Marriage of Pourmoradi CA2/2 ( 2023 )

Filed 2/27/23 Marriage of Pourmoradi CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of ANDREA B308938, B312579
and JOHN POURMORADI.
(Los Angeles County
_____________________________ Super. Ct. No. BD527978)
ANDREA POURMORADI,
Appellant,
v.
JOHN POURMORADI,
Respondent.
APPEALS from a judgment and a postjudgment order of
the Superior Court of Los Angeles County, Mark A. Juhas, Judge.
Appeal from judgment dismissed (B308938); postjudgment order
affirmed (B312579).
Gary J. Cohen, Gary J. Cohen; Benedon & Serlin, Gerald
M. Serlin and Kelly Riordan Horwitz for Appellant.
Complex Appellate Litigation Group, Kirstin M. Ault,
Claudia Ribet; Jaffe Family Law Group, Daniel J. Jaffe and
Sandra P. Mendell for Respondent.
Andrea Pourmoradi appeals from a judgment and an order
entered in heavily litigated marital dissolution proceedings with
John Pourmoradi.1 Andrea contends the family court improperly
sanctioned her by awarding John $700,000 in attorney fees and
costs under Family Code section 271.2 That statute empowers
the court to impose attorney fees and costs as sanctions against
litigants whose conduct undermines the policy of promoting
settlement of litigation and cooperation of the litigants, and
increases litigation costs. (§ 271, subd. (a).) Finding no abuse of
discretion, we affirm the sanctions order. Because Andrea’s
appellate briefs do not present an argument as to why she
believes the family court erred in rendering its judgment, we
deem the appeal from the judgment abandoned and dismiss it on
that basis.
FACTUAL AND PROCEDURAL BACKGROUND
I. Overview
John and Andrea were married on January 15, 1989, and
have two children, now adults. The parties separated, and
Andrea petitioned for dissolution of their marriage in July 2010.
Judgment was entered dissolving the marriage in April 2017
with the family court reserving jurisdiction over all other issues,
mainly involving the division of property. Those issues were
litigated in January and February 2020.
1
Although Andrea Pourmoradi’s name was restored to
Andrea Schreiber by the April 14, 2017 status-only judgment,
consistent with the family court proceedings, we use her prior
surname. As is customary, however, we generally refer to both
parties by their first names.
2 Undesignated statutory references are to the Family
Code.
2
The family court issued its final judgment on
September 10, 2020, confirming the rulings made in its
statement of decision, rejecting each of Andrea’s claims, and
dividing the community property equally in kind. The court
reserved jurisdiction to consider later requests for support and
attorney fees, costs, and monetary sanctions.
On October 8, 2020, John sought an award of $2,114,229 in
attorney fees and costs under section 271. Andrea filed
opposition. Following a hearing, the family court awarded John
$700,000 in sanctions against Andrea.
Andrea appealed from the September 10, 2020 judgment
entered in the dissolution proceeding. She later appealed from
the postjudgment order awarding section 271 sanctions to John.
We ordered the appeals consolidated.
II. Summary of Pertinent Property Issues
Andrea’s sole challenge on appeal is to the postjudgment
order imposing section 271 sanctions. Andrea is not contesting
the factual findings in the family court’s statement of decision
concerning property issues, which included the results of related
federal court and superior court actions. We therefore
summarize only those findings of the 57-page statement of
decision that pertain to John’s section 271 sanctions request,
Andrea’s opposition, or the court’s sanctions award, and/or
otherwise provide context for the issues on appeal.
A. FSGM
Apart from their family residence, the parties’ primary
asset was their 50 percent interest in Four Seasons General
Merchandise, Inc. (FSGM). The business was also their primary
source of income. FSGM imported mainly Chinese merchandise
to be sold to independent discount stores. FSGM’s 50 percent co-
3
owner was Behruz Gabbai (Gabbai). He was involved in every
aspect of FSGM, except purchasing and product safety, which
John oversaw. Andrea was not involved with the operation of
FSGM.
Due to global economic downturns, FSGM’s annual sales
declined from over $100 million to $24.4 million from 2006
through 2018. In 2013, Gabbai blocked the sale of FSGM to Point
Capital Partners. This was one of several actions Gabbai took to
destabilize FSGM until it ceased operations on June 15, 2018.
