Opinion
H046220
12-23-2020
In re the Marriage of VALERIE and MICHAEL BANON. VALERIE MADRIAGA ELDER, Appellant, v. MICHAEL BANON, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. DR48260)
In a judgment of dissolution entered in 2006, the El Dorado County Superior Court ordered respondent Michael Banon (Michael) to pay appellant Valerie Madriaga Elder (Valerie) $297,250 to equalize the division of community property assets and debts. Michael subsequently filed for chapter 7 bankruptcy and listed Valerie and the equalization payment in the amended schedule of creditors filed in the bankruptcy proceeding. In 2008, when Valerie sought an earnings assignment order to enforce the equalization payment, Michael declared to the trial court that the debt had been discharged as part of the bankruptcy. Finding the debt discharged, the trial court quashed the wage assignment.
In 2018, Valerie asked the Monterey County Superior Court to determine that the equalization payment was not discharged in the bankruptcy, and to issue a judgment in the amount of the payment plus interest and other orders to aid in the enforcement of the judgment. On appeal, Valerie contends the trial court erred when it found it was precluded from redetermining whether the equalization payment was properly discharged. Finding no such error, we affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Michael filed a request for judicial notice on August 13, 2019. That request is denied. Regarding attachments 1, 2, and 3 to his request, there is insufficient evidence those documents were before the trial court in considering the issues on appeal. Attachments 4, 5, and 6 are already part of the record on appeal, having been designated by Valerie.
Michael and Valerie married in 2003; Valerie filed an amended petition for dissolution in 2006. The Superior Court of El Dorado County entered a judgment of dissolution on December 18, 2006; although the judgment indicates the court held a contested trial, Michael did not appear at the trial, despite receiving notice. The court divided the parties' community property assets between them, including awarding Michael two improved real properties in South Lake Tahoe, California, and the business known as Mountain Java. To equalize the division, the court ordered Michael to pay Valerie $297,250, "payable forthwith," stating Valerie could collect the payment "by any legal means." The judgment was served on Michael by mail in December 2006.
Valerie filed the petition in El Dorado County; the action was transferred to the Superior Court of Monterey County in 2009.
Michael filed a chapter 7 bankruptcy in July 2007. In August 2007, he filed an amended schedule of creditors listing the debt owed to Valerie pursuant to the judgment of dissolution. Michael's bankruptcy attorney purportedly mailed the amended schedule to Valerie at a post office box address in Ocklawaha, Florida, which Michael indicated was the address he had for Valerie at the time. On November 14, 2007, the United States Bankruptcy Court, Northern District of California, issued a discharge of debtor and final decree, stating, "It appearing that the debtor(s) is/are entitled to a discharge, IT IS ORDERED; The debtor(s) is/are granted a discharge under section 727 of title 11, United States Code, (the Bankruptcy Code)." The bankruptcy court ordered the case closed and discharged and relieved the bankruptcy trustee.
"Chapter 7 of the Bankruptcy Code [11 U.S.C. § 101 et seq.] provides a type of bankruptcy relief which involves the collection, liquidation, and distribution of an individual debtor's property and the discharge of his debts. (11 U.S.C. § 701 et seq.)" (People v. Goebel (1987) 195 Cal.App.3d 418, 422.)
Nothing in the record on appeal confirms this was Valerie's correct address. In subsequent declarations, Valerie denied being served with the amended schedule. In response, Michael indicated his attorney had served her at the address in Florida. Valerie did not deny this claim in her reply.
The order does not list any specific debts/claims discharged by the order. At the bottom of the first page, it says, "SEE THE BACK OF THIS ORDER FOR IMPORTANT INFORMATION." The second page of the order states, "The chapter 7 discharge order eliminates a debtor's legal obligation to pay a debt that is discharged. Most, but not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed." There is a list of "[s]ome of the common types of debts which are not discharged in a chapter 7 bankruptcy case," including "[d]ebts that are domestic support obligations. . . ." Non-support debts owed to a spouse pursuant to a dissolution judgment are not explicitly listed on the back of the order. However, the form indicates, "This information is only a general summary of the bankruptcy discharge. There are exceptions to these general rules. Because the law is complicated, you may want to consult an attorney to determine the exact effect of the discharge in this case." (Emphasis in original.) Michael later declared that neither his bankruptcy attorney nor the court advised him that the equalizing payment was not dischargeable under the federal Bankruptcy Code.
