Marriage of Wong and Lee CA2/1 ( 2022 )

Filed 2/22/22 Marriage of Wong and Lee CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of B306936
LISA WONG and BOSCHAL LEE.
(Los Angeles County
LISA WONG, Super. Ct. No. GD055619)
Respondent,
v.
BOSCHAL LEE,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Amy M. Pellman, Judge. Affirmed in part,
reversed in part, and dismissed in part.
Boschal Lee, in pro. per., for Appellant.
No appearance for Respondent.
____________________
In September 2014, respondent Lisa Wong filed for divorce
from appellant Boschal Lee. After a court trial, the family court
issued a judgment in September 2018 that resolved certain
property division issues. Approximately one year later, Lee,
through his former counsel, moved to vacate the judgment.
In response, Wong moved for monetary sanctions against
Lee and his former attorney pursuant to Code of Civil Procedure
section 128.5 (section 128.5), and she filed responsive
declarations seeking a sanction against Lee under Family Code
section 271. Lee subsequently took his motion to vacate off
calendar. Upon hearing Wong’s request for sanctions, the family
court imposed (a) a $6,250 sanction against Lee pursuant to
Family Code section 271, (b) a $15,000 sanction against Lee
pursuant to section 128.5, and (c) a $10,000 sanction under
section 128.5 against Lee’s former counsel. Lee appeals from the
sanctions order pro per, and Wong has not appeared in these
proceedings.
We reverse the $15,000 sanction imposed on Lee because
Wong did not comply with section 128.5’s “safe harbor” provision.
Specifically, the record reveals that Wong’s request for sanctions
was based on a memorandum of points and authorities that she
did not serve upon Lee at least 21 days before she moved for
sanctions. An award of sanctions under section 128.5 may not be
imposed absent strict compliance with the safe harbor
requirement.
We dismiss Lee’s appeal of the award of sanctions against
his former attorney for lack of jurisdiction because he does not
have standing to challenge that aspect of the sanctions order.
We affirm the $6,250 sanction against Lee because Family
Code section 213 did not bar Wong from requesting this relief in a
2
responsive declaration, Lee does not controvert the family court’s
finding that his motion to vacate simply reiterated arguments
that the court had repeatedly rejected, Lee has not shown he
suffered any prejudice from Wong’s alleged failure timely to serve
him with the family court’s minute order and Wong’s proposed
sanctions order, and his remaining claims of error are either
unpersuasive or have not been raised properly.
PROCEDURAL BACKGROUND1
We summarize only those aspects of the procedural
background that are relevant to our disposition of this appeal.
Wong and Lee were married on January 13, 1996, and on
September 26, 2014, Wong filed for divorce. (Wong II, supra,
B293892.) On August 25, 2015, Wong joined several claimants to
the action, including Kracksmith, Inc. (Kracksmith), a
corporation for which Lee has served as an officer. (Id.) After a
court trial, the family court issued a judgment on
September 19, 2018, which (among other things) invalidated a
loan and a deed of trust held by Kracksmith, ordered that certain
real property be sold, and awarded Wong a portion of the
proceeds of the sale as equalization payments and to cover her
attorney fees and costs. (See Wong II, supra, B293892.)
On September 19, 2019, attorney William Stocker filed
motions on behalf of Kracksmith and Lee to vacate the judgment.
Stocker noticed Kracksmith’s motion for a hearing on
1 Part of our Procedural Background is derived from the
opinion we issued in this matter on June 29, 2021, as modified on
July 15, 2021. (In re Marriage of Wong & Lee (July 15, 2021,
B293892) [nonpub. opn.] (Wong II).) We, sua sponte, take judicial
notice of the Wong II opinion. (Evid. Code, §§ 452, subd. (d), 459.)
3
December 6, 2019, whereas Stocker noticed Lee’s motion for a
hearing on December 16, 2019.2
On November 20, 2019, Wong filed a memorandum of
points and authorities in opposition to Kracksmith’s motion; a
two-page notice of motion for sanctions in the amount of $25,000
against Stocker, Lee, and Kracksmith pursuant to section 128.5
on account of their motions to vacate the judgment; and a
responsive declaration seeking this $25,000 sanction under
section 128.5 against Stocker, Lee, and Kracksmith, along with a
$6,250 sanction against Lee and Kracksmith pursuant to
Family Code section 271.3 Wong noticed her sanctions motion to
be heard on December 6 and 16, 2019.
