CALIFORNIA ATTORNEY'S FEES

Appeal Sanctions/Family Law: $552,153.28 Fee Award Under Family Code Section 271 Affirmed Based On Substantial Evidence In Sixth District Published Decision

 

Appellate Frivolous Sanctions Also Awarded Against Appellant/Her Counsel.

     Marriage of Wahl and Perkins, Case No. H035712 (6th Dist. Feb. 2, 2012) (certified for publication) is a situation where an ex-wife was ordered to pay $552,153.28 as a fee “sanctions” to ex-husband under Family Code section 271. (For any newbees or anyone who might need reminding, this is a statutory section in the family law area allowing an award of fees against a litigant--without any real showing of injury but indicating that the litigant can financially bear the award--for not furthering settlement or making the matter more litigious in nature.) It is an interesting opinion to show how the abuse of discretion standard will result in affirmance, as well as show how appellate courts may be pulling the “trigger” more often on frivolous appeals--awarding expenses to the clerk of the court for the costs of processing such appeals.

     Based on the record, ex-wife had assets of $7 million, $5 million of which were accessible. So, she certainly could bear the consequences of a loss given the facts recited in the opinion--including numerous custody/visitation battles both in California and Pennsylvania. However, the real ouch was ex-wife who had to pay $15,000 to the clerk for a frivolous appeal and her two attorneys had to pay $5,000 each for the same reason.

Family Law: Family Judge’s Award Of Additional Pendente Lite Fees Of $850,000 Within 15 Days To Wife Was No Abuse Of Discretion

 

“Big” Picture Was Considered By Family Judge, Especially Where Husband Had Substantial Assets And Outspent Wife By Almost Double In Dissolution Fees.

     As we predicted in our post of March 21, 2009, family law practitioners would use “big” picture language from Alan S. v. Superior Court, 172 Cal.App.4th 238 (2009) in arguing that the playing field was unfairly tilted in “needs” based fee awards under Family Code sections 2032/4320. Our prediction has come true in numerous cases, with the next case being the most recent one in the queue.

     Husband, despite having substantial assets and spending almost double in fees what wife spent in the dissolution proceeding, argued on appeal in Marriage of Hagaman, Case No. B228238 (2d Dist., Div. 7 Jan. 18, 2012) (unpublished) that the $850,000 pendente lite fee award to wife ignored the “big picture” and tried to level the playing field too much.

     Didn’t work. She had a lot less assets, a lot less cash flow, and had spent much less on attorney’s fees, albeit had spent a lot. (You can’t believe it, but here are the facts from the unpublished opinion: in April 2010, wife spent $611,820 and husband spent $1,004,766; and, in August 2010, wife spent $807,591 and husband spent $1,443,208. Wow!) Nothing demonstrated a myopic approach by the lower court, especially since it reserved wife’s request for an additional $576,400 for trial. Ouch -- more fees to come, potentially.

     BLOG TIDBIT: According to an Internet article in 2002, Earl Hagaman was the owner of Scenic Circle Hotels, a large New Zealand hotel chain. The article estimated his personal worth at $75 million.

Kiwi.  Apteryx Australis.  1835.  Elizabeth Gould, illustrator.

Family Law: Needs-Based/Sanction Fee Awards To Wife Were Correct

 

Appellant Failed to Provide Fair Statement of Evidence or Support Argument With Proper Analysis.

     Marriage of McIntyre and Shayan, Case No. B229106 (2d Dist., Div. 8 Jan. 6, 2012) (unpublished), although involving a pro per appellant husband losing a needs-based/sanctions fee award to wife, does reinforce certain principles that every appellant needs to follow on appeal. His contentions of error were forfeited because he did not do these things: (1) failing to provide a fair summary of the evidence (Nwosu v. Uba, 122 Cal.App.4th 1229, 1246 (2004)--an important decision on this point); (2) failing to provide citations to the record in support of arguments (Cal. Rules of Court, rule 8.204(a)); and (3) failing to provide an adequate record of lower court proceedings (Wagner v. Wagner, 162 Cal.App.4th 249, 259 (2008)). However, even on the merits, the limited record showed wife was on government assistance and husband had financial means not identified in his income/expense statements, reason enough to sustain the fee awards. Good guide to appellate fundamental primer points in this specialized practice area, we might say.

Family Law: Family Code Section 2102(c) Sanctions Order Reversed, But Needs-Based $260,000 Fee Awards Are Affirmed

 

Court of Appeal Determines Scope of Section 2102(c) and Reminds Practitioners That Section 2030/2032 Fees Are Based on Relative Needs Even With High Net Worth Spouses.

     Marriage of Sorge, Case Nos. D57677/58611 (4th Dist., Div. 1 Jan. 5, 2012) (certified for publication) reversed a Family Code section 2102(c) breach of fiduciary duty sanctions award because it determined the statute did not impose on divorced parties a continuing fiduciary duty to disclose all material facts regarding a party’s income after a final custody and support order has been entered. However, even though the two spouses had high net worth, it also affirmed “needs-based” pendente lite fee awards to wife totaling $260,000 under Family Code sections 2030/2032 where the relative needs showed husband had a significantly greater net worth albeit less cash flow liquidity. (In re Marriage of O’Conner, 59 Cal.App.4th 877, 883-884 (1997).)

Family Law: Adverse Fee Awards Against Husband Under “Needs-Based”/Sanctions Statutes Were No Abuse of Discretion

 

No Statement of Decision Required For Dissolution Fee Matters At the Time.

     Marriage of Carson, Case No. E052074 (4th Dist., Div. 2 Jan. 4, 2012) (unpublished) involved a husband who appealed orders requiring him to pay attorney’s fees to his wife under Family Code sections 271 (sanctions statute, for not fostering settlement) and 2030/2032 (“needs-based” statutes looking at the relative financial conditions of each side).

     The appellate court affirmed (1) a $1,500 (out of requested $1,958) fee award for husband’s pursuit of nongermane medical records prompting wife’s successful motion for a protective order, and (2) a $5,000 (out of requested $12,250) fee award where both parties had about the same level of fees, husband was helping his lawyer draft a lot of the paperwork (such that wife had a nonlevel playing field when it came to the legal system), and husband had been frustrating resolution during the case.

     The appellate court also rejected that a statement of decision was required for a fee motion determination in a dissolution proceeding. (In re Marriage of Askmo, 85 Cal.App.4th 1032, 1040 (2000).) [BLOG CAVEAT--See our December 22, 2011 post on Marriage of Bader, where Justice Ikola reminded everyone that Family Code section 2030(a)(2), effective January 1, 2011, does require express findings on relative financial conditions for each side in “needs-based” dissolution fee matters.]

Family Law: We Have A Two-Fer--Wive’s Appeals Do Not Result In Increased Fees Or Fees At All In The Other Case

 

Marriage of Conrad, Case No. D058756 (4th Dist., Div. 1 Dec. 20, 2011) (Unpublished).

     In this one, husband was ordered to pay wife $2,200 in attorney’s fees. She claimed this was not enough, even though the opinion talked about an admission that wife was a compulsive buyer (apropos in this Yuletime season, we surmise). Wife’s main challenge was that husband did not file a “current” income and expense declaration before trial. Not so, said the appellate court. The local San Diego Superior Court rule did define “current” as within three months of trial, something husband was compliant with. Fee award affirmed.