B. 2801 East Vernon LLC
The parties’ ownership interest in FSGM included a 50
percent interest in two commercial buildings in Vernon. One of
them, 2801 East Vernon Avenue, housed FSGM’s headquarters,
showroom, and warehouse.
In December 2009, at Gabbai’s urging and after meeting
with an attorney at Andrea’s direction, John, Andrea, and Gabbai
signed a grant deed transferring the 2801 Vernon property into
2801 East Vernon LLC. On the same day, John and Andrea
signed multiple loan documents identifying 2801 East Vernon
LLC as the borrower.
Disagreements with Gabbai led the parties in 2017 to
jointly retain attorneys to represent them in legal proceedings to
separate their interest from Gabbai’s interest in the two
commercial buildings in Vernon: a partition action and an
involuntary dissolution of 2801 East Vernon LLC. In response,
Gabbai sought to acquire the parties’ 50 percent ownership
interest of 2801 East Vernon LLC under Corporations Code
section 17707.3, subdivision (c), and appraisers were appointed.
John and Andrea unsuccessfully requested an alternate valuation
4
date. In 2019, the superior court accepted an appraisal that was
$1,425,000 below the stipulated market value.
The family court rejected Andrea’s claims, as unsupported
by the evidence, that she was unaware of the property transfer to
the 2801 East Vernon LLC and that John should be charged with
the $1,425,000 difference in valuation and with rent and other
costs that Gabbai had failed to pay.
When the bill for the legal fees of the parties’ jointly
retained attorneys became due, Andrea refused to countersign
the wire transfer instructions for payment. As a result, the
parties lost a discount they would have received with timely
payment. Instead, the parties were obligated to pay interest on
the outstanding balance, which accrued until a court order
released funds from their joint accounts. In addition, Andrea
hired her own counsel, who, the family court found, interfered
with the litigation and allowed Gabbai to take advantage of the
parties’ conflicting positions.
C. DEA Investigation and Corporate Guilty Plea
In 2015, FSGM was federally charged with aiding and
abetting the operation of an unlicensed money transfer business
after the Drug Enforcement Agency (DEA) froze FSGM’s bank
accounts and conducted an investigation. Pursuant to a plea
agreement, FSGM was placed on three years’ probation and
forfeited $1,665,661.99.3
John was in no way implicated in the offenses and was not
a party to the plea agreement. Andrea was never a target of the
DEA investigation.
3 Trial in this matter was delayed for years until the DEA
investigation and federal charges were resolved.
5
In 2016, Andrea retained counsel, who informed federal
prosecutors that John was “a fugitive from justice,” “had
purchased a home” in Beverly Hills (a claim Andrea later
withdrew), and had hidden away “an additional $50-100 million.”
Andrea also provided prosecutors with documents and accused
John of “ ‘pure money laundering.’ ”
Andrea’s counsel received thousands of pages of documents
from John’s counsel relating to the investigation. After entry of a
stipulated protective order, Andrea, nonetheless, told family
members and business people about the DEA investigation.
Andrea also filed a petition in federal district court seeking
25 percent of the funds that FSGM paid under the plea
agreement. Her petition was later dismissed on the federal
prosecutors’ motion.
The family court rejected Andrea’s claims that John should
be held responsible and compensate her for any amount of legal
fees and loss of funds incurred and paid by FSGM concerning the
DEA action and corporate guilty plea.
D. Julie Oun Loans
Julie Oun (Oun) was a buying agent for FSGM. She helped
John obtain merchandise from China. In 2006, Oun loaned
FSGM $8,680,477 toward the purchase of a Garfield Avenue
property in Paramount for a new FSGM headquarters. In 2009,
Oun loaned Andrea and John $2,585,000 to pay off the existing
mortgage on their residence and replace it with a lower interest
loan.
The family court found there was no evidence the loans
were made with community funds funneled through John as
Andrea claimed. Instead, the evidence showed they were “real”
loans extended by and repaid to a third party; none of the repaid
6
funds was given to John. Accordingly, there was no community
interest in the fully repaid loans and, contrary to Andrea’s
assertion, no basis to charge John with repayments.
The family court rejected Andrea’s argument that under an
expanded view of In re Marriage of Prentis-Margulis & Margulis
(2011) 198 Cal.App.4th 1252 (Margulis), the burden of proof
should shift to John to disprove that Oun’s money was his.4 The
court determined that even if it accepted Andrea’s novel
interpretation of Margulis, the evidence did not support its
application to this case.
