Filed 5/17/22 Marriage of Matar & Kanj 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Andre De La Cruz, Judge. Affirmed.

Law Offices of K. Sean Singh and Associates and K. Sean Singh for Appellant.

No appearance for Respondent.

* * *

INTRODUCTION

A trial court may, if proper procedures are followed, promulgate and adopt rules that apply only within a particular courtroom. They are an effective way of assuring orderly progress through the system of every case. These local-local rules may even impose stringent penalties for noncompliance. But if a court adopts such rules, the court must follow them, may only impose the penalty authorized for noncompliance, and must comply with statutory and due process requirements before imposing that penalty.

The trial court in this marital dissolution case adopted local‑local rules but did not comply with them. The court adopted a standing order which authorized, as the only penalty for noncompliance, monetary sanctions pursuant to Code of Civil Procedure section 177.5. One of the litigants, Oliver Matar, who is the ex‑husband of the Dania Kanj,[1] the other litigant, violated the standing order by not exchanging his trial exhibits at the pretrial conference. Rather than impose the authorized penalty of monetary sanctions, the trial court immediately and without prior notice issued an order barring Matar from presenting any exhibits at trial. The court erred by exceeding the penalty set forth in its rules.

Error alone does not, however, warrant reversal: Error must be coupled with prejudice, and Matar has shown none. Matar appealed from a judgment on reserved issues, which included the division of community property. The two primary issues at trial regarding the division of community property were the date of valuation and the value of two businesses in which Matar and Kanj had community property interests. It is not reasonably probable the trial court would made different decisions regarding the date of valuation or the valuation of those two businesses had Matar been able to present at trial the exhibits he has identified in his appellate brief.

In addition, we reject Matar’s claim of judicial bias and uphold an award of attorney fees to Kanj. We therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

I. Community Property Interests

Matar and Kanj were married in November 1998. In June 2015 Matar and Kanj separated and Kanj filed a petition for dissolution of marriage. They have three minor children; however, this appeal raises no issues regarding child custody, child support, or spousal support.

During the marriage, Matar owned 80 percent of and operated a business known as APT-Facilitators (APT). APT provided professional consulting services and “was involved in consulting for various Middle Eastern countries and private companies in the Middle East.” APT ceased operating in April 2018. Kanj owned 50 percent of and operated a business called Spectra Health Care JLT (Spectra), which bought and sold healthcare products in the Middle East. Spectra ceased operating in December 2017.

Both APT and Spectra are based in the United Arab Emirates. Matar’s entire ownership interest in APT and Kanj’s entire ownership interest in Spectra are community property.

II. Judge De La Cruz’s Standing Order

The matter was assigned initially to Judge Claudia Silbar. In March 2017, a status only judgment of dissolution was entered. The court reserved jurisdiction over all other issues, including division of community property. In December 2017, Judge Silbar ordered the trial on reserved issues to be continued from February 6 and 7, 2018 to April 9 and 10, 2018.

In January 2018 the matter was reassigned to Judge De La Cruz. When the parties first appeared before Judge De La Cruz, on April 6, 2018, the court[2] vacated the trial date and set a trial setting conference for June 28, 2018. At that time, the court issued an “Initial Standing Order for all Cases Assigned to Judge De La Cruz” (the Standing Order). The Standing Order sets forth rules governing civility and professionalism, continuances and extensions of deadlines, exhibits, motions, objections at hearing and trial, mediation, requesting and setting trial, mandatory settlement conferences, pretrial conferences, and conduct of trial.

Relevant to this appeal are two provisions of the Standing Order. First, section VI.c, sets forth the court’s and the litigants’ duties and obligations for the pretrial conference. Section VI.c lists nine items, including a joint statement of issues and witness lists, which the litigants must file no later than five days before the date of the pretrial conference. Section VI.c also lists those tasks which the parties must do at the pretrial conference. Among those tasks is to “[b]ring and exchange all trial exhibits.” Second, at the end of the Standing Order, in boldface type, appears this warning: “Failure to comply with this Order may subject the party in non‑compliance to sanctions of up to $1,500 pursuant to Code of Civil Procedure § 177.5.” (Boldface omitted.)

III. Pretrial Conference

On August 1, 2019, following the completion of an unsuccessful mandatory settlement conference, the court set the pretrial conference for October 3, 2019. In September 2019, Kanj filed a trial brief, a request for judicial notice, an income and expense declaration, and a motion in limine to exclude Matar’s evidence of the value of APT. The motion in limine was made pursuant to Code of Civil Procedure section 2023.030 and requested evidence exclusion as a sanction for Matar’s failure to produce documents which the trial court previously had ordered him to produce and failure to respond to requests for production of documents. Matar, who was self‑represented, filed none of the items required for the pretrial conference by the Standing Order.

The trial court conducted the pretrial conference, as scheduled, on October 3, 2019. Matar did not bring exhibits to exchange. A minute order of that date states: “[Matar] has failed to comply with the Court’s Initial Standing Order in connection with Pretrial Conference requirements, including the preparation and exchange of exhibits. In light of [Matar]’s non‑compliance, he is precluded from presenting exhibits at the time of Trial.” The minute order notes Matar had acknowledged receiving the Standing Order and understood it to be an order of the court.

Later in October 2019, over three weeks after the pretrial conference, Matar filed a trial brief with exhibits attached and an opposition to Kanj’s motion in limine.

