seven months after the November 2, 2006 Settlement Conference. The statement clearly reflects that the account value in the CR Traders LP Bank of America account increased from approximately $40,000,000 to $46,6000,000 in the month ending October 31, 2006. Clearly [Vincent] was in possession of this knowledge on November 2, 2007 [sic].

Judge Spadafore stated he had no difficulty in concluding that [Vincent] was in the unique position to provide readily available up to date information about the current value of CR Traders LP and the parties CR Traders LLC interest at the time of the Settlement Conference on November 2, 2006. That information was not provided to the Court, nor to Respondents counsel, on that date at the time that settlement was being discussed. It should have been. [Vincent] had that continuing obligation under California law. [] 2. It follows that [Ann] is entitled to equitable relief. That relief does not require her to rescind the entire settlement, but rather entitles her to obtain, at a minimum, her percentage share of the additional monetary value of the parties interest in CR Traders LP investments computed as of November 2, 2006, plus the attorneys fees and costs she incurred in obtaining relief. Judge Spadafore stated he was not going to rule on the issue of whether [Ann] is entitled to additional relief under Family Code Section 1101(h)^[[6]] as insufficient evidence has been presented to the Court on this issue, to date, and each side is entitled to engage in further discovery and further hearing if that issue is to be presented and litigated. Finally, the court found that Vincent is not entitled to have the entire November 2, 2006 Settlement Agreement set aside. To limit [Anns] recourse in this fashion would provide [Vincent] with the ability to relitigate all issues upon which he has already reached settlement with [Ann]. It is the fact of [Vincents] impermissible nondisclosure which has led the Court to fashion equitable remedies for the benefit and protection of [Ann]. To restrict [Anns] relief to the re[s]cission of the parties entire Settlement Agreement, because of [Vincents] lack of disclosure, would be to reward [Vincent] for the breach of his obligation to provide such disclosure.

Discussion

Marriage creates a fiduciary relationship between spouses. (Fam. Code,[7]  721, subd. (b), 1100, subd. (e), 2102.) This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse . . . . ( 721, subd. (b).) As part of these obligations, each spouse is required to provide the other with access to all books regarding transactions for purposes of inspection and copying ( 721, subd. (b)(1)), and render upon request true and full information of all things affecting any transaction which concerns the community property. ( 721, subd. (b)(2).) Spouses must also make full and accurate disclosure and account for separate and community property. ( 2100, subds. (b) & (c) [sound public policy favors reducing adversarial nature of marital dissolution and attendant costs by fostering full disclosure and cooperative discovery];  2102 [requiring accurate and complete disclosures];  2103, 2104, 2105 [requiring preliminary and final declarations of disclosure].) The duty of disclosure 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).) Moreover, each party has a continuing duty to immediately, fully and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, . . . each party will have a full and complete knowledge of the relevant underlying facts. ( 2100, subd. (c).) These duties arise without reference to any wrongdoing. [Citations.] [] The formulation of a marital settlement agreement is not an ordinary business transaction, resulting from an arms-length negotiation between adversaries. Rather, it is the result of negotiations between fiduciaries required to openly share information. (Fam. Code,  721, subd. (b), 1100, subd. (e), 2100, subds. (b) & (c).) (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1344.)

When . . . a spouse has breached [his or] her fiduciary duty, but not in a manner displaying fraud, malice, or oppression . . . section 1101, subdivision (g), governs the applicable remedies. (In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 992, citing  1101, subds. (g), (h).) Subdivision (g) provides that these remedies 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 attorneys fees and court costs.

We review the trial courts finding of a breach of a fiduciary duty under the substantial evidence test. (E.g., In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 929-931; see also In re Marriage of Quay (1993) 18 Cal.App.4th 961, 972.) On review for substantial evidence, we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. (In re Marriage of Catalano (1988) 204 Cal.App.3d 543, 548.) We accept all evidence favorable to the prevailing party as true and discard contrary evidence. (Ibid.) (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) The judgment is presumed to be correct. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)

There was substantial evidence to support the trial courts finding that Vincent breached his fiduciary duty to Ann. As noted, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts. ( 2100, subd. (c), italics added.) Vincent managed and controlled the family assets and made all of the investment decisions for the LP. He does not dispute he had the most intimate and up to date knowledge and understanding of the investments in the hedge funds and the aggregate asset value of the hedge fund at any given point in time or that he could have readily provided counsel and the Court with current information as to these values with the expenditure of a minimum of personal effort. He does not deny that he knew on November 2, 2006, that the value of the LLC had increased significantly since September 30, 2006. And, it cannot be denied that $3.8 million (the increase in value of the LLC in October 2006) was a material change in value.