Marriage of Gross, Case Nos. E051037 et al. (4th Dist., Div. 2 Dec. 20, 2011) (Unpublished).

     Wife appealed the denial of pendente lite fees based on the “needs” statutes of Family Code section 2030 and 2032. She argued that husband had a history of unreported income, even though the lower court determined that neither side had any real income. No abuse of discretion under the circumstances, simply because the evidence from wife did not conclusively demonstrate that husband had any current income or assets.

Year in Review - 2011

Wrapping It Up:  M & M’s Top 25 Attorney’s Fees Decisions For 2011  Part 1 of 2

     It is that time of year, at year end, for us to list our top published attorney’s fees decisions from the U.S. Supreme Court, Ninth Circuit Court of Appeals, and California Courts of Appeal. Although we normally do the “Top 20” decisions, the 2011 year was prolific for many, many decisions of interest, so we expanded it to the top 25.

     We might note that 2012 looms as an important year for the California Supreme Court to decide the issues involved in Kirby v. Immoos Fire Protection, United Parcel Service Wage & Hour Cases (McGann), and related cases considering whether a prevailing defendant is entitled to recover Labor Code section 218.5 attorney’s fees for successfully defending against a plaintiff employee’s claims for meal/rest break violations even if those claims were joined with Labor Code section 1194 overtime compensation claims subject to a unilateral pro-plaintiff fee shifting provision. (See our posts of September 28, October 25, and November 25, 2011.)

     However, we can only report and score on the top 25, keeping in mind that appellate jurists did decide many other important cases. These are our favorites in a wide range of areas, so enjoy. This will be the first 13 cases, with 12 more to follow in a subsequent post--likely closer to year’s end.

     25. La Cuesta v. Benham, 193 Cal.App.4th 1287 (2011) [4th Dist., Div. 3]; author--Presiding Justice Sills (who, unfortunately, passed away earlier this year after a long and distinguished career):  Under Civil Code section 1717, a lopsided win by landlord in obtaining repossession and compensation from tenant made landlord the prevailing party, reversing denial of fees even under an abuse of discretion standard. [Discussed in our March 30, 2011 post.]

     24. Ferwerda v. Bordon, 193 Cal.App.4th 1178 (2011) [3d Dist.]; author--Justice Robie:  Attorney’s fees cannot be awarded to a homeowners’ association based on unrecorded CC&R enforcement documents and manuals.  [Discussed in our March 26, 2011 post.]

     23. Turner v. Assn. of American Medical Colleges, 193 Cal.App.4th 1047 (2011) [1st Dist., Div. 5]; author--Justice Simons:  Attorney’s fees are not awardable to defendant prevailing on Unruh Civil Rights Act, Civil Code sections 52 and 54.3 claims even though defendant did prevail (but did not claim entitlement to work) under a broader fee-shifting provision contained in section 55. [Discussed in our March 25, 2011 post.]

     22. In re Marriage of Fong, 193 Cal.App.4th 278 (2011) [2d Dist., Div. 3]; author-- Justice Croskey:  Wife not complying with her financial disclosure requirements in family law proceeding could not seek fee award from noncompliant husband under Family Code section 2107(c). [Discussed in our March 4, 2011 post.]

     21. Marriage of Fossum, 192 Cal.App.4th 336 (2011) [2d Dist., Div. 1]; author--Justice Johnson, writing for the majority; Justice Rothschild, dissenting:  Spouse/domestic partner’s breach of Family Code section 721(b) fiduciary duty gives rise to mandatory fee award under Family Code section 1101(g); dissenting justice spelled out anomalous results from this interpretation and suggested a legislative amendment to the statute to make it discretionary in nature. [Discussed in our January 29, 2011 post.]

     20. Harris v. Maricopa County Superior Court, 631 F.3d 963 (9th Cir. 2011); author--Circuit Judge Reinhardt for the majority; Circuit Judge Bybee, concurring and dissenting:  “But for” test, not pro-rata allocation of fees between frivolous and nonfrivolous claims, was proper standard for fee recovery under federal civil rights fee-shifting statute; dissenting judge argues that “but for” test will make it impossible for defense to argue fee apportionment in mixed-bag cases. [Discussed in our January 16, 2011 post.]

     19. Garcia v. Politis, 192 Cal.App.4th 1474 (2011) [2d Dist., Div. 4]; author--Justice Willhite: Plaintiff seeking fees in default judgment context cannot file a fee motion post-judgment, but must make a fees request in plaintiff’s default judgment packet paperwork. [Discussed in our February 26, 2011 post.]

     18. First National Mortgage Co. v. Federal Realty Investment Trust, 631 F.3d 1058 (9th Cir. 2011); author--Senior Circuit Judge Thompson: 28 U.S.C. § 1821(b) $40-per-day limitation on witness expenses “preempted” application of California Code of Civil Procedure section 998’s allowance of broader “reasonable” expert witness fees in diversity cases. [Discussed in our February 1, 2011 post.]   Justice Thompson died February 19, 2011.

     17. Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans, 195 Cal.App.4th1275 (2011) [2d Dist., Div. 1]; author--Presiding Justice Mallano:  Unspecified attorney’s fees prayer in complaint did not void future default judgment based on terminating sanctions conduct. [Discussed in our May 26, 2011 post.]

      16. Puerta v. Torres, 195 Cal.App.4th 1267 (2011) [4th Dist., Div. 3]; author--Justice Moore: Failure to include some type of acceptance language in Code of Civil Procedure section 998 offer invalidates the offer. [Discussed in our May 25, 2011 post.]

      15. Martinez v. L.A. County Metropolitan Transp. Auth., 195 Cal.App.4th 1038 (2011) [2d Dist., Div. 1]; author--Justice Rothschild:  Code of Civil Procedure section 998 offer excluding “costs” from recovery also means that attorney’s fees are excluded from the ambit of the offer. [Discussed in our May 23, 2011 post.]

     14. Ilshin Investment Co., Ltd v. Buena Vista Home Entertainment, Inc., 195 Cal.App.4th 612 [2d Dist., Div. 1]; author—Justice Chaney:  Attorney’s fees are not allowable for prevailing party in post-judgment enforcement independent creditor’s suit. [Discussed in our May 15, 2011 post.]

      13. In re Marriage of Davenport, 194 Cal.App.4th 1507 (2011) [lst Dist., Div. 2]; author--Justice Richman:  Scorched earth litigation practices justified denial of family sanction fees to wife and allowed for substantial fees against her/in favor of husband; case distinguishes between zealous advocacy and “attack dog”/”scorched earth” litigation. [Discussed in our May 6, 2011 post.]

      BLOG UNDERVIEW--This last one is a good one to end on, because both co-contributors have dogs--Mike has Riffle, a Labrador, and Marc has Watson, a mixed-breed dog, but still a good dog! Watch for our ensuing post before the end of the year with the next 12 decisions rounding out our “Top 25.” Happy Holidays to all of our readers.

Earlier Year End Wrap-Ups:

     2010  Part I; Part II     2009 Part I; Part II     2008 Part I; Part II

 

Family Law: $10,000 Family Code Section 271 Sanctions Award Was No Abuse Of Discretion

 

Wife Had Not Cooperated in Sale of Couple’s Property and Nixed Top-of-the-Market Offer.

