Family Law: Trial Court’s Award Of $28,000 In Attorney Fees And $2,000 For Court Reporter Costs As Sanctions Against Wife For Breach Of Fiduciary Duty Affirmed On Appeal Even Though Husband’s Moving Papers Did Not Address The Breach

Exceptions To The General Rule That A Court May Consider Only The Grounds For Relief Specified In A Notice Of Motion, Or Request For Order, Applied In This Case.

            In Marriage of Torres, Case No. D078469 (4^th Dist., Div. 1 February 25, 2022) (unpublished), wife appealed the trial court’s order awarding husband $28,000 in attorney fees and $2,000 for court reporter costs as sanctions for breach of fiduciary duty – arguing that her right to due process was violated by the trial court’s order because husband did not request the fees/costs, and had not pled breach of fiduciary duty in his moving papers.  The 4/1 DCA disagreed and affirmed the trial court’s order.

            This case fell within two exceptions to the general rule that a court may consider only the grounds for relief specified in a notice of motion (or request for order in family court) – that failure to include a ground in the notice does not preclude relief if that ground was specified in the supporting papers or was raised without objection at the hearing on the motion. (Fredrickson v. Superior Court, 38 Cal.2d 593, 598 (1952); Lohman v. Lohman, 29 Cal.2d 144, 151 (1946); Kinda v. Carpenter, 247 Cal.App.4th 1268, 1277 (2016); Luri v. Greenwald, 107 Cal.App.4th 1119, 1126-1127 (2003).)  Husband addressed wife’s breach of fiduciary duty in a supplemental declaration and memorandum when he became aware of it – which the trial court deemed as serving as the “functional equivalent” of amending the request for order.  Additionally, husband’s attorney raised the issue of wife’s breach of fiduciary duty in an opening statement and questioned her extensively on the issue – with no objection from wife’s attorney.