Marriage of Salas and Farraj CA2/7 ( 2015 )

Filed 9/1/15 Marriage of Salas and Farraj CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of EDITH SALAS and B252053
AYMAN FARRAJ.
(Los Angeles County
Super. Ct. No. BD490528)
Super. Ct. No. BC490528)
EDITH SALAS,
Respondent,
v.
AYMAN FARRAJ,
Appellant.
APPEAL from postjudgment orders of the Superior Court of Los Angeles County,
David S. Cunningham III, Judge. Affirmed in part and reversed in part.
Patrick L. McCrary; and Patricia J. Barry for Appellant.
Law Offices of Peter A. Lauzon, Peter A. Lauzon and Sharon Stark for
Respondent.
_______________________
Ayman Farraj appeals from postjudgment orders awarding attorney fees as
sanctions against him for discovery abuses and conduct impeding the resolution of
various issues arising from the dissolution of his marriage to Edith Salas. With the
exception of the attorney fees related to Farraj’s request for an order striking the reports
of a psychologist he claimed was biased against him and the initial work on the request to
vacate the move-away order, which we find did not warrant sanctions, we affirm the
orders.
FACTUAL AND PROCEDURAL BACKGROUND
Farraj and Salas’s marriage of nine years was dissolved on March 9, 2010. Under
a stipulated modification to the judgment dated December 21, 2011, Salas was awarded
sole legal and physical custody of the couple’s two young children; Farraj was limited to
four hours per week of professionally monitored visitation, an arrangement that had been
in place since December 2010. The visitation terms were negotiated in response to the
reports of Bruce Harshman, an independent custody evaluator.1 In keeping with
Harshman’s recommendations Farraj participated in multiple anger management training
and parenting classes during the next two years. Nevertheless, the monitoring
requirement was never lifted, nor was Farraj’s visitation expanded.
On March 7, 2013, over Farraj’s objection, the trial court granted Salas’s request
to move with her fiancé and the children to India. Salas was ordered to bring the children
to California once each year for a period of four weeks during their summer vacation;
1
Harshman was not appointed in this action to act as a custody evaluator. He was
retained as a conjoint therapist for the family after Farraj accused Salas’s then-new
boyfriend of sexually abusing the couple’s young daughter, an accusation Farraj
attributed to his daughter’s complaint the boyfriend had asked her to kiss his “peepee”
and had touched her “peepee” while bathing her. Salas sought a temporary restraining
order against Farraj after he made the accusation. The court denied Salas’s request for
relief, finding no evidence of abuse under the Domestic Violence Protection Act (Fam.
Code, § 6200 et seq.), but granted ex parte relief pursuant to Family Code sections 3027.5
and 3064 requiring Farraj’s visitation to be monitored by a trained professional monitor
or conjoint therapist who was a licensed mental health professional because of the
imputed detriment to the children’s well-being caused by false allegations of sexual
abuse.
2
Farraj would be allowed to exercise professionally monitored visitation for up to four
hours per day during that four-week period. In addition, Salas was ordered to fly Farraj
to India for one week each year to allow Farraj to spend up to four hours per day of
professionally monitored visitation with the children. Farraj was also to be allowed one
telephone call per week with the children.
When Farraj’s counsel protested the monitoring requirement was unworkable and
unenforceable, the court urged that Harshman be retained to assess whether monitoring of
Farraj’s visits with his children could be terminated and the visits expanded.2 Farraj’s
counsel explained Harshman was unacceptable to Farraj, who believed Harshman was
biased against him. Because the move was scheduled for June 2013, the court set a
subsequent hearing for April 24, 2013 to consider the appointment of Harshman or
another expert to assess whether monitoring should be discontinued.
In April 2013 Farraj retained Patricia Barry as his counsel. Barry’s first action on
Farraj’s behalf was to file a request for an order to show cause alleging Salas should be
held in contempt for depriving Farraj of his visitation rights based on Salas’s failure to
promptly schedule visits or respond to Farraj’s telephone calls. Barry did not respond to
Salas’s counsel’s attempts to schedule an evaluation for the purpose of modifying the
visitation order because, as Barry later observed, “[Farraj] has been studied to kingdom
come.” On April 24, 2013 Barry filed a request for an order striking from the record all
reports submitted by Harshman on the ground Harshman was prejudiced against Farraj,
who is Palestinian, because of his race and religion.3 On May 6, 2013 Barry filed another
request for an order seeking to vacate the move-away order on similar grounds.
