1

Filed 4/9/15 Marriage of Honer CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

In re the Marriage of PENNY and 

THOMAS MITCHELL HONER. 

PENNY HONER, 

 Appellant, 

v. 

THOMAS MITCHELL HONER, 

 Respondent. 

 A137961 

 (Mendocino County Super. Ct. 

 No. SCUK CVFL - 09 54651) 

 At issue in this dissolution of a 27-year marriage are issues of division of 

community property and spousal support. Appellant ex-wife questions the court’s 

valuation of the couple’s two grocery stores because (1) it purportedly used the wrong 

valuation date, (2) it relied on an expert who used the “marital value” of the properties 

rather than the “investment value,” and (3) it denied her posttrial motion to reopen the 

evidence to update the property valuation. She further contests the amount of spousal 

support she was awarded, arguing the court (1) failed to properly determine her exhusband’s ability to pay, (2) failed to consider the parties’ financial disparity, and 

(3) granted her an “illusory” award of a percentage of the ex-husband’s future 

distributions from the family business. Finally, she contends the overall distribution of 

property was not equitable and meaningful. She asks us to reverse the judgment and 

order the matter retried before a different judge. We find no basis for reversal and affirm. 
2

I. BACKGROUND 

 Thomas (Tom) and Penny Honer (Penny) were married in 1982 and separated in 

2009. During their long marriage, Tom and Penny1

 together purchased and built up 

several grocery stores, two of which remained primary marital assets at the time of their 

separation: Harvest Market in Fort Bragg and Harvest Market at Mendosa’s in 

Mendocino (Mendosa’s). The Honers opened Harvest Market in 1985 and acquired 

Mendosa’s in 2006. The businesses were held by Cypress Holdings, Inc. (Cypress 

Holdings), an S corporation. Tom was and is president and CEO of Cypress Holdings 

and Penny was Vice President. 

 The Honers’ markets found success by specializing in an upscale niche for 

specialty foods and natural and organic products. Tom managed the grocery stores, while 

Penny designed the logo, decorated the markets, and took care of administrative tasks, 

such as payroll, billing, advertising, employee training, and customer relations. She also 

computerized their operations and participated in entertaining business contacts. 

 Cypress Holdings paid Tom a base salary of $260,000 per year for his work in the 

markets, and he also earned $18,600 as a director of a bank. Penny did not draw a salary 

from the business, but beginning January 1, 2010 (after separation) she was paid $6,500 

per month as a director. Tom was 64 at the time of trial, in good health, and worked 

fulltime. He testified he intended to work until age 70. At that time, he hoped to pass the 

markets on to his daughter and her husband. 

 After 1997, Penny, who was 58 at the time of trial, was less involved with the 

stores. From 2002 to 2009, she taught elementary school, while continuing to remain 

peripherally involved in the grocery business. In 2009 she was diagnosed with multiple 

sclerosis and has not worked since. Her disease is progressive and may be expected to 

worsen over time.

The couple historically used profits from the grocery stores, rather than borrowed 

funds, to invest in capital expenditures. Though Penny insists they lived below their 

 1

 Because the parties share the same last name, we refer to them by their first 

names for ease of reference. In doing so, we mean no disrespect. 
3

means, they were still able to maintain a comfortable lifestyle, which the court 

characterized as “upper class” and “very nice.” They owned and lived on a 52-acre ranch 

on Gordon Lane in Mendocino, which included a 3,070 square-foot home, a twobedroom apartment, six horses and stables, a paddock, and a two-acre pond. They 

purchased the ranch in 2002 for $1.85 million. 

 The Honers also used business profits to invest in other real estate holdings 

through Spring Pond, LLC (Spring Pond), of which Tom and Penny were equal coowners and Tom was the managing member. In 2006, Spring Pond bought the building 

in which Mendosa’s was housed, and in 2010 added a hardware store to the grocery 

operations. Also in 2006, Spring Pond bought another building in Mendocino, known as 

Paddleford House, which since 2009 or 2010 has housed a veterinary clinic. In 2011, 

Mendosa’s added a pharmacy run by a separate individual who paid rent to Cypress 

Holdings. 

 Spring Pond collected rent from Mendosa’s at the rate of $7,170.15 per week and 

rent of $2,560 per month from the veterinary clinic at Paddleford House ($2,000 after 

expenses). Spring Pond received $332,618 in rent in 2009 and $390,730 in 2010. 

Because of the renovations to the properties in 2010, Spring Pond showed net earnings of 

only $8,212 in that year. 

 In 2009, Spring Pond purchased an acre of undeveloped land known as the Art 

Center for $600,000, with interest payments monthly and principal payable at $100,000 

per year for six years. There was testimony that it might be possible to develop the Art 

Center property with a small housing complex (four to nine units), which could provide 

future income.

 Due to the debt on the property and depressed real estate values, the Honers’ 

equity in the ranch was only $137,832 at the time of trial (the house and ranch being 

valued at $1.01 million). After the separation, Tom continued to live on the ranch, while 

Penny moved to Dallas, Texas to care for her ailing mother. Penny paid $3,800 per 

month for a two-bedroom apartment in Dallas. 
4

 Penny filed for divorce in September 2009. Trial was held before the Honorable 

Cindee Mayfield in December 2011 and January 2012. On April 19, 2012, the court filed 

its statement of decision on the property division and spousal support issues, having 

bifurcated issues relating to attorney fees and costs. 

 In addition to the major assets identified above, the couple owned several 

retirement funds and other assets, making their total net worth $6,667,040, with the assets 

being divided by the court as follows: 

Awarded to Tom: 

a. Cypress Holdings ($3,180,000) 

b. 10501 Lansing Street (housing Mendosa’s) (stipulated to be worth $4,072,500, 

with $1,687,364 in equity) 

c. Gordon Lane (marital residence) ($1,010,000 with $137,832 in equity) 

d. Two Cypress Holdings Profit Sharing plans (total value $424,185, of which 

$207,539 was awarded to Tom) 

Total awarded to Tom after credits and charges: 2

 $4,909,712 

Awarded to Penny: 

a. Paddleford House ($375,000, no debt) 

b. Art Center ($385,000 with $185,000 equity) 

c. Life insurance policy ($180,949) 

d. Three American Funds 401(k) accounts ($430,250) 

e. Two Cypress Holdings Profit Sharing plans (total value $424,185, of which 

$216,647 was awarded to Penny) 

f. Four IRA’s ($60,319) 

Total awarded to Penny (including minor assets and distributions during 

separation): $1,757,329 

 

2 In re Marriage of Epstein (1979) 24 Cal.3d 76, 82–83 [credits]; In re Marriage 

of Watts (1985) 171 Cal.App.3d 366, 372–374 [charges].
5

 In addition, Tom was ordered to pay Penny an equalizing payment of $1,576,192 

within 90 days after judgment. It was understood that Tom would have to borrow “most 

or all” of the money to make the equalizing payment. And finally, the court ordered that 

Penny be paid 20 percent of any distributions made to Tom out of Cypress Holdings 

beyond his base salary of $260,000 annually. When the equalizing payment is 

considered (i.e., deducted from Tom’s award and added to Penny’s), Penny’s total award 

was $3,333,521 and Tom’s award was $3,333,520. 