On November 27, 2019, the family court continued the
December 6, 2019 hearing to February 18, 2020, and it continued
the December 16, 2019 hearing to February 27, 2020.
2 Lee claims that “[a]round October 2019, [Lee’s] attorney
William Stocker[,] retired and a new attorney, Edward Torres[,]
represented [Lee,]” and that “Stocker has not appeared or been
notified of any further action in this case since his exit in
October 2019.” Lee does not provide any record citation to
support these assertions.
3 “When one party to a marital dissolution moves to modify
an existing court order in that proceeding, [Family Code]
section 213 authorizes the other party to file a responsive
declaration. In that responsive declaration, the party may oppose
the modification and, if she desires, may ‘seek affirmative relief,’
but only if that affirmative relief is ‘alternative to that requested
by the moving party’ and ‘on the same issues raised by the
moving party.’ [Citation.]” (In re Marriage of Perow & Uzelac
(2019) 31 Cal.App.5th 984, 989–990, quoting Fam. Code, § 213,
subd. (a).)
4
On February 13, 2020, Wong filed another responsive
declaration seeking the same relief as the responsive declaration
she had filed on November 20, 2019. Also on that date, Wong
filed a notice of motion for sanctions under section 128.5 that was
identical to the one filed on November 20, 2019, except the
hearing dates were changed to February 18 and 27, 2020.
On February 14, 2020, Kracksmith and Lee took their
motions to vacate off calendar.
The family court heard Wong’s request for sanctions on
February 18 and 27, 2020. On February 27, 2020, the family
court imposed a $6,250 sanction against Lee and in favor of Wong
under Family Code section 271, ordered Lee to pay Wong’s
counsel a $15,000 sanction under section 128.5, ordered Stocker
to pay a $10,000 sanction to Wong’s counsel under section 128.5,
and directed Wong’s counsel to prepare a written order for the
hearing. On June 1, 2020, the family court issued an order
prepared by Wong’s counsel that memorialized the family court’s
February 27, 2020 rulings.4 Lee timely appealed the
June 1, 2020 order.5
4 Lee intimates that the issuance of the June 1, 2020
sanctions order was delayed in part due to court closures caused
by the Covid-19 pandemic. This assertion does not impact our
resolution of the instant appeal.
5 We, sua sponte, take judicial notice of the family court’s
case summary as of February 3, 2022. (See Evid. Code, §§ 452,
subd. (d), 459.) That case summary indicates that Stocker
did not file a notice of appeal challenging the June 1, 2020
sanctions order. Additionally, it is unclear whether Stocker
received any notice of the $10,000 sanction imposed upon him,
because he did not appear at the February 18 and 27, 2020
5
STANDARD OF REVIEW
Wong did not file an appellate brief. Nevertheless, Lee still
bears the “burden [of] show[ing] that the trial court committed
reversible error. ‘ “A judgment or order of the lower court is
presumed 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. This is not only a general
principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.” ’ [Citation.]” (Yu v.
University of La Verne (2011) 196 Cal.App.4th 779, 787 (Yu); see
also Cal. Rules of Court, rule 8.220(a)(2) [providing that if no
respondent’s brief is filed, “the court may decide the appeal on
the record, the opening brief, and any oral argument by the
appellant”].)
As a general rule, an error of state law does not warrant
reversal unless the appellant shows that “ ‘ “it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.”
[Citation.] . . . [Citation.]’ [Citation.]” (See Conservatorship of
Maria B. (2013) 218 Cal.App.4th 514, 532.) Additionally, “[t]he
rules of appellate procedure,” which obligate an appellant, among
other things, to affirmatively demonstrate reversible error, “apply
to [Lee] even though he is representing himself on appeal.” (See
Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 595;
see also Parkford Owners for a Better Community v. County of
Placer (2020) 54 Cal.App.5th 714, 721 (Parkford Owners for a
Better Community) [“[T]he ultimate burden of demonstrating
hearings, and there is no indication in the record before us that
he was served with the June 1, 2020 order.
6
reversible error is always on the appellant,” italics added].)
DISCUSSION
A. The Family Court Erred in Imposing the $15,000
Sanction Against Lee Because Wong Did Not Comply
with Section 128.5’s Safe Harbor Requirement
Lee argues we must reverse the $15,000 sanction against
him pursuant to section 128.5 because Wong failed to comply
with that statute’s “21-day safe harbor” requirement. For the
reasons discussed below, we agree.