E. Morris Matloubian’s Alleged “Blackmail”
John and Andrea maintained bank accounts in Israel and
Switzerland that they failed to disclose in their tax filings and on
which they had not paid federal taxes.
Morris Matloubian (Matloubian) was FSGM’s
controller/CFO from 1992 through 2007, when he voluntarily
terminated his employment. Before leaving, Matloubian
purportedly threatened to disclose the existence of the foreign
bank accounts unless he were paid $1 million. Matloubian was
paid $900,000 and denied it was blackmail.
The family court agreed with Andrea’s contention that
Matloubian’s demand for payment had been “blackmail” but
found the evidence established the amount John paid was
$450,000, not the entire $900,000 as Andrea claimed. The court
4 In Margulis, supra, 198 Cal.App.4th at page 1265, the
husband had exclusive control and management of the
community assets, and, as managing spouse, had the best
knowledge of where the assets and accounts were located. The
court shifted the burden of proof on the missing community
assets to the managing spouse. (Id. at p. 1268.)
7
rejected Andrea’s assertion that she was entitled to either an
offset or a reimbursement for John’s use of community funds to
pay the blackmail. The court found the payment benefited the
community equally by resolving threatened litigation and
protecting the community from “serious adverse consequences.”5
The family court also found both parties were aware of,
participated in, and financially benefited from the foreign
accounts and their nondisclosure to the United States
government. Nor did John breach any fiduciary duty to Andrea
regarding the payment. The court further found, “[i]rrespective
of whether it was ‘blackmail,’ the payment to Matloubian does
not satisfy any statutory exception to the general rule against
reimbursement of debts paid during marriage with community
funds.”
F. Demise of FSGM
On January 24, 2018, Gabbai told John it was time to
dissolve FSGM. John so informed Andrea’s counsel.
Two days later, Andrea made demands under Corporations
Code section 800 that FSGM’s board of directors recover all
monies paid in connection with the DEA matter and all
repayments made by FSGM to Oun. Andrea threatened to file a
shareholder derivative suit against FSGM and a petition to have
the superior court take jurisdiction over the winding up of FSGM
if her demands were not met.
In February 2018, Andrea attended and was allowed to
vote at a FSGM’s shareholders and board of directors meeting.
5 John and Andrea participated in the Internal Revenue
Service’s Offshore Voluntary Disclosure Program, which they
completed in 2013. They also paid over $2.3 million in back
taxes, penalties, and interest.
8
The shareholders outvoted Andrea and agreed to begin FSGM’s
voluntary dissolution. A certificate of Election to Wind Up and
Dissolve was filed with the California Secretary of State. Andrea
later failed in three attempts to have the superior court assume
jurisdiction over the dissolution and winding up of FSGM.
In April 2018, Gabbai offered to acquire the parties’
interest in FSGM for $6.75 million and forwarded a proposed
stock purchase agreement for the acquisition. John urged
Andrea to accept the offer, explaining it would likely net the
parties more money than the proceeds from an auction. Andrea
did not consent to the terms of the proposed sale to Gabbai. She
made a counteroffer that he rejected. No further negotiations
occurred between them.
An auction of FSGM’s assets took place in May 2018.
Andrea refused to allow John to use community funds to bid on
FSGM’s assets to obtain a higher price for the community.
Between Gabbai and John, the winning bidder was Gabbai. He
acquired FSGM’s inventory for 63 percent of its cost, FSGM’s
intellectual property for $900,000, and FSGM’s furniture,
fixtures, and equipment for $350,000.
One month later, FSGM ceased operations.
G. Alternate Valuation Date for FSGM
The family court denied Andrea’s request that FSGM be
valued as of the parties’ 2010 separation date rather than as near
as practicable to the January 2020 trial under section 2552.
Andrea argued the precipitous decline in FSGM’s value over that
decade was due to John’s misconduct and mismanagement. The
court determined, however, that “Andrea failed to establish any
criminal, tortious, grossly negligent or even negligent conduct by
John resulting in a decline in value of FSGM.” The court found
9
FSGM’s loss of value was caused by changes in the wholesale
discount business and international market forces, not by John’s
actions.
III. Section 271 Sanctions
A. John’s Request for Sanctions
On October 8, 2020, John requested that $2,114,229 in
section 271 sanctions be imposed against Andrea for her failure
to cooperate in settlement negotiations before and during trial
and her overlitigation of issues relating to property.
