Marriage of Gill CA2/1 ( 2023 )

Filed 7/18/23 Marriage of Gill CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of B316281
DAVINDER and BALDEV S.
GILL. (Los Angeles County
Super. Ct. No. BD630098)
DAVINDER K. BADIAL,
Respondent,
v.
BALDEV S. GILL,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Alison MacKenzie, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Kermisch & Paletz and Lauren M. Lookofsky for Appellant.
Law Office of Bruce Adelstein and Bruce Adelstein for
Respondent.
In November 2015, respondent Davinder K. Badial filed a
petition to dissolve her marriage with appellant Baldev S. Gill.
In March 2019, the family court entered a stipulated judgment of
dissolution that resolved the matter after a mediation. Among
other things, the judgment awarded two community rental
properties to Gill as separate property, required him to refinance
the properties within 120 days of the judgment, and obligated
him to make an equalization payment to Badial of $512,500
($497,000 attributable to the rental properties and $15,500 to
remaining property issues) upon completion of the refinancing
transaction. The judgment provided that if Gill were unable to
refinance the properties within the 120-day deadline, then the
properties were to be sold immediately and the net sales proceeds
divided between the parties, except for $15,500 which would be
paid from Gill’s share of the proceeds as an equalization
payment.
Gill failed to refinance the properties within 120 days of
entry of the judgment of dissolution. In August 2020, Badial filed
a request for order (RFO), claiming that although the two rental
properties had been listed for sale in August 2019, Gill had
thwarted the sales process while continuing to collect rent from
the properties. Badial sought a monetary sanction against Gill
pursuant to Family Code1 section 271, along with half the net
rental proceeds, which half she claimed to be $122,760. In
July 2021, during the pendency of the proceedings on Badial’s
RFO, one of the two properties was sold, and Gill used the
proceeds from that sale to purchase Badial’s interest in the other
property. In October 2021, the family court issued an order that
1 Undesignated statutory citations are to the Family Code.
2
denied Badial’s request for half the net rental proceeds but
awarded her sanctions under section 271 in that same amount, to
wit, $122,760.
We reject Gill’s appellate challenges to the family court’s
finding that Gill engaged in conduct sanctionable under
section 271. We, however, agree with Gill that the family court
erred in setting the amount of sanctions at $122,760 because
section 271 authorizes only an award of attorney fees and costs,
and not a sanction measured by net rental proceeds. We reject
Badial’s alternative argument that the $122,760 in net rental
proceeds constitutes a community property asset that had been
omitted from the dissolution judgment.
Accordingly, we affirm the family court’s decision to impose
a section 271 sanction on Gill, but reverse the $122,760 amount
of the award and remand the matter to the family court to
determine a sanction amount consistent with this opinion. Given
our disposition, we do not address Gill’s claims that certain of
Badial’s filings were untimely and that the $122,760 in sanctions
imposed an unreasonable financial burden on him.
FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only those facts pertinent to our disposition
of this appeal.
2 We derive our Factual and Procedural Background in
part from admissions made by the parties in their filings,
assertions Badial raises in her appellate brief to which Gill does
not respond in his reply, and undisputed aspects of the family
court’s rulings. (See Artal v. Allen (2003) 111 Cal.App.4th 273,
275, fn. 2 (Artal) [“ ‘[B]riefs and argument . . . are reliable
indications of a party’s position on the facts as well as the law,
3
1. Foundational facts
Gill and Badial were married on August 29, 1998. Gill and
Badial have two children, one born in 2005 and the other in 2007.
At an unspecified time, Gill and Badial acquired two 4-unit
apartment buildings as community property. As a shorthand, we
refer to these two assets as the 48th Street property and the
Kenwood property, respectively, and we refer to them collectively
as the rental properties.
Gill and Badial separated on October 14, 2015. Badial filed
a petition for dissolution on November 10, 2015. On
November 15, 2018, the parties and their respective counsel
attended a voluntary mediation with a retired judge, which
resulted in two memoranda of intent regarding settlement.
On March 12, 2019, the family court entered a stipulated
judgment of dissolution, which incorporated the memoranda of
intent from the mediation. The judgment included provisions
governing custody of Gill’s and Badial’s two children, setting the
amount of child support Gill owed to Badial, and dividing the
parties’ property and debts.
and a reviewing court may make use of statements therein as
admissions against the party.’ ”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick) [concluding
that the appellants made an implicit concession “by failing to
respond in their reply brief to the [respondent’s] argument on
th[at] point”]; Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling]; Discussion, post [noting that
a family court’s orders and judgments are presumed correct].)
