CourtListener opinion 6317746

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Filed 2/25/22 Marriage of Torres CA4/1
 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or ordered published f or
purposes of rule 8.1115.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 DIVISION ONE

 STATE OF CALIFORNIA

In re the Marriage of ADALBERTO
and GEMMA TORRES.
 D078469
ADALBERTO TORRES,

 Respondent, (Super. Ct. No. DS37815)

 v.

GEMMA TORRES,

 Appellant.

 APPEAL from an order of the Superior Court of San Diego County,
Maryann D'Addezio, Judge. Affirmed.
 Melissa J. Schmitt for Appellant.
 Shelly K. Pawchuk for Respondent.

 Gemma Torres appeals a postjudgment order distributing the
community property interest in her retirement plan and awarding her ex-
husband, Adalberto Torres, attorney fees and costs as sanctions for breach of
fiduciary duty. Gemma contends the family court erred by imposing
 sanctions because Adalberto did not ask for them in his request for order. We
reject this contention and affirm the order.
 BACKGROUND
 Adalberto and Gemma divorced in 2010. The judgment of dissolution
required equal division of the parties' retirement plans by a qualified
domestic relations order. When Adalberto submitted such an order to
Gemma's employer, the employer informed him it had distributed all the
funds to Gemma and she no longer had a retirement account. Adalberto filed
a request for order (RFO) and supporting declaration asking the family court
to enforce the agreed distribution of retirement funds by awarding him half
the amount Gemma had listed on a schedule of assets and debts. Gemma
filed a responsive declaration in which she opposed Adalberto's request and
stated she had withdrawn the funds from her retirement account when she
was laid off and had put them in an individual retirement account (IRA). At
a hearing on Adalberto's RFO, the family court continued the hearing to
allow Gemma to retain counsel and ordered her not to transfer any of the
funds from her IRA until further order of the court.
 In the meantime, Adalberto obtained records from Gemma's employer
that showed she had withdrawn substantially more from the retirement
account than she had listed on her schedule of assets and debts. Adalberto
therefore filed a supplemental declaration in support of the RFO in which he
asked for a larger amount of Gemma's retirement funds and for attorney fees
as a sanction under Family Code section 271 for her intentional withdrawal
of the funds belonging to him. Adalberto also filed a memorandum of points
and authorities in support of the RFO in which he argued Gemma had
maliciously and fraudulently breached her fiduciary duty to him by
withdrawing his share of the retirement funds, concealing the withdrawal,

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 and using the funds for her own benefit. He asked the family court to award
him the entirety of her retirement funds, attorney fees, and costs. (See Fam.
Code, §§ 721, subd. (b), 1100, subd. (e), 1101, subds. (g), (h).) The
supplemental declaration and memorandum were served on Gemma.
 Approximately one year later, the family court began an evidentiary
hearing on Adalberto's RFO that occurred on portions of three days over the
following year. On the first day, Adalberto's counsel identified Gemma's
breach of fiduciary duty as one of the issues to be addressed, and stated the
evidence would show she maliciously and fraudulently tried to deprive him of
his share of her retirement funds such that sanctions were warranted. In her
opening statement, Gemma's counsel did not object to inclusion of breach of
fiduciary duty as an issue and instead claimed there was no breach.
Adalberto's counsel called Gemma as the first witness and questioned her
extensively about her management of the retirement funds, including her
withdrawals and failures to inform Adalberto about them. Gemma's counsel
did not object to this line of questioning. The second and third days of the
hearing were not transcribed by a court reporter.
 The family court heard arguments on the last day of the hearing, took
the matter under submission, and later issued its findings and order after
hearing. The court found the issue of whether Gemma had breached her
fiduciary duty to Adalberto was properly before it and found she had done so,
but not with fraud or malice. The court awarded Adalberto half of the
community property interest in Gemma's retirement account, plus $28,000
for attorney fees and $2,000 for court reporter costs.
 DISCUSSION
 Gemma raises a single question on appeal: "Did the [family court] err
when it ordered [her] to pay [Adalberto] $30,000.00 in attorney fees and

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 reporter's costs for breach of fiduciary duty when [he] did not plead for
attorney fees and costs and/or breach of fiduciary duty in [his] moving
papers?" Answering "yes," Gemma contends the order violated her right to
due process of law because Adalberto's RFO and accompanying declaration
provided no notice he was seeking relief for breach of fiduciary duty, the RFO
was never amended, and the defect was not cured by his additional filings or
the evidentiary hearing. We disagree.
 The general rule is that a notice of motion must state the relief being
sought and the grounds for relief. (Code Civ. Proc., § 1010; Cal. Rules of
Court, rule 3.1110(a).) This requirement applies in family law proceedings
(Fam. Code, § 210; Cal. Rules of Court, rule 5.2(d)), where an RFO operates
as a motion and notice of motion (Cal. Rules of Court, rule 5.92(a)(1)(A)).
Because due process of law requires a party be given notice and opportunity
to be heard before relief is granted against the party (Midway Venture LLC v.
County of San Diego (2021) 60 Cal.App.5th 58, 77-78; Moore v. California
Minerals etc. Corp. (1953) 115 Cal.App.2d 834, 836-837 (Moore)), a court
generally may consider only the grounds for relief specified in the notice of
motion (366-386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d
1186, 1199). That rule is not absolute, however. The failure to include a
ground in the notice does not preclude relief on that ground if it was specified
in the supporting papers or was raised without objection at the hearing on
the motion. (Fredrickson v. Superior Court (1952) 38 Cal.2d 593, 598
(Fredrickson); Lohman v. Lohman (1946) 29 Cal.2d 144, 151; Kinda v.
Carpenter (2016) 247 Cal.App.4th 1268, 1277 (Kinda); Luri v. Greenwald
(2003) 107 Cal.App.4th 1119, 1126-1127 (Luri).)
 This case falls within the exceptions that allow a court to award relief
not specified in a notice of motion. Adalberto's failure to include a request for

