Filed 12/10/14 Marriage of Aguina and Kang CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re the Marriage of AGUINA AGUINA
and CHOONG-DAE KANG.

AGUINA AGUINA,
                                                                         E058806
         Respondent,
                                                                         (Super.Ct.No. SWD015783)
v.
                                                                         OPINION
CHOONG-DAE KANG,

         Appellant.




         APPEAL from the Superior Court of Riverside County. James T. Warren, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

         Law Offices of John M. Siciliano and John M. Siciliano for Appellant.

         No appearance for Respondent.




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                                  I. INTRODUCTION

       In this marital dissolution proceeding, appellant Choong-Dae Kang (wife), appeals

from the family court’s May 14, 2013, order discharging several prejudgment writs of

attachment against real properties owned by respondent Aguina Aguina (husband). The

writs were issued pursuant to a February 14, 2011, order in Kang et al. v. Aguina,

Riverside County Superior Court case No. RIC10019528 (the civil case). Kang and

several members of her family filed the civil case against Aguina, seeking to recover over

$1.2 million in loans that Kang’s mother, who died in 2008, allegedly made to Aguina so

he could make various real property investments. The civil case was still pending when

the family court ordered the writs discharged.

       Kang claims the family court lacked jurisdiction to order the writs discharged and

violated her due process rights because it ordered the writs discharged without notice to

her or an opportunity to be heard. We conclude Kang has failed to demonstrate

reversible error. The record does not support Kang’s claim that the writs were discharged

without notice to her, and affirmatively shows the family court had jurisdiction to order

the writs discharged. We therefore affirm the order discharging the writs.




                                             2
                                  II. BACKGROUND1

       Aguina and Kang were married in 1999. In September 2008, Aguina petitioned to

dissolve the marriage. Recently, on August 14, 2014, this court affirmed an October 26,

2012, family court order directing Kang to pay $10,000 of Aguina’s attorney fees,

pendente lite, in the dissolution proceeding. (Aguina I.) Aguina and Kang have two sons

under the age of 18, and have been engaged in protracted litigation in the family court

and the civil case. (See ibid.)

       In October 2010, Kang, her two siblings, Myung-Ja Kang and Kwang-Sa Kang,

and her father, Jae-Sung Kang, filed the civil case against Aguina, seeking damages for

his alleged breach of two loan agreements he entered into with Kang’s mother in 2004.

According to the complaint, Kang’s mother died in January 2008; the plaintiffs were her

heirs under Japanese law; and all of the plaintiffs, except Kang, who lived in Murrieta,

were residents of Japan.

       The complaint in the civil case alleges the two loans—one for $140,000 made on

February 12, 2004, and the second for $995,000 made on April 1, 2004—were due in five

years and were made for the purpose of “purchasing, improving, developing, and/or sub-

       1  Aguina has not filed a respondent’s brief despite having been given 15 days’
notice to do so after the time for filing the brief expired. (Cal. Rules of Court, rule
8.220(a).) We therefore decide the appeal based on Kang’s opening brief, the record on
appeal, and any oral argument presented by Kang, as we notified Aguina we would do if
he did not file a brief.
        We hereby grant Kang’s request that we take judicial notice of court records filed
in the civil case. (Evid. Code, §§ 452, subd. (d), 459.) On our own motion, we take
judicial notice of our decision in In re Aguina Aguina & Choong-Dae Kang (Aug. 14,
2014, E057770) [nonpub. opn.] (Aguina I), and the record in that case.

