Filed 2/25/22 Marriage of Torres CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ADALBERTO 

and GEMMA TORRES.

ADALBERTO TORRES,

Respondent,

v.

GEMMA TORRES,

Appellant.

 D078469

 (Super. Ct. No. DS37815)

APPEAL from an order of the Superior Court of San Diego County, 

Maryann D’Addezio, Judge. Affirmed.

Melissa J. Schmitt for Appellant.

Shelly K. Pawchuk for Respondent.

Gemma Torres appeals a postjudgment order distributing the 

community property interest in her retirement plan and awarding her exhusband, Adalberto Torres, attorney fees and costs as sanctions for breach of 

fiduciary duty. Gemma contends the family court erred by imposing 
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sanctions because Adalberto did not ask for them in his request for order. We 

reject this contention and affirm the order.

BACKGROUND

Adalberto and Gemma divorced in 2010. The judgment of dissolution 

required equal division of the parties’ retirement plans by a qualified 

domestic relations order. When Adalberto submitted such an order to 

Gemma’s employer, the employer informed him it had distributed all the 

funds to Gemma and she no longer had a retirement account. Adalberto filed 

a request for order (RFO) and supporting declaration asking the family court 

to enforce the agreed distribution of retirement funds by awarding him half 

the amount Gemma had listed on a schedule of assets and debts. Gemma 

filed a responsive declaration in which she opposed Adalberto’s request and 

stated she had withdrawn the funds from her retirement account when she 

was laid off and had put them in an individual retirement account (IRA). At 

a hearing on Adalberto’s RFO, the family court continued the hearing to 

allow Gemma to retain counsel and ordered her not to transfer any of the 

funds from her IRA until further order of the court. 

In the meantime, Adalberto obtained records from Gemma’s employer 

that showed she had withdrawn substantially more from the retirement 

account than she had listed on her schedule of assets and debts. Adalberto

therefore filed a supplemental declaration in support of the RFO in which he 

asked for a larger amount of Gemma’s retirement funds and for attorney fees 

as a sanction under Family Code section 271 for her intentional withdrawal 

of the funds belonging to him. Adalberto also filed a memorandum of points 

and authorities in support of the RFO in which he argued Gemma had 

maliciously and fraudulently breached her fiduciary duty to him by 

withdrawing his share of the retirement funds, concealing the withdrawal, 
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and using the funds for her own benefit. He asked the family court to award 

him the entirety of her retirement funds, attorney fees, and costs. (See Fam. 

Code, §§ 721, subd. (b), 1100, subd. (e), 1101, subds. (g), (h).) The 

supplemental declaration and memorandum were served on Gemma.

Approximately one year later, the family court began an evidentiary 

hearing on Adalberto’s RFO that occurred on portions of three days over the 

following year. On the first day, Adalberto’s counsel identified Gemma’s 

breach of fiduciary duty as one of the issues to be addressed, and stated the

evidence would show she maliciously and fraudulently tried to deprive him of 

his share of her retirement funds such that sanctions were warranted. In her 

opening statement, Gemma’s counsel did not object to inclusion of breach of 

fiduciary duty as an issue and instead claimed there was no breach. 

Adalberto’s counsel called Gemma as the first witness and questioned her 

extensively about her management of the retirement funds, including her 

withdrawals and failures to inform Adalberto about them. Gemma’s counsel 

did not object to this line of questioning. The second and third days of the 

hearing were not transcribed by a court reporter. 

The family court heard arguments on the last day of the hearing, took 

the matter under submission, and later issued its findings and order after 

hearing. The court found the issue of whether Gemma had breached her 

fiduciary duty to Adalberto was properly before it and found she had done so, 

but not with fraud or malice. The court awarded Adalberto half of the 

community property interest in Gemma’s retirement account, plus $28,000 

for attorney fees and $2,000 for court reporter costs. 

DISCUSSION

Gemma raises a single question on appeal: “Did the [family court] err 

when it ordered [her] to pay [Adalberto] $30,000.00 in attorney fees and 
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reporter’s costs for breach of fiduciary duty when [he] did not plead for 

attorney fees and costs and/or breach of fiduciary duty in [his] moving 

papers?” Answering “yes,” Gemma contends the order violated her right to

due process of law because Adalberto’s RFO and accompanying declaration 

provided no notice he was seeking relief for breach of fiduciary duty, the RFO 

was never amended, and the defect was not cured by his additional filings or 

the evidentiary hearing. We disagree.

The general rule is that a notice of motion must state the relief being 

sought and the grounds for relief. (Code Civ. Proc., § 1010; Cal. Rules of 

Court, rule 3.1110(a).) This requirement applies in family law proceedings 

(Fam. Code, § 210; Cal. Rules of Court, rule 5.2(d)), where an RFO operates 

as a motion and notice of motion (Cal. Rules of Court, rule 5.92(a)(1)(A)). 

Because due process of law requires a party be given notice and opportunity 

to be heard before relief is granted against the party (Midway Venture LLC v. 