     Marriage of Richard, Case No. B223552 (2d Dist., Div. 3 Dec. 14, 2011) (unpublished) is interesting to show just how long cases can go and the breadth of family law judge discretion when imposing sanctions under Family Code section 271.

     You know this was not good, either way, when the appellate court early on said that “this litigation began during the Reagan administration” and had lots of proceedings which ensued over the next 25 years.

     In a word, wife eventually was hit with a $40,046 fee/costs award in favor of husband. The family law judge also imposed $10,000 in sanctions upon her under section 271, which allows for fees and costs to be awarded against a litigant who fails to cooperate and advance resolution of a family law case.

     Wife’s appeal was unsuccessful. No abuse of discretion was had here, where wife failed to cooperate in the selling of the couple’s house and nixed a top-of-the-market offer. Nothing definitively showed that the lower court failed to consider wife’s financial ability to pay (an essential element of a section 271 award), and the other challenges were not borne out by the appellate record.

Family Law Two-Fer: Fees Denied Because Lawyering Did Not Help Resolve The Controversy And Notice Of Appeal Was Defective

 

Garner v. Aronson, Case No. B228396 (2d Dist., Div. 8 Dec. 9, 2011) (Unpublished).

     In this one, additional attorney’s fees were denied to wife for one simple reason: the work of her attorneys was of little value to the process of resolving and litigating the controversy towards a resolution. (In re Marriage of Duncan, 90 Cal.App.4th 617, 629 (2001).) Keep that in mind, you family practitioners out there!

Domestic Partnership of Passmore and Dahl, Case No. E051392 (4th Dist., Div. 1

Dec. 9, 2011) (Unpublished).

     This second one is even more of a sober reminder. One of domestic partners lost its ability to appeal a decision denying him a recovery of postjudgment fees from the other partner. The reason? The appealing partner did not clearly appeal the fee award denial in his notice of appeal. (Silver v. Pacific American Fish Co., Inc., 190 Cal.App.4th 688, 693 (2010).) Ouch!

Family Law: Trap For The Unwary--Reserve Jurisdiction For Fees To Obtain Prejudgment Fees Subsequent To Judgment

 

Failure to Reserve Jurisdiction May Be Costly.

     The Second District, Division 6 provides all family law practitioners with an important reminder to make sure attorney’s fees is a reserved issue for future consideration by a family law judge in a judgment. A $10,000 fee award to husband under Family Code section 1101 (breach of fiduciary duties) in Dionisio v. Reyes, Case No. B215146 (2d Dist., Div. 6 Nov. 30, 2011) (unpublished) was reversed when wife correctly pointed out on appeal that absent a reservation of jurisdiction in a marital dissolution judgment, future attorney fee orders cannot be entered to account for legal services rendered prior to judgment. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶ 14:9, p. 13-4.)

Bear trap.  Wikipedia.

Family Law: Fifth Appeal Is Fatal--Wife Had To Pay $80,195.59 In Attorney’s Fees To Husband Under Contractual Fees Clause In Marital Settlement Agreement

 

She Was Hit With Other Need-Based Fees Along the Way.

     “In a scenario all too familiar to bench officers who have dealt with family law matters, the former spouses who are parties here have been involved in ongoing litigation which now exceeds the duration of their marriage. This case is before us for the fifth time.”

     Marriage of Moody, Case No. A130895 (1st Dist., Div. 5 Nov. 30, 2011) (unpublished) followed on the heels of prior proceedings in which wife had to pay husband need-based fees/costs of $10,000, $15,000, and $26,650 (the last one being appellate costs for the third appeal). The third time around at the trial level, wife was ordered to pay husband a total of $93,285.08 in fees/costs based on a prevailing party clause in a settlement/judgment, but that one was reversed based on an inadequate evidentiary record to establish the reasonableness of the requested fees. Next time around, husband’s counsel did submit detailed substantiation, and wife filed no response. The lower court ultimately awarded another $80,195.59 in fees to husband under Civil Code section 1717.

     This fee award was affirmed. Wife could not overcome the abuse of discretion standard, given that counsel did supply evidence on hourly rates and substantiation of services rendered on remand from the prior appeal--establishing the reasonableness of husband’s fee request.

Family Law/Substantiation Of Fees: Wife’s Counsel’s Unsworn Statements During Argument About Fee Work Services Did Not Support Fee Award

 

$10,000 Fee Award to Wife Reversed by Fifth District.

     This next case demonstrates that unsworn statements about the nature of fee work will not support a fee award in the family law arena, much less other arenas.

     The Fifth District, in Marriage of Monroe, Case No. F061014 (5th Dist. Nov. 14, 2011) (unpublished), did not buy that a $10,000 attorney’s fees award to wife was supportable where it rested only on the unsworn statements of her counsel at oral argument that 38 hours of work at $350/hour were expended on the case.

Damages/Family Law: “Somewhat Unusual” Case Involving Pro Tem Judge Conflict Cost Transitory Winning Litigant’s Attorney $780,482 In Damages For Attorney’s Fees Expended In Dissolution Proceeding Tainted With The Conflict

 

No, Love Lost as Fourth District, Division One Reverses JNOV Disfavorable to Initially Losing Litigant, Who Won a Jury Verdict, Was Then Overturned Post-trial, and Was Vindicated on Appeal.

     This one caught our attention because of the appellate court’s rather subdued characterization of it being a “somewhat unusual case.” Wow! This is one unusual case in our view, but we will let you be the judges.

     Rogozienski v. Love, Case No. D056857 (4th Dist., Div. 1 Oct. 5, 2011) (unpublished) involved an underlying dissolution proceeding where husband and wife agreed to have the matter heard by a family law practitioner sitting as a pro tem judge. (Respondent Love was wife’s attorney, and Appellant Rogozienski was the husband.) After pro tem judge entered a judgment decidedly adverse to husband’s interest after a three-phase trial, husband discovered that pro tem judge had a conflict--while the dissolution action was pending, Love transferred his interest in a vacation home to a third party, which then transferred the interest to pro tem judge. Once husband obtained discovery of this transaction and made a fuss about it, the pro tem judge withdrew from the case and his rulings were vacated in entirety after further trial and appellate court proceedings.

     Husband then sued both pro tem judge and Love (wife’s attorney) for civil damages, mainly claiming as damages the attorney’s fees he incurred in the first round of litigation due to Love’s conduct after previous proceedings resulted in a consensus that the pro tem judge had judicial immunity. Husband’s case proceeded to a jury trial where he won $780,482 in damages against Love. However, Love won a JNOV on the theory that husband did not prove that the gift was the real legal cause of his lost litigation expenses.

     The Fourth District, Division 1 reversed and reinstated the jury’s verdict. Although basic equities did pervade the appellate court’s decision, it did not buy the argument that the gift of the home was not instrumental in husband’s targeted loss and that other attacks would have necessarily resulted in vacating of the pro tem judge’s rulings.

     BLOG UNDERVIEW--Although not referenced in the decision, we did some public searches because this dispute did catch our attention. The California State Bar filed a Notice of Disciplinary Charges against both the pro tem judge and Mr. Love, both of whom responded in 2007 to the Bar charges. The latest we could find was that a status conference in the matter was scheduled for January 18, 2011; otherwise, nothing else to report.

Family Law: $12,500 Needs-Based Fee Award Justified Even Though Wife Had Sufficient Resources To Pay

 

Financial Need Only One of the Factors to Consider.