                                             3
dividing several parcels of land in the upscale community of La Cresta.” The $140,000

loan is referenced in a one-page document written in Japanese and English. In English,

the writing states: “This is to certify that we, Choong-Dae Kang and Aguina, have

received a loan amount of [$140,000] from Yoshiko Okamoto [Kang’s mother]. The

terms of this loan is [sic] for 5 years with the interest rate of 2% per year. The interest

would be paid in US dollars. Should lender require the return of the funds before the

term expires, we will do so in a timely fashion.” The writing makes no mention of

purchasing, improving, developing, or subdividing any real properties. The $995,000

loan was allegedly made pursuant to an oral agreement and is documented in a wire

transfer from a bank in Japan to Aguina’s “business account” at Temecula Valley Bank in

Temecula. Aguina allegedly breached the loan agreements by failing to pay the loan

amounts when due, plus interest, and by failing to place Kang on title to real properties he

owned in Murrieta, to secure repayment of the loans.

       In December 2010, the plaintiffs in the civil case applied for a temporary

restraining order, right to attach order, and writs of attachment, seeking to secure the sum

of $1,283,016, the amount allegedly due on the loans, through prejudgment attachment

levies on five Murrieta real properties Aguina owned. Pending a noticed hearing on the

plaintiffs’ application for the right to attach order, the judge in the civil case issued a

temporary restraining order prohibiting Aguina from transferring his interests in the

Murrieta properties.




                                               4
       In opposing the application for the right to attach order and writs, Aguina argued

the civil department lacked subject matter jurisdiction to issue any right to attach order or

writs, and the civil case should be consolidated with the marital dissolution case, because

the loans were community debts and the family court had exclusive subject matter

jurisdiction over the division of the parties’ assets and debts, including “the claims of

third parties to the marital assets and debts.” Aguina also argued the loans were exempt

from attachment because they “primarily related to personal, family or household

purposes”; he purchased the Murrieta properties in 2002, before the loans were made in

2004, as part of his and Kang’s “personal investment portfolio”; and the loan agreements

were invalid and unenforceable.

       In reply, the plaintiffs claimed their civil case had nothing to do with the division

of any community properties, and Aguina was estopped from claiming the civil

department lacked subject matter jurisdiction over their loan claims because he

“specifically invoked the jurisdiction” of the civil department when, in December 2010,

he sought and obtained an order from the civil department expunging the lis pendens the

plaintiffs had recorded against his Murrieta real properties.

       On February 14, 2011, the judge in the civil case issued a right to attach order and

order for issuance of a writ of attachment against Aguina’s five Murrieta real properties.

Aguina’s motion for reconsideration was denied.

       On February 28, 2011, the judge in the civil case overruled Aguina’s demurrer to

the plaintiffs’ second amended complaint, based on lack of subject matter jurisdiction,


                                              5
but stayed the civil case for six months pending a resolution in the dissolution proceeding

of whether the loans were separate or community property debts. The stay expired

without a ruling, in the dissolution proceeding, of the community or separate property

character of the loans. In April 2011, Aguina filed an ex parte application in the civil

department to set aside the right to attach order and writs of attachment. His ex parte

application was denied.

       In May 2011, Aguina filed a motion for attorney fees in the family court, seeking

$25,000 in attorney fees to be paid by Kang or “taken out against any of the various items

of community property or other disputed property” in the dissolution proceeding. (Fam.

Code, §§ 2030, 2032.) In the attorney fee motion, Aguina asked the family court to set

aside at least one of the prejudgment writs of attachment so he could sell at least one of

the properties and pay his attorney fees, and to consolidate the civil case with the

dissolution case, because he and Kang continued to dispute the community or separate

property character of the loans from Kang’s mother.

       In supporting declarations, Aguina claimed he had very little income and was

insolvent, but Kang earned substantial income; had “complete control” over the parties’

joint businesses and assets; and owned and controlled additional assets in the United

States and Japan. Aguina also claimed the five Murrieta properties were of equal value;

together, they were worth $1.425 million to $1.875 million; he had “documentation that a

significant sum of the loan at issue in the civil case [had] already been repaid”; and Kang

was hiding “a substantial amount of assets.”


