Filed 11/8/22 Greenberg v. Daunch CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Nevada)
----
SHAWN LAKSMI GREENBERG, C090051
Plaintiff and Respondent, (Super. Ct. No. FL15011924)
v.
DAVID DAUNCH,
Defendant and Appellant;
SIERRA NEVADA REGIONAL DEPARTMENT
OF CHILD SUPPORT SERVICES,
Intervener and Respondent.
Appellant David Daunch appeals in propria persona from the trial court’s April
2019 child support order and May 2019 order denying relief from said order. Daunch
claims the trial court erred by, inter alia: (a) disregarding relevant statutes when
calculating the amount of child support, (b) denying Daunch’s motion for relief from the
child support order, (c) failing to provide Daunch “neutral . . . guidance,” and (d)
1
“prohibiting [Daunch] from completely answering” questions the trial court posed to him
at the hearing on the motion for relief. We affirm, concluding the first claim is forfeited
on appeal because Daunch has not demonstrated he raised it properly in the trial court,
and the remaining claims lack merit.
FACTS AND PROCEDURAL HISTORY
In January 2019, Sierra Nevada Regional Department of Child Support Services
(DCSS) filed in the trial court a motion, on Daunch’s behalf, to modify a prior order that
required Daunch to pay $430 monthly to Shawn Greenberg in support for their minor
child.
DCSS explained that Daunch “request[ed] modification due to changes in
employment and ability to work for health reasons.” In an income and expense
declaration filed in January 2019 under penalty of perjury, Daunch represented: (a) he
had been unemployed “since [his] accident” a year earlier, (b) “public assistance,” in the
amount of $175 per month, was the only source of his monthly income in the last year,
and (c) he had been using credit cards and loans to pay his expenses.
A hearing began on March 14, 2019.
The trial court and the parties addressed some procedural matters at the beginning
of the hearing. “First off,” the trial court said, “Mr. Daunch, you had filed a Request for
Order . . . to compel Ms. Greenberg’s deposition and Request for Production of
Documents. . . . Did it resolve?” “It’s not resolved,” Daunch replied, “but . . . the
documents . . . I have in essence support some of my conclusions and the time, effort and
hassle is not worth it.” “All right,” the trial court responded, “[t]hen that Request for
Order is dropped.”
The next procedural matter was Daunch’s motion to quash a subpoena served on a
cabinetry business that Daunch occasionally did work for. The trial court addressed
Daunch: “[Y]ou have filed on March 12th, a Motion to Quash the . . . subpoena . . . is
that correct?” “Yes, Your Honor,” Daunch answered.
2
The trial court observed there was no order shortening time for Daunch’s motion
to quash, and asked Daunch why he filed the motion “on such shortened time” (two days
before the hearing). Daunch admitted there was no order shortening time, and provided
an explanation why that was the case. The trial court then denied Daunch’s motion to
quash, explaining: “[Y]ou did not receive an order shortening time, so your motion itself
is untimely. In addition, the date for production of the information has already passed
and so the time in which to oppose it has also passed.”
Those preliminary matters having been resolved, the contested evidentiary portion
of the hearing commenced. According to the trial court, “[t]he primary issue . . . was
[Daunch’s] income during . . . calendar year 2018 and ongoing.”
DCSS called as a witness the office manager for a custom cabinetry business,
Cabinet Company, Incorporated (CCI), who testified that at different times between 2017
and 2018 Daunch worked either as an employee of or as a subcontractor for the business.
The office manager also testified that while working as a subcontractor for the business,
Daunch presented the business with copies of new W-9 forms, one in the name of
Engram, Inc., Wood Skill and Company, and asked the office manager to use the new W-
9 on his 1099 records that were being submitted for 2018. This meant that the income
that Daunch received as a subcontractor for CCI was being reported under a corporation
called Engram, Inc. The office manager also testified that “the day prior to” the
evidentiary hearing, Daunch told her “that although she was subpoenaed to appear at
trial, she did not need to attend.”
After DCSS and Greenberg presented their evidence the trial court observed it was
4:30 pm, and it did “not want [Daunch] to have to rush through [his] response” to DCSS
and Greenberg. “I believe . . . this is . . . going to go to another day,” the trial court said
to Daunch. “So that your testimony is not divided in half . . . the [c]ourt would like to set
the second day and set the testimony to begin then.” The trial court continued the
evidentiary hearing to April 4, 2019.
3
The trial court and the parties then discussed some logistical matters, including
Daunch’s exhibits that were “not in proper filing format,” according to the trial court.
The trial court explained to Daunch: “You can’t have it both on the left and the
right of a single folder. They need to be individual and numbered or at least in
categories. My clerk will return your folder to you and you can put them in the proper
filing format for April.” Later, the trial court explained Daunch could prepare his
exhibits “similar to how Ms. Greenberg did her[ ] [exhibits]. She put the exhibit list on
the front and made it all one document in the proper order . . . .” The trial court ordered
Daunch to provide copies of the “properly formatted exhibit list” to DCSS and Greenberg
by March 28.
