Filed 10/19/22 Marriage of Freeman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

In re Marriage of OLIVE M. 

and ALAN S. FREEMAN.

2d Civil No. B311411

(Super. Ct. No. D374102)

(Ventura County)

OLIVE MERSADES 

RICHARDS,

 Appellant,

v.

ALAN STEVEN FREEMAN,

 Respondent.

Olive Mersades Richards (formerly Freeman), a California 

licensed attorney, appeals in propria persona from an order 

denying her request to set aside a judgment on reserved issues 

(the judgment) following the dissolution of her marriage to 

respondent Alan Steven Freeman. The postjudgment order is 
2

appealable pursuant to Code of Civil Procedure section 904.1, 

subdivision (a)(2).1 (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127.) 

The request to set aside the judgment was made pursuant 

to section 473, subdivision (b). Appellant contends that the trial 

court abused its discretion, was biased against her, and 

erroneously required her to pay sanctions of $25,000. We affirm.

August 18, 2020 Judgment on Reserved Issues

The judgment was entered on August 18, 2020. It recites 

the following facts: “The parties married on December 19, 1996, 

and stipulated to a date of separation of October 12, 2015. On 

May 29, 2018, the court granted a dissolution of marriage based 

on irreconcilable difference . . . .” “The matter came on for trial 

on reserved issues . . . on August 13, 2020. [Appellant] was not 

present. Respondent . . . was present by and with his 

attorney . . . .” The trial court noted that it had “read and 

considered [appellant’s] [trial] brief,” which was “served and filed 

the day before trial.” 

The judgment divided the parties’ assets, ordered 

reimbursements, and required appellant to make an equalizing 

payment to respondent. 

No Valid Appeal from Judgment on Reserved Issues

In her reply brief, appellant claims that she “file[d] a 

meritorious timely appeal on April 2, 2021, from the August 18, 

2020 judgment [on reserved issues] so she does not forfeit her 

right to appellate review” of that judgment. The April 2, 2021 

notice of appeal states that the appeal is from the “judgment 

after court trial” that “was entered on . . . February 10, 2021.” 

But the judgment was not entered on February 10, 2021. On that 

1 All undesignated statutory references are to the Code of 

Civil Procedure.
3

date, the court denied appellant’s motion to set aside the 

judgment. 

If in her notice of appeal appellant intended to appeal from 

the August 18, 2020 judgment, the notice was filed late and is 

therefore invalid. Notice of entry of judgment was mailed to the 

parties on August 18, 2020. The 60-day jurisdictional period for 

filing an appeal from the judgment expired on Monday, October 

19, 2020. (Cal. Rules of Court, rule 8.104(a)(1)(A).) The time for 

filing an appeal from a judgment is extended “[i]f, within the time 

prescribed by rule 8.104 to appeal from the judgment, any party 

serves and files a valid notice of intention to move – or a valid 

motion – to vacate the judgment . . . .” (Id., rule 8.108(c).) 

Appellant did not file her request to set aside the judgment 

within the 60-day period for filing a notice of appeal from the 

judgment. The request was filed on November 24, 2020, 98 days 

after the mailing of notice of entry of the August 18, 2020 

judgment.

Accordingly, we construe the April 2, 2020 notice of appeal 

to be from the February 10, 2021 postjudgment order denying 

appellant’s motion to set aside the August 18, 2020 judgment. As 

so construed, the appeal was timely filed.

Appellant’s Request to Set 

Aside Judgment on Reserved Issues

Appellant’s request to set aside the judgment was based on 

her absence at the trial conducted on August 13, 2020. Appellant 

declared that, because of health problems, she was unable to be 

personally present at the trial. “[D]ue to financial restraints,” 

she was “unable to obtain an attorney” to represent her at the 

trial. 
4

As authority for her request to set aside the judgment, 

appellant relied on the “excusable neglect” provision of section 

473, subdivision (b): “The court may, upon any terms as may be 

just, relieve a party . . . from a judgment . . . taken against him or 

her through his or her mistake, inadvertence, surprise, or 

excusable neglect.” (Ibid.) Appellant “request[ed] the Court set 

aside the [judgment] and allow this matter to be set for trial due 

to my excusable neglect in being unable to attend the trial . . . 

due to my health and my inability to acquire legal representation 

. . . .” 

As evidence of her health problems, appellant attached a 

declaration signed by Dr. Scott A. Godfrey on December 16, 2019. 

Dr. Godfrey said he was treating appellant for “multiple 

myeloma.” The treatment began on November 8, 2019. Dr. 