Despite this knowledge and understanding, Vincent did not provide Ann with the updated value of the LLC. When Moore asked for the current value of the LLC on October 16, 2006, Miller provided the September 30, 2006, value, suggesting the value had not changed significantly since that date.[8] After Moore stated his understanding on October 25, 2006, that the value of the LLC had not changed significantly since September 30, 2006 (except that Vincent had withdrawn approximately $1.5 million to pay state and federal taxes), Miller sent the following letter to Moore, which could have reasonably led Moore to believe that the value of the LLC had not changed, and was not going to change, significantly before the settlement conference: This letter will confirm my assurances to you relative to CR Traders investment activity. Most of the assets are now in liquid form, so your concern that major losses might occur is without foundation. When my client decides to make significant investments, I will give you notice so that, if you choose, you can make objections. Further, Miller did not disagree with Moores statement of October 26, 2006, that the value of the LLC was $17.5 million currently, despite Moores request to sort out areas of disagreement before[]hand if any such facts were incorrect. Finally, on November 1, 2006, the day before the settlement conference, Miller sent a letter to Judge Spadafore setting forth Vincents position on the various remaining issues and enclosed a spreadsheet listing the value of the LLC as $19,044,840 (the September 30, 2006, value). There is substantial evidence supporting the trial courts finding that Vincent breached his fiduciary duty to Ann by not providing her with updated information regarding the value of the LLC.

1.      Vincents opinion of the value of the LLC

Vincent contends his duty to disclose did not include a duty to provide Ann with his opinion of the value of the LLC. He points out he only had a bank statement showing the value of the LLC as of September 30, 2006, and that the value as of any other subsequent date would have only been an estimate that he had no duty to provide.[9] He relies on Boeseke v. Boeseke (1974) 10 Cal.3d 844 (Boeseke), but the case is inapposite.

There, the parties entered into an agreement based on the husbands opinion regarding the value of assets including real property whose actual values were unknown. (Boeseke, supra, 10 Cal.3d at p. 847.) The wife accepted the husbands opinion and did not request any facts regarding the value, the nature, or the extent of the assets. (Id. at p. 849.) She also agreed to a provision (against her attorneys advice) that the parties acknowledge the assets are of an indefinite and speculative value and that neither party makes any representations to the other as to their value. (Id. at p. 848.) Approximately 20 years later, after the husbands death, the wife learned the assets had more value at the time they entered into the agreement, and sought relief. (Ibid.) Boeseke denied the request and held: [D]uring negotiation to settle marital property rights, fairness dictates the managing spouse be under no duty to evaluate the marital assets. And if the managing spouse does assert an opinion of value, he or she must be able to do so without warranty. Valuation, like designation of property as being either community or separate, is an issue on which reasonable views often differ, and in the absence of concealment of assetsor facts materially affecting their valuea property settlement agreement may not later be set aside solely on the basis of the managing spouses inaccurate opinion of value or on his or her refusal to have rendered such an opinion. (Id. at p. 850.)

Preliminarily, we note that Boeseke predates the fiduciary duty statutes. The case is also factually distinguishable. In contrast to Boeseke, here, Ann requested updated information from Vincent on several occasions, and each time, he responded with the September 30, 2006, value of the LLC. Unlike the wife in Boeseke, Ann did not agree to a provision in the settlement agreement that Vincent had made no representations to her regarding the value of the LLC, and in fact, the record shows she specifically relied on Vincents stated value (the September 30, 2006 value) in entering into the agreement. There is also no evidence that the value of the LLC was indefinite and speculative as of November 2, 2006, as was the property in Boeseke. To the contrary, Vincent conceded, and the trial court found, that he alone managed the LP and had the ability . . . to ascertain or have daily knowledge of the value of the LP and the LLC.[10] That the value of the LLC had seen a significant increase between September 30, 2006, and November 2, 2006, was not Vincents opinion, but a fact of which he was aware and had the duty to disclose.