Section 128.5, subdivision (a) provides in relevant part: “A
trial court may order a party, the party’s attorney, or both, to pay
the reasonable expenses, including attorney’s fees, incurred by
another party as a result of actions or tactics, made in bad faith,
that are frivolous or solely intended to cause unnecessary delay.”
(Code Civ. Proc., § 128.5, subd. (a).)6 Subdivision (f) provides
that sanctions may be awarded under this statute only if certain
“conditions and procedures” have been satisfied. (See id.,
subd. (f).) One of those conditions is the safe harbor procedure
provided in subdivision (f)(1)(B): “If the alleged action or tactic is
6 In Lee’s opening brief and Wong’s trial court briefing, the
parties assume that the current version of section 128.5 applies
to Wong’s request for the $15,000 sanction against Lee.
Accordingly, for the purposes of this appeal, we assume that the
current version of the statute governs our review of the sanctions
order. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2
(Artal) [“ ‘[B]riefs and argument . . . are reliable indications of a
party’s position on the facts as well as the law, and a reviewing
court may make use of statements therein as admissions against
the party. [Citations.]’ [Citations.]”].)
7
the making or opposing of a written motion or the filing and
service of a complaint, cross-complaint, answer, or other
responsive pleading that can be withdrawn or appropriately
corrected, a notice of motion shall be served as provided in [Code
of Civil Procedure s]ection 1010, but shall not be filed with or
presented to the court, unless 21 days after service of the motion
or any other period as the court may prescribe,[7] the challenged
action or tactic is not withdrawn or appropriately corrected.”
(Code Civ. Proc., § 128.5, subd. (f)(1)(B).)
“The safe harbor period is ‘designed to be remedial, not
punitive.’ [Citation.] It was ‘intended to foster compliance . . .
and to conserve judicial resources otherwise spent adjudicating a
sanctions motion by affording a prescribed period of time during
which a party may correct or withdraw a frivolous or improper
pleading or motion without any penalty.’ [Citations.]”
(CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997,
1003 (CPF Vaseo Associates, LLC).)
The current version of the safe harbor provision of
section 128.5 “generally mirror[s]” that of Code of Civil Procedure
section 128.7.8 (See CPF Vaseo Associates, LLC, supra,
7 During the proceedings below, Wong’s counsel conceded
that “the 21 day statutory ‘safe harbor[,]’ ” and not a shortened
safe harbor period, governed Wong’s request for sanctions under
section 128.5. (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2
[noting that a reviewing court may deem a party’s argument as
an admission against that party].)
8 Code of Civil Procedure section 128.7, subdivision (c)(1)
provides in pertinent part: “Notice of motion shall be served as
provided in [Code of Civil Procedure s]ection 1010, but shall not
be filed with or presented to the court unless, within 21 days
after service of the motion, or any other period as the court may
8
29 Cal.App.5th at pp. 1002–1004.) Under both safe harbor
provisions, “ ‘substantial compliance’ ” is not “enough”; rather
“ ‘[s]trict compliance with the statute’s notice provisions serves
its remedial purpose and underscores the seriousness of a motion
for sanctions.’ [Citation.]” (See id. at p. 1007.) Thus, “the papers
to be served on the opposing party . . . must be the same papers
that are ultimately filed with the court no less than 21 days
later.’ [Citations.]” (See ibid. at p. 1007, italics added.) For
instance, a party violated section 128.7’s safe harbor requirement
by filing a sanctions motion supported by documents that were
not included with the motion she had served on the opposing
party at the beginning of the safe harbor period—i.e., a
“supplemental points and authorities” and additional supporting
evidence. (See Hart v. Avetoom (2002) 95 Cal.App.4th 410, 412–
414.)
Ordinarily, “[a]n order awarding attorneys’ fees pursuant
to [Code of Civil Procedure] section 128.5 . . . is reviewed under
the abuse of discretion test.” (See Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 450.) Because the
validity of the $15,000 sanctions award hinges on whether Wong
complied with the safe harbor provision, and that question does
not call for the resolution of any factual disputes, our review is de
novo. (See CPF Vaseo Associates, LLC, supra, 29 Cal.App.5th at
p. 1005 [“Since ‘[t]here is no factual dispute that [the movants]
filed and served [their] request for sanctions on the same date,’
the issue of compliance with the safe harbor provision ‘presents a
pure question of law . . . .’ [Citations.]”]; Shewry v. Begil (2005)
prescribe, the challenged paper, claim, defense, contention,
allegation, or denial is not withdrawn or appropriately corrected.”
