Marriage of Safaie and Khashayar CA1/1 ( 2015 )

Filed 3/25/15 Marriage of Safaie and Khashayar CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of ROKSANA SAFAIE
and ALI KHASHAYAR.
ROKSANA SAFAIE,
A139941, A140795
Respondent,
v. (Contra Costa County
Super. Ct. No. D93-04344)
MAJID SALIM,
Appellant.
Roksana Safaie filed a request for an order to set aside the judgment in her divorce
proceeding. Safaie alleged her former husband, Ali Khashayar, had owned substantial
real property in the nation of Iran during their marriage, of which she became aware only
long after the end of the marriage. In addition, Safaie alleged Khashayar had transferred
the proceeds from sales of these properties to his brother, Golamreza, and his brother’s
son, appellant Majid Salim, and she joined Golamreza’s estate and Salim as parties to the
dissolution proceeding. Following their joinder, Safaie sought and was granted three
separate awards of pendente lite attorney fees against Salim under Family Code
section 2030.
Salim contends the family court erred in awarding attorney fees because Safaie
was required, and failed, to demonstrate a likelihood of success on her claims against
him. While we reject this legal contention, we agree Safaie was required to provide some
evidence to connect Salim to her claims of misappropriated community property.
Finding no potentially admissible evidence in Safaie’s submissions to support a finding
Salim had received community or quasi-community property, we reverse.
I. BACKGROUND
In July 2012, Safaie filed a request for an order to set aside the judgment of
dissolution of her marriage to Khashayar on grounds of fraud and misappropriation of
quasi-community assets. In a declaration submitted with the request, Safaie explained
she and Khashayar were married in Iran in the 1960’s. At some point, they emigrated to
the United States, and they divorced in 1987, when Khashayar decided to return to Iran.
In 1991, they reconciled and remarried, but Safaie obtained a default judgment of
dissolution in 1993. At the time, Safaie believed the only asset of the community was a
family home in Lafayette.
In January 2012, Safaie stated, Khashayar was deposed in a lawsuit filed by her
brother, Reza. A portion of what purports to be the deposition transcript was attached to
Safaie’s declaration. In it, Khashayar states that he gave $144,000 to Reza at an
unspecified time while he was married to Safaie. The source of a portion of the funds
was the sale of a house in Iran owned by Khashayar and Safaie that they had “both lived
in.” The date of the sale is not stated in the deposition. The remainder of the money paid
to Reza came from money Khashayar had saved during the marriage from bonuses he
earned at work. Khashayar claimed to have told Safaie about some, but not all, of this
money. In her declaration, Safaie characterized the family home in Iran sold by
Khashayar as “quasi-community property” and states he admitted having sold it “without
my knowledge or consent.” In fact, the deposition is silent as to Safaie’s knowledge and
consent to the sale.
According to Safaie’s declaration, during the period 1970–1985, Khashayar
purchased four properties in Iran that, Safaie estimated, were valued at nearly $2 million.
Again, Safaie was unaware of the transactions. The claim is supported by what purport
to be translations from the Farsi language of three real estate sales contracts for Iranian
property in which Khashayar was listed as the buyer. Although the documents are
accompanied by a translator’s certification, they are not authenticated in any manner.
2
There is also a purported translation of a grant deed reflecting a sale of property by
Khashayar in Iran in 1989, and a similar sales contract, again not authenticated, about
which Safaie states she was unaware.
Safaie’s declaration states that Khashayar was convicted of fraud and theft in Iran
and “has systematically transferred his assets to third parties for the express purpose of
defrauding creditors. I believe this to be true as well as various witnesses have submitted
declarations stating that he has, in fact, told him [sic] that he has transferred money to
third parties. Specifically, [Khashayar] transferred, literally, millions of dollars to
[Salim] and [Golamreza], now deceased. [Khashayar] has admitted, repeatedly, to
witnesses that [Salim] is in possession of his assets, some of which may be
misappropriated quasi-community funds . . . . I am informed and believe that [Salim] was
formerly a dishwasher at my brother’s restaurant. He is now the owner of a large and
valuable Chevrolet dealership in San Francisco and has millions of dollars of cash in his
bank accounts.” The paragraph containing this language ends with a citation to
“Exhibit 8,” attached to the declaration. Although this exhibit appears to have been
intended to provide evidentiary support for the statements in this paragraph, none of the
documents in exhibit 8 are explained or authenticated in any way.