In support of his sanctions request, John described 13
settlement offers and two requests for counteroffers that he
communicated to Andrea in June 2014, following the collapse of
Point Capital Partners’ proposed purchase of FSGM, through
trial in July 2020. Of these, Andrea failed to respond to eight
offers and rejected four offers without making a counteroffer.
John also pointed to Andrea’s extensive collateral litigation
in state and federal court involving FSGM, which the family
court found harmed the community by forcing FSGM to spend
resources responding to the meritless suits rather than
distributing funds to the parties.
John enumerated other pretrial activities by Andrea that
were detrimental to the community, specifically, Andrea’s
(1) hiring of independent counsel to make false claims of John’s
involvement in criminal activity to federal prosecutors; (2) refusal
to allow John to use community funds to bid on FSGM’s assets at
auction to receive a higher price, and to consider Gabbai’s offer to
purchase FSGM assets for $6.75 million rather than have them
auctioned; (3) refusal to countersign the wire transfer
instructions to timely pay discounted attorney fees; and
10
(4) insistence on retaining her own counsel for the 2801 East
Vernon LLC litigation, which ultimately benefited Gabbai.
John also argued Andrea made numerous claims that she
abandoned shortly before or during trial, after he had incurred
legal fees to defend against them: (1) Andrea abandoned in the
second month of trial her allegation that John had received
perquisite income from FSGM beginning January 10, 2012;
(2) Andrea abandoned two and one-half months before trial her
allegation that John breached his fiduciary duty by selling one of
the Vernon commercial buildings at below market price even
though the sale was by a court-appointed referee to the highest
bidder as the parties had agreed; (3) Andrea claimed John
purchased a home on North Crescent Drive in Beverly Hills,
which he failed to disclose to Andrea. After receiving evidence
from John and title companies that her claim was not true,
Andrea failed to confirm to John that she was withdrawing it and
did not raise the claim at trial; (4) Andrea alleged John had
forged her signature on various financial documents. In
discovery, however, Andrea admitted almost all of her signatures
were genuine. Otherwise, as the family court found, Andrea was
aware of most of the transactions and had signed other related
documents. Andrea never asked for reimbursement for any
documents she did not sign, and the court found Andrea did not
suffer any economic harm from the signatures.
John further maintained he was compelled to prepare and
file requests for orders (RFO’s) for which he incurred litigation
costs after Andrea refused to agree to his reasonable requests.
For example: (1) Following their partition action, Andrea failed
to respond to John’s request that each of them be allowed to use
their respective share of the sale proceeds to acquire new
11
property to avoid $2.6 million in taxes. Only after John filed an
RFO did Andrea stipulate to his request. (2) Andrea informed
John that one of her primary attorneys would be joining a law
firm started by an attorney who had previously represented
John. When John refused to waive the resulting conflict of
interest, Andrea insisted the attorney would continue to
represent her. Only after John filed an RFO seeking the
attorney’s disqualification did Andrea agree to no longer retain
the attorney.
B. Andrea’s Opposition to the Request
In her opposition to the request for sanctions, Andrea did
not deny John’s allegations. Instead, Andrea argued she should
not be sanctioned for (1) rejecting John’s unreasonable and one-
sided settlement offers, and all of them ignored her primary
“colorable claims”; (2) refusing to trust John, who “had cultivated
a life of perfidy to mask decades of financial schemes.” According
to Andrea, “Having chosen to enter into years of illegal,
convoluted financial transactions with unsavory characters, John
flouted his duties of full, complete, and ongoing disclosures,
forcing Andrea to investigate his multifarious schemes.” Nor,
Andrea argued, should she be sanctioned for advancing “colorable
claims” concerning Oun’s loans, Matloubian’s blackmail payment,
the expanded application of Margulis, supra, 198 Cal.App.4th
1252, and an alternate valuation date of FSGM, or advancing
positions hinging on credibility findings of Oun’s and
Matloubian’s testimony. Lastly, Andrea maintained the
requested $2,114,229 amount would impose an unreasonable
financial burden on her, contrary to section 271.
12
C. Family Court’s Ruling on the Sanctions
Request
At a February 4, 2021 hearing, the parties stipulated to
proceed on a written record consisting of the declarations and
exhibits submitted by each party. Following argument by
counsel, the matter was submitted.