2
Farraj’s counsel opposed the appointment of Harshman to update his previous
reports because of the antagonistic relationship between Farraj and Harshman.
3
According to the pleadings Harshman and another consultant, Steven Shaps,
exchanged emails characterizing Arab men as “very emotional” “‘with a desire to control
and manipulate and to change the rules of the game in mid stream . . . .’” Harshman
further stated, “‘Ayman has severe issues with his anger and doesn’t help his cause when
[he] externalizes blame or attacks others for not ‘groking’ [sic] (understanding) his
culture wherein males are permitted unrestrained angry outbursts, explosions, and
3
The request for an order striking the Harshman reports was heard on June 6, 2013.
The trial court ruled the request was moot because the judgment and other orders
influenced by the reports had become final and Farraj’s former counsel had failed to raise
any of the issues now presented by Barry. Because the evidence of bias had been
available to Farraj’s prior counsel, there was no new evidence to support a motion for
reconsideration under Code of Civil Procedure section 1008. Although initially
disinclined to find the request frivolous, the court ultimately agreed with Salas’s
counsel’s characterization of the request because it was made so long after Harshman had
issued his reports and Farraj had always been represented by counsel and thus could have
objected at the time.
Farraj’s request for an order vacating the move-away order was heard on June 21,
2013. Barry appeared late for the hearing—well after the court had announced its
tentative to deny the requested order—and filed a declaration under Code of Civil
Procedure section 170.1, subdivision (a)(6), seeking to disqualify Judge David S.
Cunningham III, who had long presided over the case. The verified declaration alleged
Judge Cunningham was prejudiced against Barry based on her advocacy on behalf of a
former client and against Farraj based on his race and religion. Judge Cunningham
adjourned the hearing without ruling on the pending request for an order vacating the
move-away order. The hearing was reconvened on June 25, 2013 at which time Judge
Cunningham announced he had rejected the statement of disqualification. The parties
displays in public and private.’ . . . [¶] ‘The incident [sic] of [(domestic violence)] in
Middle Eastern cultures is off the chart. His [Farraj] [sic] behaviors toward Edith are
symptomatic of his cultural upbringing—an upbringing that may not be alterable due to
the hardwiring of his infant/toddler brain.’” (Capitalization and boldface omitted.)
Based on Harshman’s recommendations to the court, Farraj lost legal custody of
his children and was required to submit to monitored visitation. To improve his
parenting skills and demonstrate his commitment to his children, Farraj completed 26
four-hour sessions with a parenting coach, 90 hours of parenting classes with another
consultant, 20 anger management sessions with Shaps, an additional 10 sessions with
another parenting coach and 43 group sessions for men with anger management issues.
4
submitted without argument on the previously announced tentative ruling denying the
motion.
On July 8, 2013 Barry filed a request for an order modifying the existing child
custody and child support orders and an end to monitored visitation. In the attached
declaration Farraj asserted Salas had failed to account for sums garnished from his wages
and owed him nearly $16,000 in tuition and after-school-care costs. He also stated he
had been laid off from his job. He did not provide a complete income and expense
declaration.
On July 18, 2013 Salas filed a request for an order imposing sanctions against
Farraj pursuant to Family Code section 271.4 The request sought payment of $150,000 in
attorney fees incurred by Salas after Farraj’s retention of Barry because of Farraj’s
repeated attempts to vacate the existing visitation and move-away orders.
On July 30, 2013 Barry served eight subpoenas on various individuals and entities
seeking production of documents at the August 21, 2013 hearing on Farraj’s request for
modification of the custody, support and visitation orders.5 On August 6, 2013 Salas’s
counsel sent a letter objecting to the subpoenas and requesting their withdrawal. Salas
thereafter filed an opposition to the request for modification based on Farraj’s failure to
agree to an updated evaluation or to support his application with accurate income and
expense information. She also informed the court Farraj had been reinstated in his job
only days after filing the request. On August 14, 2013, due to Barry’s failure to withdraw
the subpoenas, Salas’s counsel moved to quash the subpoenas and sought discovery
sanctions in the amount of $2,910 for each of the eight motions ($23,280).
4
Statutory references are to this code unless otherwise indicated.