4
Section V(B) of the “Attachment to Judgment” bears the
heading “Property and Debt Awarded to Respondent,”3 and listed
in Sections V(B)(2) and V(B)(3) are the 48th Street property and
the Kenwood property. (Boldface & some capitalization omitted.)
Section VI of the Attachment to Judgment is titled “Details
Regarding Division of Community Property Real Estate and
Equalization Payment.” (Boldface & underscoring omitted.)
Because the provisions of Section VI are pertinent to this appeal,
they are set forth below:
“A. Per Sections V(B)(2) and (3), the parties’ rental
real estate is awarded to Respondent. The Court
finds that the equalization payment owed from
Respondent to Petitioner for both apartment
buildings is $497,000.00. To equalize the remainder
of the property issues, Respondent owes Petitioner an
additional $15,500.00. Therefore, the total
equalization of all community property assets and
debts owed from Respondent to Petitioner is
$512,500.00.
“B. The total equalization payment of $512,500.00
is due from escrow upon the refinance of the two
properties, to be made payable to the Attorney Client
Trust Fund of [Badial’s trial counsel]. Respondent
must refinance the properties and remove
Petitioner’s name from title within 120 days from the
execution of this Judgment.
3 The judgment identifies Gill as the respondent and
Badial as the petitioner.
5
“C. In the event Respondent is unable to refinance
the properties and pay the equalization payment in
the amount of $512,500.00 within 120 days of
execution of this Judgment, the buildings will be
immediately listed for sale and sold with the net
sales proceeds being divided, except that Respondent
will also pay $15,500.00 out of his share of the sales
proceeds from escrow to resolve all remaining
property, debt, reimbursement, or credit issues.
“D. The parties will immediately agree to a listing
agent, if a sale is necessary. If the parties cannot
agree, each side will submit two names and resumes
to [the retired judge who conducted the parties’
mediation] to select the broker within two weeks of
not being able to refinance. The listing price will be
the recommended price of the broker unless the
parties agree otherwise in writing.”
Gill was unable to refinance the rental properties within
the 120-day deadline imposed by the dissolution judgment. On
July 29, 2019, the retired judge who conducted the parties’
mediation appointed Mark Perez as the listing agent.
2. Overview of proceedings concerning Badial’s RFO
and Gill’s notice of appeal
On August 31, 2020, Badial filed an RFO. Badial sought,
inter alia, an order modifying Gill’s child support obligations, the
$15,500 equalization payment identified in Section VI.C of the
dissolution judgment, half of the net income from the rental
properties, and an award of attorney fees and costs under
section 271. She alleged that the rental “properties ha[d] been on
the market for sale since mid-August of 2019, well before COVID
6
emerged,” and that Gill had “interfered with the sales process
and ha[d] no incentive to sell as he alone collect[ed] the net rents
of more than $7,000.00 per month and exclusively enjoy[ed] the
tax benefits of ownership.” Badial submitted Perez’s declaration,
wherein he attested that the two rental properties should have
been sold in 2019, but that Gill had “put forth obstacles and
ma[de] the sale of both properties impossible.”
The family court held a hearing on Badial’s RFO on
December 11, 2020. The court scheduled an evidentiary hearing
for May 11, 2021.
At the May 11, 2021 hearing, Gill’s counsel cross-examined
Perez, and Badial’s counsel conducted a redirect examination of
the witness. Upon hearing Perez’s testimony, the family court
granted Perez “full discretion to make all decision[s] pertaining to
[the] sales process after meeting and conferring with both sellers,
including but not limited to marketing and negotiating decisions,
establishing a listing price, selecting the offer, opening/closing
escrow, negotiation [of] escrow terms and conditions, and
acceptance of final offer[s].” The family court continued the
hearing on Badial’s RFO to August 6, 2021.
On July 23, 2021, the 48th Street property was sold for
$1,030,000. On June 21, 2021, while the sale of the 48th Street
property was pending, the parties agreed that Gill would
purchase Badial’s interest in the Kenwood property with his
proceeds from the 48th Street property escrow. The parties
valued the Kenwood property at $1,030,000 and Badial’s interest
at $268,477.96. Prior to the August 6, 2021 hearing, escrow had
closed and all funds concerning these transactions had been
distributed.