Daunch failed to appear on April 4, 2019, and failed to inform the trial court that
he would not be present. The trial court took the matter under submission on the
evidence presented.
In a written ruling issued on April 5, 2019, the trial court ordered Daunch to pay
$458 in monthly child support. The trial court found DCSS’s witness “exceptional,” and
explained that her testimony, along with supporting business records, “directly
contradict[ed] . . . Daunch’s statements under penalty of perjury that he last worked on
[January 27, 2018].” The trial court also explained that Daunch’s monthly “earned wages
. . . self-employment income . . . and the public benefits” each were factors in the trial
court’s new child support order.
Also in that ruling, the trial court declared its intention to “refer th[e] matter to the
District Attorney’s Office to determine if they wish[ed] to prosecute [Daunch] for witness
tampering and/or perjury.”
Following the issuance of the trial court’s written ruling, Daunch filed a request to
continue the April 4 hearing. His request indicated that he had missed the April 4 hearing
date because he had been hospitalized. The trial court denied this request on April 15.
4
Daunch filed a pleading labeled “Motion to Reconsider Default Ruling on
Submitted Matter of 4/15/19 for Responent’s [sic] Request to Modify Child Support Filed
12/18/18,” wherein he invoked Code of Civil Procedure sections 1008, subdivision (a)1
(motion to reconsider based upon new or different facts, circumstances, or law) and 473,
subdivision (b) (relief from an order due to mistake, inadvertence, surprise, or excusable
neglect), and asked the trial court to “order the [e]evidentiary [h]earing to continue as
originally planned.” In his memorandum of points and authorities, Daunch argued “a
medical emergency occurred” while he was “en route” to the second day of the
evidentiary hearing, and he had tried to inform the trial court of the emergency. Daunch
submitted a 14-page declaration in support. The trial court set the matter for hearing on
May 23, 2019.
The trial court denied relief at the May 2019 hearing, indicating it denied relief
under section 1008, subdivision (a), because Daunch’s motion introduced “new facts”
about a procedural issue (his failure to appear), whereas the principle of “new facts or
new law not available at the time of the hearing” contemplated in section 1008 is
concerned with the merits of the matter; and denied relief under section 473, subdivision
(b), because there was “no mistake, no inadvertence, and no excusable neglect,” as
Daunch’s “statements [we]re disingenuous . . . and [the trial court was] very concerned
that [Daunch was] gaming the system.”
Daunch appealed.2
1 Further undesignated statutory references are to the Code of Civil Procedure.
2 This appeal was filed on July 24, 2019. Subsequently, Daunch requested and was
granted 13 extensions of time to file his opening brief. The case was fully briefed on
July 14, 2022, and was assigned to this panel on July 25, 2022. One note about the notice
of appeal: Daunch designated the order issued at the May 23, 2019 hearing as the order
he was appealing from. In his opening brief he indicates he is appealing from the
5
DISCUSSION
Daunch is proceeding in propria persona. His pleadings and papers should thus be
liberally construed in order to assure he receives a hearing on the merits. (See People v.
Reyes (1969) 273 Cal.App.2d 769, 770; People v. Mitchell (1962) 209 Cal.App.2d 312,
315.) But a party proceeding in propria persona is entitled “to no greater privilege or
advantage than that given to one represented by counsel.” (Deauville v. Hall (1961)
188 Cal.App.2d 535, 547.) “[I]in electing to represent himself ‘he assumes for all
purposes connected with his case, and must be prepared to be treated as having, the
qualifications and responsibilities concomitant with the role he has undertaken; he is not
entitled either to privileges and indulgences not accorded attorneys or to privileges and
indulgences not accorded defendants who are represented by counsel.’ ” (Ibid.) Thus,
although the court will liberally construe an appellant’s pleadings and papers, it cannot
excuse a failure of pleading or argument.3
A. Calculation of Child Support
Daunch argues the trial court “disregarded statute when calculating support.”
Specifically, Daunch contends the trial court improperly considered “public food
assistance” he was receiving “in direct contradiction of” Family Code section 4058,
subdivision (c),4 and improperly calculated his “gross receipts” from his business
“without . . . considering . . . expenditures required for . . . operation of the business.”
Daunch did not raise these contentions either at the evidentiary hearing or in his
memorandum of points and authorities in support of his motion to reconsider. Daunch’s
May 23, 2019 order and the order issued on April 5, 2019. We will address both of these
orders in this appeal.
3 Respondents did not file briefs.
4 Family Code section 4058, subdivision (c) excludes “income derived from any public
assistance program, eligibility for which is based on a determination of need” from the
“annual gross income” of a parent when a trial court considers child support calculations.
6
declaration in support of his motion to reconsider alludes to these contentions. But
fairness dictates all arguments must be presented in the memorandum of points and
authorities. A memorandum of points and authorities “must contain a statement of facts,
a concise statement of the law, evidence and arguments relied on, and a discussion of the
statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of
Court, rule 3.1113(b).) A trial court may decline to consider an argument that does not
comply with rule 3.1113. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc.
(2011) 197 Cal.App.4th 927, 932-933; Black v. Financial Freedom Senior Funding Corp.