5
The subpoenas were directed to Christopher Mahan, a lawyer who formerly
represented Salas; Christine Gille, another lawyer who formerly represented Salas;
Suzanne Winnick, a therapist who treated one of the children at the time of the Harshman
evaluation; the Halsey School, a preschool attended by the children at the time of the
evaluation; Fidelity Investments, where Salas held a 401(k) retirement plan; and three
banks, Chase Bank, Citibank and Bank of America, where Salas held various accounts.
5
The trial court denied Farraj’s request for modification in its entirety on
August 21, 2013. On August 28, 2013 Salas’s counsel informed Barry the document
subpoenas were moot because the underlying request for modification had been denied.
Nonetheless, Salas intended to seek the costs associated with filing the motions to
quash—a request scheduled for hearing on September 13, 2013—unless Farraj made an
acceptable offer on the sanctions request. Barry responded the motions themselves were
moot and should be taken off calendar. Instead of filing an opposition to the motions to
quash or formally withdrawing the subpoenas, Barry filed an ex parte application seeking
to take the motions off calendar. The application was denied. At the hearing on
September 13, 2013 the court granted the motions to quash and awarded sanctions against
Farraj in the amount of $10,680, payable at the rate of $1,000 per month with an
acceleration clause in the event of nonpayment. In a subsequent hearing on
September 23, 2013, the court denied Farraj’s requested order to show cause re
contempt—the first pleading filed after he retained Barry in April 2013—finding the
request was frivolous.
The hearing on the section 271 sanctions was continued to November 8, 2013 to
allow supplemental briefing and evidence about Farraj’s ability to pay and the fees
claimed by Salas. Salas served discovery on the subject of Farraj’s finances, but Farraj
objected to the discovery as beyond the scope of the court’s order and improper in a
postjudgment collateral proceeding. At the November 8, 2013 hearing the court granted
the section 271 motion, finding that Barry’s “choice of tactics” had frustrated the policies
of promoting settlement and reducing the cost of litigation. The court continued, “Now,
despite your efforts . . . to try to make this about [Salas’s counsel] and about me and
about racism and about religious discrimination, it has never been about that from what I
can tell. What it has been about is the best interests of the child, due process, law and
rules.” The court observed that Farraj’s most recent income and expense declaration was
incomplete and he had failed to appear for his deposition or produce documents: “[T]hat
is just further evidence of Mr. Farraj’s desire to ignore the policy of attempting to settle
cases and reduce the cost of litigation . . . .” The court granted the section 271 motion
6
and awarded fees of $123,087.50, consisting of the fees Barry had not disputed as
excessive. The court ordered Farraj to file an updated income and expense declaration,
lodge his most recent tax returns and submit a proposed payment plan for the sanctions in
time for a further hearing on December 9, 2013. The court further ordered, if Farraj
failed to produce the documents, the sanctions would be due forthwith.
Farraj failed to provide the court with any of these documents or to appear at the
December 9, 2013 hearing. Barry advised the court Farraj had not complied with the
court’s order because she had agreed to accept an assignment of any sanctions levied
against her client. Finding Farraj’s noncompliance was willful, the court ordered the
entire amount paid to Salas’s counsel no later than January 1, 2014.
DISCUSSION
1. The Discovery Sanctions Order Is Appealable, and the Court Did Not Abuse
Its Discretion in Awarding Attorney Fees to Salas in Connection with the
Motions To Quash
a. The order is appealable
The existence of an appealable judgment or order is a jurisdictional prerequisite to
an appeal. (Jennings v. Marralle (1994) 8 Cal. 4th 121, 126.) A trial court’s order is
appealable only when made so by statute. (Griset v. Fair Political Practices Com. (2001)
25 Cal. 4th 688, 696; see Dana Point Safe Harbor Collective v. Superior Court (2001)
51 Cal. 4th 1, 5 [“[t]he right to appeal is wholly statutory”].)
Code of Civil Procedure section 904.1 authorizes the immediate appeal of certain
orders imposing monetary sanctions over $5,000 and provides for review of orders
imposing sanctions of lesser amounts on appeal from the final judgment. (Code Civ.
Proc., § 904.1, subds. (a)(11) & (12), (b).) Lesser sanction orders are reviewable only
upon writ petition or on appeal after final judgment. (Id., § 904.1, subd. (b).)