7
On July 30, 2021, Badial filed a brief in which she
requested as a sanction under section 271 half the net rental
proceeds from the rental properties from December 2018 through
July 2021, which Badial claimed amounted to $122,760.
Accompanying this brief was a declaration from Badial’s counsel
“in support of [her] request for attorney’s fees and costs per
Family Code §271.” (Boldface, italics, & some capitalization
omitted.) Although Badial’s counsel suggested in her declaration
that Badial had incurred “fees and costs” of $53,415 “for the
current proceeding,” Badial’s July 30, 2021 brief instead
intimated that the correct figure was “$54,152.00.”
(Underscoring & capitalization omitted.)
The family court heard further argument on Badial’s RFO
at the August 6, 2021 hearing. On October 13, 2021, the family
court issued an order granting in part and denying in part
Badial’s RFO.4 In particular, although the family court denied
Badial’s “request for reimbursement of half the net rent value,”
the court ordered Gill to pay Badial $122,760 as a sanction under
section 271. As noted above, Badial had represented that
$122,760 was half of the net rental proceeds Gill had received
from December 2018 to July 2021.
On October 19, 2021, Gill timely appealed the family
court’s rulings on Badial’s RFO.5
4 We previously granted Gill’s motion to augment the
record to include the family court’s October 13, 2021 order.
5 Although the family court denied part of Badial’s RFO,
Badial did not cross-appeal.
8
DISCUSSION
“ ‘A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.]” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).) Thus, “ ‘ “it
is the appellant’s responsibility to affirmatively demonstrate
error” ’ ” by “ ‘supply[ing] the reviewing court with some cogent
argument supported by legal analysis and citation to the record.’
[Citation.]” (See Los Angeles Unified School Dist. v. Torres
Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497;
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277
(Hernandez).) The appellant bears this burden of rebutting the
presumption of correctness accorded to the family court’s
decision, regardless of the applicable standard of review. (See
Los Angeles Unified School Dist., at p. 492 [noting that these
principles apply to “ ‘ “an appeal from any judgment” ’ ”]; see also
Orange County Water Dist. v. Sabic Innovative Plastics US, LLC
(2017) 14 Cal.App.5th 343, 368, 399 [indicating that an appellant
must affirmatively show the trial court erred even if the de novo
standard of review applies].)
Gill argues on appeal: (1) “the record is so replete with bias
and prejudgment as to indicate [Gill] did not receive a fair
hearing”; (2) “the court failed to prepare a written statement of
decision, which is prejudicial error”; (3) there was no evidence
Gill engaged in conduct sanctionable under section 271; (4) the
$122,760 sanction must be reversed because it is not “tethered” to
Badial’s attorney fees and costs; (5) Badial’s filings exceeded the
page limitations imposed by the California Rules of Court; (6) the
amount of the sanction “imposes an unreasonable financial
burden”; and (7) Gill “was not afforded a reasonable opportunity
9
to be heard in opposition” to Badial’s RFO.6 (Boldface,
italicization, & capitalization omitted.)
We agree with Gill that the family court lacked statutory
authority to set the sanctions based on net rental proceeds, here
$122,760. This conclusion moots Gill’s other claims of error
concerning the amount of the sanction, that is, his assertion that
the award constitutes an unreasonable financial burden and the
family court denied him a reasonable opportunity to be heard.
We conclude that his remaining appellate claims lack merit.
Furthermore, we reject Badial’s alternative argument to affirm
the $122,760 award as a community property asset omitted from
the dissolution judgment. In sum, we reverse the amount of the
award, affirm the remainder of the family court’s sanction order,
and remand for further proceedings.
A. Gill’s Allegations of Judicial Bias and Prejudgment
Do Not Warrant Reversal
Gill argues the family court was biased against Gill’s trial
counsel, Daniel Paletz. Gill further claims the family court made
statements indicating the court had made a “premature
assessment of the sanctions issue” before the parties had finished
presenting evidence and argument.
6 Although Gill suggests in his opening brief that he
challenges aspects of the family court’s order on Badial’s RFO
other than the award of sanctions under section 271 (e.g., the
modification of child support), he has waived any such appellate
claims by failing to support them with cogent argument. (See
Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“ ‘The absence of cogent legal
argument . . . allows this court to treat [a] contention as
waived.’ ”].)