Among other documents, exhibit 8 contains what purport to be English
translations of unsworn statements prepared in Farsi by Safaie’s sisters, Afsaneh and
Azar. Afsaneh’s statement says her father owned substantial real estate in Iran at the time
of the Islamic Revolution in 1979. Her father emigrated to America, where he learned in
the early 1990’s that Khashayar had fraudulently sold his properties. After her father
returned to Iran to investigate in 1993, he obtained a warrant for Khashayar’s arrest.
Afsaneh’s father died in Iran in 1994. When Afsaneh traveled to Iran to investigate,
Khashayar admitted to Afsaneh both murdering her father and stealing his real estate.
Khashayar told Afsaneh he had given the money to Golamreza, Salim, and Salim’s
sisters, who were in America. Azar’s statement explained her understanding of the
manner in which Khashayar had defrauded her father, stating he was assisted by
Golamreza. According to Azar, Khashayar and Golamreza “transferred millions of
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dollars of stolen properties to the account of [Salim]” and other family members.
Khashayar then returned to the United States, “put all the stolen properties under his
daughter’s and [Salim’s] name,” and filed for bankruptcy. There is no indication in these
statements or in Safaie’s declaration of the circumstances of their creation, including the
place and time of their purported execution. Although Afsaneh’s statement says she is
“back from Iran,” there is no explanation why she did not provide an actual declaration.
In response, Khashayar filed a declaration in which he stated, among other things,
Safaie was aware of the real estate transactions that had occurred in Iran during their first
marriage and she received her share of the proceeds at the time of their first divorce.
Khashayar also said he had declared bankruptcy in order to escape harassment by
Safaie’s family and claimed the present request was an attempt to extend the harassment
to Golamreza’s family. Khashayar attached the translation of a document stating he had
been acquitted on appeal of the criminal charges brought in Iran.
In September 2012, Safaie joined Salim and Golamreza’s estate as parties to the
dissolution proceeding. The complaint for joinder alleged Salim and his father’s estate
were joined for the purpose of investigating transfer to them of misappropriated
community and quasi-community property by Khashayar. The joinder was granted.
In November 2012, Safaie requested an award of $15,000 in pendente lite attorney
fees from Salim. The request was accompanied by a declaration reiterating in a
conclusory manner the charges made in the documents initially submitted by Safaie, as
well as an income and expense declaration. No further evidence of Salim’s involvement
was provided.
In opposition, Salim submitted a declaration claiming Safaie’s proceeding was an
attempt to recover for a debt discharged by Khashayar in bankruptcy and her brother was
financing the proceeding. Submitted with an attorney’s declaration was a complaint filed
against Salim and others by Safaie’s brother in August 2012, based on claims generally
similar to those of Safaie. Although Salim submitted an income and expense declaration,
it was largely incomplete, save for the acknowledgement of monthly dividend or interest
income of $8,456 and some expenses.
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The family court granted the request to the extent of awarding $12,000 in fees. A
portion of the fees were allocated to compensate for past services, while the remainder
was to be “placed in trust to be used to pay attorney fees reasonably related to [Safaie’s]
action involving [Salim].” At the hearing on the request, the court explained it was
accepting the various documents submitted by Safaie in connection with her original
filing as offers of proof, and it made a finding “there is a reasonable likelihood” Safaie
would prevail in her claims against Salim. The court described the finding as “a
relatively minimal threshold,” equivalent to the conclusion Safaie “would be able to
develop admissible evidence to support [her] claim.”
Safaie filed a second request for attorney fees in June 2013, based on the same
evidentiary submissions. In granting the fee request after a September hearing, the
family court noted there was a dramatic conflict in the evidence, with allegations of
“lying, forging documents, all kinds of things.” The court declined to speculate about
“who’s going to win,” but it held, “if I need to make a finding that [Safaie’s claim] is not
specious, I would make the finding that based on what I have before me I do not believe
her claim is specious.” The court awarded a further $30,000 in attorney fees, but it
reserved jurisdiction to “reallocate fees” under Family Code section 271, if Salim
ultimately prevailed or if the court was persuaded Safaie had sufficient financial
resources, contrary to her claims.
In December 2013, Safaie filed a third request for attorney fees from Salim,
seeking an additional $50,000, again without further evidentiary support for her claims.
Salim again opposed the request, arguing, among other grounds, a further award of
attorney fees should await the results of a trial of the validity of Safaie’s claims against
Khashayar, scheduled for March 2014. The family court awarded a further $30,000, to
cover the retention of appellate counsel and work regarding the claim against Salim.