Salas contends the discovery sanctions award here is unreviewable because it is an
aggregate award reflecting the attorney fees incurred with respect to eight separate
motions to quash, each of which was granted by the trial court. Salas requested sanctions
and estimated her fees by the time of hearing to be $2,910 for each motion, well under
7
the statutory limit of $5,000. The trial court granted each motion although it reduced the
requested fees on the combined motions from $23,280 to a total amount of $10,680.
Salas is correct that the $5,000 threshold cannot be satisfied by aggregating
separate sanctions awards. Considering the appealability of two sanction awards that,
unless aggregated, fell below the then-statutory minimum of $750, the court in Calhoun
v. Vallejo City Unified School Dist. (1993) 20 Cal. App. 4th 39 rejected the plaintiff’s
argument the aggregated amount exceeded $750 and was thus appealable: “We conclude
that because of the Legislature’s intent to reduce the number of appeals from monetary
sanction orders and the confusion that would result from a rule permitting aggregation,
multiple sub-$750 sanctions may not be aggregated under any circumstances to meet the
appealability threshold of [former] Code of Civil Procedure section 904.1,
subdivision (k). We endorse a bright line rule that a sanction order is nonappealable if it
does not impose any sanction exceeding $750, and thus an order requiring payment of
multiple sanctions, none of which exceed[s] $750, is nonappealable even if the total
aggregated sanctions exceed $750.” (Calhoun, at p. 45; see Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 2.82.2, p. 2-57 [“[m]ultiple
monetary sanctions orders or judgments may not be aggregated to meet the statutory
threshold for appealability”].) Even if separate sanctions are imposed for what is
essentially the same conduct, “[s]uch standards for aggregation would inject an
unwelcome dose of uncertainty into the appellate process. The Legislature intended to
create a . . . ‘bright line’ threshold for appealability of monetary sanction orders.
[Citation.] A rule permitting aggregation of ‘same conduct’ or ‘nonseparate’ sanctions
would blur that bright line.” (Calhoun, at p. 45.)
The sanctions order at issue here, however, was made after entry of the final
judgment of dissolution, and Code of Civil Procedure section 904.1, subdivision (a)(2),
generally permits an appeal to be taken from a postjudgment order. Nonetheless,
“[d]espite the inclusive language of [this section], not every postjudgment order that
follows a final appealable judgment is appealable. To be appealable, a postjudgment
order must satisfy two additional requirements.” (Lakin v. Watkins Associated Industries
8
(1993) 6 Cal. 4th 644, 651, fn. omitted.) “The first requirement . . . is that the issues
raised by the appeal from the order must be different from those arising from an appeal
from the judgment. [Citation.] ‘The reason for this general rule is that to allow the
appeal from [an order raising the same issues as those raised by the judgment] would
have the effect of allowing two appeals from the same ruling and might in some cases
permit circumvention of the time limitations for appealing from the judgment.’
[Citation.] . . . [¶] The second requirement . . . is that ‘the order must either affect the
judgment or relate to it by enforcing it or staying its execution.’ [Citation.] Under this
rule, a postjudgment order that does ‘not affect the judgment or relate to its enforcement
[is] not appealable.’” (Id. at pp. 651-652; accord, Bates v. Rubio’s Restaurants, Inc.
(2009) 179 Cal. App. 4th 1125, 1130-1131.) The Lakins Court held that a postjudgment
order denying an award of attorney fees requested for an abuse of discovery rules was
appealable because it “affects the judgment or relates to its enforcement because it
determines the rights and liabilities of the parties arising from the judgment, is not
preliminary to later proceedings, and will not become subject to appeal after some future
judgment.” (Lakin, at p. 656; see also Shelton v. Rancho Mortgage & Investment Corp.
(2002) 94 Cal. App. 4th 1337, 1343-1343 [postjudgment order denying request for
sanctions under Code of Civil Procedure section 128.5 “is a final determination of the
rights and liabilities of the parties arising from the judgment . . . [,] is not preliminary to
some later proceeding, and there is no future judgment from which the order might be
appealed”]; In re Marriage of Dupre (2005) 127 Cal. App. 4th 1517, 1525 [“[f]ollowing in
the wake of Lakin and Shelton, we find the denial of [Family Code] section 3027.1
sanctions appealable”].)
The same principles apply here. The postjudgment order at issue granted an award
of attorney fees as sanctions for discovery abuse; and, with respect to the motion to
quash, it was a final determination of the rights and liabilities of the parties, was not
preliminary to any other proceeding, and there is no future judgment from which the
order may be appealed. Accordingly, we have jurisdiction to review the order.