IV. Trial and Decision Dividing the Community Property

Trial on reserved issues was conducted on November 18 and 19, 2019. Matar continued to be a self‑represented litigant through trial. At the outset of trial, the court ordered Kanj’s motion in limine be stricken on the ground it was untimely filed and Matar’s opposition to that motion in limine be stricken too. The court also ordered Matar’s trial brief be stricken because it was “completely untimely and not following the Court’s initial standing order.” During trial, Matar tried to examine Kanj about bank statements attached to his trial brief. The court told Matar it would not consider the documents because he had not complied with the Standing Order’s requirement that exhibits be exchanged at the pretrial conference.

At the end of trial, the court made lengthy findings on the record, and these findings were also recited in a minute order entered on November 19, 2019. With respect to division of community property the court made the following findings:

1. APT. The trial court adopted a valuation date of December 31, 2015 for APT and set its value at $517,711 based on a valuation report dated January 31, 2016, prepared by Xavier Lucas (the APT valuation). Kanj has an undisputed community property interest of 40 percent, which is $207,084. The court also found that 40 percent of APT’s cash on hand as of December 31, 2015 was $643,153. Kanj was awarded $850,237 (the sum of $207,084 and $643,153) as her community property interest in APT.

2. Spectra. The court adopted a valuation date of December 14, 2015, for Spectra and set its value at $272,480 based on a valuation report dated December 14, 2015 (the Spectra valuation) also prepared by Lucas. The community share of Spectra was 50 percent, or $136,240. The court divided the community share of $136,240 equally ($68,120 each) between Matar and Kanj. The court also found that, as of the date of separation (June 18, 2015), Spectra had cash on hand of $78,747 of which 50 percent ($39,373.50) was community property. The court divided the $39,373.50 equally ($19,686.75 each) between Matar and Kanj. The court awarded Matar $87,807 (the sum of $68,120 and $19,686.75, rounded upward) as his community property interest in Spectra.

3. Offset. The court offset Matar’s community property interest in Spectra against Kanj’s community property interest in APT to find that $762,430 was due to Kanj as her community interests in APT and Spectra.

The trial court assessed the credibility of both Matar and Kanj using the Evidence Code section 780 factors and made this damning assessment of Matar: “[Matar], throughout the course of this trial and the course of my involvement with this case, has been combative, dodgy, evasive, confrontational, noncooperative, has a history of [flouting] prior court orders, has a history of noncompliance with discovery, and, ultimately, this Court finds that [Matar] lacks complete and utter credibility in most of all testimony provided.” The court ordered Matar to pay $37,243 in attorney fees to Kanj’s attorney pursuant to Family Code section 2030.

The trial court’s findings were incorporated into a judgment on reserved issues entered in February 2021. In this judgment, the court confirmed it used a valuation date of December 31, 2015, for APT and a valuation date of December 14, 2015, for Spectra.

Matar filed a notice of appeal in May 2020. When the notice of appeal was filed, the judgment on reserved issues had not been entered. We granted Matar’s request to augment the record with the judgment on reserved issues.

DISCUSSION

I. The Trial Court’s Error in Precluding Matar from Presenting Exhibits at Trial Was Harmless

A. The Trial Court Did Not Follow the Standing Order

Matar argues the trial court erred by precluding him from presenting exhibits at trial because the only sanction authorized by the Standing Order was a monetary sanction of up to $1,500 pursuant to Code of Civil Procedure section 177.5.[3] We agree.

Matar failed to comply with the Standing Order in many ways, including his failure to exchange exhibits at the pretrial conference. But the Standing Order identifies only one sanction for noncompliance: A monetary sanction pursuant to Code of Civil Procedure section 177.5. The Standing Order affords notice of no other sanction. The Standing Order did not authorize exclusion of exhibits at trial as a sanction for noncompliance. Judge De La Cruz issued the Standing Order: He, as well as the litigants, must comply with it.

The issue here is not whether Judge De La Cruz had authority to issue the Standing Order. Clearly he did: Code of Civil Procedure section 575.1, subdivision (c) permits the adoption of rules that apply solely to a particular courtroom if the court follows publication rules required by the California Rules of Court. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351.) Courts have both statutory and inherent authority to make and adopt local rules or procedures so long as they do not “conflict with statutes or with rules of court adopted by the Judicial Counsel, or that are inconsistent with the California Constitution or case law.” (Ibid.) Nor is the issue whether a local courtroom rule may authorize the exclusion of exhibits at trial as a sanction for noncompliance: Code of Civil Procedure section 575.2, subdivision (a)[4] appears to permit such a sanction.[5] The problem here is that Judge De La Cruz imposed a sanction – exclusion of exhibits at trial – which his own Standing Order does not authorize.

The Standing Order authorizes a monetary sanction pursuant to Code of Civil Procedure section 177.5, and section 177.5 expressly states, “[s]anctions pursuant to this section shall not be imposed except . . . after notice and opportunity to be heard.” (See People v. Hundal (2008) 168 Cal.App.4th 965, 970.) “‘Due process, as well as the statute itself, requires that a person against whom Code of Civil Procedure section 177.5 sanctions may be imposed be given adequate notice that such sanctions are being considered, notice as to what act or omission of the individual is the basis for the proposed sanctions, and an objective hearing at which the person is permitted to address the lawfulness of the order, the existence of the violation, and the absence of good cause or substantial justification for the violation.’” (Ibid.) The same requirements of notice and an objective hearing must be met when the trial court raises the issue of sanctions on its own motion. (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) Such notice must be given before the trial court makes the decision to impose sanctions. (Ibid.)