In 2008, Valerie attempted to obtain an earnings assignment order (referred to by Michael and the trial court as a "wage assignment") to enforce the equalization payment awarded to her in the dissolution judgment. Michael sought to quash the wage assignment by filing a declaration with the trial court indicating that the bankruptcy court had discharged the equalization payment debt. He attached to his declaration the first page of the bankruptcy court's November 2007 final decree, as well as the amended schedule of creditors. On August 7, 2008, the trial court entered an order quashing the wage assignment (the August 2008 order), based on its finding that the bankruptcy court discharged the equalization payment debt in the November 2007 final decree. The trial court stated it made its order after reading and considering Michael's declaration and the attachments; the order does not indicate that the trial court considered any additional evidence in determining that the bankruptcy court discharged the debt.
Valerie did not appeal this order, or otherwise seek relief from the order in the trial court. The register of actions provided with the record on appeal reflects litigation between the parties over the next 10 years concerning custody, visitation, and child support for the one child of the marriage.
Neither party designated any of those proceedings as part of the record, suggesting they are not relevant to the issues on appeal.
In February 2018, Valerie filed a request for orders in the Superior Court of Monterey County seeking determination of whether the equalization payment debt was properly discharged by the bankruptcy court, and seeking enforcement of payment of that debt by Michael. Valerie alleged Michael filed bankruptcy in an attempt to avoid paying her the amount owed for equalization of the property division, claiming he amended his creditor schedule after she attempted to enforce the equalization judgment; she denied being served with the amendments to the bankruptcy claims. The record on appeal confirms Michael amended the list of creditors in August 2007, before Valerie sought to enforce the equalization payment debt in April 2008. Valerie argued that the trial court had concurrent jurisdiction with the bankruptcy court to determine whether the debt could be properly discharged, noting that the payment owed to her was not dischargeable under the Bankruptcy Code (11 U.S.C. § 523(a)(15)).
"A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt—[¶] . . . [¶] (15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) ["domestic support obligation"] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit. . . ." (11 U.S.C. § 523(a)(15).)
Michael opposed Valerie's request, contending the doctrine of res judicata barred enforcement of the equalization payment, as the El Dorado County Superior Court issued the August 2008 order finding that the equalization payment had been discharged by the bankruptcy court. The August 2008 order was an appealable postjudgment order; thus, Michael argued that Valerie's failure to timely appeal the order barred her from seeking the relief she requested in her February 2018 request for order. Alternatively, Michael argued that Valerie's request should be barred under the theory of detrimental reliance, claiming that he relied on Valerie's father for advice regarding the value of the community property during the dissolution trial. Michael alleged that after the entry of the judgment, the business he was awarded under the final decree was "taken by eminent domain by governmental authorities, leaving [him] with a net debt, not a net asset. The two real properties awarded to [him] quickly succumbed to the 2006-2008 depression and were lost without any benefit to [Michael]." He filed bankruptcy to make a "fresh start," and believed the bankruptcy discharged the equalization payment debt, a belief supported by the fact neither his bankruptcy attorney or the court indicated otherwise.
Valerie argued in reply that res judicata did not bar her claim, as the El Dorado County Superior Court issued the August 2008 order based solely on Michael's declaration, without holding a full hearing on the merits of whether the equalization payment could be discharged. Valerie claimed she did not have the opportunity to rebut Michael's claims.
