Marriage of Levy CA2/8

Filed 3/25/22 Marriage of Levy CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Marriage of ALLISON and B306211
MICHAEL LEVY.
________________________________ (Los Angeles County
Super. Ct. No. BD627940)
ALLISON LEVY LIN,

Respondent,

v.

MICHAEL LEVY,

Appellant;

LOS ANGELES COUNTY CHILD
SUPPORT SERVICES
DEPARTMENT,

Intervenor.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Juhas, Judge. Affirmed.

Michael Levy, in pro. per., for Appellant.
 Silver and Arsht, Samuel J. Arsht, Jeffrey A. Meinhardt
and Marsha C. Brilliant for Respondent.

No appearance for Intervener.
_________________________

INTRODUCTION
Michael Levy (Michael) appeals from the March 18, 2020
judgment on reserved issues in his dissolution of marriage case
against his now former wife Allison Levy Lin (Allison).1
Michael raises seven issues on appeal. We address only
three of his seven contentions, as he did not provide sufficient
argument, legal authority, and an adequate record on appeal to
support his remaining contentions.
We affirm the judgment on reserved issues.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
Michael and Allison married on November 28, 2003. They
have three minor children.
In 2014, the parties purchased their family residence in
Calabasas, California (the Calabasas home), with financial
assistance in the amount of $1.4 million from Allison’s parents—
Dr. Jack and Betty Lin (Lins). At close of escrow, the Calabasas
home was held 99 percent in Allison’s name and 1 percent in
Michael’s name. Soon after, the Levys “re-titled” the property
without informing the Lins; the new deed provided the Calabasas
home “is now held as community property.”

1 We refer to the parties individually by their first names
and collectively as the Levys.

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 In 2015, Allison filed a petition in Los Angeles Superior
Court for dissolution of her marriage (case No. BD627940).
Thereafter, Michael moved out of their Calabasas home, while
Allison continued to reside there with the couple’s children.
In 2016, while divorce proceedings were ongoing, Allison’s
parents filed a civil action against Michael and Allison in Los
Angeles Superior Court (case No. LC103980).
We discuss relevant facts about the civil action and
dissolution action in turn.
B. The Civil Action
We glean the following information from the civil court’s
final statement of decision (filed July 6, 2018) and resulting
judgment (filed September 25, 2018) — as these are the only two
documents from the civil action in the record before us.
The Lins asserted causes of action for beach of oral
contract, common counts, unjust enrichment, fraud, and
promissory estoppel against Michael and Allison. The Lins
alleged: In their efforts to “enable their daughter and her
husband to buy a larger house in Calabasas, California, where
the Lins . . . lived,” they “paid more than $1.4 million to facilitate
the Levys[’] purchase of [the Calabasas home].” The Levys never
repaid the $1.4 million. The dispute in the civil action was “the
product of the parties’ conflicting contentions regarding how
much of the sum of $1.4 million represented a loan, and how
much represented a gift. This did not become a legal issue
between the parties until Allison and Michael became entangled
in their divorce proceedings.”
The Lins argued the entire $1.4 million represented a loan
that the Levys must pay back, while Michael argued via his cross
complaint that the entire $1.4 million was a gift from the Lins to

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the Levys. His cross complaint against Allison and the Lins
alleged causes of action for declaratory relief, equitable
indemnity, fraud, and conspiracy.
Allison defaulted on her parents’ complaint; she “agree[d]
with her parents the entire $1.4 million is a loan, and that she
owes her parents that amount.” She, however, answered
Michael’s cross complaint and disputed that Michael had any
indemnity claim against her in the event he owed monies to the
Lins.
Disputed issues were tried from April 16, 2018 through
April 24, 2018. The civil court issued its lengthy final statement
of decision on July 6, 2018 and made the following findings:
The court found “$775,000 of the $1.4 million was a gift” by
the Lins to Allison. “The remainder, $625,000, was a loan from
the Lins to the Levys.” The court found “there was a contract,
and that it was breached by the failure to repay the $625,000.”
The court deemed the Levys “jointly and severally responsible to
repay this loan. It is a community debt.” The Lins were not
awarded any pre-judgment interest.
With regard to the Lins’ cause of action for fraud against
the Levys, the court found: Allison “was a participant in the
transactions that the Lins allege to be fraudulent, but she
testified that she converted the [Calabasas home] to community
property because [Michael] threatened divorce.” The court did
“not believe that she was coerced by this threat. She held power
and agency in the relationship, due in part to her parents’
ongoing financial support. For example, she was the one who
eventually filed for divorce.” Additionally, her recharacterizing
the Calabasas home “into . . . community property was not