(Code Civ. Proc., § 128.7, subd. (c)(1).)
9
128 Cal.App.4th 639, 642 [“Matters presenting pure questions of
law, not involving the resolution of disputed facts, are subject to
de novo review.”].)
Wong’s November 20, 2019 filings indicate that her request
for sanctions was supported by not just the two-page notice of
motion she filed on that date, but also by a concurrently filed
memorandum of points and authorities offered in opposition to
Kracksmith’s motion to vacate. Specifically, Wong filed a
“responsive declaration to request for order,” which sought a
$6,250 sanction against Lee and Kracksmith pursuant to Family
Code section 271; and a $25,000 sanction against Lee,
Kracksmith, and Stocker pursuant to section 128.5.
(Capitalization & boldface omitted.) The responsive declaration
stated it was supported by, inter alia, the notice of motion for
sanctions and the memorandum of points and authorities “filed
concurrently herewith.”
In that memorandum of points and authorities, Wong
opposed Kracksmith’s motion and argued the family court should
impose the aforesaid sanctions on Lee, Kracksmith, and Stocker
because they sought to “re-litigate the same claims and objections
that were previously made and rejected by” the family court.
(Boldface & some capitalization omitted.) In particular, Wong
argued that “[s]ince the trial concluded in April 2018, [Lee] and
Claimants have tried numerous times to set aside the judgment
or change the court’s ruling,” and that “no matter which party
filed the pleading, they all appear to have been written by the
same person and make the same arguments.” In support of this
argument, Wong identified nine filings submitted by either Lee or
other parties after the April 2018 trial but before Kracksmith and
Lee had moved to vacate the judgment.
10
The record shows that Wong did not serve this
memorandum of points and authorities on Lee at least 21 days
before she filed it. On November 20, 2019, Wong’s counsel filed a
declaration, wherein the attorney attested that her staff served
the two-page notice of motion for sanctions on Stocker on
October 21, 2019 in order to comply with section 128.5’s safe
harbor provision. Wong’s counsel did not claim, nor did any of
the other documents she filed in support of the request for
sanctions indicate, that she or her staff served Lee (either
directly or through counsel) with the memorandum of points and
authorities at least 21 days before November 20, 2019.
Therefore, Wong failed to comply with section 128.5’s safe harbor
requirement.
Furthermore, Wong’s refiling of the two-page notice of
motion on February 13, 2020 does not remedy her prior failure to
comply with the safe harbor requirement. 9 Although Wong had
served and filed the memorandum of points and authorities on
November 20, 2019 (i.e., more than 21 days before she refiled the
notice of motion), Lee could not have avoided the imposition of
sanctions by withdrawing his motion to vacate within the 21-day
period preceding February 13, 2020. This is because Wong never
9 Concurrent with her refiling of the two-page notice of
motion on February 13, 2020, Wong filed another responsive
declaration, which sought the same relief as the responsive
declaration filed on November 20, 2019, along with a request for
judicial notice of: (a) Wong’s November 20, 2019 filings
(including the memorandum of points and authorities) and (b) a
document relating to a state bar proceeding against Stocker.
Also on that date, Wong filed a proof of service indicating she
served Lee’s counsel with the new responsive declaration, notice
of motion for sanctions, and request for judicial notice.
11
actually withdrew the sanctions motion she filed on November
20, 2019, meaning it was still pending when Wong refiled the
notice of motion. Wong’s decision to refile the notice of motion
simply had the effect of reiterating that the pending sanctions
motion would be heard on February 18 and 27, 2020. Under
these circumstances, allowing the February 13, 2020 refiling of
the notice of motion to cure Wong’s prior noncompliance with the
safe harbor provision would undermine the remedial purpose of
section 128.5. (See CPF Vaseo Associates, LLC, supra,
29 Cal.App.5th at p. 1003 [noting the purpose of the safe harbor
provision is to allow a party to “ ‘correct or withdraw a frivolous
or improper pleading or motion without any penalty’ ”]; see also
Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 83
[“ ‘In construing a statute, our task is to ascertain the intent of
the Legislature so as to effectuate the purpose of the
enactment[,]’ ” italics added].)
In conclusion, we find the family court erred in ordering
Lee to pay $15,000 in sanctions under section 128.5 because
Wong failed to comply with the statute’s safe harbor provision.