On March 10, 2021, the family court partially granted
John’s section 271 request for sanctions and ordered Andrea to
pay $700,000 rather than $2,114,229. The court calculated the
$700,000 award as one-third of John’s attorney fees and costs
attributable to Andrea’s “unreasonable and unsupported
positions.” The court found “this amount will not impose an
unreasonable financial hardship” on Andrea. The court stayed
payment until resolution of this appeal.
DISCUSSION
Andrea contends the family court erred in imposing
$700,000 in attorney fees and costs as sanctions under section
271.
I. Applicable Law and Standard of Review
Section 271 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.” (§ 271, subd. (a).)
We review an award of section 271 sanctions for an abuse
of discretion. (In re Marriage of Pearson (2018) 21 Cal.App.5th
218, 233; In re E.M. (2014) 228 Cal.App.4th 828, 850.) The
13
imposition of section 271 sanctions “will be upheld on appeal
unless the reviewing court, ‘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.’ ” (In re E.M., at p. 850; In re Marriage of Greenberg (2011)
194 Cal.App.4th 1095, 1100 [the applicable standard of review is
highly deferential].)
II. Family Court’s Ruling Imposing Section 271
Sanctions
In its four-page minute order, the family court addressed
John’s claims that Andrea had failed to cooperate in settlement
negotiations and overlitigated issues related to property.
A. Failure to Cooperate in Settlement
Negotiations
The family court acknowledged that Andrea “should not be
sanctioned simply because she did not settle the case.” The court
advised, however, that Andrea had an obligation to enter into
settlement negotiations and could not simply ignore John’s
repeated offers of settlement. (Boblitt v. Boblitt (2010) 190
Cal.App.4th 603, 612 [“ ‘The duty imposed by . . . section 271
requires a party to a dissolution action to be cooperative and
work toward settlement of the litigation on pain of being required
to share the party’s adversary’s litigation costs’ ”]; see also
Nicholson v. Fazeli (2003) 113 Cal.App.4th1091, 1102 [same];
Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 627 [same].)
Andrea does not dispute that John made 13 settlement
offers and two requests for counteroffers. And of these, Andrea
failed to respond to eight offers and rejected four offers without
making a counteroffer. The family court found by not responding
“at all,” Andrea “failed to allow [John] an opportunity to address
14
her concerns and perhaps have a meaningful and fruitful
settlement discussion.” The court found “[t]here is no doubt that
some of [Andrea’s] actions frustrated the policy of the law for
settlement.” Andrea’s lack of cooperation in settlement
negotiations both before and during trial supports the court’s
exercise of discretion.
B. Overlitigation of Property Issues
The family court made findings concerning Andrea’s
emotionally charged and meritless litigation of property issues.
The court found Andrea “allowed her distrust of [John] to drive
her litigation strategy” and “cost both parties significant attorney
fees.” The court found Andrea adhered to positions supported by
her beliefs and feelings, rather than by the facts and evidence,
which “ultimately undermined her credibility.” The court
excerpted portions of Andrea’s written opposition to section 271
sanctions to show her use of “quite aggressive language to
overstate what the actual facts in the case are.” As examples, the
court quoted: “ ‘John sewed the tangled web of intrigue and
dissembling that swept up Andrea and sapped away years of her
life as she struggled to peel off stand (sic) after strand to reach
the source’ ”; “ ‘John controlled those spheres by working
surreptitiously with a cast of characters to ping-pong millions of
dollars throughout the globe in a yarn of impenetrable,
contradictory and untraceable transactions.’ ” The court found
these hyperbolic allegations in Andrea’s written opposition
typified those made at trial and led to protracted litigation. “It is
precisely [Andrea’s] distrust, when viewed through the filter of
overstatement and argument, that got the parties where they are
in this matter. It is one thing to build a case on ‘I believe’ or ‘I
15
think the facts will support’, and altogether another thing to
build a case on evidence.”
The family court did not abuse its discretion in sanctioning
Andrea for pursuing clearly baseless and costly litigation.