The Monterey County Superior Court heard argument at a hearing in May 2018. Michael's counsel stressed the fact Valerie did not file written opposition to Michael's request to quash the wage assignment order in 2008, and did not ask the El Dorado County Superior Court for a hearing on that request, or cite any legal authority that she was entitled to such a hearing. He further argued that the proper remedy was for Valerie to file a timely motion to set aside the resulting order, or file an appeal; she did neither. Valerie's attorney claimed Valerie did not learn that Michael opposed the wage assignment order until after the trial court issued the order quashing the wage assignment; he did not deny that Valerie did not attempt to set aside that order. He conceded Valerie did not file anything with the bankruptcy court to determine whether the equalization payment was dischargeable. The attorney asked the trial court to focus on whether or not the underlying debt had been previously discharged.
The trial court took judicial notice of documents provided by Michael regarding his bankruptcy, including the amended schedule of creditors listing the dissolution judgment debt, and the bankruptcy court's final decree. Although the trial court found that the debt in question was not dischargeable under the terms of the Bankruptcy Code, the court also found that in 2008 the Superior Court of El Dorado County determined that the debt had been discharged. Valerie had never asked the bankruptcy court to determine the dischargability of the debt, and did not raise the issue with the trial court at the time the wage assignment issue was pending. The trial court noted that the parties and their attorneys appeared at a custody hearing on August 7, 2008, the same day the trial court issued the order quashing the wage assignment, stating it was, "frankly inconceivable to this Court that the parties were not aware that the wage assignment was an issue and that the bankruptcy had been pending for quite some time and the bankruptcy order had in fact been made." The trial court found that it was "estopped from redetermining that issue and that the determination made -- frankly, made by the bankruptcy court -- that the debt was to be discharged is final and that the subsequent determination by the Superior Court of El Dorado County certainly reiterates that, that it was discharged in the bankruptcy." As Valerie had opportunities to address the issue either in the bankruptcy court, the trial court at the time of the wage assignment, and with the appellate court after the trial court quashed the wage assignment and did not do so, the trial court denied her request to determine that the debt could not be discharged as a matter of law.
In July 2018, the trial court issued a written order in accord with its oral rulings (the July 2018 order); that order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). Valerie timely filed notice of her appeal of the July 2018 order. (Cal. Rules of Court, rule 8.104(a).)
II. DISCUSSION
A. Deficiencies in Michael's briefing
Michael filed a respondent's brief in propria persona. In this brief, he cites no legal authority in response to Valerie's contentions that the trial court erred in denying her request. Nor does he cite to the record on appeal in support of the factual contentions alleged in his responsive brief. While this court appreciates Michael's claim that he could not afford an attorney to represent him in this matter, as a party representing himself, Michael " 'is entitled to the same, but no greater, consideration than other litigants and attorneys.' [Citations.] Accordingly, we may disregard factual contentions that are not supported by citations to the record [citation] or are based on information that is outside the record [citation]. [Fn. omitted.] We may disregard legal arguments that are not supported by citations to legal authority [citation] or are conclusory [citation]. . . . [W]e will bear in mind that an ' "order of the lower court is presumed correct." ' [Citation.]" (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520, rehg. den. (June 18, 2019), review den. (Aug. 21, 2019).) Despite the deficiencies in Michael's brief, we will not exercise our discretion to strike Michael's brief; we will consider only the information that is properly before us. (See Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1258, fn. 12.) Michael had an attorney during the trial court proceedings; we have considered the legal authority proffered by that attorney to the trial court, as it is part of the record on appeal as designated by Valerie.
Michael cites only to the underlying trial court action and bankruptcy proceeding.
B. The August 2008 order precludes relitigation of the issue of whether the equalization payment debt could be discharged in bankruptcy
Valerie contends the trial court erred when it found it was legally precluded ("estopped") from revisiting the issue of whether the equalization payment debt could be discharged in bankruptcy because there was a final determination of the issue in previous court rulings. Our evaluation of this claim rests on the application of law to undisputed facts related to the procedural history in the action. Thus, our review is de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Blaser v. State Teachers' Retirement System (2019) 37 Cal.App.5th 349, 364.)
Valerie argues that the trial court had jurisdiction in 2018 to determine whether the equalization payment debt was discharged or dischargeable as part of Michael's bankruptcy proceeding, citing relevant provisions of the Bankruptcy Code and related legal authority. However, we do not decide whether the equalization debt was dischargeable or properly discharged by the bankruptcy court as we conclude that the August 2008 order, in which the trial court explicitly found that the debt was discharged, precludes relitigation of the issues Valerie now raises.