(2001) 92 Cal.App.4th 917, 925, fn. 9.) Here, the trial court had discretion to ignore
arguments that Daunch did not properly present in his memorandum of points and
authorities in support of his motion to reconsider. “ ‘For better or worse, California child
support law now resembles determinate sentencing in the criminal law: The actual
calculation required of the trial judge has been made so complicated [citation] that, to
conserve judicial resources, any errors must be brought to the trial court’s attention at the
trial level while the [theoretical] error can still be expeditiously corrected. [Citation.]’ ”
(In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 37.)
Because Daunch has not demonstrated he properly raised these contentions to the
trial court, they are forfeited on appeal.
B. Failure to Provide Daunch Guidance
Daunch argues the trial court “abused its discretion in disregarding it’s [sic] role
and responsibility to . . . afford the litigant accurate neutral non-prejudicial guidance that
would lead to a fair trial.” In support, Daunch invokes a canon of judicial ethics
concerning a party’s “ ‘full right to be heard’ ” and cites out-of-state cases directing
courts to be “lenient” and “solicitous” of self-represented litigants.
Nothing in the record suggests the trial court failed to afford Daunch a fair hearing
on the merits of either the motion to modify child support or the motion for relief from
the trial court’s April 2019 ruling. Rather, the record reflects the trial court considered all
7
evidence properly before it when it ordered Daunch to pay $458 in monthly child
support, and denied the motion for relief from that ruling after determining Daunch was
“disingenuous” about his failure to appear.
Daunch argues the trial court erred by “prohibit[ing] him from completely
answering the questions” posed to him at the hearing on the motion for relief from the
April 2019 ruling. But our reading of the transcript of that hearing reflects nothing of the
sort. The trial court gave Daunch ample opportunity to make arguments germane to the
pending motion when it was his turn to speak.
On one occasion during the hearing, when counsel for DCSS was speaking, the
trial court twice told Daunch it was not his turn to speak. At another juncture, after
Daunch articulated his “objections to [counsel for DCSS’s] characterization” (in what
appears as a five-paragraph monologue in the reporter’s transcript), the trial court
interjected: “Let me stop you. Again, you are going to the merits of the motion to
modify and what your income was. We are focusing on whether or not your grounds for
the motion of . . . excusable neglect are sufficient to set aside my ruling and to allow a
reopening of the evidence.” On this record we do not agree that the trial court did not
afford Daunch full and fair opportunity to make his arguments.
C. Motion to Reconsider
Daunch contends the trial court abused its discretion by denying his motion for
relief from the April 2019 ruling because he had “ ‘new facts’ . . . the [c]ourt had not yet
heard,” and demonstrated he was unable to attend the second day of the evidentiary
hearing due to “excusable neglect.” We disagree.
The trial court properly denied relief under section 1008, subdivision (a), as
Daunch’s “new facts” concerned a procedural matter (Daunch’s failure to appear) not the
underlying merits of the child support order. (Cf. Gilberd v. AC Transit (1995)
32 Cal.App.4th 1494, 1500 [rejecting an “interpretation of section 1008 that a ‘new’ or
8
‘different’ fact or circumstance wholly collateral to the merits of the” underlying matter
“is sufficient to warrant reconsideration”].)
The trial court did not abuse its discretion in denying relief under section 473,
subdivision (b), after finding Daunch “disingenuous” regarding his failure to appear. (Cf.
Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354-1355
[“ ‘Excusable neglect’ ” for purposes of § 473, subd. (b) is error “ ‘ “ ‘a reasonably
prudent person under the same or similar circumstances might have made’ ” ’ ” (italics
omitted)].)
D. Miscellaneous Arguments
Daunch’s remaining arguments of trial court error that arguably are properly
presented (regarding a motion to compel, a subpoena duces tecum, and “instructions” the
trial court provided to him concerning exhibits for the evidentiary hearing) all lack merit.
The trial court did not “neglect[ ] to address” Daunch’s motion to compel
Greenberg to provide documents. When the trial court asked Daunch about that motion
at the beginning of the March 14 hearing, Daunch said “the time, effort and hassle [wa]s
not worth it.” “All right,” the trial court responded, “[t]hen that Request for Order is
dropped.”
The trial court did not abuse its discretion by denying Daunch’s motion to quash
the subpoena of documents possessed by the nonparty cabinetry business. The trial court
explained it denied that motion, in part, because “the date for production of the
information ha[d] already passed and so the time in which to oppose it . . . passed.” That
was a straightforward application of the language of section 1985.3, subdivision (g),
which contemplates a motion to quash a subpoena duces tecum “prior to the date for
production.” (See § 1985.3, subd. (g).)
Daunch suggests exhibits he brought to the March 14 hearing are not part of the
trial court record because the trial court “gave incomplete instructions” to him regarding
9
the proper format for those exhibits. Not so. The trial court’s instructions were clear.
The exhibits are not in the record because Daunch did not appear (with the
properly formatted exhibits) on the second day of the hearing.
DISPOSITION
The judgment (order) is affirmed.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
KRAUSE, J.
10