10
As a preliminary matter, we observe that Gill does not
identify expressly in his opening brief the particular federal or
state law he believes supports this claim of error. At one point,
Gill notes that Code of Civil Procedure section 170.1,
subdivision (a)(6)(A)(iii) “provides that a judge is disqualified if
‘[a] person aware of the facts might reasonably entertain a doubt
that the judge would be able to be impartial.’ ” (Quoting Code
Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) To obtain relief under this
statute, however, Gill needed to move to disqualify the family
court judge,7 and, to secure appellate relief from a ruling denying
that motion, he was obligated to seek writ review from this
court.8
In his reply brief, Gill clarifies that “the issue here” is
“whether the appearance of bias by a judge requires overturning
an order on appeal under the due process clause of the federal
7 (See People v. Peoples (2016) 62 Cal.4th 718, 773 [“ ‘If a
judge refuses or fails to disqualify herself, a party may seek the
judge’s disqualification. The party must do so, however, “at the
earliest practicable opportunity after discovery of the facts
constituting the ground for disqualification.” ’ ”]; id. at pp. 772–
774 [indicating that this requirement applies to claims of
disqualification arising under Code Civ. Proc., § 170.1, and
concluding that an appellant did not “preserve his claim that [a
judge] should have been recused” because the appellant failed to
timely seek disqualification of the judge].)
8 (See People v. Freeman (2010) 47 Cal.4th 993, 999–1000
(Freeman) [“The statutory basis for disqualifying judges is set
forth in Code of Civil Procedure section 170.1, and other sections
outline the procedures for determining the motion and the effect
of the disqualification. [¶] . . . ‘Under our statutory scheme, a
petition for writ of mandate is the exclusive method of obtaining
review of a denial of a judicial disqualification motion.’ ”].)
11
Constitution.” Accordingly, we address only whether the family
court violated Gill’s right to due process under the federal
Constitution.
“ ‘A fair trial in a fair tribunal is a basic requirement of due
process.’ [Citation.] . . . The operation of the due process clause in
the realm of judicial impartiality . . . is primarily to protect the
individual’s right to a fair trial.” (Freeman, supra, 47 Cal.4th at
p. 1000.) “[W]hile a showing of actual bias is not required for
judicial disqualification under the due process clause, neither is
the mere appearance of bias sufficient. Instead, based on an
objective assessment of the circumstances in the particular case,
there must exist ‘ “the probability of actual bias on the part of the
judge or decisionmaker [that] is too high to be constitutionally
tolerable.” ’ [Citation.]” (Id. at p. 996.) Put differently, due
process compels a judge’s disqualification if, based on an objective
review of the record, “ ‘there is a serious risk’ ” of “ ‘ “actual bias
or prejudgment[.]” ’ [Citation.]” (See id. at pp. 1004, 1006.)
Under this federal standard, “only the most ‘extreme facts’
would justify judicial disqualification based on the due process
clause.” (Freeman, supra, 47 Cal.4th at p. 996.) Freeman further
recognized that “ ‘the codes of judicial conduct provide more
protection than due process requires[,]’ ” and that “the due
process clause provides the ‘ “constitutional floor” ’ in matters
involving judicial disqualification . . . .” (See id. at p. 1005.)
As we explain below, Gill’s allegations of judicial bias and
prejudgment do not satisfy the standard set forth in Freeman.9
9 In his reply brief, Gill argues Freeman’s standard is
inapplicable because that case did not decide “whether the
appearance of bias by a judge requires overturning an order on
12
1. Gill fails to establish a constitutionally intolerable
probability of actual bias on the part of the family
court
In support of his claim that the family court was biased
against Paletz, Gill directs us to the following statements made
by the family court during the proceedings on Badial’s RFO:
1. “Mr. Paletz, this is what I have the problem
with you [sic]. You keep talking.”
2. “Ms. Ho [(Gill’s female trial counsel)] was
copied on that [e-mail to the court]. Mr. Paltez,
where is Ms. Ho? I was expecting to hear from
her today.” (Second set of brackets added by
Gill.)
3. “I like to see younger women, you know, argue
the motions that they’ve clearly worked on. So
next time I’d like to hear from her directly but
okay.”
4. “Mr. Paltez, so it sounds like you and Ms. Ho
are working on the case. Although Ms. Ho
wasn’t given the opportunity to argue her
motion today. Fine.”
appeal under the due process clause of the federal Constitution.”