9
b. The award was within the broad discretion of the trial court
“The Civil Discovery Act ([Code Civ. Proc., ]§ 2016.010 et seq.) provides in
pertinent part: ‘To the extent authorized by the chapter governing any particular
discovery method . . . , the court, after notice . . . and after opportunity for hearing, may
impose the following sanctions against anyone engaging in conduct that is a misuse of the
discovery process: [¶] (a) . . . If a monetary sanction is authorized by any provision of
this title, the court shall impose that sanction unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.’ ([Code Civ. Proc.,] § 2023.030, subd. (a), italics
added.)” (Doe v. United States Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1434.)
In reviewing an order imposing a monetary discovery sanction, the Doe court
explained, “In a variety of similar contexts, the phrase ‘substantial justification’ has been
understood to mean that a justification is clearly reasonable because it is well grounded in
both law and fact. [Citations.] We have no reason to believe that the Legislature
intended a different meaning here.” (Doe v. United States Swimming, supra,
200 Cal.App.4th at pp. 1434-1435; accord, Diepenbrock v. Brown (2012)
208 Cal. App. 4th 743, 747.) The burden falls on the party who lost the discovery motion
to establish it had acted with “substantial justification.” (Doe, at p. 1435.)
We review the trial court’s sanctions order under the deferential abuse of
discretion standard. (Ellis v. Toshiba America Information Systems, Inc. (2013)
218 Cal. App. 4th 853, 878; Diepenbrock v. Brown, supra, 208 Cal.App.4th at p. 747.)
The trial court has broad discretion to impose sanctions for violations of court orders,
including those intended to compel compliance with a party’s disclosure and discovery
obligations, subject to reversal only for arbitrary or capricious action. (Parker v. Wolters
Kluwer United States, Inc. (2007) 149 Cal. App. 4th 285, 297.) We resolve any
evidentiary conflicts most favorably to the trial court’s ruling. (Ellis, at p. 878.)
Farraj argues that he was substantially justified in issuing discovery subpoenas
related to his request for modification of the existing visitation monitoring restrictions.
That is possibly true, but it misses the point. The request for an order modifying the
10
restrictions was denied by the court in ample time for Barry to withdraw the subpoenas.
Rather than take this simple step, Barry quixotically refused to withdraw the subpoenas
on the ground the motions to quash were moot, a legal position the court ultimately
rejected. She also failed to file an opposition to the motions and refused to defend the
relevance of the materials sought by the subpoenas when given a chance. The court
decision this conduct was not substantially justified was not an abuse of the court’s broad
discretion.
2. The Court Did Not Abuse Its Discretion in Deciding To Award Sanctions
Under Section 271; on Remand Attorney Fees Related to the Request for an
Order Striking the Harshman Reports Should Be Deducted
Section 271 provides the court in family law proceedings with authority to order
payment of attorney fees and costs in the nature of a sanction to encourage cooperation
and discourage litigation tactics that increase the cost of litigation. (§ 271, subd. (a).)6
“Family law litigants who flout that policy [of promoting settlement of issues and
cooperation among counsel and parties] by engaging in conduct that increases litigation
costs are subject to the imposition of attorneys’ fees and costs as a sanction.” (In re
Marriage of Petropoulos (2001) 91 Cal. App. 4th 161, 177; see In re Marriage of Corona
(2009) 172 Cal. App. 4th 1205, 1225.) An award of fees as a sanction under section 271
does not require any showing of need or actual injury. (See In re Marriage of Feldman
(2007) 153 Cal. App. 4th 1470, 1478-1479.)
6
Section 271, subdivision (a), provides: “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 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. In making an award
pursuant to this section, the court shall take into consideration all evidence concerning the
parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to
this section that imposes an unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this section, the party requesting
an award of attorney’s fees and costs is not required to demonstrate any financial need for
the award.”
11
“We review an award of attorney fees and costs under 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.] We review any factual findings made in connection with the award under the
substantial evidence standard.” (In re Marriage of Fong (2011) 193 Cal. App. 4th 278,
291; accord, In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1225.)