For that reason, we reverse that aspect of the family court’s
June 1, 2020 order without addressing Lee’s other challenges to
the $15,000 sanction against him.
B. We Dismiss Lee’s Appeal of the $10,000 Sanction
Imposed Against Stocker
“ ‘[A]n appeal may be taken only by a party who has
standing to appeal. [Citation.] This rule is jurisdictional.
[Citation.]’ [Citation.]” (Conservatorship of Gregory D. (2013)
214 Cal.App.4th 62, 67.) To have standing to appeal, a party
must be “ ‘aggrieved[,]’ ” meaning his or her “ ‘ “rights or interests
are injuriously affected by the judgment [or appealable order].” ’ ”
12
(See ibid.) “Injurious effect on another party is insufficient to
give rise to appellate standing. A ‘party cannot assert error that
injuriously affected only nonappealing coparties.’ [Citation.]”
(Id. at pp. 67–68.)
An appellant bears the burden of establishing standing
to appeal. (See Conservatorship of Gregory D., supra,
214 Cal.App.4th at p. 69 [“Absent a showing by [appellant] that
she is injuriously affected by the trial court’s order, she lacks
standing to appeal.”].) If the appellant fails to discharge that
burden, the appeal must be dismissed. (See id. at pp. 64, 69.)
Lee claims that the provision of the June 1, 2020 order
requiring Stocker (his former trial counsel) to pay $10,000 must
be reversed as violative of Stocker’s due process rights. Lee
makes no attempt to show that his own rights were in some way
injuriously affected by this sanction against Stocker. Accordingly,
we dismiss Lee’s appeal of the $10,000 sanction against his
former attorney.10
C. Lee Fails to Establish that Family Code Section 213
Barred Wong from Requesting Sanctions in a
Responsive Declaration
Lee contends that Family Code section 213, subdivision (a)
barred Wong from requesting sanctions under Family Code
section 271 in a responsive declaration. Lee seems to argue that
Wong needed instead to seek sanctions in a noticed motion that
complied with all procedures governing motions for sanctions
under Family Code section 271, including that it be accompanied
by a memorandum of points and authorities and a request for
10 We express no opinion on whether Stocker may seek
relief from the $10,000 sanction in the family court.
13
order, and that the moving papers be served at least 16 days
before the hearing. Because Lee’s claim of error presents a
question of statutory interpretation, it is subject to de novo
review. (See In re Marriage of Perow & Uzelac, supra,
31 Cal.App.5th at p. 989.)
Family Code section 213, subdivision (a) provides: “In a
hearing on an order to show cause, or on a modification thereof,
or in a hearing on a motion, other than for contempt, the
responding party may seek affirmative relief alternative to that
requested by the moving party, on the same issues raised by the
moving party, by filing a responsive declaration within the time
set by statute or rules of court.” (Fam. Code, § 213, subd. (a).)
Construing this statutory language, Division Two of this court
held that “[a] party seeking attorney fees under [Family Code]
section 271 is not seeking affirmative relief within the meaning of
[Family Code] section 213 . . . .” (In re Marriage of Perow &
Uzelac, supra, 31 Cal.App.5th at p. 991.) Accordingly, Wong’s
request for fees under Family Code section 271 could be raised in
a responsive declaration, rather than in a separate motion
comporting with all procedural formalities applicable to motions
for sanctions authorized by that statute. (See In re Marriage of
Perow & Uzelac, at pp. 986–987, 990–992.)
D. Lee Fails to Establish the Family Court Abused Its
Discretion in Awarding Wong $6,250 Under Family
Code Section 271
Family Code section 271 provides in pertinent part:
“Notwithstanding any other provision of this code, the court may
base an award of attorney’s fees and costs on the extent to which
the conduct of each party or attorney furthers or frustrates the
policy of the law to promote settlement of litigation and, where
14
possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys. An award of
attorney’s fees and costs pursuant to this section is in the nature
of a sanction.” (Fam. Code, § 271, subd. (a).)
“We review an award of attorney fees and costs under
[Family Code] section 271 for abuse of discretion. [Citation.]
‘Accordingly, we will overturn such an order only if, considering
all of the evidence viewed most favorably in its support and
indulging all reasonable inferences in its favor, no judge could
reasonably make the order. [Citations.]’ [Citation.]” (In re
Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)
Lee argues that the family court imposed sanctions upon
him based solely on the fact that he had been declared a
vexatious litigant and had not obtained prefiling approval for his
motion to vacate, notwithstanding the fact that he filed this
motion through counsel. Lee also contends that Wong’s request
for sanctions was supported by only her two-page notices of
motion for sanctions, which provided “no facts or legal arguments
to support her request for sanctions.” Lee is mistaken.