     Although we have posted often about needs-based fee awards under Family Code sections 2030/2032, the next case reminds us that a multi-factored analysis is required under these fee shifting provisions. Even a former spouse with sufficient resources to pay can get a fee award where other factors show it is justified.

     That was the case in In re Marriage of Hashemian, Case No. G044186 (4th Dist., Div. 3 Sept. 2, 2011) (unpublished), where former wife received a $12,500 fee award under sections 2030/2032 even though she had sufficient resources to pay fees/costs from her own pocket. (In re Marriage of O’Connor, 59 Cal.App.4th 877, 883 (1997); In re Marriage of Duncan, 90 Cal.App.4th 617, 631 (2001).) In affirming, our local appellate court--in a unanimous decision authored by Justice Moore--reminds us that a fee award is sustainable in these circumstances, especially where the record demonstrated that the former husband pursued litigation tactics which drove up costs for ex-wife.

Family Law: Second District, Division Two Upholds Fee Award in Family Court Involving TV Costar of Two and a Half Men

 

Who “Won” is Irrelevant Here.

     Often, the Court’s retelling of the facts gives us more than an inkling of the ending.

     Here, the statement of facts begins:

”Jon and Sarah have both had acting careers, though their career paths diverged widely.  As a costar in the TV show Two and a Half Men, Jon’s career soared.  In contrast, Sarah’s career stalled; it appears her last acting job was in 2005.” 

     If after reading this poignant beginning, you guessed that the Court of Appeal would uphold the award of attorney’s fees in favor of Sarah, you guessed right. In re Marriage of Jon and Sarah Trigger Cryer, Case No. B222906 (Second District, Div. 2 August 29, 2011) (certified for publication).

     On appeal, the Court reviewed whether the family court abused its discretion by declining to order a more severe reduction of child support and whether it erred by denying a request for accounting or trust for child support funds (it did not).  Because the Court also found that the ordered attorney’s fees awards were proper, we post.

     The outcome regarding attorney’s fees was largely ordained by the standard of review:  “[a]n award of fees and costs in a dissolution or related family law proceeding is a matter left to the trial court’s sound discretion, and absent ‘a clear showing of abuse, its determination will not be disturbed on appeal.’” 

     Two points (well, maybe one) are worth comment. 

     First, Jon Cryer actually won a motion below – but the trial court awarded fees against him in that proceeding.  The Court of Appeal reminds us that, for some purposes,  “the issue of who ‘won’ the motion is irrelevant.  Although an order modifying a support order may include an award of attorney fees to the prevailing party (see section 3652), such an award is proper only if a section 2030 needs-based award is not warranted.”  Thus, for some purposes – to wit, whether a needs-based award is warranted – being the prevailing party is irrelevant.

     The second point, which may not be worth reporting on (but which caught our eye), is that Sarah Trigger Cryer argued that the child support obligation of $10,000 per month only constituted around 3 percent of her ex’s income at the time.  Jon also submitted an income and expense declaration listing average monthly income of $474,861, based on a three-year average cash flow, but Sarah claimed that Jon’s monthly income as of 2009 was actually $791,666.

     BLAWG BONUS:  Jon Cryer is a graduate of The Bronx High School of Science.

Family Law: In re Marriage of Ramirez Just Published

 

Decision Deals with Family Law Attorney’s Real Property Lien.

     In our July 20, 2011 post, we discussed In re Marriage of Ramirez, a decision exploring the intricacies of the family law attorney’s real property lien.

     We can now report that the case was certified for publication on August 11, 2011.

Family Law/SLAPP: Fourth District, Division 3 Give Us a Two-Fer

 

Family Code Section 271 Sanctioning Authority Justified $3,000 Fee Award Against Ex-Wife.

     Acting Justice Bedsworth, on behalf of a 3-0 panel, affirmed a $3,000 award against ex-wife based on Family Code section 271. That section imposes a “minimum level of professionalism and cooperation” to effectuate settlement in the family law area and authorizes sanctions in the form of paying for the other side’s attorney’s fees even though there is no actual injury. (In re Marriage of Davenport, 194 Cal.App.4th 1507, 1524 (2011).) After all, ex-wife sent lots of emails to ex-husband and her attorney, calling husband’s new wife “an ilegal whore,” told him he could “go to hell” if he thought she would reach a pretrial settlement, and warned him “I will pay every attorney in town and go broke before I give you a single dime.” She was also evasive and contradictory in her trial testimony. Little wonder the 271 award was affirmed in Marriage of Mamdani and Pillet, Case No. G043554 (4th Dist., Div. 3 July 26, 2011) (unpublished).

Winning Litigant Unsuccessfully Sought More SLAPP Fees For Prevailing Below.

     In this one, Justice Ikola, for a unanimous panel, affirmed a lower court’s decision to award $6,729 in fees and no costs (out of a requested $22,838.50 in fees and $1,654.24) to Orange County Board of Supervisors after it SLAPPed a mandate petition brought by a taxi company in a dispute over losing a taxi concession for the John Wayne Airport to a competitor. The costs were properly not awarded because Board was exempt from certain costs under Government Code section 6103, and it cited no authority that expenses like mileage/parking for attorneys, messenger costs, and document copy costs were recoverable under the SLAPP fee-shifting statute. As far as the fee award, the trial court was found to be in a better position to gauge reasonableness of hours, hourly rate, and work allocation for purposes of fashioning an award. The decision sustaining the award is A White and Yellow Cab v. Orange County Bd. of Supervisors, Case No. G043209 (4th Dist., Div. 3 July 27, 2011) (unpublished).

Family Law: Failure To Appeal Pendente Lite Attorney’s Fees Order Was Fatal.

 

     In Marriage of Metzger, Case No. B220951 (2d Dist., Div. 3 July 21, 2011) (unpublished), wife appealed a $40,000 award of attorney’s fees to her as too low in a dissolution action when husband admitted that he spent close to $300,000 during the course of proceedings.

     The appellate court found that it could not entertain the appeal. Why? Because wife did not timely appeal from the pendente lite attorney’s fees order, which is directly appealable. (In re Marriage of Weiss, 42 Cal.App.4th 106, 119 (1996).)

Family Law: Family Law Attorney’s Real Property Lien (FLARPL) Discussed In Recent Unpublished Decision

 

Family Code Section 2033 FLARPL Considered.

     Although there was a reversal because an order rendered without an indispensable party is void (with the appellant being an indispensable party able to challenge the void order), the appellate court in Marriage of Ramirez, Case No. D058284 (4th Dist., Div. 1 July 19, 2011) (unpublished) discussed a family law attorney’s real property lien (FLARPL).

     FLARPL is authorized by Family Code section 2033. It allows either spouse to unilaterally encumber his/her community property interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a dissolution proceeding, with the lien attaching only to the encumbering party’s interest in the community real property. There are strict notice and procedural requirements for obtaining FLARPL, with the adverse party’s attorney being given advance notice of recordation and with an objection process being given by the unencumbering spouse--although the family law court has jurisdiction to resolve any dispute regarding FLARPL.

     The real kicker is that FLARPL will survive transfer of property to the unencumbering spouse under a property division arrangement even if the underlying debt was assigned to the encumbering spouse. (Lezine v. Security Pacific Financial, 14 Cal.4th 56, 65 (1996).) Wowie!