In fact, the appellant in Freeman sought to overturn a judgment
on the ground that “the appearance of bias by a judge require[d]
recusal under the due process clause of the federal Constitution.”
(See Freeman, supra, 47 Cal.4th at pp. 996, 999, 1006.) Because
we discern no material difference between that question and
Gill’s judicial bias/prejudging claim, we conclude that Freeman
supplies the governing standard.
13
5. Gill asserts that when the family court was
“questioned about” the judge’s comments
concerning Ho, “the court stated, ‘I was just
more making it known to both parties I would
welcome associates having the opportunity to
be able to argue the motions that they work so
hard on.’ ”
6. “Ms. Ho sounds like she’s the one who did you
this [sic], she and Ms. Butterworth [(Badial’s
trial counsel)] need to have a meet and
confer . . . .”
7. “To be clear I want that meet and confer
between Ms. Ho and Ms. Butterworth . . . .”
Gill argues these statements demonstrate he “clearly
did not receive a fair trial, as the Court seemed more concerned
with [Gill’s] counsel, including [the male attorney’s] gender,
rather than the merits of [Badial’s] RFO.” Gill also complains the
family court “denied [Gill] from having his primary counsel,
Mr. Paletz, represent him in meeting and conferring with
[Badial’s] counsel . . . .”
With regard to the first passage quoted above, the
reporter’s transcript from the May 11, 2021 hearing shows the
family court stated that it had a “problem” with Paletz because
the attorney had interrupted the court. In particular, as the
family court was describing the judgment of dissolution, Paletz
claimed that the court “misstated” certain provisions governing
the rental properties. After Paletz directed the family court to
page eight of the judgment, the court stated, “Stop. ‘Cause I’m
going to look at—”
14
Paletz then interjected, “If you look at—” to which the
family court replied, “Stop. Cause I’m going to look at—stop.
Mr. Paletz, this is what I have the problem with you [sic]. You
keep talking. I said, stop, so I could get the judgment, and then
you keep on talking and talking. So stop.” Under these
circumstances, the family court’s statement could hardly be
indicative of bias against Gill’s trial counsel.
Furthermore, upon reading the statements concerning
Gill’s female trial counsel (Ho) in context, we conclude they
are not indicative of bias against Gill’s male trial counsel (Paletz).
At the May 11, 2021 hearing, the family court remarked that Ho
was a recipient of an e-mail containing “DissoMaster” reports
prepared by Badial’s counsel to calculate Gill’s child support
obligations.10 Badial’s counsel represented to the court that Ho
had prepared a DissoMaster report that utilized figures differing
from those upon which Badial’s counsel had relied in conducting
her calculations, and that Badial’s attorney was unable to meet
and confer with Ho prior to the May 11, 2021 hearing. The
family court later stated that because it appeared that Ho was
familiar with the child support issue, Ho and Badial’s counsel
“need[ed] to have a meet and confer . . . regarding their
competing DissoMasters, and see if they can make some headway
in that.” Accordingly, the family court’s order requiring Ho and
Badial’s attorney to meet and confer does not evince bias on the
part of the judge because it was simply a means of encouraging
10 “DissoMaster is a computer software program widely
used by courts to set child support and temporary spousal
support.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1578,
fn. 4.)
15
the parties to resolve Gill’s child support obligations without
judicial intervention.
Although the family court stated that it “like[d] to see
younger women . . . argue the motions that they’ve clearly worked
on,” the court subsequently clarified that it was merely
remarking that the court “would welcome associates having the
opportunity to be able to argue the motions that they work so
hard on.”
For the reasons set forth above, an objective review of the
record does not reveal “ ‘a serious risk’ ” of actual bias on the part
of the family court judge. (See Freeman, supra, 47 Cal.4th at
pp. 1004, 1006.)
2. Gill fails to establish a constitutionally intolerable
probability of prejudging
Gill further claims the family court made “premature
statements” against Gill and his counsel that “indicate [Gill]
did not receive a fair hearing.” Specifically, Gill complains of the
following statements and conduct on the part of the family court:
1. “I don’t see the utility to either party having
further testimony when there’s copious
testimony in front of me.”
2. Gill argues that “[o]nly after [Gill’s] counsel
had to essentially beg the Court to proceed with
the evidentiary hearing did the Court finally
allow Mr. Paletz to ‘cross examine [Perez] for
16
half an hour and we’ll move on.’ ”11 (Second
bracketed insertion added by Gill.)