 On September 10, 2012, Penny moved to reopen the evidence to allow updated 

Cypress Holdings financial statements to be taken into account in dividing the 

community property. Specifically, Penny claimed the profits of Cypress Holdings had 

increased since the business valuations were made and constituted an “undivided asset” 

not included in the court’s April 19 statement of decision. 

 Penny supported her motion with a declaration by her accounting expert, William 

G. Essig, indicating that retained earnings had grown by $400,000 between year-end 

2010 and June 2012. On appeal she asserts that retained earnings had increased steadily 

over the years to $5 million by year-end 2012, near the time of judgment. She also filed a 

declaration by Celeste Plaister, another accountant, who opined that Penny was due 

$429,382 for the period January 1, 2011 to September 30, 2012. The court denied the 

motion to reopen―which it considered “not well founded”―and sanctioned Penny for 

bringing it by requiring her to pay Tom’s attorney fees incurred in opposing the motion 

($21,745.16). 

 The court tried the issue of attorney fees on September 10, 2012. Although Penny 

was awarded $185,000 in fees based on need (§§ 2030, 2032), that amount was partially 

offset by $40,000 in fees awarded to Tom as a sanction for Penny’s conduct increasing 

the costs of the litigation and for her attorneys’ “obstreperous and unprofessional 

conduct.” 

 Judgment was entered December 24, 2012. 
6

II. DISCUSSION 

A. Penny’s Contentions 

 Penny appeals from the judgment and from the court’s order denying her motion 

to reopen the evidence. (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 43 [motion to reopen 

reviewable on appeal from judgment].) Her first complaint about the division of property 

is that the court improperly used an appraisal of Cypress Holdings dating back to 

December 31, 2010, without taking into account changed financial circumstances of the 

company between that time and entry of judgment. She further claims the court 

erroneously accepted Tom’s expert’s valuation of Cypress Holdings which was based on 

“marital value,” rather than “investment value.” 

 Penny’s motion to reopen the evidence was grounded on her theory that the 

retained earnings of Cypress Holdings amounted to a community asset which should have 

been divided equally to the extent it was not needed for reinvestment in the grocery 

stores. She also claims Tom was responsible for proving the need for reinvestment of 

retained earnings. 

 Penny also contends the order of spousal support was inadequate because it did 

not take into account assets of Cypress Holdings and Spring Pond that could have been 

used to pay increased spousal support. She insists the court should have increased her 

support award to take into account the couple’s “deliberately depressed lifestyle during 

the marriage” and their habit of saving and investing. She predicts she will be unable to 

continue saving and investing based on the amount of support ordered, while Tom will 

retain the ability to invest by continuing the couple’s historic practice of using business 

income from the grocery stores to reinvest in the markets and to purchase other real 

properties.

 Finally, Penny contends the overall distribution of marital property was 

inequitable and impractical and calls for reversal of the judgment. Urging us to order a 

new trial, she further asks that we order it heard by a different judge on remand, claiming 

that Judge Mayfield made so many errors and her orders resulted in such “inequity 

between the parties” that she should not be allowed to preside over a retrial. 
7

B. Division of Community Property 

1. Legal Overview and Standard of Review

 Community assets must be divided equally in a dissolution action. (Fam. Code,3

§ 2550.) Section 2552, subdivision (a) addresses the date of valuation of community 

assets, requiring the trial court to “value the assets and liabilities as near as practicable to 

the time of trial.” Upon notice and for good cause, the court may value the assets “at a 

date after separation and before trial to accomplish an equal division of the community 

estate of the parties in an equitable manner.” (§ 2552, subd. (b).) 

 Penny cites this section in support of her argument that Cypress Holdings was 

valued as of the wrong date because Tom’s expert, Thomas Berg, valued the assets as of 

December 31, 2010, a year before trial and two years before judgment.

 The standard of review is the abuse of discretion standard. (In re Marriage of 

Campi (2013) 212 Cal.App.4th 1565, 1572 (Campi); In re Marriage of Quay (1993) 18 

Cal.App.4th 961, 966.) Under that standard, we would reverse only if considering all the 

relevant circumstances, the court has “ ‘ “ ‘exceeded the bounds of reason’ ” ’ ” or “ ‘ “no 

judge would reasonably make the same order in the same circumstances.” ’ ” (In re 

Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1366.)

 Insofar as the trial court made factual determinations―and the valuation of a 

business is a factual issue―we accept those facts as true so long as they are supported by 

substantial evidence. (Campi, supra, 212 Cal.App.4th at p. 1572; In re Marriage of 

Hewitson (1983) 142 Cal.App.3d 874, 885 (Hewitson).) To the extent our decision turns 

on the interpretation and application of a statute, it involves a pure question of law 

subject to de novo review. (In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 

507.) 

2. The Experts’ Valuations of Cypress Holdings

 Berg had been retained by Tom to appraise the stock of Cypress Holdings in 

February 2010. Tom tried to get Penny to agree to use a single appraiser, but Penny 

 3

 Undesignated statutory references are to the Family Code. 
8

refused. Berg initially prepared an appraisal as of March 31, 2010. During this time, 

Tom was trying to get Penny to commit to a date upon which the company would be 

appraised. She delayed, so Tom had Berg prepare his appraisal as of December 31, 2010. 

Tom paid Berg more than $29,000 for the two appraisals. The court concluded it would 

be inequitable and impracticable to require Tom to pay for yet a third appraisal, given 

Penny’s delaying tactics and lack of cooperation.