Family Law Awards: Two Fee Awards Considered On Appeal

 

Marriage of Wolf, Case No. A128509 (1st Dist., Div. 3 July 15, 2011) (Unpublished).

     In this one, ex-wife was denied a request for attorney’s fees after a lower court found there were no reasonable grounds for her appeal. However, the lower court’s decision was without prejudice to her ability to renew the motion if the appellate court took a more generous view of the appeal. On review of the fee denial, the appellate court could not conclude wife lacked all reasonable grounds for pursuing the appeal, remanding to the lower court so it could entertain any renewed motion.

Marriage of Ebaugh, Case No. F059598 (5th Dist. July 15, 2011) (Unpublished).

     Ex-husband, an OBGYN doctor, appealed both a 2007 fee award of $20,000 and a 2009 fee award of $100,000 in wife’s favor, based on either a needs basis (difference in income disparity) or as a sanctions for husband’s litigation tactics. (BLOG ASIDE--Husband incurred almost $193,000 in fees, and wife incurred over $143,000 in fees--ouch on the financial sting of divorce.) Husband took an appeal, though he did not do a complete job. The 2007 award was not reviewed, because husband failed to separately appeal it. (Sole Energy Co. v. Petrominerals Corp., 128 Cal.App.4th 212, 239 (2005).) Though the 2009 award was appealed, husband only challenged the needs-based basis for the award, not challenging the independent ground that the fee award was well based under the Family Code section 271 sanctions statute. This independent basis was reason enough to sustain the 2009 fee award.

Family Law: Fourth Time Appeal Is No Charm For Losing Wife

 

She Has To Pay $26,650 In Appellate Fees And Costs To Husband Under Needs-Based Statute.

     We knew one would not go well for the loser--in this case, the ex-wife--when the appellate court ominously observed early on: “This case is before us for the fourth time.” It didn’t.

     Ex-wife lost two prior fee battles and appeals. She won the third fee battle on appeal, but only for a remand on the reasonableness issue. That brought the parties in Marriage of Moody, Case No. A128515 (1st Dist., Div. 5 June 22, 2011) (unpublished) to the fourth appeal of a trial court’s decision to award husband $26,650 in appellate fees and costs so he could defend the third appeal. [We have blogged on the prior appellate decisions in our March 21, 2009, June 24, 2009, and June 26, 2010 posts--a virtual appellate trifecta!] She did not win the appeal of the $26,650 award.

     Wife first made an argument that we have seen frequently: the appellate court’s earlier directive of “each side bearing their costs on [the third] appeal” precluded a fee award. Not so, said the appellate panel, citing Mustachio v. Great Western Bank, 48 Cal.App.4th 1145, 1149-1150 (1996). [Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918, 925-928 (2007) also supports this conclusion, relying on Mustachio.]

     She also challenged the needs-based determination, but the record supported the award to husband--wife had more income than husband and the current economic slump had impacted husband’s earning power. The appellate court also found that $26,650 in fees was not grossly excessive for the time spent by husband on the third appeal.

Lots Of Fee Decisions On Variant Issues Come Out On June 21, 2011

 

Choice of Law--California Law Applies Across the Board If It Is the Governing Choice of Law on Fee Issues.

     In our prior posts of June 11, 2008 and January 21, 2010, we discussed decisions indicating that Civil Code section 1717’s reciprocity principle is a fundamental California interest trumping unilateral fee clauses governed by other state laws that do not allow for reciprocity in California-venued actions. Aronson v. Advanced Cell Technology, Case No. A129336 (1st Dist., Div. 4 June 21, 2011) (certified for publication) contained another twist in this area: a trial court determined that a Massachusetts contractual fees clause that was unilateral had to be interpreted as reciprocal based on Civil Code section 1717 in a California lawsuit suing on the contract involving the Massachusetts fee provision. However, the lower court also determined that the plaintiff’s pre-trial dismissal prevented an award of fees under Santisas, which denies fees in a case where there is a voluntarily dismissal of a claim giving rise to fees under section 1717. On appeal, defendant tried to get an overturn of the fee denial (which involved a $645,542.40 request), but was rebuffed. Defendant discordantly argued that while California law governed the reciprocity impact of the clause, the pre-trial dismissal prevailing party analysis should be governed by Massachusetts law allowing for recovery despite the dismissal. Nope--the same law applies to the variant fee issues. “[O]nce a court concludes that it will apply a California statute to determine whether to award attorney fees, a determination of whether a party is a prevailing party as defined by that same statute is not a separate issue to be analyzed pursuant to Nedlloyd.”

Family Law--Trial Court’s Failure to Rule On Needs-Based Request Was An Abuse of Discretion Where No Complete Absence of Proof.

     A family law judge’s denial of needs-based fees to ex-wife was reversed as an abuse of discretion in In re Marriage of Kostandy, Case No. B225582 (2d Dist., Div. 1 June 21, 2011) (unpublished). The reason for the reversal is that ex-wife had introduced evidence on some of the needs-based factors, with the lower court erroneously indicating there was a complete absence of proof when there wasn’t. On remand, a decision had to be made on the fee request.

Private Attorney General Statute--Refusal to Grant Fee Award to Plaintiff Prevailing in Height Restriction Ordinance Win Overturned on Appeal.

     Plaintiff, in Save Arden-Oaks v. Sacramento County Bd. of Zoning Appeals, Case No. C059387 (3d Dist. June 21, 2011) (unpublished), successfully enforced local zoning ordinances limiting residential building heights for the Arden Oaks area. However, the trial court denied plaintiff any fees under Code of Civil Procedure section 1021.5. This fee denial was reversed by the Third District, ruling in the process that the lower court misanalyzed the public benefit and financial burden elements of California’s private attorney general statute. In short, the zoning height restriction interpretation from the lower court protected the Arden Oaks neighborhood into the future (impacting the entire neighborhood, both present and future residents)--a clear public benefit. Also, plaintiff’s nonpecuniary motives were irrelevant and it did not have to produce precise evidence about the financial burden incurred--meaning the third element was satisfied in this one.

Reasonableness of Fees--Defense Tenacity in Litigating Justified $106,000 Fee Award In $115,000 Promissory Note Collection Action.

     Finally, the Fifth District in Salwasser v. Salwasser, Case No. F060867 (5th Dist. June 21, 2011) (unpublished) reminded us that litigation tenacity is a factor that can be weighed as far as determining the reasonableness of a fee award under Civil Code section 1717. It affirmed a $106,480 fee award (out of a requested $116,445) in a promissory note collection case involving a principal amount of $115,000. The reason? The defense’s litigation tenaciously, driving up the costs, was a factor properly weighted in awarding fees that were almost as much as the amount at stake in the entire controversy. (Peak-Las Positas Partners v. Bollag, 172 Cal.App.4th 101, 114 (2009).)

Family Law: $3,250 Needs-Based Attorney’s Fees Award Affirmed On Appeal

 

No Particular Order Wording Needed to Show Relevant Financial Factors Weighed.

     The lesson in Marriage of Walter, Case No. B225762 (2d Dist., Div. 6 June 2, 2011) (unpublished) is not that spectacular as far as results: the appellate court affirmed a needs-based attorney’s fees award of $3,250 under Family Code section 2030 in favor of wife when husband dismissed a count and had other counts in a multi-count contempt OSC adjudged against him--an exercise making a needy wife miss multiple days of work.