Wong filed a responsive declaration on November 20, 2019,
and another on February 13, 2020, both of which sought
sanctions against Lee in the amount of $6,250 under Family
Code section 271. Each responsive declaration also indicated
Wong’s request was based on the memorandum of points and
authorities filed on November 20, 2019. As we explained in
Discussion, part A, ante, this memorandum of points and
authorities argued Lee should have been sanctioned because he
sought to “re-litigate the same claims and objections that were
previously made and rejected by” the family court.
15
Furthermore, although the family court did suggest at the
February 18, 2020 and February 27, 2020 hearings that it
believed Lee’s vexatious litigant status required him to obtain
leave of court before his counsel could move to vacate the
judgment, the court also made statements demonstrating it
agreed with Wong that Lee should be sanctioned for repeatedly
raising the same arguments to challenge the family court’s
judgment. Specifically, the court explicitly found at the
February 18, 2020 hearing that Lee had “frustrated the policy of
law to promote settlement of litigation . . . by filing frivolous
requests . . . .” At the February 27, 2020 hearing, the family
court once again found that Lee had made “frivolous” requests,
stated that he was “making the same arguments over and over
again,” and concluded that Lee “has engaged in excessive,
unreasonable and burdensome litigation . . . . for the very
purpose of harassing [Wong].” Because it is apparent that the
family court’s order awarding Wong $6,250 under Family Code
section 271 is predicated on a finding that Lee’s motion to vacate
the judgment was a frivolous attempt to rehash arguments that
had been consistently rejected by the court, we may affirm on
that basis without addressing whether Lee was required to
obtain leave of court before filing that motion. (See Sutter Health
Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513 [“We
need not address [the other reasons given by the trial court in
support of its ruling], as one good reason is sufficient to sustain
the order from which the appeal was taken.”].)
Lee seems to argue the family court could not sanction him
for reasserting arguments previously raised and rejected because
Wong had referred to the prior filings “in her request for attorney
fees in the underlying September 19th, 2018 judgment . . . .” He
16
thus claims that “Res Judicata” barred Wong from citing those
filings to show that Lee’s motion to vacate was frivolous. We
reject this argument because Lee does not support it with any
citation to authority. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 (Cahill) [“ ‘ “When an appellant
fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point
as waived.” ’ [Citation.]”].)
Lee also points out that several of these prior filings were
submitted by other parties, and contends that they had “not been
ruled as frivolous” or conduct that “ ‘frustrat[ed] the policy of the
law to promote settlement of litigation’ ” for the purposes of
Family Code section 271. (Quoting Fam. Code, § 271.) Lee does
not explain the supposed relevance that either of these assertions
would have on whether the family court could sanction him for
reasserting previously rejected arguments, nor is it apparent to
us that his contentions impugn the lower court’s ruling. Thus, we
do not address these issues further. (See Hernandez v. First
Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez) [“We
may and do ‘disregard conclusory arguments that . . . fail to
disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.’ [Citation.]”].)
In addition, the indices for the two clerk’s transcripts for
this appeal indicate that the record before us does not contain
any of the prior filings Wong cites to establish that Lee’s motion
was frivolous. Accordingly, Lee cannot show the family court
abused its discretion in finding that his motion to vacate merely
repeated arguments that had already been rejected by the court.
(See Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 187 [“ ‘ “[I]f any matters could have been
17
presented to the court below which would have authorized the
order complained of, it will be presumed that such matters were
presented.” ’ [Citation.] . . . ‘Failure to provide an adequate
record on an issue requires that the issue be resolved against
[appellant].’ [Citation.]”].)
For the foregoing reasons, we conclude Lee has failed to
rebut the presumption that the family court did not abuse its
discretion in awarding Wong $6,250 under Family Code
section 271. (See Yu, supra, 196 Cal.App.4th at p. 787 [“ ‘ “A
judgment or order of the lower court is presumed 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. . . .” ’ [Citation.]”].)