Matar was not given notice he would be subject to the sanction of evidence exclusion and was not provided a hearing on the matter of sanctions. The trial court instead imposed sanctions by a minute order entered on the same day as the pretrial conference.

It might very well have been the case that Matar should have been precluded from presenting exhibits at trial based on the conduct described in Kanj’s motion in limine. But the trial court struck the motion in limine and did not consider it. The only reason given by the trial court for imposing a sanction against Matar was his failure to comply with the Standing Order’s rules regarding the pretrial conference, and under the rule of the Standing Order, only monetary sanctions were available for that.

B. The Error Was Harmless

The trial court’s error in denying Matar the ability to present exhibits at trial, however, is not enough in itself to justify reversal. To obtain reversal, Matar must prove his inability to present exhibits at trial was prejudicial; that is, it is reasonably probable Matar would have obtained a more favorable result absent the trial court’s error. (Coastside Fishing Club v. California Fish & Game Com. (2013) 215 Cal.App.4th 397, 428; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334‑335.) Matar contends the trial court’s error was prejudicial because, had he been permitted to present exhibits, “the Trial Court might have chosen a different date of valuation of APT, and a different value” and he would have been able to prove the value of Spectra as of the date of separation.

We conclude it was not reasonably probable that Matar would have obtained a more favorable result if the trial court had permitted him to present exhibits at trial. Later in this opinion, when we address Matar’s other arguments, we shall explain why his documentary evidence would not likely have changed the court’s decision on specific issues. Here, we shall explain why each of the documents identified by Matar was already before the court, duplicative of Kanj’s exhibits, inadmissible, irrelevant, proved facts that were or could have been established through Kanj’s testimony, or did not prove valuation.

Matar claims he would have presented at trial eight exhibits (exhibits E, F, G, I, K, L, N, and O) that were attached to his trial brief, an income statement for the period May 1, 2016 to May 1, 2017 for APT and another company he owned, and other documents regarding Kanj’s income, Spectra’s income, and Spectra’s value.

The exhibits from Matar’s trial brief are:

Exhibit E. This is a minute order dated May 22, 2018, in which the court concluded the valuation date of Spectra would be the same as the date of separation. This minute order was already part of the court file.

Exhibit F. This is a profit/loss statement for Spectra for years ended December 31, 2014 and 2015. It shows a net profit of $475,902 of year ended December 31, 2014, and net loss of $424,091 for year ended December 31, 2015. This profit/loss statement was attached to Matar’s request for order filed on April 6, 2018. The trial court took judicial notice of that request for order and considered the profit/loss statement at trial. Kanj’s counsel argued this dramatic swing from profit to loss meant Spectra had no value on June 18, 2015, the date of separation.

Exhibit G. This exhibit consists of bank statements for Spectra from January 2015 through June 2015. These bank statements reflect cash inflows and outflows and do not include or reflect a valuation of Spectra.

Exhibit I. This is a newspaper article dated May 20, 2019, regarding oil prices. As the article would have been offered to prove the truth of the factual assertions made in it, it was inadmissible hearsay. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 83 [“We also conclude the Los Angeles Times newspaper article is hearsay and therefore decline to consider it for its truth”].)

Exhibit K. This is a declaration from Matar regarding his income and Kanj’s income. It includes Kanj’s income and expense declaration filed on September 8, 2016 and Kanj’s income and expense declaration signed in March 2018 (no file stamp). The March 2018 income and expense declaration was received into evidence as trial exhibit 3. Matar does not explain how the earlier income and expense declaration would have been relevant.

Exhibit L. This is Matar’s notice of intent to seek Epstein credits pursuant to In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85. Exhibit L is unrelated to valuation of APT and Spectra.

Exhibit N. This is an e‑mail dated August 2, 2016, from Kanj to Matar acknowledging she took an unspecified amount of assets out of Spectra and permitting Matar to deduct them from the settlement. Matar could have questioned Kanj about the subject of this e‑mail but did not do so.

Exhibit O. This is an e-mail dated April 7, 2017, from Kanj to Matar stating she had taken her profit share out of Spectra for 2016 and first quarter 2017 in the amount of $15,957. Exhibit O was attached to Kanj’s trial exhibit No. 27. Matar questioned Kanj about the e‑mail, and Kanj testified she took $16,000 in profits out of Spectra. She testified she was sending her parents $700 a month from Spectra community funds.

The income statement Matar claims he would have introduced shows that for the period May 1, 2016 to May 1, 2017, APT had a net loss of $560,055 and his other company, Matar M. Consultancy, Inc. (Matar Consultancy), had a net loss of $8,223. Matar does not identify who would have authenticated the income statement or explain how he would have overcome a hearsay objection.

The only other document regarding Spectra that was identified by Matar is a profit and loss statement attached to his request for an order to value Spectra as of the date of separation. That profit and loss statement is the same as exhibit F attached to Matar’s trial brief.[6]

Thus, of the documents Matar claims he would have used at trial, one (exhibit E) was a court order, three (exhibits F, K, O) were duplicates of documents received into evidence or considered by the court at trial, one (exhibit I) was inadmissible hearsay while another (the APT income statement) appears to be hearsay, three (exhibits G, N, O) were evidence of facts which Matar could prove with other evidence, one (the Spectra profit/loss statement) was the same as exhibit F, and two (the Spectra bank statements and the APT income statement) do not establish the value of the business.