2.      Anns duty to determine the value of the LLC

Vincent contends Ann had a duty to determine the value of the asset on her own, which relieved him of his duty of disclosure. He states this case is similar to In re Marriage of Heggie (2002) 99 Cal.App.4th 28 (Heggie). There, the parties entered into a stipulated judgment in September 1999 providing for the division of two stocks held in the husbands retirement account based on the value of the stocks as of June 30, 1999, the date of the last available statement. (Id. at p. 30.) The stipulated judgment was filed on September 28, 1999, and the rollover occurred on November 11, 1999. (Id. at pp. 30-31.) On March 27, 2000, (one day before the expiration of six months from the date the stipulated judgment was filed), the wife filed a motion to set aside a portion of the stipulated judgment on the ground that both of the stocks in the husbands retirement account had significantly increased in value between June 30, 1999, and March 27, 2000. (Id. at p. 31) She did not present any evidence that the value of the stocks was higher on the date the parties entered into the stipulated judgment (September 28, 1999) or around the time the rollover occurred, than it was on the agreed upon date of June 30, 1999. (Ibid.)

Heggie held that stock market fluctuations cannot serve as the basis for a set aside motion where a stocks value is readily obtainable from newspapers, . . . even if the other spouse obtains what is, in hindsight, a windfall. (Heggie, supra, 99 Cal.App.4th at p. 33, relying on In re Marriage of Connolly (1979) 23 Cal.3d 590 [no set aside where information that would affect the value of the stock was readily available and the wife never asked the husband for that information]; In re Marriage of Carter (1971) 19 Cal.App.3d 479, 491 [listing the book values of certain bonds was sufficient where the fair market value of those bonds was available in the Wall Street Journal].) Noting the husband did not hide any assets and disclosed the contents of his retirement account (i.e., the two stocks), and that the information of the value and potential value of the stocks was public knowledge, Heggie held there was no obligation on the part of the husband to update the wife on the fluctuating values of the two stocks in his IRA. (Heggie, supra, 99 Cal.App.4th at pp. 34, 35.) Observing that the wifes delay of six months in bringing the motion expose[d] her wait-and-see, have-your-settlement-and-set-it-aside-too-if-stock-prices-go-up position, (id. at p. 37) Heggie concluded, We are left with the naked lopsidedness of the deal in hindsight, and . . . that is not enough. (Id. at p. 36.)

Heggie is distinguishable because the stocks in that case happened to increase in value approximately six months after the parties entered into their agreement. (Heggie, supra, 99 Cal.App.4th at p. 31.) There was no evidence that the value of the stocks was higher on the date the parties entered into the stipulated judgment (September 28, 1999) than it was on the agreed upon value of June 30, 1999, and thus, there was no evidence (or even allegation) that the husband failed to disclose material information to the wife. (Ibid.) Vincent asserts that Ann, like the wife in Heggie, got the benefit of her bargain, including, inter alia, avoiding the risks of further investment in the hedge-fund. Had the value of C.R. Trader declined by November 2, 2006 (the settlement date) or by November 28, 2006 (the performance date), . . . surely Ann would have stood by her November 2 bargain, using September 30, 2006 as the valuation date. Ann, too, has taken the have-your-settlement-and-set-it-aside-too-if-stock-prices-go-up position. Ann, however, did not bargain for the value of the LLC. Instead, the evidence shows she agreed to use the September 30, 2006, value because Vincent represented to her that it reflected the current value of the LLC. Vincents comment that Had the value of C.R. Trader declined by November 2, 2006 (the settlement date) or by November 28, 2006 (the performance date), . . . surely Ann would have stood by her November 2 bargain, using September 30, 2006 as the valuation date, is disingenuous. Had the value of the LLC declined by November 2, he likely would have disclosed this fact to Ann at or before the settlement conference.

