RAMIREZ, P. J., Dissenting. Today the majority holds that the trial court erred when it ordered that respondent Louise Croce (Croce) obtain the amount of $239,129.54 by writ of execution against appellant Sydney Lowe Harris (Harris), with directions that she forward any amounts so obtained to her judgment creditors, the Munarettos, within two weeks of any payment. It concludes that this was error because the trial court was first required to perform a factual analysis under title 11 United States Code section 523(a)(15), and remands the case to the trial court to engage in that examination. Given the state of the record presented by appellant and the proper role of this court, I cannot agree with this decision. Therefore, I dissent.
On appeal Harris raises four arguments in support of his claim that the trial court committed reversible error. They include: (1) despite his failure to list his obligation to Croce in his bankruptcy papers, the bankruptcy discharged that obligation; (2) Croce has not been damaged, therefore she has no right to indemnity; (3) because his debt to Croce was discharged by the bankruptcy, she is enjoined by statute from seeking to recover on that debt; and (4) because his debt to Croce was discharged by the bankruptcy, the trial court had no jurisdiction to enter the challenged order. Essentially then, three of Harris’s arguments on appeal depend upon his assertion that his debt to Croce was discharged.
Harris claims that his obligation to indemnify and hold Croce harmless from the Munaretto judgment was discharged whether or not he listed her in his bankruptcy papers based upon the authority of two cases decided by the [439]Ninth Circuit, In re Nielsen (9th Cir. 2004) 383 F.3d 922, and In re Beezley (9th Cir. 1993) 994 F.2d 1433, since his was a no-asset chapter 7 petition where no date was set for filing proofs of claim. The majority bases its decision to remand this case on its analysis of this claim and Croce’s response to it. However, it omits any reference to Croce’s first argument in opposition to this claim, namely, that it has been waived by Harris’s failure to raise it before the trial court.
On the record before us, it appears that Croce’s assertion has merit. In his first response to her order to show cause below, Harris asserts not that his obligation to Croce was discharged, but that his duty to pay the Munarettos was discharged by his bankruptcy. In his subsequently filed points and authorities, Harris did not argue that his obligation to Croce was discharged, but rather argued that Croce had sustained no injury and therefore could not seek indemnification from him. With respect to any discharge, he at best vaguely asserts that Croce was aware of his bankruptcy and “did not cho[o]se to oppose the debts discharged.” Taken in its context, this argument most reasonably applies to Harris’s direct liability to the Munarettos. Harris does not refer to any evidence nor does he cite to any authority for his claim. Similarly, in his final points and authorities contained in the record on appeal, Harris again asserts only that Croce has not been damaged and that she has not demonstrated that the judgment of dissolution can be set aside under Family Code section 2122. Nor does the portion of the reporter’s transcript that Harris has provided to this court (it is interesting to note that the entire first day of the trial, which consisted of Harris’s testimony, as well as the much earlier hearing at which this issue might have been discussed, have been left out of his designation of the record on appeal) demonstrate that Harris ever asserted that his obligation to Croce had been discharged and therefore the court could not grant her any relief.
In fact the only potential references to Harris’s primary contention on appeal that can be found after a thorough review of the record are an assertion raised by Croce, in one of her briefs, that because Harris did not list her right to be indemnified in his bankruptcy and did not inform her of the bankruptcy, the discharge did not apply to her, and two statements by the trial court that it had concluded that Harris’s bankruptcy did not discharge his obligation to Croce. Even those references fail to assert anything about a no-asset chapter 7 bankruptcy as now claimed by Harris. And, as shown above, there is no indication that Harris ever responded to Croce’s argument before the trial court. Nor is there any indication that he challenged the statements made by the trial court on any grounds. If indeed Harris’s [440]argument was raised below and was rejected by the trial court, it is his burden to demonstrate that fact by providing an adequate record on appeal. (Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th. 654, 660 [37 Cal.Rptr.3d 688].) In the absence of an adequate record, the issue must be resolved against him. (Ibid.)