Godfrey opined that, because of the treatment, she “is physically 

incapable of attending and participating in trial, or the 

preparation for trial . . . scheduled for December 19, 2019 . . . .” 

Dr. Godfrey “request[ed] that trial should be postponed until a 

date at least after March 1, 2020.” Dr. Godfrey expressed no 

opinion as to appellant’s capability of preparing for and 

participating in the postponed trial scheduled for August 13, 

2020. 

Appellant declared under penalty of perjury that she had 

not moved for a continuance of the August 2020 trial because the 

trial court’s prior statements had led her to believe “that even if I 

were to ask for a continuance . . . due to my health and my 

inability to find substitute legal representation, a continuance 

would not be considered.” The court’s prior statements were 

made in a notice to the parties dated July 2, 2020. On that date 

the trial court granted appellant’s counsel’s motion to be relieved 
5

as counsel. The notice said: “[T]he Court is prioritizing this trial 

and is not moving the trial date if new counsel for [appellant] 

substitutes into the case . . . . All parties and all counsel must be 

ready to proceed with trial beginning on August 13, 2020. [¶] . . . 

Any communications from [appellant] that she is self-represented 

and unable to attend the trial is not a good enough reason to 

vacate or move the trial date.” 

In view of the trial court’s July 2, 2020 notice and 

appellant’s interpretation of the notice in her declaration under 

penalty of perjury, we reject the following contradictory claim in 

her opening brief: “The court erred by failing to set aside the 

judgment on the ground of mistake of fact” because appellant 

“reasonably thought the court was going to continue the trial on 

its own motion when it said in its July 2, 2020 [notice]: ‘The court 

anticipates no appearance at the two-day TRIAL by

[appellant] . . . .’” (Bold omitted.) 

Appellant declared, “If I had been able to attend and did 

attend the trial . . . , the case could have been tried on the merits 

with my giving testimony and providing exhibits to the Court to 

be considered.” Appellant did not make an offer of proof as to her 

testimony and did not produce or describe the exhibits.

Respondent’s Opposition to Appellant’s 

Request to Set Aside Judgment 

In support of respondent’s opposition to appellant’s request 

to set aside the judgment, his counsel declared that, despite 

appellant’s allegedly poor health, she had “faxed me a 37-page all 

text Trial Brief . . . on August 12, 2020[, the day before the trial 

began]. On August 14, 2020, she also faxed [her] Declaration . . . 

in support of attorney’s fees, and a Notice of Intent to seek 

Sanctions.” 
6

Counsel further declared: “I [am not] aware of any orders 

indicating a continuance [of the trial] would not be granted due to 

[appellant’s] health reasons. In fact, the Court granted 

[appellant’s] request for continuance immediately after being 

provided with a declaration from [appellant’s] doctor in December 

2019. I believe this supports the position that a continuance 

would be granted if [appellant] was truly unable to participate for 

health reasons.” 

Hearing on Appellant’s Request to Set Aside Judgment 

On February 10, 2021, the trial court conducted a hearing 

via Zoom on appellant’s request to set aside the judgment. Both 

parties were present and represented by counsel. 

Respondent’s counsel complained that he had not received 

any of appellant’s proposed exhibits. Appellant’s counsel replied, 

“[I]f we don’t set aside the judgment, there’s no need to submit 

any exhibit lists. So why do that extra work if we’re not 

proceeding to a new trial. So that argument . . . is . . .

nonsensical in the context of this hearing.” 

The trial court asked appellant’s counsel, “[U]nder [section] 

473, . . . what do you believe was your client’s mistake, 

inadvertence, surprise or excusable neglect?” Counsel replied: 

“[A]t the very least the excusable neglect was not securing 

alternate counsel at the time that [her former counsel] was 

relieved as counsel [on July 2, 2020] . . . .” “At that particular 

moment in time, she was not in a place to interview and retain 

counsel due to her medical condition. [¶] This all is focused 

around her medical condition.” Counsel did not say that financial 

restraints had prevented her from retaining counsel to represent 

her at the trial.
7

The trial court noted that although appellant claimed she 

“was in no position to retain, contact, hire counsel for the trial of 

August of 2020, what she did do was file a 32 [sic 37]-page trial 

brief that . . . I received on the day of trial.” The brief “is 

extraordinarily lawyer like. It is cohesive. It states [appellant’s] 

position as to many different facets of the case with an articulate 

ability that impresses me and impressed me at the time.” 