Moreover, the trial court here found it was not a simple matter for [Ann] or her advisors to access accurate and complete current CR Traders LP hedge fund value information. Vincent argues that all of the holdings in the LP were publicly held stocks or stock options, and that because a document he provided to Ann entitled Position Summary by Asset Class showed the LPs holdings as of October 2, 2006, Ann, given her background in finance, and with the help of a certified public accountant and financial advisor with whom she consulted during the divorce proceedings, could have ascertained the value of the LP as of November 2, 2006. In support of this argument, he cites to the report of his expert Jerald Udinsky, Ph.D., A.S.A., submitted below, which he asserts shows the ease with which one can check the daily, current values of securities and options.

Udinskys estimated values, however, which ranged from approximately $41.8 million to $56 million, were based on the assumption that There are no transactions in Mr. Carrinos account from 10/2/2006 through 11/2/2006. The assumption, however, was not correct, as Vincent actually engaged in 152 purchases and sales in the month of October, consistent with his aggressive trading tactics. Moreover, as Ann points out and Vincent does not dispute, Vincent purchased calls on companies after September 30, 2006, that were not reflected on the Position Summary by Asset Class document or in Udinskys report. In addition, Udinskys estimates of the value of the LP as of October 31, 2006, or November 2, 2006, were higher than the actual value as of those dates.

In contrast, Vincent knew what purchases and sales he had engaged in and had the ability to follow the value of the account. He does not deny that he knew the actual value of the LP as of November 2, 2006, and does not dispute the trial courts finding that he could have, with minimum of personal effort, ascertained the value of the LP on any given date. Substantial evidence supports the trial courts finding that Ann or her advisors could not have easily determined the value of the LP. Thus, Vincent was not relieved of his duty of full disclosure.

3.      Waiver

Vincent contends Ann knowingly and intelligently waived obtaining information about the current value of C.R. Trader as of the day of the settlement conference. Waiver is the intentional relinquishment of a known right after full knowledge of the facts . . . . (DRG/Beverly Hills, Ltd. V. Chopstick Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59, italics added.) The burden to show waiver is on the party claiming waiver, and   doubtful cases will be decided against a waiver.   (Id. at p. 60.) [T]he question for the trial court [of whether there was a waiver] is one of fact. For us, the question is whether the trial courts decision is supported by substantial evidence. If it is, we must affirm. (Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.)

Vincent did not contend below that Ann waived her right to obtain updated information regarding the value of the LLC, and the trial court therefore made no findings regarding this matter. It appears Vincent has waived his right to make this contention on appeal. In any event, the contention fails on the merits because the record shows there was no waiver.

Vincent relies primarily on Anns attorneys declaration in support of her motion for equitable relief in which he stated that Ann complained at some point during the settlement conference that Vincent was not present and that she had not been given the value of the LLC as of that day. He asserts the statement shows she had a choice between insisting upon knowing the value of the C.R. Trader as of November 2, 2006 or October 31, 2006 month-end for which there would subsequently be a bank statement or accepting a settlement based upon the September 30, 2006, for which there was already a bank statement, and elected to accept the September 30, 2006 valuation date. Vincents argument presumes Ann made a choice with knowledge that the value of the LLC had increased significantly in October 2006. However, there is no evidence that she became aware of this dramatic increase before her attorney learned of it in February 2007. Without full knowledge of the facts, Ann could not have made the decision to waive her interest in an additional several million dollars that Vincent knew existed as of November 2, 2006, but had not disclosed to her.[11]

4.      Interpretation of the settlement agreement

Vincent contends the language of the [settlement] agreement is clear and not reasonably susceptible to Anns [and the trial courts] interpretation. He argues it is clear the parties intended to use September 30, 2006, as the valuation date and that this court should interpret the agreement in a way that gives effect to the parties intent. He acknowledges, however, that if his first three contentions above fail, the settlement agreement on the value of this asset will fall, and that this court will not have to reach this issue of interpretation of the settlement agreement. In light of our decision rejecting Vincents three contentions above, we need not, and will not, address his fourth contention regarding interpretation of the settlement agreement.

5. Setting aside the entire settlement agreement

Vincent contends the trial court should have set aside the entire settlement agreement instead of reforming just one portion of it. He argues without citation to any relevant authority: The trial court chose to reform the agreement only as to valuation date of C.R. Trader, believing that Vincent had intentionally withheld information from Ann. [Citation.] By doing so, the court abused its discretion, allowing Ann to keep the entire benefit of the bargain, including the elements that she had received as compromises from Vincent (such as, interest at 10.3% and attorneys fees of $500,000 on accrued fees only). His argument fails.