II. The Trial Court’s Findings on the Value and Date of Valuation of APT Were Not Erroneous

A. Standard of Review

The trial court enjoys “‘broad discretion’” to value a community asset so long as the court’s determination of value “‘is within the range of the evidence presented.’” (In re Marriage of Iredale & Cates (2004) 121 Cal.App.4th 321, 329.) The value of a community asset is a question of fact and, therefore, the trial court’s determination of value will by upheld if it is supported by substantial evidence in the record. (Ibid.)

B. Matar Forfeited His Hearsay Objection to the
APT Valuation

The APT valuation (trial exhibit No. 23) valued APT at AED 1.9 million,[7] which converts to $517,711. Based on the APT valuation, the trial court set the value of APT at $517,711 as of December 31, 2015. Matar argues the trial court erred by receiving the APT valuation into evidence because it was hearsay.

Lucas, who prepared the APT valuation, did not testify at trial. The trial court and Kanj’s counsel initially agreed the APT valuation was hearsay. The APT valuation had been attached to Matar’s schedule of assets and debts served as part of Matar’s declaration of disclosure and income and expense declaration (declaration of disclosure) that was served in June 2016. At trial, Matar acknowledged his signature on the declaration of disclosure. The court then received the APT valuation into evidence based on the party admission exception to the hearsay rule. (Evid. Code, § 1220.) Matar did not object.

Matar argues the party admission exception does not apply because, by attaching the APT valuation to his schedule of assets and debts, he did not adopt or approve the APT valuation. But Matar forfeited his claim of error by not objecting to admission of the APT valuation. (Evid. Code, § 353, subd. (a); People v. Case (2018) 5 Cal.5th 1, 44‑45.) Although Matar was representing himself, a self‑represented litigant is held to the same rules as an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984‑985.)

Although Matar forfeited his objection we conclude nevertheless the trial court did not err by finding the APT valuation fell within the party admission exception. Under the admission of party hearsay exception, evidence of an out‑of‑court statement is not made inadmissible by the hearsay rule if “offered against the declarant in an action to which he is a party.” (Evid. Code, § 1220.) Although valuations of assets are not required in an initial declaration of disclosure (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2021) ¶ 11:68, p. 11‑19), Matar chose to include, without qualification or condition, the APT valuation in his declaration of disclosure, which must be signed under penalty of perjury. Matar testified that he and Kanj jointly ordered the APT valuation, and he paid for it and provided the information on which it was based.

If not admissible as a party admission, then the APT value was admissible as an adoptive admission. Under Evidence Code section 1231, evidence of a statement offered against a party is not made inadmissible by the hearsay rule “if the statement is one of which the party with knowledge of the content thereof, has by words or other conduct manifested his adoption or belief in its truth.” By attaching the APT valuation to his declaration of disclosure, which was signed under penalty of perjury, Matar adopted the APT valuation as his own statement.

C. Matar’s Challenges to the Validity of the APT Valuation Go to Weight, Not Admissibility

Matar argues the APT valuation should not have been considered because it was “not a valid valuation,” was not an audited statement, and “contains critical omissions of accounting.” He did not object at trial on any of those grounds to admission of the APT valuation and therefore forfeited the claim.[8] (Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 433-434 [“‘“failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable’”].)

Even if not forfeited, Matar’s challenge to the APT valuation is without merit. We have reviewed the APT valuation. Matar’s criticisms of it go to weight rather than admissibility. (Cf. San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1307 [“[plaintiff’s] challenges to defendants’ appraisal method went to the weight of the evidence, not its admissibility”].) The valuation frankly lays out the objective, methodology, and the financial information reviewed in valuing APT. The APT valuation reaches an estimated value of AED 1.9 million based on a discounted value of the prior three years’ net consolidated profit. The APT valuation notes the value it reached depends on Matar being the head of the company and takes into consideration APT’s loss of its biggest client and “weak market conditions as a result of low oil price fuel[]ed by political instability.” Matar did not offer any other valuation of APT. He did not have an expert testify about the validity of or weaknesses in the APT valuation.

Matar has only himself to blame for any deficiencies in the APT valuation. The APT valuation acknowledges “[n]o balance sheet is prepared by the company” and “[t]he company doesn’t have proper accounting records and no financial statement is prepared and audited.” Matar testified that he provided the information on which the APT valuation was based, APT did not have paper accounting records or audited financial statements, and APT did not maintain backup records.

D. The Trial Court Did Not Err by Adding Cash on Hand
to the Value of APT

Matar argues that the trial court erred by adding APT’s cash on hand to the value of APT set forth in the APT valuation. At trial, Kanj’s counsel made the representation that Kanj’s community property share (40 percent) of APT’s cash on hand, as shown in the APT valuation, was $643,153. The trial court awarded Kanj 40 percent of the value of APT ($517,711 x .4 = $207,084) and added her community share of the cash on hand to that amount for a total of $850,237.

Matar describes the trial court’s decision to add cash on hand to the value of APT as “colossal error.” He argues that once a business is valued, items from the balance sheet, such as cash on hand, cannot be added onto the valuation, and “[t]he APT Report had already taken into consideration the cash on hand when it valued APT at AED 1.9 million in its conclusion on page 12.” Matar presented no expert testimony or other evidence at trial to support that proposition. He did not object when Kanj’s counsel raised the issue of APT’s cash on hand.