County of San Diego (2021) 60 Cal.App.5th 58, 77-78; Moore v. California 

Minerals etc. Corp. (1953) 115 Cal.App.2d 834, 836-837 (Moore)), a court 

generally may consider only the grounds for relief specified in the notice of 

motion (366-386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 

1186, 1199). That rule is not absolute, however. The failure to include a 

ground in the notice does not preclude relief on that ground if it was specified

in the supporting papers or was raised without objection at the hearing on 

the motion. (Fredrickson v. Superior Court (1952) 38 Cal.2d 593, 598

(Fredrickson); Lohman v. Lohman (1946) 29 Cal.2d 144, 151; Kinda v. 

Carpenter (2016) 247 Cal.App.4th 1268, 1277 (Kinda); Luri v. Greenwald 

(2003) 107 Cal.App.4th 1119, 1126-1127 (Luri).)

This case falls within the exceptions that allow a court to award relief 

not specified in a notice of motion. Adalberto’s failure to include a request for 
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attorney fees and costs for Gemma’s breach of fiduciary duty in the RFO and 

accompanying declaration can be excused because Adalberto did not know 

about the breach when he filed those papers. He discovered it when he later 

obtained Gemma’s retirement account records from her former employer. 

Adalberto then filed a supplemental declaration and a memorandum of points 

and authorities accusing Gemma of breach of fiduciary duty, requesting

attorney fees and costs, and citing statutory and case law supporting the 

request. Adalberto served these papers on Gemma more than 11 months 

before the evidentiary hearing started. Since the additional supporting 

papers “sufficiently define[d] the issues for the information and attention of 

the adverse party and the court” (Hernandez v. National Dairy Products 

(1954) 126 Cal.App.2d 490, 493), the family court could “treat the supporting 

papers as curing the defective notice” (Luri, supra, 107 Cal.App.4th at 

p. 1127). Indeed, the family court determined that filing the additional 

supporting papers was the “functional equivalent” of amending the RFO to 

seek attorney fees and costs for breach of fiduciary duty. Gemma’s demand 

for an amended RFO was therefore effectively met. (See Civ. Code, § 3528 

[“The law respects form less than substance”].)

The exception for granting relief on a ground raised without objection 

at a hearing on a motion also applies. On the first day of the evidentiary 

hearing, the only day on which a court reporter was present, Adalberto’s 

counsel made an opening statement on Gemma’s breach of fiduciary duty and 

extensively questioned her on that issue without objection from Gemma’s 

counsel. Gemma contends her “counsel did raise an objection during 

unrecorded proceedings” (italics added), but without a reporter’s transcript or 

settled statement containing the objection, she has not preserved the 

contention for appeal and we must resolve it against her. (Jameson v. Desta 
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(2018) 5 Cal.5th 594, 609; In re Marriage of Obrecht (2016) 245 Cal.App.4th 

1, 8-9.) Gemma’s counsel made an opening statement in which she disputed 

the allegations of breach of fiduciary duty, claiming there was no 

nondisclosure concerning the retirement account and adequate funds had 

been maintained to pay Adalberto his share. The family court’s findings and 

order after hearing indicate Gemma presented evidence and argument on the 

issue later in the hearing. It thus appears Gemma had a fair opportunity to 

litigate the breach of fiduciary duty claim and related remedies and may not 

now complain their omission from the RFO deprived her of that opportunity. 

(Fredrickson, supra, 38 Cal.2d at p. 598; Kinda, supra, 247 Cal.App.4th at p. 

1278.)

Finally, we reject Gemma’s argument the family court erred by relying 

on Moore, supra, 115 Cal.App.2d 834, for the proposition that “[d]ue process 

requires affording a litigant a reasonable opportunity, by continuance or 

otherwise, to respond to evidence or argument that is new, surprising, and 

relevant.” In Moore, the Court of Appeal reversed a judgment on the 

pleadings against the defendant when the plaintiff had made no such motion; 

the “ruling came as a surprise to defense counsel, who had no opportunity to 

point out the sufficiency of the answer to raise an issue [of fact]”; and the 

“parties were prepared to go to trial, and but for the precipitate and 

unexpected action of the court would have done so.” (Id. at p. 836.) The 

Court of Appeal stated: “Elementary principles of due process support our 

conclusion that if, during a trial, the court, sua sponte, unearths a point of 

law which it deems to be decisive of the cause, the party against whom the 

decision impends has the same right to be heard before the decision is 

announced that he has to produce evidence upon the issues of fact.” (Id. at 

p. 837.) Gemma says Moore “does not apply” because “Adalberto did not ask 
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the [family court] to force [her] to respond to evidence or argument that was 

new, surprising or relevant. [He] asked the [c]ourt to order [her] to pay him 

tens of thousands of dollars i[n] sanctions, a form of relief he did not seek in 

his moving papers.” Due process, however, is not about forcing a party to 

respond to evidence or argument before judicial action is taken against the 

party. It is about giving the party notice of the requested action and an 

opportunity to be heard before the action is taken. That was the point the 

family court was making by citing Moore, and we agree with its conclusion 

the post-RFO papers Adalberto filed and served to request attorney fees and 

costs for Gemma’s breach of fiduciary duty and the evidentiary hearing on 

those matters satisfied due process requirements.

DISPOSITION

The order is affirmed. Respondent is entitled to recover his costs on

appeal. 

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.