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induced by coercion and fraud. Thus, if there were a finding of
fraud, she would bear equal responsibility” with Michael.
Based on the foregoing findings, the court ruled: 1) in favor
of the Lins and against the Levys, jointly and severally, in the
amount of $625,000 on the breach of contract claim; 2) in favor of
Michael and against the Lins on the fraud cause of action; 3) in
favor of Michael as to declaratory relief that $775,000 of the
$1.4 million was a gift; and 4) in favor of Allison and the Lins and
against Michael on the equitable indemnity claim.
C. The Dissolution Action
Two trials took place before the family court. We were
provided the reporter’s transcript for the second trial only. We
must also note the record before us includes very few documents
from the dissolution action.
Trial was set to begin on October 10, 2018. One day before
the commencement of trial, Michael filed a voluntary Chapter 11
bankruptcy petition in bankruptcy court. This triggered an
automatic stay that required the family court to reserve
jurisdiction on all property, accounting, reimbursement, credit,
and breach of fiduciary duty issues (collectively, the reserved
issues). As a result, the first trial dealt only with issues of child
custody, child support, spousal support, and support arrearages.
It lasted four days—October 10, 11, 12 and 23, 2018.
On February 27, 2019, the court filed and entered a
judgment of dissolution (judgment). It awarded both parties joint
physical custody of their children, and made orders on child and
spousal support and arrearages. It also made findings and orders
as to the children’s health insurance expenses. “Pursuant to
Family Code § 4062, as additional child support, any reasonable
and necessary health care expenses not covered by insurance,

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including medical, pharmaceutical, vision, dental, orthodontic
and mental health costs, of the minor child[ren], including but
not limited to, excluded, excess and uncovered expenses, health
insurance coverage for the minor child[ren] and deductible co-
payment amounts, shall be paid fifty percent (50%) by [Allison]
and fifty percent (50%) by [Michael].” (Italics added.)
The judgment also included an attachment giving the
Levys “notice of rights and responsibilities” about their children’s
“health-care costs and reimbursement procedures.” The notice
provides: “If the court-ordered coverage designates a preferred
health-care provider, that provider must be used at all times
consistent with the terms of the health insurance policy. When
any party uses a health-care provider other than the preferred
provider, any health-care costs that would have been paid by the
preferred health provider if that provider had been used must be
the sole responsibility of the party incurring those costs.” (Italics
added.)
The second trial took place on December 11, 12, and 13,
2019, and dealt with the reserved issues not addressed in the
first trial. On March 18, 2020, the court filed and entered a
further judgment on reserved issues (further judgment), which
provided in relevant part:
All right, title, and interest to the community property
Calabasas home was awarded to Allison as her sole and separate
property, “together with all debts and liabilities with a
community property value of $462,000, subject to equalization.”
Allison was deemed responsible for the mortgage and property
tax obligations moving forward. The community property loan
from the Lins in the sum of $625,000 pursuant to the civil court’s
judgment was deemed Allison’s “sole and separate property debt,