Our review of the APT valuation leads us to conclude it did not include cash on hand in reaching a value of AED 1.9 million. The valuation was based on a discounted value of net consolidated prospective profits based on an average of the prior three years of profits. Nothing in the APT valuation suggests cash on hand was taken into consideration or added into the value derived for APT. To the contrary, the APT valuation treated the cash on hand as a debt to Matar and the other owner of APT.

E. The Trial Court Did Not Err by Setting December 31, 2015 as the Date of Valuation for APT

In valuing APT, the trial court adopted the alternate valuation date of December 31, 2015, instead of the date of separation, “based upon Exhibit 23, in light of this Court’s [f]inding with respect to [Matar]’s testimony and lack of his own exhibits and his own evidence to support any other alternate valuation date.” Matar argues the trial court erred by valuing APT as of December 31, 2015, instead of the date of trial, when APT had a value of zero.

Upon dissolution, the trial court must divide the community estate equally. (Fam. Code, § 2550.) Although subdivision (a) of Family Code section 2552 requires the trial court to “value the [community] assets and liabilities as near as practicable to the time of trial,” subdivision (b) of that section permits the trial court upon notice and a showing of good cause to value a community asset using an alternative valuation date. (Id., § 2552; see In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 625 (Duncan).) “In this regard, the trial court has considerable discretion to divide community property in order to assure that an equitable settlement is reached.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1550.)

The purpose of allowing an alternate date of valuation is “to remedy inequities which may result when one spouse dissipates the community estate after separation, or when the effort and action of one spouse alone and after separation greatly increases the value of the estate.” (In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1435.) We review the court’s selection of an alternative valuation date for abuse of discretion. (Duncan, supra, 90 Cal.App.4th at p. 625.)

“Case law has established that good cause generally exists for a professional practice to be valued as of the date of separation.” (Duncan, supra, 90 Cal.App.4th at p. 625.) “This exception to trial date valuation applies because the value of such businesses, ‘including goodwill is primarily a reflection of the practitioner’s services (accounts receivable and work in progress) and not capital assets such as desks, chairs, law books and computers.’” (Id. at pp. 625-626.) In Duncan, the trial court valued the husband’s business as of the time of separation (id. at p. 629) because the evidence showed the business had all the attributes of a professional practice, including performing services for a fee, offering specialized knowledge and experience, being licensed and regulated, and having assets that consisted largely of office equipment, accounts receivable and work in progress (id. at p. 626). The value and success depended almost exclusively on the husband’s skill, industry, guidance, and reputation. (Ibid.)

There does not appear to be any dispute that APT qualifies as a professional practice. Matar testified that APT provided professional services “[l]ike lawyers.” In his appellate brief, he makes the representation that APT provided consulting services for various Middle Eastern countries and private companies.

Matar’s argument for using the trial date as the date of valuation is based on APT’s loss of a major client and other events in and after 2015 that, Matar claims, were outside of his control and led to the demise of APT in 2018. The value reached by the APT valuation had already taken into consideration the events, conditions, and factors that, Matar claims, militate in favor of using the trial date as APT’s date of valuation. The APT valuation took into consideration the loss of APT’s biggest client, weak market conditions due to low oil prices, the expectation that APT would receive no cash after March 2016, political instability in the Middle East, and the planned relocation to France of APT’s general manager/partner.

Matar argues that if he had been permitted to present the income statement for APT and Matar Consultancy for the period May 1, 2016 to May 1, 2017, then “APT would have been valued based on the value as of the date of trial, which was zero.” Matar does not identify who would have authenticated the income statement or explain how he would overcome a hearsay objection. If properly authenticated and otherwise admissible, the income statement would not likely have changed the trial court’s decision to value APT as of December 31, 2015. Although the income statement showed APT had a net loss of $560,055, the statement did not disclose any reasons for APT’s losses and ultimate demise, which might have been relevant to determine the date for valuing APT. In other words, the income statement does not address whether APT’s losses could be laid at the feet of Matar or were due to matters outside of his control.

Matar contends he should have been allowed to introduce an exhibit to show how the dramatic drop in oil prices affected APT’s viability. He does not identify or describe the exhibit. If it is the newspaper article dated May 20, 2019, attached as exhibit I to his trial brief, then the exhibit would have been inadmissible hearsay. (Christian Research Institute v. Alnor, supra, 148 Cal.App.4th at p. 83.)

III. The Trial Court’s Findings on the Value and Date of Valuation of Spectra Were Not Erroneous

A. Matar Forfeited His Hearsay Objection to
the Spectra Valuation

The trial court set a value for Spectra based on the Spectra valuation which, like the APT valuation, was prepared by Lucas. The Spectra valuation (trial exhibit No. 21) valued Spectra at $272,480 as of December 14, 2015. Matar argues the trial court erred by admitting the Spectra valuation into evidence because it is hearsay. The record shows that Matar forfeited his hearsay objection.