Farraj contends the court abused its discretion by finding his requests to strike the
Harshman reports and to vacate the move-away order to be frivolous in light of the
evidence he had presented of Harshman’s bias and the fact the order permitted Salas to
move the children to India, a destination that would seriously impair his ability to
maintain a parental relationship with his children. He argues the two requests should
have been deemed a motion for reconsideration or for a new trial and that he should not
be penalized for the improper actions of Barry, who is no longer his counsel.7 He also
contends the court awarded sanctions without considering his ability to pay.
Farraj correctly points out that a court should use caution in determining a motion
is frivolous. As the Supreme Court has advised in the context of appellate proceedings,
“An appeal that is simply without merit is not by definition frivolous and should not incur
sanctions. . . . ‘[T]he borderline between a frivolous appeal and one which simply has no
merit is vague indeed . . . . The difficulty of drawing the line simply points up an
essential corollary to the power to dismiss frivolous appeals: that in all but the clearest
cases it should not be used.’ [Citation.] The same may be said about the power to punish
attorneys for prosecuting frivolous appeals: the punishment should be used most
sparingly to deter only the most egregious conduct.” (In re Marriage of Flaherty (1982)
31 Cal. 3d 637, 650-651; see Code Civ. Proc., § 128.5, subd. (b)(2) [defining a frivolous
action to be one that is “totally and completely without merit or for the sole purpose of
7
Barry filed the opening brief on behalf of Farraj. Patrick L. McCrary substituted
in as counsel for Farraj on March 2, 2015 and filed the reply brief.
12
harassing an opposing party”]; cf. State of California ex rel. Standard Elevator Co., Inc.
v. West Bay Builders, Inc. (2011) 197 Cal. App. 4th 963, 982 [“clearly frivolous” action
under the False Claims Act (Gov. Code, § 12650 et seq.) is one devoid of merit].)
However, whether the action is frivolous or devoid of merit is not the sole focus of
section 271. “Rather, the statute is aimed at conduct that frustrates settlement of family
law litigation. Expressed another way, section 271 vests family law courts with an
additional means with which to enforce this state’s public policy of promoting settlement
of family law litigation, while reducing its costs through mutual cooperation of clients
and their counsel. ‘Thus, a party who individually, or by counsel, engages in conduct
frustrating or obstructing the public policy is thereby exposed to liability for the adverse
party’s costs and attorney fees such conduct generates.’” (In re Marriage of Tharp
(2010) 188 Cal. App. 4th 1295, 1318.) The family law court’s determination on this issue
is entitled to our deference and “‘“will be overturned only if, considering all the evidence
viewed most favorably in support of its order, no judge could reasonably make the
order.”’ [Citation.] ‘In reviewing such an award, we must indulge all reasonable
inferences to uphold the court’s order.’” (Feldman, supra, 153 Cal.App.4th at p. 1478;
see In re Marriage of Sorge (2012) 202 Cal. App. 4th 626, 652.)
The family law court did not initially view Farraj’s request for an order striking
the Harshman reports as frivolous. Rather, the court reached that conclusion only after
Salas’s counsel argued any potential bias on the part of Harshman was known to Farraj
and his former counsel well before the court ruled on Salas’s request for a move-away
order. We agree with the court’s initial evaluation of the request to strike the Harshman
reports. From Farraj’s perspective, he had advised his former counsel of his belief
Harshman was biased. Although former counsel did not object to the court’s orders on
this ground, Barry’s determination, once she entered the case, to bring evidence of
Harshman’s bias to the attention of the court was not “totally and completely without
merit.”8 To the extent, therefore, the court’s award of section 271 sanctions was based
8
At one juncture during the hearing, the court recognized the request could have
13
upon Farraj’s request for an order striking the Harshman reports, it was overbroad; and
any fees associated with the defense of that request were improperly assessed against
Farraj. Similarly, any fees incurred by Salas to respond to Farraj’s May 6, 2013 request
to vacate the move-away order prior to the court’s June 6, 2013 denial of the request to
strike the Harshman reports must be eliminated from the amount of sanctions imposed.
Until the court denied the initial request, Farraj and his counsel had not engaged in
sanctionable conduct.