The trial court continued: “[W]ith respect to her medical 

condition at the time of trial, all I had, in terms of hard evidence 

of her medical condition, was a somewhat cryptic declaration 

from Dr. Godfrey in December of 2019, some eight months prior 

to the trial. [¶] So for anyone to suggest that I understood the 

metes and bounds of her medical condition at the time of trial is 

nonsensical.” Furthermore, “I did not have before me on August 

the 13th a motion to continue the trial, a declaration from a 

physician or anything else that would have given me a good basis 

to continue the trial at that time.” 

Finally, the trial court observed that “even in a default 

proceeding, which this was, . . . the burden is on the moving party 

who’s trying to set aside the default judgment to show me that it 

is probable that there would have been a different result. And 

there is no evidence in this case at this time that there would 

have been a different result had I had [appellant], a licensed 

attorney, or another attorney present on her behalf. [¶] So on all 

of those grounds, the motion to set aside the judgment . . . is 

denied.” 

Standard of Review

“The standard for appellate review of an order denying a 

motion to set aside under section 473 is quite limited. A ruling 

on such a motion rests within the sound discretion of the trial 
8

court, and will not be disturbed on appeal in the absence of a 

clear showing of abuse of discretion, resulting in injury 

sufficiently grave as to amount to a manifest miscarriage of 

justice. Where a trial court has discretionary power to decide an 

issue, an appellate court is not authorized to substitute its 

judgment of the correct result for the decision of the trial court. 

[Citations.] ‘“‘The appropriate test for abuse of discretion is 

whether the trial court exceeded the bounds of reason. When two 

or more inferences can reasonably be deduced from the facts, the 

reviewing court has no authority to substitute its decision for 

that of the trial court.’” [Citations.]’ [Citation.] The burden is on 

the complaining party to establish abuse of discretion, and the 

showing on appeal is insufficient if it presents a state of facts 

which simply affords an opportunity for a difference of opinion.” 

(In re Marriage of King (2000) 80 Cal.App.4th 92, 118, fn. 

omitted.) 

“We have previously commented on the ‘daunting task’ 

confronting an appellant who seeks reversal of a trial court’s 

discretionary ruling. (Estate of Gilkison (1998) 65 Cal.App.4th 

1443, 1448-1449 . . . .)” (Dreamweaver Andalusians, LLC v.

Prudential Ins. Co. of America (2015) 234 Cal.App.4th 1168, 

1171.)

Motions to Augment Record

There are three motions to augment the record on appeal. 

On July 6, 2022, respondent filed a motion to augment the record 

to include numerous “pleadings, documents, and transcripts.” 

Appellant filed opposition to the motion. “We deny [respondent’s] 

motion because augmentation is unnecessary for our 

determination of the issues in this appeal.” (In re M.M. (2015) 

235 Cal.App.4th 54, 59, fn. 4.) 
9

On June 13, 2022, appellant filed a motion to augment the 

record to include three documents. For the reasons set forth in 

respondent’s June 20, 2022 opposition to the motion, we deny it.

Finally, on August 26, 2021, appellant filed an unopposed 

motion to augment the record. On September 17, 2021, we 

granted the motion as to exhibits i through xxiv, but deferred 

ruling on exhibits xxv through xxviii. Exhibit xxv is Dr. 

Godfrey’s declaration dated June 4, 2021. As to this exhibit, we 

deny the motion to augment because the exhibit was not before 

the trial court on February 10, 2021, when it denied appellant’s 

request to set aside the judgment. “In assessing a claimed abuse 

of discretion, we assess the trial court’s ruling by considering the 

record then before the court.” (People v. Myles (2012) 53 Cal.4th 

1181, 1200.)

 As to exhibits xxvi through xxviii, we deny the motion to 

augment because they are irrelevant to the issues in the present 

appeal. These exhibits involve proceedings conducted after the 

filing of the notice of appeal on April 2, 2021.

The Trial Court Did Not Abuse Its Discretion

“While section 473 authorizes a court to relieve a party 

from default suffered through inadvertence, surprise, excusable 

neglect or mistake, ‘these words are not meaningless, and the 

party requesting such relief must affirmatively show that the 

situation is one which clearly falls within such category.’ 

[Citation.] ‘[A] party who seeks relief under [section 473] must 

make a showing that due to some mistake, either of fact or of law, 

of himself or of his counsel, or through some inadvertence, 

surprise or neglect which may properly be considered excusable, 

the judgment or order from which he seeks relief should be 

reversed. In other words, a burden is imposed upon the party 
10

seeking relief to show why he is entitled to it, and the assumption 

of this burden necessarily requires the production of evidence. 