During Kanj’s testimony, Kanj’s counsel moved the Spectra valuation into evidence. Matar posed a hearsay objection. The trial court sustained the objection. During closing argument, the court reconsidered admitting the Spectra valuation into evidence. The court stated, “if we admitted Exhibit 23 [the APT valuation] then for the very same fact that we’re considering the valuation set forth in Exhibit 23, I would think it would be fair to also include Exhibit 21, which is prepared by the same person analyzing just a different company.” The court asked Matar whether he objected to receiving the Spectra valuation into evidence. Matar objected on this ground: “[Y]ou have ordered the valuation as of [the] separation date and this report is in January, 2016. . . . [¶] . . . [¶] . . . six months after the separation. So the Court has ordered valuation to take place at the separation date, June 15th.” After Matar confirmed the date of valuation was his only objection to admission of the Spectra valuation, the court received it into evidence. Matar forfeited a hearsay objection by failing to make one. (Evid. Code, § 353, subd. (a); People v. Case, supra, 5 Cal.5th at pp. 44‑45.)

If the trial court erred by receiving the Spectra valuation into evidence, the error was harmless. An owner of a business may testify to its value. (Long Beach City H.S. Dist. v. Stewart (1947) 30 Cal.2d 763, 772; Mears v. Mears (1960) 180 Cal.App.2d 484, 505, disapproved on another ground in See v. See (1966) 64 Cal.2d 778, 783; see James River Ins. Co. v. Rapid Funding, LLC (10th Cir. 2011) 658 F.3d 1207, 1216 [business owner may testify about value of business if owner has sufficient personal knowledge of the business or the owner offered a valuation based on straightforward, commonsense calculations].) Kanj, who was a 50 percent owner of Spectra, testified the valuation of $272,480 as of December 14, 2015, seemed “high” because in January 2015 Spectra had lost a client accounting for 90 percent of Spectra’s revenue and Spectra had $300,000 in debt. She testified that the $300,000 debt was in excess of what she believed to be Spectra’s value at the time and that in 2015, Spectra had a net loss of $115,000. Matar did not object to any of this testimony.

Kanj’s testimony provided substantial evidence that the value of Spectra was not greater than of $272,480 as of December 14, 2015. The trial court’s valuation of Spectra therefore was “‘within the range of the evidence presented.’” (In re Marriage of Iredale & Cates, supra, 121 Cal.App.4th at p. 329.)

B. Collateral Estoppel Did Not Prevent the Trial Court from Setting December 14, 2015 as the Date for Valuing Spectra

In May 2018, the trial court issued an order granting Matar’s request for an order that the valuation date of Spectra be the date of separation, June 18, 2015. Matar argues the trial court was collaterally estopped by that order from relying on the Spectra valuation, which had a valuation date of December 14, 2015.

Collateral estoppel is inapplicable here. “Collateral estoppel precludes a party from relitigating in a second proceeding the matters litigated and determined in a prior proceeding.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201, fn. 1, italics added.) A requirement for invoking collateral estoppel is “the previous proceeding terminated with a final judgment on the merits.” (Ibid.) The order setting June 18, 2015, as the date for valuing Spectra was not made in a prior proceeding but was an interim order in the current proceeding. The trial court had inherent authority on its own volition to change its interim order and accept a valuation date of December 14, 2105. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107; In re Marriage of Spector (2018) 24 Cal.App.5th 201, 213‑214.)

C. Matar’s Challenges to the Validity of the Spectra Valuation are Forfeited or Meritless

Matar contends the Spectra valuation “was not a proper business valuation” for various reasons, including, “[t]he Spectra Report was not based on financial statements for 2015, cash reports were reviewed based on Excel spreadsheets, and the income statements were not prepared in line with audited financial statements.” Matar did not object to the Spectra valuation on those grounds and therefore forfeited his challenge to its admission in evidence. (Evid. Code, § 353, subd. (a); People v. Partida, supra, 37 Cal.4th at pp. 433-434.)

We have reviewed the Spectra valuation. Matar’s criticisms of it, like his criticisms of the APT valuation, go to weight rather than admissibility. Matar’s brief does not cite to anyplace in the record where he brought the asserted deficiencies in the Spectra valuation to the trial court’s attention.

Matar also argues that the trial court erred by adding cash on hand to the value of Spectra because cash on hand had already been considered in reaching a value for Spectra. It is hard to tell from the Spectra valuation whether cash on hand was a factor in reaching a value of AED 1 million. However, if the trial court erred by adding cash on hand onto the value of Spectra, the error redounded to the benefit of Matar by giving him an additional $19,686.75 on top of his community property interest in Spectra.

D. The Trial Court Did Not Err by Basing the Valuation of Spectra on the Spectra Valuation and Not the
Spectra Profit and Loss Statement

Matar argues the trial court erred by failing to consider the profit and loss statement for Spectra for the years 2014 and 2015, which was attached as exhibit F to Matar’s trial brief. He acknowledges the trial court took judicial notice of Matar’s request for order filed on April 6, 2018, which included a copy of the Spectra profit and loss statement. The court did consider the Spectra profit and loss statement but relied instead on the Spectra valuation. The court did not err in doing so because the Spectra profit and loss statement did not establish Spectra’s value on the date of separation or on any other date.

Matar also contends he should have been permitted to offer Spectra’s bank statements as proof of Spectra’s value. The bank statements show cash inflows and outflows only; the statements do not give a value for Spectra on the date of separation or any other date.[9] Neither the Spectra profit and loss statement nor Spectra’s bank statements give a value for Spectra, and Matar does not explain how the value of Spectra might be derived from those documents. The only valuation of Spectra presented to the trial court was the Spectra valuation. Matar did not present a different valuation report and has not identified any evidence of his own that establishes the value of Spectra as of June 18, 2015.