In the trial court, the parties addressed the issue of preclusion using the terminology of res judicata. The California Supreme Court has opined that "[a]lthough the doctrine [of preclusion] has ancient roots (see Note, Developments in the Law: Res Judicata (1952) 65 Harv. L.Rev. 818, 820-822), its contours and associated terminology have evolved over time. We now refer to 'claim preclusion' rather than 'res judicata' [citation], and use 'issue preclusion' in place of 'direct or collateral estoppel' [citations]." (Samara v. Matar (2018) 5 Cal.5th 322, 326 (Samara).) Both claim preclusion and issue preclusion serve to "ensure that a dispute resolved in one case is not relitigated in a later case." (Ibid.) "Claim preclusion prevents relitigation of entire causes of action. [Citations.] . . . Issue preclusion, by contrast, prevents 'relitigation of previously decided issues,' rather than causes of action as a whole. [Citation.] It applies only '(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.' [Citation.]" (Id. at pp. 326-327.)
In Samara, the Supreme Court addressed whether preclusion attaches to a ground for appeal where an appellate court has affirmed a trial court determination on one ground and passed over another. (Samara, supra, 5 Cal.5th at pp. 325-326.) The court determined that a prior trial court order or judgment which evaded appellate review does not have preclusive effect in a subsequent action. (Id. at p. 334 ["a ground reached by the trial court and properly challenged on appeal, but not embraced by the appellate court's decision, should not affect the judgment's preclusive effect."].) In doing so, the Supreme Court noted that issues of preclusion are "inextricably intertwined with rules of procedure." (Id. at p. 332.) "The availability of a direct appeal reflects a sensible determination that the process culminating in a trial court's disputed decision is not sufficient to resolve litigation conclusively. Of course, a litigant's ability to secure appellate review may be waived or forfeited, as when a litigant fails to file a timely notice of appeal or fails to make an objection in the trial court. But when a litigant properly seeks appellate review of a ground underlying a trial court's determination, the fortuity that the judgment may be sustained on some other ground should not imbue the challenged ground with final and conclusive effect." (Id. at p. 333.)
Here we consider the preclusive effect of an appealable order where the litigant failed to properly seek "appellate review of a ground underlying a trial court's determination. . . ." (Ibid.) In the August 2008 order, the El Dorado County Superior Court made an explicit finding that the bankruptcy court discharged the equalization payment debt ordered in the November 2007 final decree. Code of Civil Procedure section 904.1, subdivision (a)(2), made that order immediately appealable, as it was an order made after an appealable judgment staying its execution. (See In re Marriage of Green (2006) 143 Cal.App.4th 1312, 1319; Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 852.) Valerie could have appealed the August 2008 order and failed to do so. We conclude that the Monterey County Superior Court properly ruled in 2018 that it was precluded from revisiting the issues adjudicated in the order issued by the El Dorado County Superior Court in 2008.
We note first that the trial court in El Dorado County entered the August 2008 order in the same dissolution action as the Monterey County trial court's July 2018 order. It is well established that when the trial court issues an appealable order in an action, and no appeal is taken, the order becomes binding in the same case as to the issues addressed in the order; this concept is generally referenced in case law as res judicata as well. (In re Matthew C. (1993) 6 Cal.4th 386, 393, superseded by statute on other grounds as stated in People v. Mena (2012) 54 Cal.4th 146, 156; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185-1186.)