     Husband argued on appeal that the lower court failed to make mention of any facts or findings related to the needs-based factors having to be considered under section 2030. Not so, said the reviewing court. “But no particular language is required in the order,” with the record simply needing to establish that the lower court properly considered the statutory factors (which it did). See, e.g., Alan S. v. Superior Court, 172 Cal.App.4th 238, 254 (2009).

Family Law: Substantial Attorney Fee Award Under Section 271 Affirmed For Young Lawyer’s Scorched Earth Practices And Over-The-Top Behavior

 

Appellate Court Stresses Civility, Reminding Us It Is Not Mutually Exclusive With Zealous Advocacy.

     This case is destined to be cited and likely quoted often both in the areas of family law fee sanctions under Family Code section 271 and attorney civility.

     In re Marriage of Davenport, Case No. A126181 (1st Dist., Div. 2 May 4, 2011) (certified for publication) involved a situation where a long-time couple with assets divorced, with wife’s representation being taken over by a well-known firm that assigned the matter to a young, inexperienced attorney. Interactions in the case during the next two years resulted in a 35-page register of actions and 19 volumes of court files.

     Wife eventually sought section 271 fees of $600,861 and costs of $332,933, totaling $933,794. Husband (who claimed he was the victim of young attorney’s aggression) countered with his own 271 motion and a further sanctions motion.

     After a 5-day hearing on the motions, wife’s request was denied in entirety and husband was granted 271 sanctions of $100,000 and another $304,387 in defending the actual fee motions, an award made by an experienced jurist in a 31-page statement of decision.

     Wife, for whatever reason, appealed. Bad idea, producing an appellate decision that is poignant in nature.

     Emily Post, arbiter of civility, in a moment of quiet abandon chez elle.  Miguel Covarrubias, artist.

Appeal Sanctions/Family Law: $2,800 271 Sanctions Award Affirmed

 

Appeal Deemed Frivolous, With Reminding Words of Wisdom to Those Choosing to Appeal.

     Justice Yegan of the Second District, Division 6 on behalf of a 3-0 panel, has penned a decision with some sobering reminders on the nuances of appellate practice, and is likely going to be quoted down the line.

     In re Marriage of Greenberg, Case No. B226064 (2d Dist., Div. 6 Apr. 28, 2011) (certified for publication) affirmed a $2,800 sanctions award against husband under Family Code section 271. The reason is that husband could not come close to beating the abuse of discretion standard, opting to represent himself in pro per and ignoring the factual findings that lead to the resultant award. Bad choices.

     Here are some of Justice Yegan’s “gems” from this opinion:

     *”Abraham Lincoln once said, ‘He who represents himself has a fool for a client.’ Here, the client is an attorney who represented himself in the trial court. He now represents himself on appeal. He is unschooled on the basics of appellate law, suggesting that Lincoln’s observation applies on appeal.”

     *”We also warned the bar [in In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200, 20 years ago] that sanctions could be ordered for appeals based upon a theory asking to substitute our judgment for that of the trier of fact. As we said then and we repeat now, ‘no one seems to listen.’ (Id., at p. 1200.) We are ever hopeful that appellate lawyers are listening.”

     *”Husband, a pro per attorney, suffers from a lack of objectivity. (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1450 [‘tunnel vision’]. He would have been well served to read Gilkison before invoking the appeal process. This appeal is frivolous.”

     The sanctions award was affirmed, and the appellate court referred the affirmed order to the State Bar for investigation (although indicating that the Star Bar should determine if any discipline is merited).

Family Law Duo: 271 Sanctions Award Of $5,000 Affirmed, While 2030/2032 Award Of $20,000 In Attorney’s Fees Reversed For Failure to Consider All The Circumstantial Factors

 

Here we go--a family law attorney’s fees two-fer.

Bondarenko v. Buehrle, Case No. A128933 (1st Dist., Div. 2 Apr. 27, 2011) (Unpublished).

     This one involves an affirmance of a $5,000 Family Code section 271 sanctions award against former boyfriend/father in an acrimonious visitation dispute with former girlfriend/mother of their chid Beau. The main dispute involved father’s claims that child had been bitten by a young Rottweiler Sieg, who resided with mother and her new boyfriend. (Has all the makings of a soap opera, doesn’t it?) Needless to say, the facts are soap operish, with the family law judge eventually concluding that father had not attempted to resolve things and presenting obstacles to mother’s visitation with her son, hence the reason for the $5,000 award.

     Father could not beat the abuse of discretion review standard applicable to the fee award. The lower court was not obligated to identify each and every objectionable email sent by father, with distillation of the conduct pattern being enough. Mother’s attorney did give email notice of the sanctions request, which satisified due process concerns. On the ability to pay issue, father did not submit a current income and expense declaration in opposiiton to the fee request, a “no no” in this area. Award affirmed.

Marriage of Ellis, Case No. G043658 (4th Dist., Div. 3 Apr. 27, 2011) (Unpublished).

     This case was decided by our local Santa Ana appellate court in a 3-0 decision authored by Justice Fybel.

      In a nutshell, ex-wife was awarded $20,000 in pendente lite attorney’s fees and $5,000 in accountant fees pursuant to Family Code sections 2030/2032 (the needs-based family law fee statutes). Although inferred findings were tempting for the appellate court to make, it refused to do so because the lower court admitted on the record that it did not consider any of the “totality of circumstances” factors required under Family Code section 4320 as a predicate to the 2030/2032 award. This alone justified a reversal and remand to properly reconsider mother’s fee request.

     Blog Bonus:  Tammy Wynette sings D.I.V.O.R.C.E.

Family Law: Due Process Required Reversal Of Fee Award Against Wife In Family Law Dispute

Fourth District, Division 2 Issues Writ of Mandate.

     Before we wish all of our readers a Happy Easter (and a post-Happy Passover or other celebrations at this time of year), we report on Smith v. Superior Court (Smith), Case No. E053048 (4th Dist., Div. 2 Apr. 22, 2011) (unpublished).

     There, in a family law case, the lower court informed wife’s attorney that an attorney’s fees award would not be made against his client. Lo and behold, the actual order did require wife to pay husband’s attorney’s fees.

     Writ was issued because this constituted a due process denial. The writ directed the lower court to either vacate the fee award or schedule a hearing so wife’s attorney could argue against such a fee award.

     Happy religious celebrations for all our readers, in the near past or in the weekend that is on us.

 

Special Fee Shifting Statute: Prevailing Plaintiff In Domestic Violence Tort May Be Entitled To Fee Recovery

 

Don’t Ignore Civil Code § 1708.6(c) . . . . But It Is Discretionary In Nature.

     Here is a nice fee entitlement statute in the domestic violence tort area (bet a lot of you did not know there was such a statutory tort). Civil Code section 1708.6(c) expressly provides that the court in such an action “may grant to a prevailing plaintiff equitable relief, an injunctions, costs, and any other relief that the court deems proper, including reasonable attorney’s fees.”

     However, the trial court is the one to make this determination, with an appellate court in a recent decision directing that this request be considered by the lower court in the first instance. See Cheng v. Casas, Case No. H034352 (6th Dist., Mar. 15, 2011) (unpublished).

Sanctions: $10,000 Award To Husband For Attorney’s Fees In Family Law Case Reversed

 

Ex-Wife Not Give Proper Due Process Opportunity to Oppose.