Section 1101, subdivision (g), provides a minimum remedy for breach of fiduciary duty by a spouse, i.e., it states the award to the non-breaching spouse 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 attorneys fees and court costs. A trial court has broad discretion to achieve equity in the distribution of marital assets. (In re Marriage of Zaentz (1990) 218 Cal.App.3d 154, 164.) Here, the trial court determined it was not going to set aside the entire agreement because it was Vincents impermissible nondisclosure that required Ann to seek relief, and because restricting her relief to the rescission of the entire agreement would be to reward [Vincent] for the breach of his obligation to provide such disclosure. The trial court acted well within its discretion in awarding Ann one-half of the undisclosed community portion of the LLC and not setting aside the entire settlement agreement.

In light of our decision affirming the trial courts judgment on the ground that Vincent breached his fiduciary duty, we will not address Anns argument that this court may affirm the judgment on alternative legal bases, including the omitted-asset law and the law of constructive trust.[12]

Disposition

The judgment is affirmed. Anns protective cross-appeal is dismissed. Ann is awarded her costs on appeal.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] For clarity and ease of reference, we refer to the parties by their first names. (See In re Marriage of Green (1992) 6 Cal.App.4th 584, 588, fn. 1.)

[2] Ann has resumed the use of her maiden name Camino.

[3] According to Vincent, the term hedge fund has no precise legal or universally accepted meaning, but generally identifies an entity with two main characteristics: one, the fund the entity holds a pool of securities, but it does not register its securities offerings under the Securities Act and is not registered as an investment company . . . [a]nd, two, the entity compensates its advisor with a percentage of the funds capital gains or appreciation . . . Domestic hedge funds, like C.R. Trader, are generally organized as limited partnerships.

[4] The parties appear to have used the term CR Traders interchangeably to refer to either the LLC or the LP.

[5] Documents show the value of the LLC as of October 31, 2006, was approximately $3.8 million more than it was on September 30, 2006.

[6] Family Code section 1101, subdivision (h), provides, Remedies for the breach of the fiduciary duty by one spouse, . . . when the breach falls within the ambit of Section 3294 of the Civil Code [oppression, fraud or malice] shall include, but not be limited to, an award to the other spouse of 100 percent . . . of any asset undisclosed or transferred in breach of the fiduciary duty.

[7] All further statutory references are to the Family Code unless otherwise stated.

[8] Vincent points out that he had also produced a document showing that the value of the LP had increased by approximately $2 million between September 30, 2006, and October 2, 2006, which should have alerted Ann to the fact that the value of the LLC had increased after September 30, 2006. However, this document does not show what the value of the LLC was as of those dates. In any event, the fact that one of the documents Vincent produced shows an increase in the value of the LP between September 30, 2006, and October 2, 2006, does not support a conclusion that he fulfilled his duty of disclosure, especially in light of his responses to Anns requests for confirmation that the LLC had not increased in value since September 30, 2006.

[9] He states, it is highly unlikely that a statement for the period ending October 31 could have been prepared, mailed, and received by November 2, the date of the settlement conference. He presumably had not received, and did not have access to (e.g., an on-line statement), the October 31 statement as of November 2.

[10] At the hearing on Anns motion for equitable relief, the trial court asked Miller, do you concede on behalf of Mr. Carrino that he had the wherewithal to have daily knowledge of the value of CR Traders? Miller responded: He could have gotten that, yes. The court asked, And that it was a relatively simple matter for him to put it together? Miller responded, Thats correct. In one of his declarations, Vincent states that his management style is aggressive and that he trade[s] rapidly and on virtually every trading day. He states he makes all of the investment decisions and has no full-time employees, and that his day-to-day attention is absolutely vital. (Emphasis in original.)

[11] We will not address Vincents argument that Ann cannot get relief from the waiver simply because the value of C.R. Trader increased by October 31, 2006, because we conclude there was no waiver.

[12] Ann filed a cross-appeal on November 26, 2007. She states her cross-appeal was protective only and that [i]n the event this Court affirms the judgment, the cross-appeal is moot. In view of our decision affirming the judgment, we dismiss the cross-appeal as moot.