 Berg estimated Cypress Holdings was worth $2.98 million as of year-end 2010. 

His report identified various methods of estimating the value of the stock of Cypress 

Holdings, including three different approaches: the market, income, and cost approaches. 

Within those approaches there are different methods of valuing a company.4

 Berg chose to use the market and income approaches because the company is a 

going concern with material cash flow. He valued the company using the guideline 

public companies method, supplemented with the industry acquisitions method, and the 

income capitalization method. (See fn. 4, ante.) Using the market approach he 

calculated a valuation of $3.2 million. Under the income approach (income capitalization 

method) he estimated a value of $3,040,000. Believing the income capitalization method 

more accurately reflected the corporation’s value, and employing a weighted average, he 

considered the operating controlling interest value of the company to be $3,090,000, 

which he adjusted to $2,980,000 after considering nonoperational assets and liabilities. 

His report appears to be comprehensive, balanced and well reasoned. 

 Penny’s expert, Matt Morris, a broker based in Washington, D.C., prepared his 

appraisal as of June 30, 2011.5

 He began talking to Penny’s attorneys in early 2011 and 

was retained June 7, 2011. His estimated value of Cypress Holdings was roughly $3.5 

 4

 Within the market approach there are the guideline public companies method, the 

industry acquisitions method, the small-company transactions method, and the subject 

entity transactions method. Within the income approach are the discounted cash flow 

method and the income capitalization method. And within the cost approach are the net 

book value method and the adjusted net asset method. 

5

 Penny’s attorneys suggest there was an agreement with Tom’s lawyers to use 

June 30, 2011 as the appraisal date. The court found this was not true. 
9

million ($3,462,621). Morris operated on the assumption that the markets would be sold 

as a going concern to a buyer already involved in the grocery business. He assumed the 

buyer would acquire the inventory, property, plant, equipment and liquor licenses, while 

the remainder of the balance sheet would be liquidated. He hoped to be able to sell the 

two markets individually, although Tom expressed skepticism whether it was feasible to 

run them independently. 

 Morris used four methods for valuing the business: comparable public company 

analysis, comparable transaction analysis, sales analysis, and adjusted earnings before 

interest, tax, depreciation and amortization (EBITDA) analysis. He evaluated the 

business at $5.9 million, less $2.4 million from the liquidation of the balance sheet, 

making the valuation $3.5 million. The factors he considered appear to be similar to the 

considerations used by Berg, but Morris’s assumption was that the stores would be sold. 

Morris also weighted the results from the four methods, giving the greatest weight to the 

comparable transaction analysis, which compared the value of Harvest Markets to the 

value of other small grocery chains that had been sold to other grocery operators in 2006 

to 2010.

 Penny asserts the difference between Berg’s valuation and Morris’s reflects an 

increase in profitability of the business during the first six months of 2011. She further 

believes she has been denied the benefit of that increased value. But the difference in 

valuations appears to have resulted not only from the different dates on which the 

valuations were made, but different methodologies and assumptions employed. Berg 

testified that business appraisal is “part art, part science,” which could largely explain the 

variance between Berg’s valuation and Morris’s. 

3. The Trial Court’s Valuation

 The court valued Cypress Holdings at $3.18 million, specifically finding Tom’s 

expert more credible for several reasons. First, it considered significant the fact that Berg 

interviewed top management at the Harvest Markets and became very familiar with the 

markets’ business strengths and weaknesses, while Morris did not conduct any 

interviews. Second, the court disagreed with Morris’s conclusion that the best way to 
10

value the business would be to “ ‘expose it to the market,’ that is, offer it for sale.” The 

court observed that family businesses “ ‘do not simply represent an investment of capital; 

they are also an investment of sweat, toil, worry and hopes.’ ” The court also noted that 

Penny’s idea of what should be done with the business “has varied throughout this 

litigation” from urging that the business be sold, to wanting to own the underlying 

properties (and thereby to become Tom’s landlord), to simply complaining about the 

amount of the equalizing payment. The court also expressed concern that Morris’s 

company is directly involved in the sales and acquisitions of grocery stores and could 

potentially act as broker if the markets were sold. The court was especially concerned 

about the cost of selling the markets, which was never spelled out clearly by Morris, and 

it noted there could be tax consequences of the sale of the business, as to which no 

evidence had been offered. And finally, the court took into account that the retention of 

the business was “ ‘essential’ ” to Tom’s ability to continue earning a living (and paying 

spousal support to Penny).

4. Valuation Date

 Seizing on the fact that Berg’s analysis was dated December 31, 2010, Penny 

contends it was out of date and failed to take account of additional income to Cypress 

Holdings between that date and the date of the judgment (December 24, 2012). We begin 

by noting that the trial court expressly denied that it valued the business as of 

December 31, 2010, but rather valued it at the time of trial. It found Berg’s appraisal was 

“ ‘as near as practicable’ to the time of trial” within the meaning of section 2552; it had 

not used an alternative valuation date, as Penny now suggests. 

 Penny’s argument also overlooks the fact that the court did not blindly accept 

Berg’s valuation of Cypress Holdings. Instead it chose a number between Berg’s and 

Morris’s valuations, evidently in part to take into account the more recent results for the 

businesses after the date of Berg’s valuation. It added $200,000 to Berg’s valuation 

based on Penny’s evidence and arguments. Thus, while the two experts’ valuations were 

half a million dollars apart, the court narrowed the gap to $300,000. Berg testified that a 
11

variance of five or 10 percent between one expert’s valuation and another’s would not be 

unusual.

 Although it is not possible to determine from the statement of decision exactly 

how the court chose its valuation number, that circumstance alone does not give rise to 

the inference that the court abused its discretion. The failure to specify exact calculations 

does not constitute reversible error. (In re Marriage of Zaentz (1990) 218 Cal.App.3d 

154, 162–163, 167 (Zaentz).) 

 In Zaentz the issue related to characterization of profits from the husband’s awardwinning movie as separate or community property. (Zaentz, supra, 218 Cal.App.3d at 

p. 162.) Because he had devoted substantial efforts to the film during the marriage, the 

court apportioned some of the profits to the community after hearing extensive testimony, 

without spelling out its method of calculating that apportionment in detail. (Id. at 

pp. 165–167.) As here, the financial testimony provided conflicting evaluations and the 

husband claimed his experts held the better view. “Whether husband is unpersuaded by 

the testimony of wife’s experts (in favor of that of his own experts) is of no consequence. 