New theories of defense may not be raised for the first time on appeal. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13 [14 Cal.Rptr.3d 89].) This long-held rule is based upon fairness, more specifically the recognition that it would be unfair to both the opposing litigant and the trial court to allow a party to adopt a new theory not explored below. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847 [60 Cal.Rptr.2d 780].) Although there is a recognized exception to this rule for pure questions of law on uncontroverted records that require no factual determinations (ibid.), it is manifest that this issue does not qualify. Harris has failed to cite to any evidence in the record that would indicate that his was a no-asset chapter 7 petition to which the cited cases would apply. And indeed, the majority proposes to return the matter to the trial court for the specific purpose of making a factual determination to decide the issue.
In addition, the policies behind the concept of implied waiver are implicated by Harris’s silence below. Appellants may be held to have waived a claim of error by failure to take proper steps in the trial court to avoid or cure the error. (Telles Transport, Inc v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167 [112 Cal.Rptr.2d 540].) “[F]aimess is at the heart of a waiver claim. Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178 [8 Cal.Rptr.3d 840].) The trial court should not be required to spend time making factual determinations on remand when it could have made them prior to this appeal if only Harris had properly argued his case.
Because Harris has failed to demonstrate through an adequate record that he argued before the trial court that his obligation to indemnify Croce was extinguished by his discharge in bankruptcy, I would hold that he may not raise the issue for the first time on appeal. Since three of his four arguments [441]depend upon that point, all three would fail, leaving Harris with only one remaining claim; that the trial court erred because Croce has not incurred any damage that would give rise to a claim for indemnity. The majority has apparently rejected this claim without specifically addressing it. Simply put, Harris’s argument misses the point. The trial court did not determine that Croce had sustained damages such that Harris’s obligation to indemnify her arose. Rather, it determined that the facts supported a finding that Harris anticipatorily breached his contract with Croce. Since Harris has failed to assert that the facts and/or law did not support a finding of anticipatory breach, or that the trial court’s remedy was inappropriate for such a finding, he has not demonstrated that the trial court erred. His final argument also fails.
For the reasons stated above, I would affirm the judgment of the trial court. In addition to disputing the majority’s conclusion as to the ultimate disposition of the case, I disagree with it on a further point. Based upon the apparent dissimilarity of this case to In re Gionis (Bankr. 9th Cir. 1994) 170 B.R. 675, the majority concludes that title 11 United States Code section 523(a)(5) does not apply to this case as a matter of law. I cannot concur with this determination. In the first place, the court in In re Gionis recognized that “what constitutes support within the meaning of [title 11 United States Code] section 523(a)(5) implicates a number of factors that are potentially relevant on a case-by-case basis . . . . [f] . . . [][] While a . . . court may consider other factors, these are the primary ones that inform the inquiry in this case.” (170 B.R. at p. 682.) Because the Gionis factors discussed by the majority are only potentially relevant on a case-by-case basis, and were specifically identified as those pertinent to that case, they do not necessarily mandate that title 11 United States Code section 523(a)(5) does not apply to this case as a matter of law.
Further, while the majority is willing to acknowledge that the trial court failed to make the requisite findings under title 11 United States Code section 523(a)(15), it is inexplicably unwilling to recognize that the trial court also failed to make any findings of fact under title 11 United States Code section 523(a)(5). Croce did testify that she would not have waived her claim to spousal support absent Harris’s promise to hold her harmless from certain of the debts which they at least potentially owed. Because the law requires that the determination whether the obligation was in the nature of spousal support and was therefore not dischargeable in bankruptcy be made on a case-by-case basis, considering a number of potentially relevant factors, the trial court was required to make the appropriate factual findings. (In re Gionis, supra, 170 B.R. at pp. 681-684.)
[442]Consequently, had I not concluded that Hams has failed to provide an adequate record to demonstrate that he raised the no-asset chapter 7 bankruptcy issue before the trial court, I would remand this case to the trial court with a broader mandate to determine whether Harris’s obligation to Croce was not discharged in his bankruptcy because it was either in the nature of “alimony to, maintenance for, or support” for Croce under title 11 United States Code section 523(a)(5) or fell within the provisions of title 11 United States Code section 523(a)(15).