Family law litigants who flout the policy of section 271 through
conduct that increases litigation costs are subject to imposition of
attorney fees and costs as sanctions. (In re Marriage of
Davenport (2011) 194 Cal.App.4th 1507, 1524; accord, In re
Marriage of Greenberg, supra, 194 Cal.App.4th at p. 1100; see In
re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830
[§ 271 sanctions are appropriate where spouse’s motions “were
reckless, baseless and frivolous” and “an abuse of the legal
system”]; In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970
[§ 271 sanctions are appropriate where a spouse’s “[t]aking an
unreasonable position” at trial “is something more than simply
taking a hard stand and aggressively litigating it”]; In re
Marriage of Burgard (1999) 72 Cal.App.4th 74, 82 [husband’s
sanctionable conduct required wife to “respond to an unnecessary
motion, to write a brief, to research the law on motions for
reconsideration, [and] to appear at yet another hearing”]; Burkle
v. Burkle (2006) 144 Cal.App.4th 387, 403, fn. 7 [§ 271 sanctions
are appropriate where wife’s filing of “a separate civil action
which was bound to be dismissed and her conduct in doing so
necessarily caused litigation costs to increase and therefore
patently” frustrated the policy of the statute]; In re Marriage of
Norton (1988) 206 Cal.App.3d 53, 58 [§ 271 sanctions are
appropriate for frivolous or bad faith claims].)
To be sure, family law proceedings, by their very nature,
lend themselves to distrust and lack of communication. (In re
Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1298.) Here,
16
however, the family court found Andrea’s distrust of John “seeped
through this entire matter and cost both parties significant
attorney fees.”
III. Andrea’s Contentions on Appeal from the Order
A. No Finding John Acted in Good Faith
On appeal, Andrea first contends because section 271
requires both parties to have engaged in conduct that promotes
settlement and reduces litigation costs, John was not entitled to
sanctions unless the family court found his settlement offers were
made in good faith. (See § 271, subd. (a).)
Andrea is correct the statement of decision did not include
an express finding whether John made his settlement offers in
good faith. Consistent with the doctrine of implied findings,
however, we infer the family court found John’s offers were made
in good faith as supported by substantial evidence.6 The record
does not indicate Andrea either objected or otherwise apprised
the court that the statement of decision failed to address the
issue of John’s good faith. Thus, invoking the doctrine of implied
findings, we presume the court made all factual findings in
support of its order, including a finding that John made good
faith settlement offers. And substantial evidence supports the
6 “The doctrine of implied findings provides that a ‘party
must state any objection to the statement in order to avoid an
implied finding on appeal in favor of the prevailing party. . . . [I]f
a party does not bring such deficiencies to the trial court’s
attention, that party waives the right to claim on appeal that the
statement was deficient . . . and hence the appellate court will
imply findings to support the judgment.’ ” (Estate of O’Connor
(2017) 16 Cal.App.5th 159, 164; see also Fladeboe v. American
Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
17
implied finding. In his written request for section 271 sanctions,
John asserted he “made good-faith efforts to settle, which Andrea
rejected.” John submitted supporting declarations from himself
and his counsel, which detailed the parties’ history of settlement
negotiations.
B. Andrea Cooperated by Making Stipulations
Andrea also contends she substantially cooperated in
settlement by making stipulations. However, as John stated in
his request for sanctions, the record shows a number of Andrea’s
stipulations were in response to his having sought or successfully
obtained an RFO, or her stipulations ultimately caused John to
seek an RFO, all which led to unnecessary delay and litigation
expenses. (In re Marriage of Tharp, supra, 188 Cal.App.4th at p.
1317 [§ 271 sanctions are appropriate “whenever a party’s
dilatory and uncooperative conduct” frustrates the statute’s
policy]; In re Marriage of Corona (2009) 172 Cal.App.4th 1205,
1227 [“sanctions under section 271 are justified when a party has
unreasonably increased the cost of litigation”].)
C. Andrea Should Not Be Sanctioned for
Litigating Legal Positions that Are
Nonfrivolous or Turn on Witness Credibility
Andrea contends, as she did before the family court, that
she “was entitled to pursue reasonable extensions of the law and
positions that could have been decided in her favor had the
[family] court made different credibility determinations.” In
addition, Andrea points to the recent decision of Featherstone v.
Martinez (2022) 86 Cal.App.5th 775 (Featherstone), in which our
colleagues in Division Five reversed section 271 sanctions
imposed by a family court, in part because a mother in a child
18
custody dispute took litigation positions with which the court
disagreed.7 (Id. at pp. 777, 785.)
We agree with Andrea’s assertion that she should not be
sanctioned for litigating legal positions that are nonfrivolous or
turn on witness credibility.8 But that is not what happened here.
In its statement of decision, the family court expressly agreed
with Andrea’s contention in her opposition that she should not be
sanctioned for seeking to expand the law of Margulis, supra, 198
Cal.App.4th 1252. The court then explained that, based on its
factual findings, John would have prevailed even if he had been
charged with carrying the burden of proof as urged by Andrea.