The trial court was within its discretion to rely on that testimony notwithstanding the 

existence of conflicting evidence.” (Id. at pp. 164–165.) As in Zaentz, the record here as 

a whole reflects “more than ample evidence” to support the court’s decision. (Id. at 

p. 162.) Thus, under “established principles of substantial evidence,” and viewing the 

evidence most favorably to the judgment, the trial court’s decision must be upheld. 

(Ibid.)

5. Berg’s Use of “Marital Value” for Asset Valuation

 Penny also attacks Berg’s valuation of Cypress Holdings because he used what he 

called the “marital value” of the businesses, as opposed to the “investment value.” The 

term “marital value” appears to be one coined by Berg to indicate “the economic value 

of the business to the spouse retaining it, and who will continue to operate it in the 

future.” The most significant aspect of Berg’s “marital value” was that it did not include 

a minority interest discount or a marketability discount. Thus, a marital value assessment 

could be different from an investment valuation, but it was appropriate to the 
12

circumstances, and in this case did not produce a result significantly different from the 

fair market value. In fact, Berg testified repeatedly on cross-examination that the 

“marital value” and “fair market value” would be the same in this instance. 

 We see no legal error in Berg’s method. Nor does it appear such a valuation is, as 

Penny suggests, a forbidden departure from ordinary rules of business valuation. Berg’s 

declaration said his findings were in compliance with the Uniform Standards of 

Professional Appraisal Practice. There was substantial admissible evidence supporting 

the trial court’s reliance on Berg’s reasoning. 

 As Penny points out, Morris’s valuation reflects what the grocery stores would be 

worth to a third party buyer, which she continues to advocate as the proper valuation, 

although she does not appeal the court’s decision to award Cypress Holdings to Tom. 

She thus sidesteps discussing the court’s reasons for rejecting a sale of the business, 

which included Tom’s “expressed concern that he would be out of a job if the business 

was sold,” whereas if he were allowed to continue to run the markets “he will have a 

steady income stream from which to pay permanent spousal support, thus benefiting both 

parties.” In effect, Penny theorizes that Cypress Holdings must be valued as if the 

markets were being sold to a third party, without taking account of the added cost of 

doing so or the tax implications, and even though the business was ordered not to be 

disposed of in that manner. Penny has cited no legal authority to mandate such a result.

 Both parties and the trial court cited Hewitson, supra, 142 Cal.App.3d 874, which 

held it was erroneous to value a closely held corporation based on a price to earnings 

analysis using as comparators companies acquired by other corporations in exchange for 

stock, rather than strictly cash acquisitions. (Id. at pp. 883–884.) Because the court 

found the considerations affecting value to be different in those two types of transactions, 

it reversed a property division that relied exclusively on the discredited method. (Id. at 

pp. 885–886.) 

 Hewitson does not compel reversal of the valuation in this case. The trial court 

found both Berg and Morris used methods acceptable under Hewitson, supra, 142 

Cal.App.3d 874 in analyzing the company’s value, and we agree. Berg used an amalgam 
13

of the guideline public companies method and the industry acquisitions method to 

establish the marital value under the market approach. He considered the income 

approach and the income capitalization method to be the most meaningful basis of 

comparison, and he gave that method more weight in arriving at his valuation. The 

court’s reliance on Berg’s valuation was not in conflict with Hewitson. 

 Regardless of terminology, both Berg and Morris considered many of the same 

factors in valuing the stock, including the value of comparable public companies, prior 

same industry sales, past performance of the grocery stores themselves, and the future 

economic outlook nationally, statewide and locally, as well as challenges to the market in 

groceries.

Even if Berg’s approach was novel (and we do not believe it is), that would not be 

indicative of a misunderstanding of the concepts governing valuation of business assets in 

a marital dissolution action. Berg was qualified as an expert based on his education and 

experience. (Evid. Code, § 801.) He testified about the facts and assumptions he used in 

his valuation. Any substantive quarrel Penny may have with Berg’s valuation 

methodology goes to the weight, not the admissibility, of his testimony. (People v. 

Brown (2014) 59 Cal.4th 86, 100.) To the extent Penny suggests we reweigh the two 

expert opinions, she invites us to overstep the proper scope of our review. 

6. Denial of Penny’s Motion to Reopen Evidence 

 As noted above, Penny moved to reopen the evidence approximately seven months 

after the close of evidence, on the date scheduled for trial on the attorney fees issue. She 

sought to introduce additional evidence she claimed would show Cypress Holdings’ 

earnings had increased substantially by the second quarter of 2012. Penny justified her 

motion on the basis that she did not have second quarter 2012 financial statements for 

Cypress Holdings until September 2012. She now claims denial of the motion to reopen 

was legal error warranting a new trial. 

 Denial of such a motion is ordinarily reviewed for abuse of discretion. (In re 

Marriage of Olson (1980) 27 Cal.3d 414, 422 (Olson).) Penny, nevertheless, argues we 
14

should review the order de novo because section 2556 made reopening mandatory.6

 

(Olson, supra, 27 Cal.3d at p. 422.) The trial court rejected that argument because the 

assets divided at trial had not changed character in the interim. Rather, the grocery stores 

merely had continued operations in the same way they had operated before division of the 

couple’s assets. In such circumstances the abuse of discretion standard applies. (See In 

re Marriage of Hahn (1990) 224 Cal.App.3d 1236, 1238, 1240–1241.) 

 Although Penny claims her motion was based on “new evidence,” the evidence 

Penny wanted to introduce consisted of her experts’ analysis of more recent financial 

results for Cypress Holdings, which the court found were not “substantially different 

from what [Penny] knew or suspected they would be at the time of trial.” Her objective 

was to show the grocery stores had income between year-end 20107

 and September 2012 

which constituted a community asset not included in the Berg and Morris appraisals and 

hence not divided by the trial court in its statement of decision. It appears Penny’s 

position was that retained earnings of Cypress Holdings should have been treated as an 

asset to be valued and divided separately from the business as a whole. Penny also 

argued that Tom had paid down debts after the trial and thereby increased the value of 

assets that had been assigned to him. On appeal she argues that income to Spring Pond 

between trial and judgment also should have been subject to division. 