                                               6
          On October 31, 2011, the family court signed an order directing Kang and Aguina

to immediately list the Murrieta properties for sale and to “cooperate in the removal of

any writ of attachment(s) in order for the sale [of the properties] to be consummated.”

The October 31, 2011, order further directed the proceeds from the first parcel sold to be

split evenly between the parties, and the court reserved jurisdiction to characterize the

parcels and their proceeds as community or separate properties.2

          On January 25, 2013, the family court held a hearing on a forensic accounting it

had ordered on Kang’s income, pursuant to Evidence Code section 730. Kang was not

present at the hearing, and was not represented by counsel. The family court ordered her

to pay $1,500 in sanctions for her failure to appear. (Fam. Code, § 271.) The family

court had ordered the forensic accounting in May 2012 in connection with the parties’

respective claims against each other for child and spousal support, and attorney fees.

(Aguina I, supra, at p. 4.) Hearings on these matters had been continued numerous times.

(Ibid.)

          During the January 25, 2013, hearing on the forensic accounting, Aguina’s counsel

requested and the family court agreed to order the prejudgment writs of attachment

against Aguina’s real properties discharged, and on May 14, 2013, the family court issued




          2
         In case No. E044945, Kang and her coplaintiffs petitioned this court for an
extraordinary writ reversing the family court’s October 31, 2011, order, and their petition
was summarily denied. On our own motion, we take judicial notice of the file in case No.
E044945. (Evid. Code, §§ 452, subd. (d), 459.)

                                               7
an order discharging the writs. At the time the writs were ordered discharged, the civil

case was still pending in the civil department.

       In asking the family court to discharge the writs during the January 25, 2013,

hearing, counsel for Aguina explained:

       “[W]e have pled this and it’s in the notice to Ms. Kang, but I’ll summarize it. Mr.

Aguina owns a series of properties here in California. They are all in his name and he

always alleged them to be his separate property. Originally Ms. Aguina contended that

they were community property and she successfully got a prejudgment attachment on

them. Judge Monterosso, in [the October 31, 2011] order we have pled and shown to the

Court with specificity, allowed—prior to the stipulation in front of Your Honor that they

were separate property[—] allow[ed] for the properties to be sold, but when the first

property was sold, the net proceeds were to be divided evenly. That was under the theory

it was a community asset. When we were in front of Your Honor a couple of court

appearances ago for other reasons, they stipulated the properties are completely separate,

so my client desperately needs to generate money. . . . This is the only way he can do so,

and he wants those prejudgment attachments removed completely because it is his

separate property, and part of the theory for the attachment was that they’re community.”

       In response, the court observed:

       “I know that Mr. Siciliano [counsel for Kang in the civil case] and I believe also

Ms. Greer [counsel for Kang in the dissolution proceeding] both indicated that those writs

of attachment had been removed. That was one of their big arguments that the case


                                             8
should stay in civil court . . . and not be heard here, and so I think that they have taken

very strongly the position that these are not community assets, that there is no community

interest in these assets and the writ[s] of attachment should not be on there. [¶] . . . [¶]

. . . So I’m going to grant that request to remove the writ[s] of attachment[].”

       As noted, Kang appeals from the family court’s May 14, 2013, order discharging

the writs. (Code Civ. Proc., § 904.1, subd. (a)(5) [“an order discharging or refusing to

discharge an attachment” is appealable].)

                                      III. ANALYSIS

A. The May 14, 2013, Order Discharging the Writs is Presumed Correct

       “The most fundamental rule of appellate review is that an appealed judgment or

order is presumed to be correct. ‘All intendments and presumptions are indulged to

support it on matters as to which the record is silent, and error must be affirmatively

shown.’ [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs

(The Rutter Group 2013) § 8.15, p. 8-5.)

       The appellant has the burden of overcoming the presumption of correctness by

designating an adequate record on appeal, and demonstrating error based on that record.

(Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 [absence of adequate record on

appeal precludes determination the lower court erred]; Stasz v. Eisenberg (2010) 190

Cal.App.4th 1032, 1039 [same].) The appellant’s burden to demonstrate error remains

the same when, as here, the respondent does not file a respondent’s brief. (Kriegler v.

Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.)


                                              9
       On the present record on appeal, even as supplemented by our judicial notice of

the records in case Nos. E044945 and E057770,3 Kang has not shown that the family

court’s order discharging the writs is invalid or erroneous, based on either a lack of

jurisdiction in the family court or a lack of due process notice to Kang.

B. Kang Has Not Shown Her Due Process Rights Were Violated

       Kang claims the family court violated her due process rights by ordering the writs

discharged without notice to her or an opportunity to be heard. (People v. Hazle (2007)

157 Cal.App.4th 567, 574-575 [“‘[N]otices must be given of any application where the

rights of an adverse party are affected, even though no statute . . . specifically requires

it’”].) The record does not support this claim.

       First, the record shows that Kang had notice of the January 25, 2013, hearing, but

chose not to appear or be represented by counsel at the hearing. She was ordered to pay

$1,500 in sanctions for her failure to appear. (Fam. Code, § 271.) At the hearing,

counsel for Aguina told the court, “we have pled this, and it’s in the notice to Ms. Kang,”

before explaining that the writs had not been removed from Aguina’s real properties in

Murrieta pursuant to the court’s October 31, 2011, order, even though the parties had

recently stipulated that the real properties were Aguina’s separate properties and the

community estate had no interest in them, contrary to Kang’s previous positions in the

civil case and in the dissolution proceeding.




       3   See footnotes 1 and 2, ante.

                                              10
       The record does not include a copy of any notice of the January 25, 2013, hearing.

Nor does the record clearly indicate what the hearing was supposed to concern, if

anything, other than a report on the Evidence Code section 730 accounting of Kang’s

income. But at the hearing, counsel for Aguina indicated Kang was given adequate

notice that Aguina would be asking the court to discharge the writs at the hearing, and on

this appeal Kang has not shown this was not the case.

       Additionally, by its October 31, 2011, order, the family court ordered Aguina and

Kang to “cooperate” in removing the writs so the properties could be sold. Kang sought

writ review of the order, which this court summarily denied on November 28, 2011. On

December 20, 2011, the California Supreme Court denied Kang’s petition for review and

request to stay the October 31, 2011, order, pending review. The record on this appeal

reveals no reason why the writs were not removed pursuant to the family court’s October

31, 2011, order, and long before the January 25, 2013, hearing. Kang characterizes the

October 31 order as “declin[ing] to directly invalidate the writs,” but she has not

explained why the writs were not removed pursuant to the order.

       Furthermore, the family court ostensibly intended its January 25, 2013, decision

and its May 14, 2013, order discharging the writs to serve as a means of enforcing its

October 31, 2011, order directing the parties to cooperate in the removal of the writs.

Indeed, in agreeing to discharge the writs, the court observed that Kang’s attorneys in

both the dissolution proceeding and in the civil case had recently indicated to the court

that the writs had already been removed.


                                             11
C. Kang’s Jurisdictional Claims Also Lack Merit

        Kang claims the family court lacked jurisdiction to discharge the writs for several

reasons: (1) the family court lacked the “superior jurisdiction necessary to invalidate the

orders of another department of the superior court”; (2) the family court did not have

subject matter jurisdiction over the breach of contract matter in the civil case; (3) no

appeal was taken from the February 14, 2011, right to attach order in the civil case; it was

therefore res judicata and not subject to collateral attack in the family court; and (4) the

family court did not have personal jurisdiction over her coplaintiffs in the civil case.

(Italics omitted.) None of these claims have merit.