IV. The Trial Court Equally Divided
the Community Property

Matar argues the trial court failed to equally divide the community property as required by Family Code section 2550. This argument is based on the propositions that APT had no value as of the date of trial and that Spectra should have been valued as of the date of separation. We have concluded that Matar has not met his burden of establishing the trial court erred in making its determination of the values of APT and Spectra and, therefore, conclude the trial court equally divided the community assets in compliance with Family Code section 2550.

V. Matar Has Not Shown Judicial Bias

Matar devotes nearly 12 pages of his appellate brief to arguing Judge De La Cruz was biased against him and his bias is “[t]he only way to make sense of the decisions made by the Trial Court.” “Accusations of judicial bias are serious, and we treat them as such.” (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1557.) Serious accusations against a trial judge “had better be supported by concrete evidence.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 793.)

We have seriously considered, and now reject, Matar’s claim of judicial bias. Judge De La Cruz made only one decision that was erroneous – the order precluding Matar from presenting exhibits at trial. One erroneous decision does not amount to bias. There are a number of reasons other than bias to explain that decision. Though not permitted by the Standing Order, preclusion of the introduction of exhibits at trial seems like a logical sanction for failing to exchange exhibits at a pretrial conference. Judge De La Cruz might have imperfectly remembered what the Standing Order permitted as a sanction, but Matar made no attempt to jog the court’s memory.

Matar recounts in detail the history of this litigation since October 2016 with the point of showing that Kanj’s counsel supposedly manufactured discovery disputes in order to grind down Matar, who was self-represented, and discredit him before the trial court. Matar’s history of this litigation downplays some significant facts and omits others altogether. Matar acknowledges that in September 2017 Judge Silbar ordered him to produce additional documents in response to a request for production of documents and in July 2018 Judge De La Cruz ordered him to comply with a deposition scheduled for August 2, 2018. Matar does not mention that Judge De La Cruz also ordered Matar to answer all questions at that deposition “truthfully, accurately, and completely” and warned him he would be sanctioned if he failed to produce documents. By so ordering Matar, Judge De La Cruz in effect concluded Matar had not answered deposition questions truthfully, accurately, and completely and had not produced documents which he had been ordered to produce.

Matar also neglects to mention that in April 2019, Judge De La Cruz granted another motion to compel brought by Kanj and again ordered Matar to answer all questions “truthfully, accurately, and completely.” The court minute order states that for each question evaded, Matar would be sanctioned $1,500 and for each document not produced he would be sanctioned in an indeterminate amount. Also missing from Matar’s account is Judge De La Cruz’s minute order, entered just one month later, which ordered Matar to comply with the April 2019 order by paying $1,950 to Kanj for the cost of the August 2, 2018 deposition. Matar has never, ever, paid those sanctions.

Matar’s conduct during the litigation would naturally and justifiably affect the trial court’s assessment of credibility. Judge De La Cruz did consider Matar’s conduct during discovery and found he had a history of flouting court orders and not complying with discovery. The record supports those findings.

Judge De La Cruz also, if not primarily, considered Matar’s conduct at trial and found that Matar “lacks complete and utter credibility in most of all testimony provided.” Judge De La Cruz, as the trier of fact in a bench trial, was “the ultimate judge of the weight and credibility of witness testimony.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc. (2016) 6 Cal.App.5th 1258, 1276.) Matar argues, “n going through the transcripts, nowhere does [Matar] come off dodgy or evasive.” But that is precisely why, in a bench trial, witness credibility is left to the trial court: The trial court, unlike the appellate court, can hear and observe a witness testify and therefore is able to consider vocal inflection, facial expressions, demeanor, and other visual and aural factors affecting credibility. A bare transcript divulges few if any of such nuances. We have no basis or reason to second‑guess Judge De La Cruz’s assessment that Matar completely lacked credibility.

Matar does not explain in his appellate brief what credits and reimbursements he was seeking. It seems he might have been seeking credits pursuant to [i]In re Marriage of Epstein, supra, 24 Cal.3d at pages 84‑85, but he does not say so and does not cite that case or any other authority in support of his argument. By failing to cite authority, Matar has forfeited the argument. (Rule 8.204(a)(1)(B); see Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418‑419.)

Further, Matar offers no citations to the reporter’s transcript to show that he requested reimbursements or credits at trial or that he testified to any outlays for which he claims he is entitled to reimbursement or credit. The judgment includes no finding or decisions regarding reimbursements or credits for prior outlays, and Matar did not object to the judgment.

VII. The Trial Court Did Not Err by Awarding
Kanj Attorney Fees

Kanj requested attorney fees in the amount of $49,657; the trial court awarded her $37,243. That amount included the unpaid discovery sanctions of $1,950. The court based the award on “‘need and ability’” pursuant to Family Code section 2030 and found (1) no prior attorney fees orders had been entered other than the order imposing discovery sanctions on Matar and (2) Matar had the ability to pay the fees ordered.

Family Code section 2030 authorizes a trial court to order one party in a marital dissolution proceeding to pay the other party attorney fees in whatever amount is necessary to maintain or defend the proceeding. (Fam. Code, § 2030, subd. (a)(1).) When a request for attorney fees is made, the court “shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.” (Id., § 2030, subd. (a)(2).) In determining whether to award attorney fees under section 2030, the trial court must consider “the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [Family Code] Section 4320.” (Id., § 2032, subd. (b).)