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subject to equalization,” and $775,000 of the $1.4 million loan
from Allison’s parents was awarded to Allison as her sole and
separate property (per Fam. Code, § 2640).
The court found Michael “breached his fiduciary duties” to
Allison and charged Michael “with a total of $154,402 in
unauthorized post-separation withdrawals of community funds
during marriage, subject to reimbursement.”
The court also found Michael owed Allison “the sum of
$15,360 in unreimbursed health care expenses for the minor
children for the period [of] January 1, 2018 through September
30, 2019, subject to equalization.” Attached to the further
judgment was the same notice attached to the first judgment
explaining the parties’ “rights and responsibilities” for their
children’s “health-care costs and reimbursement procedures” for
preferred vs. out-of-network health providers.
This appeal followed.
DISCUSSION2
We are mindful Michael is representing himself on appeal;
he “is to be treated like any other party and is entitled to the
same, but no greater consideration than other litigants and
attorneys.” (Barton v. New United Motor Manufacturing, Inc.
(1996) 43 Cal.App.4th 1200, 1210.) He is thus bound to follow
fundamental rules of appellate review, including: “[I]t is a
fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is
on an appellant to demonstrate, on the basis of the record

2 Intervener Los Angeles County Child Support Services
Department notified us on July 6, 2021 that “[a]fter a thorough
review of the appellant’s opening brief and the record on appeal,”
it will not be filing a respondent’s brief.

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presented to the appellate court, that the trial court committed
an error that justifies reversal of the judgment.” (Jameson v.
Desta (2018) 5 Cal.5th 594, 608–609.) “ ‘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 (Denham).)
To overcome this presumption, an appellant must provide a
record that allows for meaningful review of the challenged order.
(Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187.)
Michael’s briefing precludes us from entertaining most of
his arguments on appeal. He failed to include as part of the
record relevant pleadings and documents necessary for our
review of issues he has raised on appeal. He also failed to
present adequate legal discussion and cogent argument with
references to relevant evidence and the appellate record in
general, resulting in a waiver of his arguments.
We address each of Michael’s arguments in the order in
which they are raised in his opening brief.
First, Michael argues the family court “failed to properly
apply the findings made in the civil case that the parties had
equal bargaining power and that there was no coercion in the
negotiations between them,” in its determination on the breach of
spousal fiduciary duty claim. He refers to the following exchange
with the trial court during the trial on reserved issues. Michael
“object[ed], because this is all stuff that came in the civil case and
there’s testimony to this.” The family court replied: “[T]he judge
in the civil case can’t determine a breach of fiduciary duty.
That’s my stuff.” A few minutes later, Michael objected again
and said, “I don’t understand why this is all being presented here

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now when these are all the things that were talked about in the
civil case, and you said you don’t want to retry the civil case.”
The court responded: “I’m not retrying the civil case, but what I
am trying is a breach of fiduciary duty.” Relying on the principle
of collateral estoppel, Michael urges us to reverse the further
judgment because the family court “improperly ruled that
[Michael] had more bargaining power and controlled the
finances” with respect to Allison’s claim for breach of fiduciary
duty.
Michael is mistaken. Among the requirements for
collateral estoppel is a final judgment on the merits of the cause
of action in the previous suit. (Producers Dairy Delivery Co. v.
Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) The civil action did
not include a ruling on any cause of action for breach of fiduciary
duty. Nothing in the record suggests to us that any breach of
fiduciary claim was litigated by Michael and Allison in the civil
action. Michael refers to findings made in the Lins’ action for
fraud against Allison and Michael with respect to the $1.4 million
loan; this has nothing to do with breaches of fiduciary duties
owed between Allison and Michael during marriage.
Determining the issue of whether there was a breach of
fiduciary duty owed between spouses falls within the purview of
the family court’s jurisdiction. Family Code section 1101,
subdivision (f), permits a spouse to sue the other spouse for
breach of fiduciary duty in one of three ways: (1) without filing an
action for dissolution, legal separation, or nullity; (2) “in
conjunction with” an action for dissolution, legal separation, or
nullity; or (3) upon the death of a spouse. (Fam. Code, § 1101,
subd. (f).) Thus, when a dissolution petition has already been
filed, a claim for breach of fiduciary duty under Family Code