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 attorney fees and costs for Gemma's breach of fiduciary duty in the RFO and
accompanying declaration can be excused because Adalberto did not know
about the breach when he filed those papers. He discovered it when he later
obtained Gemma's retirement account records from her former employer.
Adalberto then filed a supplemental declaration and a memorandum of points
and authorities accusing Gemma of breach of fiduciary duty, requesting
attorney fees and costs, and citing statutory and case law supporting the
request. Adalberto served these papers on Gemma more than 11 months
before the evidentiary hearing started. Since the additional supporting
papers "sufficiently define[d] the issues for the information and attention of
the adverse party and the court" (Hernandez v. National Dairy Products
(1954) 126 Cal.App.2d 490, 493), the family court could "treat the supporting
papers as curing the defective notice" (Luri, supra, 107 Cal.App.4th at
p. 1127). Indeed, the family court determined that filing the additional
supporting papers was the "functional equivalent" of amending the RFO to
seek attorney fees and costs for breach of fiduciary duty. Gemma's demand
for an amended RFO was therefore effectively met. (See Civ. Code, § 3528
["The law respects form less than substance"].)
 The exception for granting relief on a ground raised without objection
at a hearing on a motion also applies. On the first day of the evidentiary
hearing, the only day on which a court reporter was present, Adalberto's
counsel made an opening statement on Gemma's breach of fiduciary duty and
extensively questioned her on that issue without objection from Gemma's
counsel. Gemma contends her "counsel did raise an objection during
unrecorded proceedings" (italics added), but without a reporter's transcript or
settled statement containing the objection, she has not preserved the
contention for appeal and we must resolve it against her. (Jameson v. Desta

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 (2018) 5 Cal.5th 594, 609; In re Marriage of Obrecht (2016) 245 Cal.App.4th
1, 8-9.) Gemma's counsel made an opening statement in which she disputed
the allegations of breach of fiduciary duty, claiming there was no
nondisclosure concerning the retirement account and adequate funds had
been maintained to pay Adalberto his share. The family court's findings and
order after hearing indicate Gemma presented evidence and argument on the
issue later in the hearing. It thus appears Gemma had a fair opportunity to
litigate the breach of fiduciary duty claim and related remedies and may not
now complain their omission from the RFO deprived her of that opportunity.
(Fredrickson, supra, 38 Cal.2d at p. 598; Kinda, supra, 247 Cal.App.4th at p.
1278.)
 Finally, we reject Gemma's argument the family court erred by relying
on Moore, supra, 115 Cal.App.2d 834, for the proposition that "[d]ue process
requires affording a litigant a reasonable opportunity, by continuance or
otherwise, to respond to evidence or argument that is new, surprising, and
relevant." In Moore, the Court of Appeal reversed a judgment on the
pleadings against the defendant when the plaintiff had made no such motion;
the "ruling came as a surprise to defense counsel, who had no opportunity to
point out the sufficiency of the answer to raise an issue [of fact]"; and the
"parties were prepared to go to trial, and but for the precipitate and
unexpected action of the court would have done so." (Id. at p. 836.) The
Court of Appeal stated: "Elementary principles of due process support our
conclusion that if, during a trial, the court, sua sponte, unearths a point of
law which it deems to be decisive of the cause, the party against whom the
decision impends has the same right to be heard before the decision is
announced that he has to produce evidence upon the issues of fact." (Id. at
p. 837.) Gemma says Moore "does not apply" because "Adalberto did not ask

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 the [family court] to force [her] to respond to evidence or argument that was
new, surprising or relevant. [He] asked the [c]ourt to order [her] to pay him
tens of thousands of dollars i[n] sanctions, a form of relief he did not seek in
his moving papers." Due process, however, is not about forcing a party to
respond to evidence or argument before judicial action is taken against the
party. It is about giving the party notice of the requested action and an
opportunity to be heard before the action is taken. That was the point the
family court was making by citing Moore, and we agree with its conclusion
the post-RFO papers Adalberto filed and served to request attorney fees and
costs for Gemma's breach of fiduciary duty and the evidentiary hearing on
those matters satisfied due process requirements.
 DISPOSITION
 The order is affirmed. Respondent is entitled to recover his costs on
appeal.

 IRION, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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