        “In practice, the superior court exercising jurisdiction under the Family Code is

known as the ‘family court’ (or ‘family law court’). But there is no separate ‘family

court’ per se. Rather, ‘family court’ refers to the activities of superior court judicial

officers handling litigation arising under the Family Code. The ‘family court’ is not a

separate court with special jurisdiction, but is instead the superior court performing one

of its general duties.’” (Hogoboom & King, Cal. Practice Guide: Family Law (The

Rutter Group 2014) ¶ 3:3.10, p. 3-3, quoting In re Chantal S. (1996) 13 Cal.4th 196,

200.)

        As one court explained: “Even though a superior court is divided into branches or

departments, pursuant to California Constitution, article VI, section 4, there is only one

superior court in a county and jurisdiction is therefore vested in that court, not in any

particular judge or department. Whether sitting separately or together, the judges hold


                                              12
but one and the same court. [Citation.] Because a superior court is but one tribunal, ‘[a]n

order made in one department during the progress of a cause can neither be ignored nor

overlooked in another department . . . .’ [Citation.]” (Glade v. Glade (1995) 38

Cal.App.4th 1441, 1449.)

       “Under the doctrine of priority jurisdiction, the first superior court to assume and

exercise jurisdiction in the case acquires exclusive jurisdiction until the matter is disposed

of. [Citations.] The doctrine avoids the risk of simultaneous proceedings or conflicting

decisions. [Citation.]” (Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135; Glade v.

Glade, supra, 38 Cal.App.4th at p. 1450 [“‘[T]he first court of equal dignity to assume

and exercise jurisdiction over a matter acquires exclusive jurisdiction.’” (Italics

omitted.)].) Thus, it is beyond the jurisdictional authority of any other superior court

department to interfere with or invalidate a ruling made by the department first to acquire

jurisdiction over the matter, until judgment in that matter has become final. (Levine v.

Smith, supra, at p. 1135; Hogoboom & King, Cal. Practice Guide: Family Law, supra,

¶ 3:22, p. 3-13.)

       Here, the dissolution proceeding was filed in 2008, before the civil case was filed

in 2010. Thus, the family court was the first department of the superior court to assume

jurisdiction to determine and direct the disposition of Kang and Aguina’s community

property estate, and had exclusive jurisdiction, under the doctrine of priority jurisdiction,

to rule on matters concerning the division and disposition of the parties’ community

estate. (Askew v. Askew (1994) 22 Cal.App.4th 942, 961 [“After a family law court


                                             13
acquires jurisdiction to divide community property in a dissolution action, no other

department of a superior court may make an order adversely affecting that division.”].)

       By issuing the right to attach order and the order for issuance of the writs on

February 14, 2011, the court in the civil case interfered with the family court’s exclusive

jurisdiction in matters concerning the division and disposition of Kang and Aguina’s

community estate. At the time the writs were issued, Kang and Aguina were disputing

whether the Murrieta real properties were community property assets or Aguina’s

separate properties. By allowing Kang and her coplaintiffs to encumber the properties

with the writs, pending judgment in the civil case, the court in the civil case directly

interfered with the family court’s exclusive jurisdiction to make orders concerning the

disposition, in the dissolution proceeding, of what Kang was then claiming were

community assets.

       Thus, the family court was not without jurisdiction to issue its October 31, 2011,

order directing Kang and Aguina to cooperate in the removal of the writs or its May 14,

2013, order discharging the writs—notwithstanding the February 14, 2011, right to attach

order and order for the issuance of the writs in the civil case. Our conclusion is

unaffected by the fact the civil case was not consolidated with the dissolution case and

involved parties other than Kang and Aguina, namely, Kang’s coplaintiffs.




                                             14
                                  IV. DISPOSITION

      The family court’s May 14, 2013, order discharging the prejudgment writs of

attachment issued on February 14, 2011, in Riverside County Superior Court case No.

RIC10019528 (the civil case) is affirmed. Aguina shall recover his costs on appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             KING
                                                                                      J.


We concur:

RAMIREZ
                       P. J.

MILLER
                          J.




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