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section 1101 must be brought “in conjunction with” that pending
marital dissolution proceeding. Existing law does not permit a
claim for breach of fiduciary duty under Family Code section
1101 to be filed as a separate civil action when a marital
dissolution action is pending. The breach of fiduciary duty claim
in the dissolution action is not collaterally estopped by anything
in the civil court’s judgment.
Second, Michael argues the family court improperly shifted
the burden to prove breach of fiduciary duty from Allison to
Michael. Generally, the spouse claiming a breach of fiduciary
duty (here, Allison) bears the burden of proof as to that claim.
(In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 100; see
Evid. Code, § 500 [“Except as otherwise provided by law, a party
has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or
defense that he is asserting”].) In support of his argument,
Michael refers to a portion of the reporter’s transcript where the
trial court told Michael: “The law puts the burden on you.”
However, Michael is reading the quote out of context.
The trial court was referring to Michael’s burden to show
traceable accounting of the financial figures he alleged during
trial. Another portion of the reporter’s transcript clarifies:
“[W]hat I’m not going to let you do, because it wasn’t timely
disclosed, is now, essentially, do a tracing of how money was
spent and all of that. The burden is on you and that burden
needed to be finalized. [¶] . . . And it would be manifestly unfair
for you now, at this late date, to come in with what is, essentially,
a tracing.”

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 Third, Michael claims the family court erroneously ordered
him to reimburse Allison for one-half of the children’s healthcare
costs which Allison cannot recoup because she opted for
treatment by an out-of-network healthcare provider. Michael
fails, however, to refer to any evidence in the record to support
that claim. Error must be affirmatively shown; all intendments
and presumptions are indulged to uphold the judgment on
matters as to which the record is silent. (Denham, supra,
2 Cal.3d at p. 564.)
Our review of the reporter’s transcripts reveals testimony
about the “[c]hildren’s medical expenses, the detail of [which] can
be found on Schedule 8, which starts with page 16 [of exhibit 11,
the community property balance sheet]. It’s the detail of
children’s medical expenses that were paid out of pocket by
[Allison] supported by documentation that is included in exhibit
15.” None of these relevant exhibits and documents mentioned
were included by Michael as part of the record before us; his
failure to do so forfeits his argument.
We summarize Michael’s fourth and fifth arguments, which
we reject, below.
Michael claims the family court “refused to apply the
finding from the Civil Case to the Family Law Case as to deciding
that the loan was not income for Allison even though she didn’t
have to repay it.”
Next, he “requests [we] address the issues from [the further
judgment] . . . presented in number 1.2.4, 1.2.5, 2.1.2, 2.2, and 7
(excluding child support and spousal support arrearages) . . .
investment and brokerage accounts, 2015 tax refund, PennyMac
Mortgage equalization, [Michael’s] responsibility for debts,

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medical reimbursement, equalization, reimbursement, &
accounting claims.” (Capitalizations omitted.)
Beyond these vague sentences, Michael does not discuss or
elaborate what issues or claims he raises as to the further
judgment. Michael’s failure to present adequate legal authority
and cogent argument with references to the relevant evidence
and the appellate record results in a waiver of these contentions.
(Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th
947, 948; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see
also Cal. Rules of Court, rule 8.204(a)(1)(B) [“support each point
[in a brief] by argument and, if possible, by citation of
authority”].)
Michael raises his sixth and seventh contentions in his
reply brief. As his sixth argument, Michael contends “Mr.
Meinhardt should not be allowed to represent [Allison] in this
appeal, especially since Allison did not fight to defend the
community in the civil matter.” He requests that we “not allow
respondent[’s] brief to be accepted as allowing this is a huge
prejudice against [him].” And finally, Michael requests that we
“augment the record to add the civil court documents” to allow
him “to argue in favor what now will add fraud and perjury by
both [Allison] and [her counsel] Lauren Meinhardt as certain
documents were not admissible in Family Court.”
We do not understand Michael’s confusing and
unintelligible arguments. And we do not ordinarily consider
points raised for the first time in a reply brief “ ‘because such
consideration would deprive the respondent of an opportunity to
counter the argument.’ ” (Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 764.)

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 DISPOSITION
The March 18, 2020 further judgment on reserved issues is
affirmed. Respondent Allison Levy is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

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