     We knew this one was a reversal from the first few sentences--“Summary proceedings are common in family law cases. Nevertheless, however certain a court may be that a party or an attorney in a family law proceeding deserves sanctions, it must keep in mind an immutable principle that cuts cross all areas of the law: sanctions may not be summarily imposed. Due process demands more.”

     In Marriage of Duris and Urbany, Case No. B222002 (2d Dist., Div. 6 March 14, 2011) (certified for publication), without prior notice at a child support modification hearing in which no sanctions request was checked in any Judicial Council form, the lower court assessed $10,000 in sanctions against ex-wife and in favor of husband for unnecessary activity by wife’s ex-attorney (wife was in pro per at the hearing). The sanctions was for “fee sink” activity in the case by the prior attorney causing husband to expend $25,000 in fees. The sanctions were awarded without warning at the child support modification hearing.

     The Second District, Division 6 reversed on due process grounds. This case is a primer in this area, indicating reversal was compelled because (1) wife was given no notice sanctions would be imposed at the hearing, (2) the sanctions were summarily imposed at the hearing, giving wife no opportunity to obtain proof from her ex-attorney explaining why sanctions were not warranted or to file opposition papers, and (3) husband did not file any proof to support the request such that the trial court really could not make any meaningful factual findings.

     The 3-0 opinion was written by Presiding Justice Gilbert.

Family Law: Breach Of Fiduciary Duty To Spouse Mandates Fee Award Under Family Code Section 1101(g)

Majority So Holds, But Dissent Argues Contention Forfeited and Section 1101(g) Needs Revision By the Legislature.

     Here is an interesting one in the family law area, drawing a dissent by a former family law jurist that now sits on the appellate court.

     In Marriage of Fossum, Case No. B214824 (2d Dist., Div. 1 Jan. 28, 2011) (certified for publication), a family law judge determined wife breached her statutory duty to her spouse under Family Code section 721(b) by taking a $24,000 cash advance on a credit card without disclosing the transaction to husband. The trial court refused to award husband fees under Family Code section 1101(g), which has mandatory "shall" language indicating that remedies do include "attorney's fees and court costs."

Family Law: $20,000 Fee Award To Wife Affirmed Based On Husband’s Failure To Provide Adequate Appellate Record

Fourth District, Division 3 Reaffirms Fundamental Precept of Appellate Practice.

     If one is going to do appellate work, creating an adequate record is a must. After all, the appellate court has nothing before it in a case except for what the litigants provide it. The lack of an adequate appellate record in the next case was damning indeed.

     Acting Presiding Justice O’Leary, in a 3-0 decision in Marriage of Benice, Case No. G043392 (4th Dist., Div. 3 Jan. 26, 2011) (unpublished), affirmed a family court decision awarding wife $20,000 in “need based” fees, payable by husband. The reason for affirmance was that husband failed to provide an adequate appellate record by not including all the pertinent law and motion paperwork (such as the paperwork filed by wife in support of the fee request). Without a proper record, the presumption of correctness accorded to the fee order was a presumption that prevailed because it was unrebutted in nature.

Family Law Awards: $175,000 Fee Award For Child Custody, Visitation, and Support Issues Affirmed On Appeal

 

Second District, Division 6 Finds that Prenuptial Agreement Fee Waiver Only Related to Property/Spousal Issues and that California Would Not Enforce Waiver With Respect to Child Issues.

     Husband and wife entered into a prenuptial agreement under Michigan law where, among other things, they agreed to waive any attorney’s fees resulting from any divorce, separation or annulment proceedings. Later, they moved to California and bought an expensive Montecito residence to which pricey improvements were made. Once the relationship broke down, a divorce proceeding resulted in an order that husband pay $6,000 in monthly child support payments. Because wife had to rebut claims of negative net worth advanced by husband (claims found unpersuasive), the trial court awarded her fees of $175,000 out of a requested $313,000.

     Husband, on appeal in Marriage of Lane, Case No. B215911 (2d Dist., Div. 6 Jan. 13, 2011) (unpublished), principally argued that the fee award was barred by the fee waiver clause in the Michigan prenuptial agreement.

 

 

Madame Ganna Walska’s Lotusland, Montecito.

 

Family Law: Lower Court Properly Denied Borson Fee Motion

Ex-Wife Client Did Not Authorize the Filing of the Motion.

     The Sixth District just decided an interesting family law matter that involved interpretation of In re Marriage of Borson, 37 Cal.App.3d 632 (1974) and the case law spawned in this specific niche of family law. It affirmed a lower court’s denial of a Borson request by ex-wife’s former counsel.

     In re Marriage of Valentia and Piccinini, Case No. H035168 (6th Dist. Dec. 23, 2010) (unpublished), ex-husband--a high net individual--and ex-wife were embroiled in marital separation proceedings that resulted in lots of expenditures of attorney’s fees, with ex-wife’s lawyers putting in large fee compensation and fee advance requests--with referees and the lower court warning that the fees seemed to be inordinately high in some instances. (As the lower court remarked, “Respondent’s economic situation does not give license to a ‘bottomless pit’ advancement of fees.”) Ex-wife then terminated her lawyers services through an e-mail and told them they were not authorized to perform any more work on her behalf while she looked for new counsel. Ex-wife then sent a substitution of attorney indicating that she intended to represent herself. The next day, her former attorneys filed a Borson motion. (In Borson, attorneys were allowed to request fees post-discharge because the client desired some winding up services and consented to the filing of the fee request.) The lower court denied the Borson request, prompting an appeal by former attorneys.

     The appellate court, in a 3-0 scholarly decision penned by Judge Elia, affirmed.

The case before it was not similar to Borson. After all, ex-wife never consented to the filing of the motion, told attorneys to cease all work, and did not give implied authority from her past cooperation with fee requests. Instead, the matter was more analogous to In re Marriage of Read, 97 Cal.App.4th 476, 481-482 (2002), where no implied authority was found where wife had already discharged the law firm and instructed it to take no further action on her behalf. Because the right to have fees paid belongs to the party (not to counsel), the Borson motion was properly denied based on the lack of the client’s consent.

     This is a good case to read in this area, with a detailed discussion of the Borson-inspired jurisprudence.

Family Law: $7,500 In Family Code Section 271 Sanctions Against Ex-Husband Affirmed On Appeal

 

Appellate Court Corrects Error, Reducing $10,000 Award Down to $7,500, Finding Ex-Husband Forfeited Most Claims on Appeal.

     This next opinion again shows that appellate practice is a specialty. An in pro per litigant or lawyer not skilled in appellate practice can find himself/herself forfeiting or waiving challenges because of the failure to present arguments properly or develop an adequate record for appellate review.

     In Marriage of Vojnovic, Case No. H033396 (6th Dist. Dec. 21, 2010) (unpublished), a family law judge awarded $10,000 in sanctions against ex-husband under Family Code section 271.

     Although scaling back the award to $7,500 based on a clerical error, the appellate court found husband had forfeited most claims on appeal by failing to support points with reasoned argument and legal authority. In such cases, appellate courts may treat such undeveloped points as waived, which the reviewing court did here even though husband was in pro per (with many decisions holding that in pro per litigants are entitled to no greater consideration that other litigants/attorneys). (EnPalm, LLC v. Teitler, 162 Cal.App.4th 770, 775 (2008) [waiver]; Nwosu v. Uba, 122 Cal.App.4th 1229, 1246-1247 (2004) [in pro per litigants must follow correct rules of procedure].)