The trouble with Farraj’s argument with respect to further proceedings is his
apparent unwillingness to rein in his counsel after the denial of the request to strike the
Harshman reports. While the evidence of Harshman’s bias is troublesome, and the
looming departure of his children to India with onerous visitation restrictions
undoubtedly motivated him, Farraj apparently instructed Barry to do anything necessary
to upset the existing orders, a strategy we cannot condone. In pursuing relief for Farraj,
Barry eschewed common sense legal tactics for theatrical—but inherently futile—legal
gestures and ignored procedural rules. For instance, in April 2013 when Barry entered
the case, the court had already indicated its willingness to entertain evidence of Farraj’s
improved parenting skills. Rather than pursue this avenue after having brought evidence
of Harshman’s bias to the attention of the court, Barry filed two more requests in quick
succession that reiterated the claim of bias but provided little more than anecdotal
acclamation of Farraj’s good intentions and parenting skills. Rather than reassess her
strategy after the first request had been rejected, Barry shifted her attack to the judge,
alleging he too was biased against both her and her client. That this step was fruitless is
been deemed a timely motion for reconsideration under Code of Civil Procedure section
1008, although the final move-away order had not yet been entered. (See Lucas v. Santa
Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1027 [“[f]or purposes of a motion
for reconsideration, it does not matter whether the order attacked is an interim one or
whether it is final”]; accord, In re Marriage of Barthold (2008) 158 Cal. App. 4th 1301,
1312.) Even if the court had previously been aware of Farraj’s belief Harshman was
biased, the evidence of Harshman’s statements was a proper basis for the court to exercise
its discretion to reconsider orders based on those reports. (Barthold, at pp. 1308-1309.)
14
hardly surprising; there is absolutely no evidence in this record of improper bias on the
part of the trial judge.
Barry’s failure to resolve the dispute over the motions to quash further illustrates
her unwillingness to constructively resolve disputed issues between the parties. After the
court denied the underlying request for modification, Barry failed to alert the subpoenaed
witnesses that their depositions would not proceed. When notified of Salas’s counsel
intent to proceed with the motions to quash, Barry could have simply notified the
witnesses she was withdrawing the subpoenas. Rather than take this simple step, she
insisted the subpoenas and motions to quash were moot and sought ex parte relief from
the court to take the motions off calendar, a request the court predictably denied. She
then failed to submit any opposition to the motions. At the hearing she refused the
court’s request to identify the relevance of the subpoenaed witnesses’ documents or
anticipated testimony, adhering instead to the position the subpoenas and motions to
quash were moot and the court lacked jurisdiction. The court granted the motions to
quash and awarded sanctions against her client.
This same pattern infected Barry’s handling of the section 271 motion. Instead of
opposing the motion on the ground Farraj’s litigation strategy had not been frivolous or
designed to impede settlement, Barry argued sanctions should instead be awarded against
Salas based on the aggressive litigation tactics of her counsel, a request she simply
inserted into Farraj’s response to Salas’s motion. The court granted Salas’s request for
sanctions and denied Farraj’s request. The court set a further hearing to allow Farraj to
address his ability to pay the sanctions and ordered him to produce an income and
expenses statement. Notwithstanding this opportunity, Barry filed nothing on Farraj’s
behalf. At the hearing, instead of focusing on his ability to pay, she announced to the
court she had accepted an assignment of the sanctions and Farraj would not be producing
the income and expenses statement. The court concluded Farraj’s failure to respond was
willful and ordered the sanctions paid forthwith.
Under these circumstances, the trial court’s decision to award section 271
sanctions in this case was not an abuse of discretion. Barry repeatedly flouted procedural
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rules and justified her actions through attacks on opposing counsel and the court. The
trial court’s conclusion this cavalier attitude not only prolonged the litigation but also
caused Salas to incur otherwise unnecessary attorney fees was not unreasonable.
In finding no abuse of discretion by the trial court, we do not imply that Salas’s
counsel’s own litigation posture was a model of efficiency. This case was over-litigated
on both sides. Salas’s counsel, however, adhered to the rules of civil procedure and
substantive law. The court did not abuse its discretion by awarding sanctions under
section 271 and, with the exception of the fees incurred by Salas prior to the denial of
Farraj’s request for an order striking the Harshman reports, we affirm the order in its
entirety.
DISPOSITION
The appeal from the order imposing discovery sanctions on Farraj is affirmed.
The order imposing sanctions pursuant to section 271 is reversed and remanded to allow
the recalculation of attorney fees to deduct the fees associated with the motion to strike
the Harshman reports and responding to the motion to vacate the move-away order
incurred prior to June 6, 2013. The parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J. STROBEL, J.*
*
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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