The family court also agreed with Andrea’s assertion that
many of her trial positions hinged on a credibility finding—one of
which, the court noted, was Andrea’s position that Matloubian’s
payment constituted “blackmail.” This was an issue “that
depended on credibility, and presumably could have gone either
way.” The court also found, however, that “many” of Andrea’s
positions “were simply not supported regardless of witness
credibility.”
In Featherstone, the family court’s grounds for imposing
$10,000 sanctions included: (1) The mother’s early declarations
in the case; (2) the mother’s Code of Civil Procedure section 170.1
7 We denied Andrea’s request to file supplemental briefing
on this decision.
8 We find it troubling that in asking us to infer, rather than
claiming outright, the family court sanctioned her for pursuing
reasonable extensions of the law and positions turning on
credibility, Andrea parses the statement of decision to
misleadingly suggest ambiguities and contradictions where none
exists.
19
motion to disqualify the judge for bias; (3) the mother’s proposed
judgment; and (4) the mother’s request that the father’s video
calls with their child “take place on Zoom only.” (Featherstone,
supra, 86 Cal.App.5th at p. 784.)
In concluding the family court’s imposition of section 271
sanctions was an abuse of discretion, the Court of Appeal
explained: “Threaded throughout the court’s recitation were
(1) the court’s characterizations of Mother’s requests as ‘entitled,’
‘controlling,’ and ‘overreaching,’ and (2) its own umbrage at being
accused of bias and being the subject of a disqualification motion.
Individually or collectively, this is not litigation behavior that a
judge, staying within the bounds of reason, could conclude
merited sanctions at all—much less a $20,000 sanctions award (if
we count the improper amount assessed against counsel too).”
(Featherstone, supra, 86 Cal.App.5th at pp. 784–785.)
The Court of Appeal also faulted the family court for using
its characterization of the mother’s “controlling ‘mindset’ ” and
her requests in her declarations for Zoom video calls to justify
sanctions. This was improper because the court “was principally
sanctioning Mother not for taking actions that frustrated
settlement efforts but for taking litigation positions with which
the court disagreed.” (Featherstone, supra, 86 Cal.App.5th at p.
785.) The Court of Appeal also concluded the errors in the
mother’s proposed judgment were not significant to warrant
sanctions and the family court itself had previously encouraged
the parties to video-record each other. (Id. at p. 785 & fn. 7.)
We discern no similarities between the instant case and
Featherstone. The record before us contains no hint of judicial
bias, and nothing in the statement of decision suggests the family
court imposed section 271 sanctions because it disagreed with
20
Andrea’s litigation positions. Rather, as discussed, Andrea was
sanctioned for conduct that discouraged settlement, needlessly
lengthened court proceedings, and increased litigation costs.
D. Family Court Erred by Imposing Sanctions
Without Evidence of John’s Income, Assets, and
Liabilities
Andrea contends the family court abused its discretion by
imposing sanctions without having John submit an updated
income and expense declaration or similar financial information,
thereby contravening section 271’s directive that “the court shall
take into consideration all evidence concerning the parties’
incomes, assets, and liabilities.”9 (§ 271, subd. (a).) This is an
issue of first impression.
Andrea’s contention rests on two grounds: (1) Section 271
requires such evidence; and (2) if a court obtains current financial
information from both parties, it can “scale” a sanctions award to
their comparative wealth so as not to discourage an economically
weaker party, like Andrea, from vigorously pursuing future
litigation, citing In re Marriage of Norton, supra, 206 Cal.App.3d
at p. 60.)
9This issue arose during the section 271 sanctions hearing
when Andrea’s counsel argued John had to file a current income
and expense declaration before the family court could award him
sanctions. John’s counsel opposed the request, arguing it was
contrary to the existing state of the law, but offered to provide the
court with John’s current financial condition. The court
answered that was unnecessary and took the matter of sanctions
under submission.
21
Our interpretation of the language of section 271 “is an
issue of law, which we review de novo.” (United Riggers &
Erectors v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1089.)
“The fundamental task of statutory construction is to
ascertain legislative intent so as to effectuate the purpose of the
law.” (People v. Mejia (2012) 211 Cal.App.4th 586, 611.) In doing
so, a court should look to the plain meaning of the statutory
language. (Ibid.) Where the intent is clear from the language
itself, the court will not look beyond the plain meaning.