 The court denied the motion because (1) “[t]he retained earnings which [Penny] 

seeks to divide were considered in determining the value of the business as of the date of 

 6

 Section 2556 reads: “In a proceeding for dissolution of marriage, for nullity of 

marriage, or for legal separation of the parties, the court has continuing jurisdiction to 

award community estate assets or community estate liabilities to the parties that have not 

been previously adjudicated by a judgment in the proceeding. A party may file a 

postjudgment motion or order to show cause in the proceeding in order to obtain 

adjudication of any community estate asset or liability omitted or not adjudicated by the 

judgment. In these cases, the court shall equally divide the omitted or unadjudicated 

community estate asset or liability, unless the court finds upon good cause shown that the 

interests of justice require an unequal division of the asset or liability.” 

7

 Penny’s attorneys continue to insist the court had valued Cypress Holdings as of 

December 31, 2010, not at the time of trial, even though the court specifically clarified 

that it valued the company at the time of trial. 
15

trial”; (2) there had been no change in the nature of Cypress Holdings and Spring Pond; 

(3) Penny and her attorneys “were well aware that Cypress Holdings generated profits 

pre-trial and, in the absence of unforeseen circumstances, would continue to do so after 

the trial concluded,” and thus the failure to raise the issue at trial was a “tactical decision 

or error” on counsel’s part that did not warrant reopening; (4) Penny was not diligent in 

bringing the motion, and the timing suggested she was trying to delay the trial on attorney 

fees; (5) the evidence Penny sought to introduce was not sufficiently material to require 

reopening; and (6) even if the motion were granted, postseparation efforts of one spouse 

in possession of a community business which increase the business’s value “may warrant 

dividing the increase between the community and the operating spouse’s separate 

property.” (See In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 624–625 [may 

warrant valuing business at date of separation]; In re Marriage of Green (1989) 213 

Cal.App.3d 14, 20.) 

 Penny insists we must, as a matter of law, consider retained earnings an asset of 

the community at the time of judgment in which she was entitled to share equally, or 

which at least should have been deemed available to Tom to pay spousal support. We 

disagree. The financial information available to Penny at trial revealed the growing 

retained earnings―from $1.7 million in 2006 to $4.2 million as of September 2011―and 

the legal theory that part of that amount should be divided as a community asset was 

available to her attorneys at trial. To the extent Penny’s motion was grounded on a new 

legal or accounting theory rather than new evidence, it did not justify reopening the 

evidence. 

 In opposition to Penny’s motion, Tom submitted his own declaration describing 

the need for additional capital improvements for the markets, and a declaration by James 

Caven, a certified public account and business valuation expert. Caven opined that (1) all 

of the changes pointed out by Penny had occurred in the ordinary course of business; 

(2) retained earnings “have not increased . . . by nearly as much as Mr. Essig and Ms. 

Plaister claim” and actually increased by only $99,722.30 between June 2011 and June 

2012; (3) Tom did not pay down debts beyond the payments required by the terms of the 
16

loans; (4) equity resulting from principal paydowns of loans had “increased only by 

relatively modest amounts”; (5) both the current ratio and the sales to working capital 

ratio―two indicators of the financial health of a grocery store―were below the industry 

median; (6) average capital expenditures had decreased during the litigation; 

(7) $250,000 was urgently needed for further capital expenditures; (8) “Cypress Holdings 

needs to reinvest . . . profits to return the company back to industry norms”; and (9) the 

opinions of Penny’s experts were based on an “incomplete analysis.” 

 Thus, there was substantial evidence to support the court’s finding that Penny’s 

“new evidence” was not sufficiently material to warrant reopening. On that basis alone, 

we would find no error in the denial of the motion. Considering all of the court’s other 

reasons, there was clearly no abuse of discretion. 

C. Spousal Support

 1. Penny’s Position 

 Penny contends the amount of permanent spousal support was insufficient as a 

matter of law, the court failed to consider factors it was required to consider under the 

applicable statutes, and the award of 20 percent of Tom’s future distributions from 

Cypress Holdings was “illusory and insufficient.” She complains generally that she was 

receiving $15,576 per month in temporary spousal support, which was reduced to $7,084 

as permanent support. Such a reduction, however, is not unusual.8 More specifically, she 

contends the court erred in assessing Tom’s ability to pay and failed to consider the 

financial disparity between the parties. 

 8

 “ ‘Temporary support . . . usually is higher than permanent support because it is 

intended to maintain the status quo prior to the divorce.’ ” (In re Marriage of Blazer

(2009) 176 Cal.App.4th 1438, 1442 (Blazer).) Permanent support, on the other hand, is 

intended to provide financial assistance as determined by the financial circumstances of 

the parties after their dissolution and the division of their community property, and is 

supposed to reflect a complex variety of factors established by statute and legislatively 

committed to the trial court’s discretion. (Ibid.; In re Marriage of Winter (1992) 7 

Cal.App.4th 1926, 1932 (Winter).) 
17

2. Legal Overview and Standard of Review 

 Permanent spousal support is governed by the statutory scheme set forth in 

sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to 

pay spousal support in an amount, and for a period of time, that the court determines is 

just and reasonable, based on the standard of living established during the marriage, 

taking into consideration the circumstances set forth in section 4320. These 

circumstances include the supporting spouse’s ability to pay; needs of each spouse based 

on the marital standard of living; obligations and assets of each spouse, including 

separate property; and any other factors necessary for a just and equitable award. The 

court has broad discretion in balancing the statutory factors of section 4320 to accomplish 

substantial justice between the parties. (In re Marriage of Cheriton (2001) 92 

Cal.App.4th 269, 304 (Cheriton).) 

 As with the question of property division, a court’s determination of spousal 

support is reviewed for abuse of discretion. (Campi, supra, 212 Cal.App.4th at pp. 1572, 

1576–1577.) Penny urges us to apply a de novo standard of review because, she claims, 

the court’s application of Blazer, supra, 176 Cal.App.4th 1438, to an undisputed set of 

facts amounted to an error of law warranting our independent review. She also claims the 

amount of support awarded was “insufficient as a matter of law.” We are unpersuaded. 