3. Gill contends that “[b]efore testimony was even
taken the Court advised [Gill’s] counsel that it
was ‘going to keep [him] on a short leash
because I have very little time. You tend to
talk—you advocate at length. That’s just not
necessary because I have voluminous
pleadings. I have all the argument in front of
me.’ ”
4. Gill protests the fact the family court “allowed
‘redirect’ by [Badial’s] counsel but would not
permit Mr. Paletz to re-cross Mr. Perez.”
5. Gill asserts that even though Badial’s counsel
“was permitted to argue uninterrupted,” the
family court asked Paletz “in the middle of [his]
argument, . . . ‘Are you wrapping up?’ ”
11 We decline to consider Gill’s assertion that he “was not
permitted to take any testimony of the Parties” because Gill
does not support that claim with any citations to the record. (See
Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th
574, 590, fn. 8 (Alki Partners, LP) [“[C]ourts will decline to
consider any factual assertion unsupported by record citation at
the point where it is asserted.”].) Additionally, we observe that
after the family court stated at the May 11, 2021 hearing that the
issue before it was not a matter that “requires hours and hours of
testimony,” Gill’s counsel stated, “We would agree,” and then
made arguments unrelated to whether the parties should provide
live testimony. Under these circumstances, it was incumbent on
Gill to provide us with a record citation demonstrating the family
court did not permit him to take live testimony of the parties.
17
6. “Gill has been listening to this. He better not
drag his feet any more. The time is done for
that.”
7. Gill claims the family court made the following
statement when referring to him, “ ‘This is foot
dragging at it’s [sic] most—it’s just the most
obvious form of foot dragging. I’m frankly
surprised that we need to go forward with this
hearing because it’s so egregious the foot
dragging. There’s really no—there’s no merit to
it.’ ”
8. “Then the parties are going to have to deal with
the fact that Mr. Gill has created a situation
where now the tenants won’t allow access [to
the rental properties].”
9. “I need to determine whether [Gill’s] conduct
frustrates the policy in the State of California
to promote settlement, and to reduce litigation
costs. I do find that he has violated—his
conduct has violated this important policy. . . .
As the court already found when the court
made its order back in May he did everything
he could to thwart the sale of the property.”
10. Gill maintains that when the family court
ordered that “Perez ha[ve] ‘complete authority’
of the sales process,” the family court
emphasized that “ ‘if Mr. Gill does not sign
within 24 hours [Badial] may sign in his place
for either an offer or counter-offer.’ ”
18
For the reasons explained below, we conclude Gill has not
shown the “ ‘extreme facts’ that require judicial disqualification
on due process grounds.” (See Freeman, supra, 47 Cal.4th at
p. 996.)
First, we acknowledge that items 1, 2, 3, 7, and 8 are
statements the family court made at the May 11, 2021 hearing
before Gill’s counsel cross-examined Perez. Prior to the
May 11, 2021 hearing, however, the parties had submitted
several declarations and other evidence concerning Badial’s RFO,
including declarations from Perez.12 Therefore, the statements
in items 1, 2, 3, 7, and 8 indicate the family court was opining
that the parties had presented sufficient evidence for it to find
that Gill unreasonably delayed the sale of the properties.
Gill also does not direct us to any evidence showing that
the family court was unwilling to consider Perez’s forthcoming
cross-examination testimony in rendering the court’s final
decision on whether Gill had thwarted the sale of the rental
12 In connection with his due process judicial
bias/prejudging claim, Gill asserts that Badial had submitted
“untimely and improperly filed pleadings” in advance of the
May 11, 2021 hearing. Yet, in this portion of the argument
section of the opening brief, Gill does not identify which
documents were supposedly “untimely and improperly filed” or
explain how this assertion supports Gill’s judicial bias/prejudging
claim. We thus decline to address this matter further. (See Alki
Partners, LP, supra, 4 Cal.App.5th at p. 590, fn. 8 [holding that
an appellate court is not required to “ ‘thumb[ ] through and
reread[ ] earlier portions of a brief ’ ” to determine whether an
assertion made in “the argument section of the brief” has
evidentiary support]; Hernandez, supra, 37 Cal.App.5th at p. 277
[“ ‘We are not bound to develop appellants’ arguments for
them.’ ”].)