E. Lee Does Not Demonstrate that Wong’s Alleged
Failure to Serve Him with Notice of the Court’s
February 27, 2020 Minute Order or Comply with
California Rules of Court, Rule 5.125 Gives Rise to
Reversible Error
Lee argues that, even though the family court ordered
Wong to provide him with notice of the minute order issued in
connection with the February 27, 2020 hearing, Wong failed to do
so. He also claims that because Wong did not serve him with her
proposed order within 10 calendar days of the February 27, 2020
hearing,11 he was unable to exercise his right under California
Rules of Court, rule 5.125(c) to serve an objection thereto within
11 Lee asserts “[Wong’s] counsel wait[ed] 22 days after the
hearing before mailing her Proposed Order After Hearing” to
him.
18
20 calendar days of the hearing.12 As discussed below, Lee fails
to discharge his obligation to show that these alleged errors
warrant reversal of the sanctions order. (See Parkford Owners
for a Better Community, supra, 54 Cal.App.5th at p. 721.)
First, Lee does not allege, let alone demonstrate, that he
was prejudiced by Wong’s supposed failure to serve him with
notice of the February 27, 2020 minute order. Lee timely filed a
notice of appeal (see Procedural Background, ante), and Lee does
not identify any other prejudice resulting from Wong’s purported
failure to serve him with notice of the February 27, 2020 minute
order. (See Conservatorship of Maria B., supra, 218 Cal.App.4th
at pp. 532–533 [holding that an error is harmless under state law
unless the appellant makes “an ‘affirmative showing’ ” that “ ‘ “it
is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error” ’ ”].)
12 Lee also complains that, “[a]s the dates within the
proposed order had already passed by the time [Wong’s] counsel
mailed her proposed order, [Lee] was prejudiced by [Wong’s]
counsel’s violation of CRC Rule 5.125.” It appears Lee is arguing
that had he been served with the proposed order within 10
calendar days of the February 27, 2020 hearing (meaning Wong
adhered to the deadline set by Cal. Rules of Court, rule 5.125(b)),
then he could have raised an objection thereto before the
March 2, 2020 deadline for him to begin paying the sanctions.
This argument is not well-founded. Even if Wong had served Lee
with the proposed order within 10 calendar days of the
February 27, 2020 hearing (i.e., by March 8, 2020), Lee still could
have received the proposed order after the March 2, 2020
payment deadline.
19
Regarding Wong’s supposed failure to comply with
California Rules of Court, rule 5.125(b)’s 10-calendar day
deadline for serving the proposed order on him, Lee asserts that
this document “deviated from the court’s findings per
February 27, 2020 hearing [sic].” Yet, he fails to identify any
aspect of the proposed order that differs from the trial court’s oral
rulings made at the hearing.
Lee further claims that Wong’s alleged failure to comply
with California Rules of Court, rule 5.125(b) “deprived [Lee of]
the ability to address the lack of evidence to support specific
tactics and actions as alleged by [Wong] as frivolous.” Lee seems
to misapprehend the purpose of the objection procedure at issue.
California Rules of Court, rule 5.125(c) provides that before a
party may serve objections to a proposed order, he or she “must
review [it] to determine if it accurately reflects the orders made
by the court . . . .” (See Cal. Rules of Court, rule 5.125(c).) Thus,
it is apparent that the type of objection authorized by this rule
would not have afforded Lee an opportunity to relitigate the
merits of Wong’s request for sanctions.
In sum, Lee has not established that Wong’s supposed
failure to provide him with notice of the trial court’s
February 27, 2020 minute order or comply with California Rules
of Court, rule 5.125’s procedural requirements amounts to
reversible error.
F. Lee’s Remaining Claims of Error Fail
Lee asserts several additional claims of error. In
particular, Lee contends that Wong’s request for sanctions
under Code of Civil Procedure section 128.5 and Family Code
section 271 was “unripe/premature” because the family court did
not deny his motion to vacate the judgment, given that Lee had
20
taken it off calendar before the court could hear it. Lee waives
this argument because he fails to cite any authority establishing
that a party may evade an award of sanctions under Family Code
section 271 by taking an allegedly frivolous motion off calendar. 13
(See Cahill, supra, 194 Cal.App.4th at p. 956 [“ ‘When an
appellant fails to raise a point, or asserts it but fails to support it
with reasoned argument and citations to authority, we treat the
point as waived.” ’ [Citation.]”].)