[Citations.]’ [Citations.] In a motion under section 473 the initial 

burden is on the moving party to prove excusable neglect by a 

‘preponderance of the evidence.’” (Kendall v. Barker (1988) 197 

Cal.App.3d 619, 623-624.) “‘[The] moving party must present a 

reasonable excuse. . . .’” (Id. at p. 624.)

The trial court did not exceed the bounds of reason in 

concluding that appellant had failed to prove excusable neglect by 

a preponderance of the evidence. Appellant was a licensed 

California attorney. Despite her legal background, she did not 

move to continue the August 2020 trial based on her health 

problems. The trial court never said it would deny a continuance 

irrespective of her medical condition. It had earlier granted a 

continuance of the trial based on Dr. Godfrey’s declaration. Since 

appellant was capable of preparing and filing an impressive, 

“extraordinarily lawyer[-]like” trial brief for the August 2020 

trial, it is reasonable to infer that she was also capable of 

preparing and filing a motion to continue the trial. 

In addition, it is reasonable to infer that appellant was 

capable of retaining counsel to represent her at the trial. 

Respondent’s trial counsel claimed that appellant had adequate 

time to retain new counsel since in February 2020 her counsel 

“filed his Motion to be Relieved as Counsel.” The record shows 

that the motion to be relieved as counsel was filed on February 

25, 2020, more than five months before the August 13, 2020 trial 

date. 

Furthermore, in support of her request to vacate the 

judgment, appellant presented no medical evidence from her 

doctors as to her condition before the August 2020 trial. The trial 
11

court noted, “[A]ll [it] had, in terms of hard evidence of her 

medical condition, was a somewhat cryptic declaration from Dr. 

Godfrey in December of 2019, some eight months prior to the 

trial.” Dr. Godfrey’s opinion that appellant was “physically 

incapable of attending and participating in trial, or the 

preparation for trial . . . scheduled for December 19, 2019” had no 

bearing on whether she was capable of participating in and 

preparing for the trial scheduled for August 13, 2020. 

Finally, the trial court acted within its discretion because, 

as the court observed, “there is no evidence in this case at this 

time that there would have been a different result had I had 

[appellant], a licensed attorney, or another attorney present on 

her behalf” at the August 2020 trial. 

Appellant Failed to Show that the Trial Court’s Alleged

Abuse of Discretion Resulted in a Miscarriage of Justice

If the trial court had abused its discretion, appellant would 

not have been entitled to a reversal because she failed to show 

that the error resulted in a miscarriage of justice. “A ruling on

. . . a [section 473] motion . . . will not be disturbed on appeal in 

the absence of a clear showing of abuse of discretion, resulting in 

injury sufficiently grave as to amount to a manifest miscarriage of 

justice.” (In re Marriage of King, supra, 80 Cal.App.4th at p. 118, 

italics added; see also Cal. Const., art. VI, § 13 [“No judgment 

shall be set aside . . . unless, after an examination of the entire 

cause, including the evidence, the court shall be of the opinion 

that the error complained of has resulted in a miscarriage of 

justice”].)

The “miscarriage of justice” rule is codified in section 475: 

“No judgment, decision, or decree shall be reversed or affected by 

reason of any error . . . unless it shall appear from the record that 
12

such error . . . was prejudicial, and also that by reason of such 

error . . . the said party complaining or appealing sustained and 

suffered substantial injury, and that a different result would 

have been probable if such error . . . had not occurred or existed.” 

There is no evidentiary showing of a miscarriage of justice. 

Appellant did not make an offer of proof as to what her testimony 

would have been at the trial. Nor did she produce or describe the 

exhibits she would have introduced. She merely declared, “If I 

had been able to attend and did attend the trial . . . , the case 

could have been tried on the merits with my giving testimony and 

providing exhibits to the Court to be considered.” 

At the hearing on the request to set aside the judgment, 

appellant’s counsel said, “[I]f we don’t set aside the judgment, 

there’s no need to submit any exhibit lists. So why do that extra 

work if we’re not proceeding to a new trial.” But without an offer 

of proof as to what evidence was excluded by appellant’s absence 

from the trial, appellant cannot show that she “sustained and 

suffered substantial injury, and that a different result would 

have been probable” had she been present at the trial. (§ 475; see

Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [“‘unless a 

clear case of abuse is shown and unless there has been a 

miscarriage of justice a reviewing court will not substitute its 

opinion and thereby divest the trial court of its discretionary 

power’”]; County of Los Angeles v. Nobel Ins. Co. (2000) 84 

Cal.App.4th 939, 945 [“The burden is on the appellant in every 

case to show that error has resulted in a miscarriage of justice”].)

