Jovaag v. Ott











Filed 6/18/13 Jovaag v. Ott CA6













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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

JORY A. JOVAAG, Cross-Complainant and Appellant, v. DONALD R. OTT, Cross-Defendant and Respondent.

H038195 (Santa Clara County Super. Ct. No. CV210782)

This appeal
is one in a series of appeals brought by Jory A. Jovaag related to the
termination of her 29-year purported common-law marriage to Donald R. Ott, and
Ms. Jovaag’s action against Mr. Ott over the division of the couple’s
jointly held property.href="#_ftn1"
name="_ftnref1" title="">[1]

The present
appeal is of the trial court’s order to release funds to Mr. Ott that were
deposited with the court by Janus Services, LLC (Janus). Ms. Jovaag, who is proceeding in href="http://www.fearnotlaw.com/">propria persona, asserts on appeal that
the trial court erred in ordering the funds released to Mr. Ott, and in denying
her request to stay the proceedings pending a federal district court action
related to this case.





>Statement
of the Case

The
underlying action for division of Ms. Jovaag and Mr. Ott’s jointly held
property was tried in May 2011. The
court ruled in favor of Mr. Ott, and issued an injunction freezing all of Ms.
Jovaag’s accounts. Ms. Jovaag and Mr.
Ott appeared for a further hearing on the matter on May 16, 2011, and entered into a global
settlement of all issues.

On June 16, 2011, Ms. Jovaag and Mr. Ott
entered into a stipulation and order for the immediate transfer of Ms. Jovaag’s
$370,000 in securities held in the Janus account to Mr. Ott to partially
fulfill the terms of the settlement agreement.

On June 30, 2011, the court entered
judgment against Ms. Jovaag, and ordered her to pay Mr. Ott $967,800, with
post-judgment interest in the amount of 10 percent per year. Ms. Jovaag did not transfer the funds as
required under the settlement agreement.

On July 26, 2011, a writ of execution
and notice of levy were forwarded to Janus, along with other investment account
providers in the amount of $895,034.41.

In August
2011, the court denied Ms. Jovaag’s claim of exemptions. Ms. Jovaag promptly filed a notice of appeal
of the judgment with this court. On December 6, 2011, this court granted
Mr. Ott’s motion to dismiss Ms. Jovaag’a appeal. On January 4, 2012, this court denied Ms. Jovaag’s
motion to set-aside the dismissal of the appeal. The California Supreme Court denied Ms.
Jovaag’s petition for review on February
15, 2012, and this court issued the remittitur.

In October
2011, Janus filed a complaint for interpleader against Ms. Jovaag and Mr. Ott
in superior court case No. CV-210782.
Janus liquidated funds in Ms. Jovaag and Mr. Ott’s account and deposited
them with the clerk of the court.

In March
2012, Mr. Ott filed a motion to release
funds deposited with the court by Janus.

In April
2012, the court ordered payment of $338,415.58 to Mr. Ott from the Janus deposit. Ms. Jovaag filed a href="http://www.mcmillanlaw.com/">notice of appeal of the order to release
funds.

Discussion

Ms. Jovaag
asserts on appeal that the trial court erred and abused its discretion in
granting Mr. Ott’s motion to release funds.
The primary basis for Ms. Jovaag’s argument is that the court did not
consider her “substantial evidence” in making the order. In addition, Ms. Jovaag asserts the trial court
erred when it denied her motion to stay the proceedings pending federal district
court actions related to this case.

One of the
fundamental rules of appellate review is that an appealed judgment is presumed
to be correct. “All intendments and
presumptions are indulged to support it on matters as to which the record is
silent, and error must be affirmatively shown.” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming
the presumption of correctness. “To
demonstrate error, appellant must present meaningful legal analysis supported
by citations to authority and citations to facts in the record that support the
claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) These requirements apply with equal force to
parties, like Ms. Jovaag, who represent themselves. (Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 984.)
“When a litigant is appearing in propria persona, he [or she] is
entitled to the same, but no greater, consideration than other litigants and
attorneys. [Citations.] Further, the in propria persona litigant is
held to the same restrictive rules of procedure as an attorney
[citation].” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, fn. omitted.)

Here, Ms.
Jovaag has elected to proceed with this appeal on a limited clerk’s transcript;
there is no reporter’s transcript provided for the April 5, 2012 hearing during which the court ordered the
funds released. As a result, we must
consider this appeal to be on the judgment roll. “In a judgment roll appeal based on a clerk’s
transcript, every presumption is in favor of the validity of the judgment and
all facts consistent with its validity will be presumed to have existed. The
sufficiency of the evidence is not open to review. The trial court’s findings
of fact and conclusions of law are presumed to be supported by href="http://www.fearnotlaw.com/">substantial evidence and are binding on
the appellate court, unless reversible error appears on the record.” (Bond
v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.)

Ms. Jovaag’s arguments on
appeal center on her belief that the court erred by failing to consider
additional evidence at the hearing on the motion to release funds. We cannot consider these arguments, because
here is no record of the hearing to review to determine if such error occurred.
Because error has not been affirmatively shown, the order is presumed correct,
and will be affirmed. (>Denham v. Superior Court, supra, 2
Cal.3d at p. 564.)

Moreover,
we find no error in the trial court’s refusal to grant Ms. Jovaag’s request to
stay the proceedings pending federal district court actions related to this
case. “It is black letter law that, when
a federal action has been filed covering the same subject matter as is involved
in a California action, the California court has the discretion but not the
obligation to stay the state court action.”
(Caiafa Prof. >Law Corp. v. State Farm Fire & Cas. Co.
(1993) 15 Cal.App.4th 800, 804.) The
record shows Ms. Jovaag had not filed her federal action prior to the April 5,
2012 hearing on the motion to release funds.
Therefore, there was no federal action in existence at time Ms. Jovaag
made her stay request. The trial court
did not abuse its discretion.

Disposition

The order
appeal from is affirmed.





______________________________________

RUSHING, P.J.













WE CONCUR:













____________________________________

PREMO, J.













____________________________________

ELIA, J.