We next observe that the issue Valerie asked the Monterey County Superior Court to consider in 2018 was the same as that considered by the El Dorado Superior Court in 2008. This circumstance was addressed in Zagoren v. Hall (1932) 122 Cal.App. 460 (Zagoren), wherein the petitioner sought a writ of mandamus requiring the county clerk to issue an execution to satisfy an attorney's fees order. (Id. at p. 461.) The attorney seeking the writ had previously procured an execution, which was quashed by the superior court; the attorney did not appeal the order recalling the execution. (Id. at p. 462.) The county clerk thereafter refused a subsequent demand for execution. (Ibid.) Although the appellate court determined that the writ petition had to be denied on other grounds, it noted that the trial court had recalled and quashed a previous execution, "[u]pon proceedings duly had in the Superior Court of Sacramento County. . . . That proceeding clearly involved the legal authority to levy an execution against the property in the estate of said deceased for the satisfaction of this order for attorney's fees. This petitioner failed to appeal from the order quashing the execution. He thereby waived his speedy and adequate remedy on appeal to determine the asserted right to levy an execution against the assets of the estate, which is the exact question involved in this proceeding. The doctrine of res judicata therefore precludes the right to maintain this proceeding for a writ of mandamus. [Citation.]" (Id. at p. 465.)
The same analysis applies here. The August 2008 order addressed whether the equalization payment debt could be discharged and was properly discharged by the bankruptcy court, the exact question posed in Valerie's 2018 request. The Monterey County Superior Court correctly determined that it could not revisit the issue, as Valerie failed to seek review in any forum in 2008.
Whether the El Dorado trial court erred in its August 2008 order is not relevant to our determination. So long as the El Dorado court had jurisdiction to issue the order in the fundamental sense (i.e., jurisdiction over the subject matter and parties), the order is res judicata even if it was contrary to a statute. (See Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 725; In re Marriage of Murray (2002) 101 Cal.App.4th 581, 599, disapproved of on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989.) Additionally, where a party fails to appeal an appealable order, a reviewing court has no discretion to review the merits of that order. (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 158.) These rules clearly reflect the public policy favoring finality of judgments. " '[P]ublic policy and the interests of litigants alike require that there be an end to litigation.' [Citation.] The result urged by plaintiff . . . would call '. . . into question the finality of any judgment and thus is bound to cause infinitely more injustice in the long run than it can conceivably avert in this case.' [Citation.] The consistent application of the traditional principle that final judgments, even erroneous ones [citations], are a bar to further proceedings based on the same cause of action is necessary to the well-ordered functioning of the judicial process. It should not be impaired for the benefit of particular plaintiffs, regardless of the sympathy their plight might arouse in an individual case." (Slater v. Blackwood (1975) 15 Cal.3d 791, 797, italics added.)
While a chapter 7 discharge generally eliminates all prepetition debts (11 U.S.C. § 727(b)), the Bankruptcy Code sets forth various exceptions, including an exception for debts owed to spouses incurred in connection with a divorce decree. (11 U.S.C. § 523(a)(15).) The equalization payment debt arguably falls within the exception of section 523(a)(15).
Valerie argues that orders issued on motions are not necessarily res judicata, and should not always be given preclusive effect, such that renewal can be proper under certain circumstances; she concedes that orders on motions are conclusive if they are of such a nature that they result in a final judgment or adjudication. But the August 2008 order was a final adjudication, because it was immediately appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). The cases Valerie relies on to argue that orders on motions do not preclude relitigation of issues do not support her position. The Supreme Court found res judicata did apply to an appealable order issued on a party's motion. (In re Estate of Harrington (1905) 147 Cal. 124, 128 [res judicata applies to appealable order made on petition for a homestead].) Similarly, in Twyford v. Twyford (1976) 63 Cal.App.3d 916, 921, the appellate court found an order denying a motion to strike a request for admissions had no res judicata effect because it was "not appealable and not final." (See also Imperial Beverage Co. v. Superior Court of Alameda County (1944) 24 Cal.2d 627, 634 [nonappealable order denying request for stay under Soldiers' and Sailors' Civil Relief Act is not res judicata to subsequent request for same]; Gay v. Gay (1905) 146 Cal. 237, 241-242 [order denying alimony is not res judicata to a renewed motion based on new evidence]; Tearney v. Riddle (1944) 64 Cal.App.2d 783, 786-787 [order denying motion to set aside default is not res judicata once it has been vacated and set aside].) That Valerie could have appealed the August 2008 order and failed to do so prevents her from relitigating the trial court's determination that the equalization payment was discharged in bankruptcy.