Salim appealed from both the September and December 2013 attorney fees orders,
and the appeals were consolidated by our order of February 27, 2014.
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II. DISCUSSION1
Family Code section 2030 provides: “In a proceeding for dissolution of marriage,
. . . and in any proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation, . . . by ordering, if necessary
based on the income and needs assessments, one party . . . to pay to the other party, or to
the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees
and for the cost of maintaining or defending the proceeding during the pendency of the
proceeding.” (Id., subd. (a).) When the “other party” is a third party to the marriage, any
award of attorney fees “shall be limited to an amount reasonably necessary to maintain or
defend the action on the issues relating to that party.” (Id., subd. (d).)
“The purpose of an attorney fees award in a marital dissolution proceeding is to
provide, as necessary, one of the parties with funds adequate to properly litigate the
matter. [Citation.] The party seeking an award of need-based attorney fees has the
burden of establishing need. [Citation.] [¶] In deciding whether to award attorney fees,
the trial court considers the parties’ respective needs and incomes, including their assets
and liabilities. [Citations.] A motion for attorney fees is left to the trial court’s sound
discretion and will not be disturbed on appeal absent a clear showing of abuse.” (In re
Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868 (Bendetti).)
The availability of pendente lite attorney fees from third parties in a marriage
dissolution proceeding was first addressed by In re Marriage of Siller (1986)
1
As an initial matter, Safaie contends the family court’s orders were not
appealable because the court reserved jurisdiction to reallocate fees under certain
conditions. As Safaie acknowledges, pendente lite awards of attorney fees in dissolution
proceedings are ordinarily appealable. (In re Marriage of Tharp (2010) 188 Cal.App.4th
1295, 1311.) The authority cited by the family court for reallocation of fees, Family
Code section 271, is “in the nature of a sanction.” (Id., subd. (a).) As Salim correctly
argues, the family court would be permitted to “reallocate” fees under section 271,
regardless of whether it specifically reserved jurisdiction to do so, if it deemed the
statutory requirements met. The court’s unnecessary reservation of jurisdiction did not
prevent its orders from being considered final for purposes of appeal. (See generally
Tharp, at pp. 1316–1317.)
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187 Cal.App.3d 36 (Siller), which considered a statutory predecessor to Family Code
section 2030. The wife in Siller joined her husband’s business entities as third parties in
a dissolution proceeding, alleging the business entities held community property assets.
(Id. at pp. 41–42.) Midway through the litigation, she sought an award of attorney fees
against the entities, which had filed several motions. (Id. at p. 42.) The court held
pendente lite attorney fees were available from any party to a dissolution proceeding,
assuming the statutory requirements were satisfied. (Id. at p. 44.) In a portion of the
decision particularly applicable here, the court rejected the business entities’ substantive
due process objections to the award of fees. The entities argued it was unfair to award
fees merely because they were in a more favorable financial position than the wife,
without considering the validity of her claims. The court found it “immaterial” whether
the wife was likely to prevail because (1) her claims were not “specious” and (2) the
family court had awarded fees to compensate the wife’s attorneys’ work only in
connection with motions and writ petitions on which the wife had prevailed, thereby
demonstrating it was “reasonable” for her to “mount a defense” to those actions. (Id. at
p. 53.) Although the court did not define its use of the term “specious,” it explained its
conclusion by noting the wife had presented evidence supporting a conclusion her claims
were valid and did, in fact, prevail on some of her factual claims at trial. (Ibid.)
The holding of Siller was reaffirmed and extended by Bendetti, in which the wife
joined the husband’s second wife as a party to the dissolution proceedings, alleging the
second wife had participated in a fraudulent transfer of the husband’s assets. (Bendetti,
supra, 214 Cal.App.4th at pp. 866–867.) The wife was granted substantial pendente lite
attorney fees against the second wife, over the objection her complaint in joinder was a
sham. (Id. at p. 867.) On appeal, the second wife contended a spouse seeking attorney
fees against a third party in a dissolution proceeding was required to make a prima facie
case and demonstrate a likelihood of success. (Id. at p. 868.) In affirming the award of
fees, the court followed Siller in holding “there is no requirement that a party to a
dissolution proceeding demonstrate a likelihood that he or she will prevail in his or her
claim against a third party to be entitled to attorney fees pendente lite.” (Bendetti, at
7
p. 871.) The court did, however, conduct a cursory analysis of the evidence presented
with respect to the second wife’s involvement, concluding the wife’s claims were not
specious because she had made “a prima facie showing that [the second wife] had a
connection to an issue in the dissolution proceeding.” (Ibid.) The conclusion was based
on statements by the husband during a deposition, which the court found “sufficient to
establish that there were ‘issues’ in the dissolution proceeding that related to [the second
wife].” (Ibid.)