In the cases cited by Penny, the resolution of the appeal turned on an analysis of the 

language of a statute.9

 The same is not true here, where Penny’s position is simply that 

the amount awarded for support was inadequate. There is no legal dispute about the 

 9

 Penny cites In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1145 [whether 

wife’s commitment ceremony constituted a “remarriage” within the meaning of § 4337]; 

In re Marriage of Campbell, supra, 136 Cal.App.4th 502, 506–507 [whether § 4337 

“remarriage” applied to a party’s attempt to remarry before judgment of divorce]; In re 

Marriage of Thornton (2002) 95 Cal.App.4th 251, 253–254 [whether stipulated judgment 

that did not provide for termination of support on remarriage constituted a waiver of 

§ 4337]; and In re Marriage of Terry (2000) 80 Cal.App.4th 921, 928–929 [whether 

party’s separate estate is “sufficient for the party’s proper support” under § 4322].) 
18

meaning of the words in section 4320 or any other legal question. Therefore, de novo 

review is not appropriate. 

3. The Trial Court’s Ruling 

 The trial court ordered Tom to pay permanent spousal support to Penny in the 

amount of $7,084 per month. In arriving at that amount, the court considered the marital 

standard of living, Tom’s ability to pay spousal support, Penny’s needs based on the 

marital standard of living, the obligations and assets of each party, their health and ages, 

the duration of the marriage, and the immediate and specific tax consequences to each 

party. It found the other factors listed in section 4320 were not applicable to this case. 

 Having determined the marital standard of living to be upper class and “very nice, 

[but] not lavish,” the court relied primarily on Penny’s own sworn statements regarding 

her financial needs. According to Penny’s own testimony, she was paying $3,800-$3,900 

per month for a two-bedroom apartment in Texas. “In the Income and Expense 

declarations [Penny] signed on April 20, 2011 and August 19, 2011, [she] listed actual 

expenses of $12,970-13,150 per month which included $2,000 for savings and 

investments, $1,000 for charitable contributions, and $1,500 for entertainment, gifts and 

vacations . . . . It was incongruous that [Penny’s] Income and [Expense] Declaration 

filed December 7, 2011, literally on the eve of trial, suddenly showed monthly expenses 

of approximately $27,000 per month. The court finds that the latter figure was neither 

supported by the evidence, nor credible.” 

 Penny has not undertaken to explain why her estimated financial needs more than 

doubled in the space of three months. Presumably, her much changed declaration 

reflected the opinion of her accounting expert, Essig, that taking into account the parties’ 

investments in real estate and capital expenditures (which he deemed discretionary), 

Penny would need $27,775 per month to maintain the marital standard of living. 

 This was much more than the $8,983 per month that Tom’s accounting expert, 

Caven, estimated Penny needed. The court credited Caven’s testimony over Essig’s, but 

thought his final number was a little low. Considering Penny’s earlier financial 
19

declarations, the court found she needed approximately $12,000 per month to support 

herself in accordance with the marital standard. 

 The court further found that Tom had the ability to earn $278,600 per year (his 

base salary from Cypress Holdings, plus the salary he received as a bank director). The 

court noted that Penny’s needs ($144,000 per year) amounted to more than half of Tom’s 

annual salary.

 In determining that Tom should pay $7,084 to Penny monthly, the court reasoned 

that Penny would have an additional $2,000 net monthly rental income from the 

veterinary clinic housed in Paddleford House. Penny had also expressed an interest in 

buying a house for herself. The court calculated that, with the equalizing payment of 

more than $1.5 million, Penny could use $400,000 to $500,000 as a down payment while 

still retaining the ability to earn approximately $35,000 per year from the remainder of 

the equalizing payment (or $2,916 per month). This calculation was consistent with the 

testimony of Caven, who predicted that Penny could expect a 3.5 percent return on her 

investment of those funds. Thus, Penny had income of $4,916 per month based on the 

property division, leaving a deficit of $7,084 in meeting her monthly needs, which Tom 

was ordered to pay. In addition, Tom was ordered to provide Penny with health 

insurance. The court further ordered that if Tom were to take bonuses or other 

distributions from Cypress Holdings above his base salary, he would have to pay 20 

percent of any such amounts to Penny as additional support. And finally, the 

undeveloped land known as the Art Center could potentially be developed in the future 

with a small housing complex so that it could become an income-producing property. 

The court further noted that Penny had inherited $50,000 as separate property in January 

or February 2011.

 Thus, the spousal support ordered for Penny gave her an amount that, by her own 

financial declarations, met her expenses, including the amount she estimated for savings 

and investment, charitable contributions, entertainment, gifts and travel. As we shall 

explain, we find no abuse of discretion in the court’s determination.
20

4. Alleged Error in Determining Tom’s Ability to Pay 

 In setting spousal support the trial court is required to assess the “ability of the 

supporting party to pay spousal support, taking into account the supporting party’s 

earning capacity, earned and unearned income, assets, and standard of living.” (§ 4320, 

subd. (c).) Penny contends the trial court erred as a matter of law through its “refusal to 

consider income clearly available to Tom.” Penny contests the court’s finding that Tom 

had available to him $278,600 per year from which to pay spousal support, contending 

that retained earnings are a “species of savings,” and hence Cypress Holdings’ retained 

earnings―or some portion thereof―should have been considered available to Tom to 

pay spousal support. 

 Penny likens her circumstances to those in Winter, supra, 7 Cal.App.4th at page 

1931, a previous decision by this court, where a wife was awarded temporary spousal 

support at a level that would allow her to continue the parties’ habit of saving and 

investing so as to maintain the marital standard of living while awaiting trial. The couple 

had lived modestly during their marriage, leaving a large portion of their income 

available for investments. (Id. at pp. 1930–1931.) The husband, whose income was 

much higher than the wife’s, did not dispute that he was able to pay the amount of 

support provided under the temporary support guidelines, but claimed the amount was 

excessive given their modest lifestyle. (Id. at p. 1932.) The trial court held “ ‘the 

supported spouse should have the same opportunity to have a certain portion of support 

payable to her that would allow her to continue the lifestyle that she had, at least on a 

temporary basis, of having some discretionary income for the purposes of investing, just 

as husband would have the right to utilize a portion of the money retained by him for 

investing.’ ” (Id. at p. 1931.) In affirming the award, the appellate panel noted, “we fail 

to see why Wife should be deprived of her accustomed life-style just because it involved 

the purchase of stocks and bonds rather than fur coats.” (Id. at pp. 1932–1933.) The 

same rationale has been applied in cases involving permanent spousal support. (In re 

Marriage of Drapeau (2001) 93 Cal.App.4th 1086, 1096–1097.) 
21

 Notably, however, Winter and Drapeau involved ordinary investing from the 

spouses’ salaries that was not used for living expenses. Neither those nor any other case 

cited by Penny requires amounts retained in a family business to be attributed to the 

supporting party to pay spousal support. 