Valerie cites Howard v. Howard (1956) 141 Cal.App.2d 233, 244 (Howard), wherein the appellate court found that the appealability of an order upon a motion to vacate was "immaterial." "No appeal was taken from the order denying the motion to vacate [attorney's fees orders based on claims that subsequent events rendered the fees unnecessary] but that is of no moment. It is immaterial whether that order was appealable, as respondent's counsel urges [citation]. A ruling upon a motion does not become res judicata unless there has been a full hearing upon the merits, as in Lake v. Bonynge, 161 Cal. 120, 129 [citation], and we do not have that situation here." (Ibid.) Howard involved appeals from seriatim orders awarding attorney's fees for purposes of equalizing the financial disparity between spouses litigating their issues on appeal in a dissolution action. Many of the appeals were found to be frivolous; the appellate court supported the trial court's effort to equalize the fees and costs between the parties. We find no additional legal authority holding the same, and conclude that Howard should be limited to its unusual facts.
Valerie also suggests Groves v. Peterson (2002) 100 Cal.App.4th 659 (Groves) supports her position that the Monterey County Superior Court had the authority to rule on the merits of her motion. In Groves, a judgment debtor filed an independent action in equity to vacate a default and default judgment entered against him, alleging the prior judgment was void for lack of proper service. (Id. at p. 661.) The trial court sustained a demurrer without leave to amend, finding that his action was precluded because of the denial of his motion to vacate in the underlying action. The appellate court concluded, "based on a long line of cases," that "the prior denial of a motion in the underlying case to set aside a default and default judgment has no collateral estoppel effect to bar an independent action in equity directly attacking the prior judgment." (Ibid., original italics.)
The court in Groves reasoned that the rule allowing an independent action in equity exists because, "the motion procedure does not involve all the aspects of full litigation. The remedies of a motion in the underlying case and an independent action in equity are cumulative. The motion procedure is simpler and more convenient. The party should be entitled to resort first to the convenient and expeditious remedy, without penalty of the bar of collateral estoppel if the motion is denied. Despite denial of the motion, the party may then pursue an independent action that affords the party all the advantages of a regular trial of the issue. [Citations.]" (Groves, supra, 100 Cal.App.4th at p. 668.) The court also noted that the original ruling on the judgment debtor's motion to vacate the default in the underlying action was decided based on the untimeliness of that motion, not the merits of the case. Here, Valerie did not file an independent action seeking to set aside the El Dorado County Superior Court's order finding Michael's equalization debt discharged in bankruptcy, and that court ruled on the merits that the debt was discharged. We thus find the appellate opinion in Groves distinguishable from Valerie's circumstances.
The same can be said for the following rule set forth in Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1300, also cited by Valerie: " '[A] request for temporary equitable relief pending the determination of a case on its merits is an entreaty to the court to exercise its discretion and a ruling thereon is not a determination of the merits of the case. [Citation.] Such a pretrial ruling may not be given issue-preclusive effect with respect to the merits of the action. [Citations.]' [Citation.]" The August 2008 order issued in this matter was not a ruling on a request for temporary equitable relief pending the final determination of the case on the merits. It was an appealable postjudgment order.