Notwithstanding the holdings of both Siller and Bendetti, Salim argues Safaie was
required to demonstrate a likelihood of success in order to receive an award of pendente
lite attorney fees. We need not resolve this issue—although we note it is soundly rejected
in both Siller and Bendetti—because we conclude Safaie failed to satisfy even the
minimal evidentiary standard established in those cases. 2 (Bendetti, supra,
214 Cal.App.4th at p. 871.) “[N]ot specious,” the showing suggested by Siller and
adopted by Bendetti, is not a traditional evidentiary standard. Its current closest analog is
the standard for bad faith in connection with an award of attorney fees under the Uniform
Trade Secrets Act (Civ. Code, § 3426 et seq.), which requires a showing of “objective
speciousness” to support an award. In that context, speciousness is defined to exist
“where the action superficially appears to have merit but there is a complete lack of
evidence to support the claim.” (FLIR Systems, Inc. v. Parrish (2009) 174 Cal.App.4th
1270, 1276.) In other words, to demonstrate a lack of speciousness a party is required
only to present some evidence to demonstrate the potential validity of his or her claims.
This standard was reflected in Bendetti’s conclusion that a claim is demonstrated not to
be specious when the petitioner makes “a prima facie showing that [the third party] had a
connection to an issue in the dissolution proceeding.” (Bendetti, supra, 214 Cal.App.4th
2In making this evaluation, we rely only on the evidence available to the trial
court in connection with Safaie’s requests for attorney fees. At oral argument, Safaie’s
attorney referred to revelations that were purportedly made in depositions. Because we
have not found any reference to those depositions in the appellate record, we do not
consider counsel’s representations about their content.
8
at p. 871.) In this connection, “some evidence” necessarily means either admissible
evidence or evidence in the form of sworn written testimony that, if provided in court,
would constitute admissible evidence.3 Inadmissible hearsay and unsworn statements are
simply not “evidence.”
The only support provided by Safaie for her claim that Salim received the
proceeds from community property or quasi-community property assets were the two
unsworn, undated, and unauthenticated statements purportedly from her sisters. Even
these statements do not tie Salim directly to the proceeds of community property or
quasi-community property assets, since the events to which they refer appear to relate to
property acquired by Khashayar after the second divorce; they merely permit the
inference Khashayar had engaged in a similar practice earlier.
While Safaie’s declaration does testify in a conclusory manner to Khashayar’s
transfer of assets, this testimony appears to be based entirely on the accounts of
unidentified other persons. Safaie states merely that she “believe[s]” these claims to be
true, and there is no explanation for her belief other than a reference to “declarations” by
“various witnesses,” none of whom were identified. She also refers to admissions by
Khashayar of such transfers, but all such admissions appear to have been made to other,
unspecified persons, not to Safaie. In short, she does not support her testimony in the
declaration with any facts that would permit the conclusion she had personal knowledge
of the matters asserted. Safaie therefore provided no actual evidence of a connection
between Salim, Khashayar, and the disposition of community property or quasi-
community property assets.
In granting Safaie’s requests for fees, the family court concluded she had met her
evidentiary burden because her submission suggested she “would be able to develop
admissible evidence to support [her] claim.” While, as discussed above, the evidentiary
3
In Siller, the trial court had the benefit of a full trial in making its evidentiary
evaluation. While the nature of the wife’s evidentiary submission was unclear in
Bendetti, the court specifically referred to transcripts of the deposition of the husband in
concluding an adequate evidentiary showing had been made.
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showing necessary to support an award of attorney fees against a third party is minimal, it
does require the presentation of some admissible, or potentially admissible, evidence to
connect the third party to issues in the proceeding. The possibility of developing such
evidence is simply not enough. Accordingly, the family court abused its discretion in
applying an improper evidentiary standard when evaluating Safaie’s requests. Because
Safaie failed to satisfy that standard, the family court’s challenged orders must be
reversed.
III. DISPOSITION
The family court’s orders of September and December 2013, awarding pendente
lite attorney fees against Salim, are reversed.
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_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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