 In Blazer, supra, 176 Cal.App.4th 1438, the Sixth District held that assets used to 

diversify the husband’s business could properly be excluded from consideration as being 

available for spousal support because the undercapitalization of the business and the need 

to diversify were supported by the husband’s testimony and that of his experts. (Id. at 

pp. 1440, 1444.) The court held, “in the face of an ambiguity as to whether disputed 

sums represent income available for support, that determination is committed to the [trial] 

court’s discretion.” (Id. at p. 1448.) 

 Penny now insists, even if some of Cypress Holdings’ retained earnings could 

properly be allocated to the business, the court should have allocated any amounts not 

needed for capital investment to Tom for purposes of paying spousal support. She argues 

the court should have imposed on Tom the burden of proof to justify any sums that might 

be retained for reinvestment in the business.

 Caven’s declaration in opposition to Penny’s motion to reopen, the substance of 

which was summarized above, opined that the Harvest Markets were undercapitalized 

even as of October 2012. These statements supported the trial court’s refusal to reopen 

the evidence and reconsider its treatment of retained earnings as an asset available to pay 

spousal support. (Blazer, supra, 176 Cal.App.4th at pp. 1447–1448.) 

 Penny’s reliance on In re Marriage of Drapeau, supra, 93 Cal.App.4th 1086 is 

equally unavailing. There, Division Three of this court held the trial court erred in failing 

to consider a husband’s enhanced retirement benefit part of the community assets where 

it had been earned during the marriage and before separation, although the enhanced 

benefit had not been offered until after separation. (Id. at pp. 1090, 1093.) The appellate 

court also found spousal support inadequate where the award did not allow the wife to 

continue saving at the same rate she had during the marriage and the husband’s means 

allowed him to continue saving. (Id. at p. 1096.) 
22

 But there is a difference between savings put aside by employees to provide for an 

early retirement, as in Drapeau, and retained earnings in a business. Penny would have 

us treat the retained earnings in the business as a savings account, but as Caven testified, 

a business is “not an ATM machine” from which cash may be withdrawn at whim. 

Rather, the future needs of the business must be considered and adequate provision made 

to protect its viability. The expert testimony about the realities of the grocery business 

supports the view that taking cash from Cypress Holdings requires restraint and careful 

consideration so as not to impair the Harvest Markets’ future success. And though Penny 

asserts repeatedly that Tom has $1 million a year at his personal disposal, the trial court 

specifically found that was not true, given the need for reinvestment in the business. 

5. Consideration of Parties’ Financial Disparity 

 Penny contests the trial court’s alleged failure to properly consider the disparity in 

the couple’s financial circumstances. This factor is not one specifically listed in section 

4320 as a mandatory consideration. Rather, Cheriton held that such disparity should be 

considered as part of the “balance of hardships to the parties,” specified in section 4320, 

subdivision (j). (Cheriton, supra, 92 Cal.App.4th at pp. 306, 320.) But the facts here do 

not reveal the stark disparity involved in Cheriton, where the husband held separate 

property stock and options worth tens of millions of dollars, while the wife and four 

children were crowded into a small rental house where the wife was forced to sleep in the 

living room on a sofa bed. (Id. at pp. 280–281.) In Cheriton, the welfare of the couple’s 

children was also a major concern, and that factor is lacking here. 

 Penny’s argument is largely a rehash of points already discussed. Penny argues 

that the court gave insufficient consideration to Tom’s assets because, she insists, Tom 

has a greater ability to pay than is reflected in his salary alone. Tom’s expert supported 

the view that the earnings of Cypress Holdings should be reinvested in the company. The 

trial court found Tom’s expert more credible than Penny’s, and we are not at liberty to 

displace that determination with our own. (In re Marriage of Boswell (2014) 225 

Cal.App.4th 1172, 1175; In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 

1051–1052; Zaentz, supra, 218 Cal.App.3d at p. 163.)
23

6. Ostler-Smith Award

 The court awarded Penny a 20 percent interest in any funds later distributed to 

Tom from Cypress Holdings above his base salary, commonly known as an Ostler-Smith

award. In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33 (Ostler & Smith) 

involved a husband who earned a substantial portion of his annual income in bonuses. 

(Id. at pp. 37–38.) Because no future bonuses were guaranteed, the trial court found it 

would be inappropriate to consider that income in setting the fixed amount of spousal and 

child support. (Id. at p. 41.) Instead, it ordered that, in addition to a fixed amount of 

support that would allow the wife and sons to live at the marital standard, the husband 

should pay the wife 15 percent of future bonuses as spousal support, as well as 10 percent 

of future bonuses for each of the 2 minor children. (Id. at p. 42.) The Court of Appeal 

rejected the husband’s challenge to the award, even though the percentage payments 

would allow the family to live above the marital standard, where the husband had the 

ability to pay the amount ordered. (Id. at pp. 46, 48.) The Court of Appeal in Ostler & 

Smith reasoned that such an award was appropriate where one spouse had a “secure 

financial future” while the other had “no financial cushion.” (Id. at pp. 40, 48.) A similar 

order was appropriate here.10

 As in Ostler & Smith, the amount and timing of Tom’s future distributions from 

Cypress Holdings is uncertain and the court did not err in setting a fixed award without 

regard to future distributions. Yet, the record shows the parties had previously taken 

distributions from Cypress Holdings to pay for, among other things, taxes and travel. If 

Tom were to continue in that pattern, a percentage awarded was a fair way of allowing 

Penny to share in any such additional distributions. Thus, to the extent Tom uses Cypress 

Holdings to fund a higher lifestyle for himself, Penny may expect an increase in her own 

income as well, based on the 20 percent provision. 

 10 Tom does not object to paying the Ostler-Smith award; in fact, he volunteered to 

pay 17 percent. 
24

 Penny claims, however, the percentage awarded was “illusory and insufficient” 

because “it is entirely within Tom’s control whether he takes distributions or not. . . . 