Nor does Lake v. Bonynge 161 Cal. 120 (Lake), the case cited in Howard, aid Valerie's case. There, the Supreme Court did not hold that a ruling on a motion is not res judicata in the same action without a full hearing, regardless of its appealability. Rather, in Lake, the Supreme Court considered whether a judgment rendered on appeal in an earlier action was res judicata in a subsequent action involving the same parties or their privies. (Id. at p. 124.) "It is contended that because the decision in the [earlier] appeal was upon a motion that the principle of res adjudicata does not apply; that it can only apply where the decision is by final judgment in an independent action. This may be true where the appeal on the motion does not involve any substantial right of the parties or where the merits of the controversy are not in review upon the appeal and are undecided. When, however, a substantial right or the merits of the case are involved and determined the judgment is res adjudicata, notwithstanding the decision is made on an appeal from a motion." (Id. at p. 129, original italics.) In so ruling, the court considered the change in practice regarding the appealability of orders issued upon a motion. " 'It used to be the practice that no ruling of the trial court went up for review until after final judgment; any preliminary rulings, if erroneous, might up to that time be corrected by the trial court. Then it was assumed that a final examination in that tribunal had been had, and the whole record was ready to be transferred to the appellate court, and hence it was argued that no prior decision should be considered as final or as res adjudicata. . . . Now that the decision of a motion can be preserved in a separate record and taken up by itself, presupposes a full and careful consideration in both the trial and the appellate courts; and when that is had, it would seem that the question thus separately and carefully considered should be finally disposed of, and not be thrown back for further litigation at the mere caprice of either party.' " (Id. at pp. 129-130.)
Valerie suggests she was not afforded an appropriate opportunity to present her position in support of her request for the wage assignment in 2008. She cites Spector v. Superior Court of San Mateo County (1961) 55 Cal.2d 1961, where the trial court explicitly denied a party's request to present evidence or argument at a hearing on a motion to modify a preliminary injunction. (Id. at p. 843.) The Supreme Court granted the party's request for a writ of mandate based on the trial court's conduct, holding that "a party should not be bound or concluded by a judgment unless he has had his day in court." (Ibid.) But Valerie points to no indicia in the record that the El Dorado Superior Court denied her right to present evidence or argument in addressing the wage assignment issue, which was before the court on her request. More importantly, the prejudiced party in Spector sought appropriate relief from the appellate court, as did the prejudiced parties in the other case cited by Valerie on this point, Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 637 (Bricker). Valerie could have done the same following the issuance of the August 2008 order and she failed to do so. Neither Spector nor Bricker alters the rule stated above, that when a trial court issues an appealable order in an action that reaches the merits of the legal issue, and no appeal is taken, the order becomes binding in the same case as to the issues addressed in the order.
To the extent the August 2008 order did bar relitigation of the dischargability of the equalization payment debt, Valerie argues the trial court should have exercised any discretion it might have had to decline giving the order a preclusive effect. None of the legal authorities cited by Valerie in support of this contention persuades us to reverse the trial court's decision as they address the application of collateral estoppel in a separate action, rather than the issue at bar here—the failure to appeal an appealable order and its resulting binding effect in the same action. (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 125-126; Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82; Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 97 (Bostick); Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 148.) Valerie focuses on language in these authorities that requires a fair hearing before principles of preclusion are utilized by the court. "Even if the minimal requirements for its application are satisfied, the doctrine [of collateral estoppel] should not be applied if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case. [Citations.] 'In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. [Citation.]' [Citation.]" (Bostick, supra, at p. 97.)
We conclude there is no evidence in the record indicating that Valerie did not have a fair adversary proceeding in 2008. She had requested the wage assignment order, and the trial court found that the parties were in court and aware of the issues related to the wage assignment order and the bankruptcy court's order when the trial court issued its order. She waited 10 years after obtaining the unfavorable order in the El Dorado County Court to seek relief in Monterey County. In that time period, she and Michael availed themselves of the justice system to seek redress on various issues related to their dissolution and the custody of their children. She has not provided any explanation for the 10-year delay between the time the El Dorado Court found the equalization debt owed her by Michael discharged in bankruptcy, and the filing of her request in the Monterey County Superior Court. Nor does Valerie cite any legal authority that would allow this court, or the trial court, to apply the principles of Bostick where she failed to appeal from an appealable postjudgment order.
As Valerie did not appeal the August 2008 order, it was binding and precluded the Monterey County Superior Court from issuing a different order in July 2018. Her failure to appeal the August 2008 order similarly leaves us without discretion to consider the merits of the finding that the equalization payment debt was discharged in the bankruptcy proceeding. We therefore affirm the July 2018 order.
Given this ruling, we need not address any alternative bases the trial court could have relied on to issue the July 2018 order, such as detrimental reliance or laches.
III. DISPOSITION
The July 3, 2018 order is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.