19
properties. In fact, shortly after making the “foot dragging”
remark identified in item 7, the family court stated that it would
“accept” the documentary evidence the parties had submitted
“subject to any cross-examination of Mr. Perez.” Accordingly, the
statements in items 1, 2, 3, 7, and 8 do not give rise to a “ ‘serious
risk’ ” of “ ‘prejudgment’ ” “as to require disqualification” under
the due process clause. (See Freeman, supra, 47 Cal.4th at
pp. 1004, 1006.)
Regarding item 4 above, Gill seems to argue the court was
not an impartial factfinder because it refused to allow his trial
counsel (Paletz) to conduct a re-cross examination of Perez after
Badial’s trial counsel concluded her redirect examination of that
witness. In her respondent’s brief, Badial asserts the court
indicated it would “give each side the same amount of time to
examine Perez,” and Badial claims, “Paletz presumably could
have reserved some of his time for re-cross examination.” In his
reply brief, Gill does not contest Badial’s representations, nor
does he offer any evidence showing the family court barred
further examination of Perez for any reason other than the
amount of time that had elapsed. Indeed, at the conclusion of
Paletz’s cross-examination of Perez, the family court stated,
“Your time is more than up.” Consequently, Gill fails to show the
family court’s refusal to allow him to conduct a re-cross
examination of Perez deprived him of his due process right to a
fair and impartial adjudicator.13
13 (See Rudick, supra, 41 Cal.App.5th at pp. 80, 89–90
[concluding appellants “implicitly concede[d]” a point “by failing
to respond in their reply brief to the [respondent’s] argument”
relating thereto]; Brown v. American Bicycle Group, LLC (2014)
20
Concerning item 5, we observe that at the outset of the
May 11, 2021 hearing, the family court had remarked that Paletz
“tend[s] to . . . advocate at length,” and opined, “That’s just not
necessary because [the court had] voluminous pleadings” and “all
the argument in front of” the court. That the court interrupted
Gill’s trial counsel during argument to ask whether he was
“wrapping up” thus appears to have been the family court’s effort
to manage its calendar. Under the circumstances, that question
falls short of establishing that the family court was not impartial.
Next, because the family court made the statements
identified in items 6, 9, and 10 after Perez had testified and the
parties presented oral argument on Badial’s request to authorize
Perez to sell the properties, these statements are not evidence
that the family court had made a premature assessment
regarding whether Perez should be given that authority.
Gill claims the family court’s statement from the
August 6, 2021 hearing that it “ ‘already found when the court
made its order back in May [Gill] did everything he could to
thwart the sale of the property’ ” (i.e., item 9) is proof the family
court “decid[ed] and rul[ed] on the issue of sanctions prior to” the
August 6, 2021 hearing, “without permitting [Gill] any
opportunity to respond and argue on the issue.” (First set of
italics added by Gill.) Gill insists the court “specifically reserved
on the issue of sanctions, to be heard and argued at the
August 6, 2021 hearing.”
224 Cal.App.4th 665, 673–675 (Brown) [holding that “[t]he mere
fact that [a] trial court issue[s] rulings adverse to [a party] on
several matters in th[e] case, even assuming one or more of those
rulings were erroneous,” is insufficient to establish a violation of
the “due process right to an impartial judge”].)
21
Gill apparently overlooks the fact that Badial’s request to
authorize Perez to sell the rental properties was predicated on
her theory that Gill had intentionally delayed those transactions.
We conclude that in the course of granting Perez “full discretion
to make all decision[s] pertaining to [the] sales process” at the
conclusion of the May 11, 2021 hearing, the family court had
already impliedly found that Gill had interfered with the sale of
the rental properties. (See In re Marriage of Sahafzadeh-Taeb &
Taeb (2019) 39 Cal.App.5th 124, 145 [“[G]iven no findings to the
contrary, [an appellate court] must presume in favor of the trial
court’s order ‘ “every finding of fact necessary to support
it[.]’ ”].)14 Because Gill’s counsel cross-examined Perez and
presented oral argument at the May 11, 2021 hearing, he had an
opportunity to persuade the family court not to render that
finding before the August 6, 2021 hearing. Furthermore, Gill
does not argue—let alone offer evidence demonstrating—that the
family court denied him an opportunity to show that this finding
did not support an award of sanctions under section 271.