We review an award of attorney fees made pursuant to Family Code section 2030 under the abuse of discretion standard. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 111-112.) “We will not disturb the award on appeal absent a clear showing of abuse, e.g., a clear showing no judge could have reasonably made the award.” (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 903.)

Matar suggests the trial court’s award of attorney fees was really a sanction under Family Code section 271. He quotes section 271 and contends an award of attorney fees under that section was unjustified because he did not obstruct resolution of the proceeding. Although the trial court stated on the record it was awarding attorney fees pursuant to both Family Code sections 2030 and 271, the court later issued a minute order removing the citation to section 271, and the judgment states the award is based only on “‘need and ability’ through Family Code § 2030.”

Matar claims Kanj did not need attorney fees pursuant to Family Code section 2030 because she was earning $6,000 per month in 2017, received social services of $1,250 from mid‑2018 through early 2019, and from April 2019 up to the time of trial had an income from salary and other sources of nearly $11,000 per month. Matar’s description of Kanj’s income has one significant omission: From mid‑2018 through March 2019 Kanj’s only income was $1,250 in social services.

The trial court imputed income to Matar of $13,000 per month since April 2018. He argues the court erred by striking his income and expense statement from October 2019 in which claimed no income by leaving the line for income blank. Soon after trial commenced, the trial court struck that income and expense declaration on the ground the Orange County Superior Court rules do not permit any blank spaces. Matar acknowledges “[t]he rule may be correct” but claims “it is a trap for [in pro per] litigants.”

If the trial court erred by striking Matar’s income and expense statement, the error was harmless. The trial court considered the income and expense statement and testimony by Matar that he had had no income since April 2018. The court found Matar’s testimony to be “lacking credibility” and imputed monthly income to him of $13,000. The trial court was the sole judge of witness credibility (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc., supra, 6 Cal.App.5th at p. 1276) and had the inherent authority to disbelieve Matar and disregard his testimony if there were any rational ground for doing so (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582). Evidence of Matar’s high income before April 2018, his talents and skills, his ability to form and operate profitable businesses, and his formation of a new company upon the demise of APT provided rational grounds for the court to disbelieve his testimony that he had no income whatsoever after April 2018.

Matar contends his inability to present exhibits at trial “hampered his ability” to prove he had no income. He does not identify which of his exhibits he would have presented to prove that point. He was able to testify that he had no income after April 2018. More to the point, the trial court did not find that Matar had in fact a certain level of income, rather, the court imputed income to him.

We find it disturbing that Matar challenges and seeks to overturn the entire attorney fees award of $37,243. The attorney fee award included $1,950 in unpaid discovery sanctions that Matar should have paid long ago. The section of Matar’s appellate brief addressing attorney fees does not mention those unpaid discovery sanctions or their inclusion in the fee award. The continued refusal by Matar to pay the discovery sanctions, his lack of candor about them, and his disguised effort to induce us to overturn them on appeal, tend to confirm the accuracy of the trial court’s assessment of his credibility.

Given the discrepancy between Kanj’s income and Matar’s imputed income, we conclude the court did not abuse its discretion by awarding Kanj attorney fees under Family Code section 2030.

DISPOSITION

The judgment on reserved issues is affirmed. Respondent to recover costs on appeal.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.

[1] Kanj, who is Matar’s ex-wife, did not file a respondent’s brief and has not otherwise appeared in this appeal.

[2] From this point forward, we use the formal and more appropriate term “trial court” or “court” except when it is necessary to distinguish between Judge Silbar and Judge De La Cruz.

[3] Code of Civil Procedure section 177.5 states: “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both. [¶] Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

[4] Code of Civil Procedure section 575.2, subdivision (a) states: “Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.” (Italics added.)

[5] For example, local rule 3.25(f)(1) of the Los Angeles Superior Court provides: “At least five days prior to the final status conference, counsel must serve and file lists of pre‑marked exhibits to be used at trial (Local Rules 3.151, 3.53, and 3.149), jury instruction requests, trial witness lists, and a proposed short statement of the case to be read to the jury panel explaining the case. Failure to exchange and file these items may result in not being able to call witnesses, present exhibits at trial, or have a jury trial.” (www.lacourt.org/courtrules...RulesPDF/Chap3.pdf#page=27.) The Standing Order, in stark contrast, authorizes only a monetary sanction pursuant to Code of Civil Procedure section 177.5.

[6] Matar also mentions “additional evidence” presented in his opposition to Kanj’s motion in limine. He does not identify what that additional evidence is. The court ordered Matar’s opposition be stricken.

[7] AED is the alpha code for the currency of the United Arab Emirates, the UAE dirham.

[8] The APT Valuation was received into evidence as trial exhibit No. 23. Matar’s counsel did not comply with rule 8.224(a)(1) of the California Rules of Court and did not secure timely transmission to us of the trial exhibits. Less than two weeks before oral argument, Matar’s counsel lodged the trial exhibits with this court and requested we approve this late lodging. We did not make a finding of good cause but granted the request out of an abundance of caution.

[9] Some content of Spectra’s bank statements came into evidence through Kanj’s testimony. Matar asked Kanj whether those statements showed that Spectra had receivables of $778,087. She responded, “Yes, probably. I don’t know.”