     Beyond that, however, the record showed no abuse of discretion in awarding sanctions, because husband insisted on his settlement terms, used bait and switch settlement tactics, and was recalcitrant/evasive during the discovery process. The $7,500 was found to be proper.

Family Law: $7,149 Fee Award To Ex-Wife Sustained On Appeal.

 

Inadequate Record and Evidence Supporting Decision Guided Affirmance.

     The Sixth District in Marriage of Naim and Price, Case No. H035497 (6th Dist. Dec. 16, 2010) (unpublished) affirmed a needs-based attorney’s fees order of $7,149 to ex-wife. Husband’s challenges were rejected on these grounds: (1) the family law judge did not have to make express findings on the Family Code section 4320 needs factors; (2) husband failed to make an adequate record by providing all the moving papers and evidence presented before the family law judge; and (3) the proof did show a disparity in income--husband had much more monthly income and assets than wife. No abuse of discretion was committed by the lower court in awarding “needs” fees to wife.

Family Law: A Two-Fer . . . No Abuse In Awarding Fees Under Family Code Section 271

 

Marriage of Yassin and Aboutaleb, Case No. B205958 (2d Dist., Div. 7 Dec. 8, 2010) (Unpublished)--Case #1.

     Ex-husband was ordered to pay $5,000 to cover ex-wife fees and expenses under Family Code section 271, which permits the trial court to award fees as a sanctions for uncooperative or cost producing conduct. Although the financial situation of each side must be considered, the lower court did not err based on the fact ex-husband had a real estate license, was obtaining some income from other real estate agents, was being supported by his family, and had improperly diverted income due him in order to reduce his support payments.

Marriage of Elgammal and Aboutaleb, Case No. B205957 (2d Dist., Div. 7 Dec. 8, 2010) (Unpublished)--Case #2.

     In this one, ex-husband was ordered to pay sanctions in the sum of $15,000 in attorney’s fees to his ex-wife. This, too, was ordered as a section 271 sanctions. No abuse of discretion occurred under the relevant facts, including ex-husband’s filing of false income/expense declarations (showing he had negative net worth when he had earned income), concealing assets from ex-wife in an effort to avoid paying child/spousal support, interfering with ex-wife’s relationship with and custody of the minor child, and making baseless allegations against ex-wife for inappropriate sexual conduct.

     Both decisions contrasted section 271 sanctions against fee awards under Family Code sections 2030 and 2032, which allow the trial court to award fees and costs based upon several factors, including the parties’ respective needs, income and ability to pay.

Family Law: Attorney’s Fees Awards Against Husband Affirmed, But Wife Does Get A Remand On Breach Of Fiduciary/271 Further Sanctions

Court of Appeal Reminds Us That Abuse of Discretion Includes Not Exercising Discretion.

     Well, here is a lengthy unpublished family law decision (72 pages) which we will try to summarize succinctly. In essence, husband’s appeals on family law fee awards did not gain traction, while wife did better on her appeal of a failure to award fees on breach of fiduciary duty/271 sanctions, where a lower court punted awaiting a later appellate ruling. The appellate court reminded us all that the lower court needs to exercise discretion rather than awaiting what may happen on appeal later on.

     Marriage of Shannahan, Case Nos. D053701/D055292 (4th Dist., Div. 1 Dec. 1, 2010) (unpublished) basically involved an attorney husband and wife battling over community property assets, with a lot of attention focused on retirement funds of one kind or another and husband’s failure to act as a fiduciary for the community (with the trial court’s breach of fiduciary duty findings affirmed on appeal). So, both sides appealed attorney’s fees awards against them (husband, for some affirmative awards and wife, for denial of fees for breach of fiduciary duty and Family Code § 271 sanctions).

     Want to guess on what happened?

Family Law: $2,500 Section 271 Sanctions Affirmed On Appeal

Ex-Wife Cannot Surmount Abuse of Discretion Review Standard.

     Family Code section 271, which we have explored many times before, is a statutory provision that allows family judges to sanction parties or litigants in family law proceedings where they fail to promote settlement or fail to cooperate so as to drive up costs. No actual injury is required, although the judge must determine that the party to be sanctioned has an ability to pay. Most importantly on appeal, lower courts’ 271 decisions are reviewed under an abuse of discretion standard, focusing on whether substantial evidence supports a particular decision. (Marriage of Feldman, 153 Cal.App.4th 1470, 1478-1479 (2007).)

     Ex-wife in Marriage of Korn, Case No. A128506 (1st Dist., Div. 1 Nov. 24, 2010) (unpublished) appealed a $2,500 sanctions award that was imposed pursuant to section 271. Not a good idea under the facts.

     The parties had agreed to use an attorney to determine the community interest in ex-wife’s Roth IRA fund, which the attorney did. However, ex-wife did not contact the analyzing attorney with any concerns, failed to cooperate to meet a court-set deadline for valuation of the fund, and forced ex-husband to essentially confirm the attorney’s analysis and divide up the fund. Given these facts, the appellate court found no basis to overturn the award under the deferential review standard.

Family Law/Discovery Sanctions: Attorney Sanctioned To Pay $1,650 In Discovery Sanctions Still Must Pay Them

Court of Appeal Did Not Condone Keeping OSC Contempt Hearing On Calendar With No Intent to Proceed.

     The next one is an object lesson, likely reinforcing that sanctions can follow from not showing professional courtesy--at the least.

     In Marriage of Booth, Case No. A127140 (1st Dist., Div. 1 Nov. 4, 2010) (unpublished), wife’s attorney in a child custody proceeding was sanctioned a total of $1,650 (some payable to an expert and some payable to the court) as a discovery sanction for keeping an OSC contempt hearing on calendar against an expert when there was no intent to go forward. Sanctioned attorney appealed, to no avail.

     The appellate court likely felt the lower court’s award was charitable, since a total of $8,330 in sanctions was requested. However, it found no justification for taking up calendar space and inconveniencing the court by not serving the contempt OSC or not taking the matter off calendar. Under the circumstances, the lower court was fully justified in sanctioning the attorney for “wasting everyone’s time.”

Family Law: $192,000 Fee Awards To Wife Affirmed, Because Husband Failed To Demonstrate That They Were Precluded From Prior Procedural Denials

Husband Failed to Meet His Burden on Appeal.

     Husband beat wife’s prior fee shifting, needs-based denial simply because she failed to file an updated income and expense statement under local rules. Unruffled, wife renewed the request later and added more fodder, seeking a total of $320,510.50 in fees for periods stretching back to Fall 2001 through September 2008. (Lots of fees; right, folks?) What did the trial court do and what did the appellate court do?

     The trial court awarded about $192,000 in fees to wife and denied husband’s dueling fee requests. Husband appealed, in Marriage of Nielsen and Olds, Case No. A126521 (1st Dist., Div. 4 Oct. 28, 2010) (unpublished).

     The appellate court affirmed.

     Husband mainly argued that res judicata made the interlocutory procedural denial dispositive in connection with the later ruling. This did not go very far, because res judicata does not apply to a prior adverse judgment that was rendered not on the merits but for procedural reasons. Result was affirmance of the fee award.