Tom has the viable option of continuing to reinvest income in the businesses, thereby 

increasing their value and avoiding paying any additional spousal support.” We think 

that is unlikely, given the fact that a large portion of Tom’s base salary must be paid in 

spousal support, he must pay off the loan that allowed him to make the equalizing 

payment, he has traditionally paid taxes using Cypress Holdings’ funds, and he has 

continuing mortgage obligations on the real properties he was awarded. 

 Consequently, we place little weight on Penny’s argument that taking future 

distributions is “entirely within Tom’s control.” Penny’s argument that Tom could 

borrow against retained earnings until he disposes of the markets reveals a lingering 

suspicion that Tom is intent on depriving her of what she is rightfully due, which the trial 

court found to be untrue. It has not been Tom’s habit to burden himself with excess debt. 

The Ostler-Smith award is not illusory and the percentage awarded was well within the 

trial court’s discretion. 

D. Overall Inequitable Distribution of Property 

 Penny argues that community property must be not only “mathematically equally 

divided,” but the division must also be “meaningful.” (In re Marriage of Fink (1979) 25 

Cal.3d 877, 885 [“ ‘practical and equitable’ ”].) Once again, we apply the abuse of 

discretion standard of review. (In re Marriage of Verlinde (1987) 189 Cal.App.3d 918, 

923.) To the extent the court made factual findings, such as asset valuation, the 

substantial evidence test applies. (Campi, supra, 212 Cal.App.4th at p. 1572; Hewitson, 

supra, 142 Cal.App.3d at p. 885.) 

 Penny contends that Tom has $1 million per year at his disposal through the 

earnings of the Harvest Markets, while she is nearly 60 years old, disabled, unable to 

work, and without means to invest as she and Tom had done when they were married. 

Penny’s argument on this issue is mostly a repackaged version of the arguments already 

discussed.
25

 More important, Penny’s premise is flawed. There was not a grossly 

disproportionate division of property. As detailed above, when the equalizing payment of 

$1.5 million is taken into account, each spouse received approximately $3.3 million in 

assets. The court’s reasons for dividing the property as it did were well thought out and 

articulated. 

 Cypress Holdings was awarded to Tom in part because Penny did not want to 

continue running the markets and admitted she could not do so. The court explained that 

Tom, who had run the business for decades, might be out of a job if the businesses were 

sold. We have discussed already the court’s other reasons for awarding Cypress 

Holdings to Tom rather than ordering the markets sold. 

 Aside from Cypress Holdings, the major assets that could have been awarded to 

Penny, but were not awarded to her, were the marital home and the real property that 

housed Mendosa’s. The court awarded the home to Tom only after finding that Penny 

did not genuinely want it, whereas Tom needed a local residence, was able to keep up the 

mortgage payments, and was more emotionally attached to the ranch. 

 The court further explained that it was not a good idea to give all of the Spring 

Pond assets to Penny (although she got two of the three) because then she would be 

Tom’s landlord and that would constitute a continuance of “the residual property bond 

which subsists as an unwelcome vestige of the dissolved marriage.” (In re Marriage of 

Knickerbocker (1974) 43 Cal.App.3d 1039, 1048.) 

 However, in keeping with Penny’s desire to be awarded income-producing assets, 

the court awarded Paddleford House to her, which produced $2,560 per month in rent 

from the veterinary clinic. The court also found, based on substantial evidence, it would 

be possible to develop the Art Center property so as to make it an income-producing asset 

as well. Since she was awarded $1.5 million in cash, Penny presumably would have the 

resources to undertake such development if she cared to, which could increase the return 

on her investment. 

 The court also had a substantial basis for its estimate of the income Penny could 

expect on the equalizing payment, and explained how she could achieve her objective of 
26

buying a home with her half of the property. We conclude the trial court’s distribution of 

the community assets was sound, practical and equitable. 

 Though Penny insists Tom will end up with a better lifestyle and a greater 

opportunity to invest than she will be able to afford, the court found this was not 

necessarily so, given that Tom will be required to repay a substantial loan needed to fund 

the equalizing payment. Add to that the spousal support of $7,084 monthly that Tom is 

required to pay, and Penny’s claim that Tom is certain to enjoy a better lifestyle must be 

questioned. And, of course, to the extent Tom decides to take additional distributions 

from Cypress Holdings above his salary―whether to boost his own lifestyle, to pay 

taxes, to travel, or to pay what is required of him under the judgment―Penny will share 

in 20 percent of those distributions. 

 Penny further complains that Tom will have a greater return on his investments 

than she will. She claims Tom’s investments earn approximately eight percent per year, 

while her investment opportunity will likely be limited to 3.5 percent. The court rejected 

this argument in its tentative ruling because Penny will not be limited to “passive 

investment,” but rather could be “more aggressive” and potentially earn a higher rate of 

return. After all, Tom’s assets are not primarily passive investments. They require future 

dedication of energy, time and talent to realize the returns realized in the past. Even if 

Tom, through his own future industry, ends up with a somewhat higher lifestyle than 

Penny, that is not unjust so long as Penny is able to sustain the marital standard of living. 

(In re Marriage of Weinstein (1991) 4 Cal.App.4th 555, 568; In re Marriage of Smith

(1990) 225 Cal.App.3d 469, 487.) There was no abuse of discretion. 

E. Request to Proceed Before Different Judicial Officer 

 Because we affirm the judgment, there is no need to discuss Penny’s argument that 

the case should be remanded for retrial before a different judge. However, to the extent 

Penny insinuates Judge Mayfield was less than impartial, we must disagree. In fact, the 

judge explained at some length in her statement of decision dated April 19, 2012, the 

cogent reasons why she found some of Penny’s evidence was not credible. Significantly, 

Tom’s daughter testified that Penny said she wanted to make the divorce as expensive as 
27

possible so Tom would not want to go through with it and they could be reunited. The 

judge’s doubts about Penny’s conduct were grounded in the evidence, not prejudice. 

Judge Mayfield also fully explained her finding that Penny’s attorneys had engaged in 

“obstreperous and unprofessional conduct,” and had unnecessarily increased the cost of 

litigation. We are satisfied the judge’s rulings did not reflect a lack of impartiality. 

III. DISPOSITION

 The judgment is affirmed. Tom is awarded his costs on appeal. 
28

 ______________________ 

 Bolanos, J.* 

We concur: 

______________________ 

 Ruvolo, P.J. 

______________________ 

 Rivera, J. 

* Judge of the San Francisco City and County Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.