Appellant’s Attack on Validity of Judgment

In her opening brief appellant makes a lengthy, detailed 

attack on the validity of the judgment. She lists 21 “instances” in 

which respondent “committed extrinsic fraud.” She claims that 
13

the trial court erred in its division of property and 

reimbursement orders. She contends that (1) respondent 

“breached his fiduciary duty,” (2) the trial court “erred in

relieving [retained counsel] as [her] attorney on July 2, 2020,” (3) 

the court erroneously admitted into evidence respondent’s 

inaccurate accounting, and (4) it failed to award her need-based 

attorney fees. 

Appellant did not appeal from the August 18, 2020 

judgment. She appealed from the postjudgment order denying 

her request to set aside the judgment pursuant to section 473, 

subdivision (b). (See ante, at pp. 2-3.) In the trial court, her 

theory was that she was entitled to relief based on “excusable

neglect.” (§ 473, subd. (b).) Appellant cannot change her theory 

on appeal. “As a general rule, having chosen to file her motion in 

the trial court under section 473 and base all her arguments 

below upon that provision, appellant should not at this late date 

be permitted to change the entire basis of her motion because in 

hindsight it now seems expedient for her to do so. ‘A party is not 

permitted to change his [or her] position and adopt a new and 

different theory on appeal. To permit him [or her] to do so would 

not only be unfair to the trial court, but manifestly unjust to the 

opposing litigant.’” (In re Marriage of King, supra, 80 

Cal.App.4th at pp. 110-111; see also id. at p. 117, fn. 17 [an 

appellate court can “only address those issues appellant actually 

raised before the trial court” in the motion to set aside the 

judgment; thus, appellant cannot “bootstrap onto this appeal any 

arguments regarding the underlying judgment that were not 

already raised on the motion to set aside in the trial court

below”].)
14

Appellant’s Claim that Trial

Court Was Biased Against Her

Appellant asserts: “Judicial misconduct is pervasive in 

[her] case as the judge is predetermined to rule against [her] 

because she is a woman and because he does not like her.” “[T]he 

court’s gender-based bias deprives [her] of her due process rights 

and a fair trial . . . .” 

The claim of judicial bias is not supported by the evidence. 

Moreover, the claim is forfeited because appellant did not raise 

the issue before the trial court ruled on her motion to set aside 

the judgment. (Moulton Niguel Water Dist. v. Colombo (2003) 

111 Cal.App.4th 1210, 1218 [“owners did not preserve their claim 

of judicial bias for review because they did not object to the 

alleged improprieties and never asked the judge to correct 

remarks made or recuse himself”]; Caminetti v. Pacific Mut. Life

Ins. Co. of Cal. (1943) 22 Cal.2d 386, 392 [“‘It would seem . . . 

intolerable to permit a party to play fast and loose with the 

administration of justice by deliberately standing by without 

making an objection of which he is aware and thereby permitting 

the proceedings to go to a conclusion which he may acquiesce in, 

if favorable, and which he may avoid, if not’”].)

Sanctions Order

In a postjudgment order filed on October 26, 2020, the trial 

court required appellant to pay respondent “the sum of $25,000 

as a sanction pursuant to Family Code section 271.” Appellant 

claims that the evidence is insufficient to support the sanctions 

order. There is no jurisdiction to consider her claim because she 

failed to file an appeal from the order. (Adoption of Alexander S.

(1988) 44 Cal.3d 857, 864 [“A timely notice of appeal vests 

jurisdiction in the Court of Appeal”].) An appeal was available 
15

under section 904.1, subdivision (a)(2), authorizing an appeal 

from a postjudgment order, or under section 904.1, subdivision 

(a)(12), authorizing an appeal “[f]rom an order directing payment 

of monetary sanctions . . . if the amount exceeds five thousand 

dollars.”

Disposition

The order denying appellant’s request to set aside the 

judgment on reserved issues is affirmed. Respondent shall 

recover his costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
John R. Smiley, Judge

Superior Court County of Ventura

______________________________

Olive Mersades Richards, in pro. per., for Appellant.

Norman Dowler and Thomas Hutchinson, for Respondent.