Lee further argues that the $6,250 award of sanctions
against him under Family Code section 271 was excessive. Lee
claims that Wong did not “provide any invoices in support of her
claim for attorney fees . . . .” Yet, Wong’s counsel’s declaration
asserted that “the total attorney’s fees estimated and requested
by [Wong] associated with this matter is $6,250,” and the
attorney itemized “the fees and costs charged to” Wong in that
declaration. (Boldface omitted.) By omitting from his briefing
any explanation as to why this declaration did not support the
sanction award, Lee has failed to discharge his burden of
affirmatively demonstrating the award lacked a sufficient
evidentiary basis. (See Yu, supra, 196 Cal.App.4th at p. 787.)
Lee waives the remainder of this claim of error because he fails to
cite any legal authority demonstrating the award was excessive.
(See Cahill, supra, 194 Cal.App.4th at p. 956.)
Lee also complains that he was deprived of his due process
right to a fair and impartial judge when, at an October 16, 2020
hearing, the family court denied his motion to vacate the
13 As we explained in Discussion, part A, ante, aside from
his claim of error concerning section 128.5’s safe harbor
provision, we do not address Lee’s challenges to the $15,000
sanction imposed under that statute.
21
June 1, 2020 order, denied his request to stay the execution of the
June 1, 2020 order, and imposed a new $5,000 sanction against
him. In support of this due process claim, Lee seems to argue
that the family court was unprepared for the hearing, did not
permit Lee to offer oral argument on his motion, “allowed
opposing counsel to mislead” the court that Lee’s motion sought
to vacate the underlying judgment instead of the prior sanctions
order, and “sanctioned [Lee] $5,000[,] stating [in a] conclusory
[fashion] that his motion was frivolous” even though he had
obtained leave from the presiding judge to file it.
It is not altogether clear to us that this due process claim is
within the scope of Lee’s appeal of the June 1, 2020 order.14 (See
Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th
1069, 1073 [“ ‘Our jurisdiction on appeal is limited in scope to the
notice of appeal and the judgment or order appealed from.’
[Citation.]”].) Even if we could consider this claim, it would fail
because “[t]he mere fact that the [family] court issued rulings
adverse to [Lee] on several matters in this case, even assuming
one or more of those rulings were erroneous,” is insufficient to
establish a violation of his “due process right to an impartial
judge.”15 (See Brown, supra, 224 Cal.App.4th at pp. 673–675; see
14 Although the notice of appeal also purports to seek
review of a June 1, 2020 order that purportedly “grant[ed] or
den[ied] a special motion to strike,” no such ruling was entered
on that date.
15 Lee’s assertion the family court barred him from
offering oral argument falls short of establishing a due process
violation because he “does not claim . . . that the [family] court
was required to grant [his] request” to present argument at the
hearing. (See Brown v. American Bicycle Group, LLC (2014)
22
also id. at p. 674 [“ ‘While we conclude the court erred in several
respects, the leap from erroneous rulings to the appearance of
bias is one we decline to make.’ ”].)
Lee did not raise properly any other claims of error. For
instance, Lee apparently argues that the portion of the
June 1, 2020 order requiring him to pay $15,000 directly to
Wong’s attorney evidences that her counsel had an allegedly
improper contingency fee arrangement with Wong, which
supposedly put Lee at a tactical disadvantage during the family
court proceedings. Lee fails to explain what bearing, if any, these
allegations have on the validity of the $6,250 sanction. Because
Lee’s assertion that Wong “unreasonably refused [to respond to]
discovery requests that would [have] further support[ed Lee’s]
motion to vacate the judgment” is similarly vague and
underdeveloped, we decline to address it as well. Lastly, to the
extent Lee has raised any contentions not otherwise addressed in
this opinion, they fail because they are unsupported by cogent
argument. (See Hernandez, supra, 37 Cal.App.5th at p. 277
[“ ‘[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis . . . .’ [Citation.] ‘We are not obliged to make other
arguments for [appellant] [citation], nor are we obliged to
speculate about which issues counsel intend to raise.’ [Citations.]
We may and do ‘disregard conclusory arguments that . . . fail to
disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.’ [Citation.]”].)
224 Cal.App.4th 665, 674–675 & fn. 15 (Brown) [rejecting a due
process claim for that reason].)
23
DISPOSITION
The family court’s June 1, 2020 order is reversed only
insofar as it imposed a $15,000 sanction on appellant Boschal Lee
pursuant to Code of Civil Procedure section 128.5. We dismiss
Lee’s appeal of the $10,000 sanction against William Stocker for
lack of appellate jurisdiction. In all other respects, the June 1,
2020 order is affirmed. The parties are to bear their own costs on
appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
24