(Stephens v. County of Tulare (2006) 38 Cal.4th 793, 802.) In
other words, when the words are unambiguous, a court presumes
the legislators meant what they said.
Further, a court may not, “ ‘under the guise of statutory
construction, “rewrite the law or give the words an effect different
from the plain and direct import of the terms used.” ’ ”
(California Correctional Peace Officers Assn. v. State of California
(2010) 189 Cal.App.4th 849, 858.) Nor may a court add to or alter
the statute’s words “ ‘ “to accomplish a purpose that does not
appear on the face of the statute or from its legislative history.” ’ ”
(In re Marriage of Siller (1986) 187 Cal.App.3d 36, 43.) This
would violate “ ‘the cardinal rule of statutory construction that
courts must not add provisions to statutes. [Citations.] This rule
has been codified in California as [Code of Civil Procedure]
section 1858, which provides that a court must not “insert what
has been omitted” from a statute.’ ” (People v. Guzman (2005) 35
Cal.4th 577, 587.) Further, a court shall “give effect to all words
and provisions of a statute and leave no part superfluous or
inoperative.” (Leavitt v. County of Madera (2004) 123
Cal.App.4th 1502, 1519.)
22
Turning to the relevant language of the statute, section
271, subdivision (a) states: “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.” (Italics added.)
In interpreting section 271, we apply the rules of statutory
construction and “give effect to all words and provisions” without
“insert[ing] what has been omitted.” The plain meaning of
section 271, subdivision (a) is clear; it is unambiguous. It directs
the family court to consider “all evidence concerning the parties’
incomes, assets, and liabilities.” But the statute also expressly
omits the usual requirement that a party requesting an award of
attorney fees and costs must establish a financial need for the
award or financial disparity between the parties. (Compare
§§ 2030, 2032, 3557, 7605.) Certainly, the family court has
discretion to ask or order the requesting party to provide
financial information, in the belief such information would be
helpful or relevant. The requesting party may also seek to
provide financial information, as John did, or simply file an
income and expense declaration to avoid the risk of an adverse
ruling.
Thus, contrary to Andrea’s contention, we do not interpret
section 271 as requiring the requesting party to provide a current
income and expense declaration or similar financial information.
The requesting party may be asked by the family court or may
23
choose to submit the evidence for the court’s consideration. But
there is no statutory obligation for the requesting party to do so
before the court can consider ordering sanctions.
While section 271 is not need-based, we do agree with
Andrea that in certain instances, by comparing the parties’
relative wealth, a family court avoids discouraging the less
affluent party from vigorously litigating claims and defenses for
fear of incurring excessive sanctions. (In re Marriage of Norton,
supra, 206 Cal.App.3d at p. 59.) This is not one of those
instances. The record fails to show Andrea is significantly less
affluent than John. Indeed, Andrea does not argue the court was
unfamiliar with her financial condition or that payment of a
$700,000 sanction will cause her unreasonable financial
hardship.
The family court did not abuse its discretion in sanctioning
Andrea in the amount of $700,000.
IV. Appeal from the Judgment Is Deemed Abandoned
“ ‘An appealed-from judgment or order is presumed correct.
[Citation.] Hence, the appellant must make a challenge. In so
doing, he must raise claims of reversible error or other defect
[citation], and “present argument and authority on each point
made [citations]. If he does not, he may, in the court’s discretion,
be deemed to have abandoned his appeal. [Citation.] In that
event, it may order dismissal.’ ” (Conservatorship of Ben C.
(2007) 40 Cal.4th 529, 544, fn. 8; see also Berger v. Godden (1985)
163 Cal.App.3d 1113, 1119 [“failure of an appellant in a civil
action to articulate any pertinent or intelligible legal argument in
an opening brief may, in the discretion of the court, be deemed an
abandonment of the appeal justifying dismissal”]; Bauer v.
Merigan (1962) 206 Cal.App.2d 769, 771 [contemplated appeal
24
may be deemed abandoned if not pursued].) Because Andrea’s
appellate briefs lack any argument that the family court erred in
rendering its judgment, we exercise our discretion to dismiss her
appeal from the judgment as abandoned.
DISPOSITION
The order entered pursuant to Family Code section 271 is
affirmed. The appeal from the judgment is dismissed.
Respondent John Pourmoradi is awarded his costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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