Given our conclusion that the family court found at the
May 11, 2021 hearing that Gill intentionally delayed the sale of
the rental properties, the court’s statements at the end of the
hearing that Gill “better not drag his feet any more” (item 6) and
that Badial may sign documents relating to the sale of the
14 In Discussion, parts B–C, post, we reject Gill’s assertion
that this presumption (i.e., the doctrine of implied findings)
does not apply to this appeal. Our conclusion that the family
court had found Gill sought to thwart the sale of the rental
properties is also consistent with the court’s statement at the
May 11, 2021 hearing that “[t]his is . . . just the most obvious
form of foot dragging.”
22
properties in Gill’s place if he refuses to do so (item 10) do not
indicate the family court made a premature judgment on whether
Badial was entitled to an award of sanctions. Rather, the family
court was simply making statements consistent with its prior
finding that Gill had unreasonably obstructed the sale.
In sum, Gill fails to establish “ ‘a serious risk’ ” of
“ ‘ “prejudgment” ’ ” on the part of the family court vis-à-vis Gill’s
liability for sanctions under section 271. (See Freeman, supra,47 Cal.4th at pp. 1004, 1006.)15
3. Gill’s reliance on In re Marriage of Iverson and
Webber v. Webber is unavailing to establish bias or
prejudgment here
Gill argues In re Marriage of Iverson (1992) 11 Cal.App.4th
1495 (Iverson), and Webber v. Webber (1948) 33 Cal.2d 153(Webber), support his claim that “the record is so replete with
bias and prejudgment as to indicate [Gill] did not receive a fair
hearing.” In particular, Gill claims Iverson and Webber establish
“a trial court’s orders will be overturned where a judge’s
statements . . . indicated the hearing ‘of a case does not appear to
be fair.’ [Citation.]” (Quoting Iverson, at p. 1501.) Gill further
15 Gill argues that even though the retired judge from the
parties’ mediation had appointed Perez, the family court later
took “credit for putting ‘Mr. Perez in place[.]’ ” Gill also seems to
claim that because the family court erroneously blamed him for
delay in the sale of the rental properties, the family court was
biased against him. Gill fails to explain how these arguments are
anything more than his disagreement with the family court’s
factual findings. Mere disagreement with a court’s decision or
findings is not sufficient to establish a due process violation. (See
Brown, supra, 224 Cal.App.4th at pp. 673–675.)
23
contends the court’s “comments regarding [Gill’s trial] counsel
and his gender” are analogous to those of the family court in
Iverson. Additionally, Gill avers the family court made
statements akin to those of the trial judge in Webber, thereby
demonstrating that the family court had prejudged the sanctions
issue before presentation of all evidence and argument.
We reject Gill’s assertion that the mere appearance of bias
or prejudgment on the part of a judicial officer gives rise to a due
process violation. Freeman “disapproved” of the Iverson decision
“[t]o the extent that th[e] opinion[ ] contain[s] language
inconsistent” with the high court’s conclusion that the
“ ‘appearance of partiality’ ” alone does not offend due process.
(See Freeman, supra, 47 Cal.4th at pp. 996, 1005, 1006 & fn. 4.)
In arriving at that conclusion, the Freeman court explained that
in 2009 (i.e., after the Iverson decision), the United States
Supreme Court clarified that “only the most ‘extreme facts’ would
justify judicial disqualification based on the due process clause.”
(See Freeman, at p. 996, quoting Caperton v. A. T. Massey Coal
Co. (2009) 556 U.S. 868, 887.) Although Freeman did not
explicitly discuss its prior decision in Webber, Freeman’s holding
that due process requires “ ‘a serious risk’ ” of “ ‘ “actual bias or
prejudice” ’ ” necessarily overrules language to the contrary found
in the Webber opinion. (See Freeman, at pp. 1004, 1006; Webber,
supra, 33 Cal.2d at p. 155 [“ ‘The trial of a case should not only be
fair in fact, but it should also appear to be fair. And where the
contrary appears, it shocks the judicial instinct to allow the
judgment to stand[,]’ ” quoting Pratt v. Pratt (1903) 141 Cal. 247,
24
252 (Pratt)];16 see also Newport Beach Country Club, Inc. v.
Founding Members of Newport Beach Country Club (2006)
140 Cal.App.4th 1120, 1131 [“The California Supreme Court . . .
has recognized ‘the authority of an older case may be as
effectively dissipated by a later trend of decision as by a
statement expressly overruling it.’ ”].)
We acknowledge, however, that Freeman left Iverson intact
insofar as the Court of Appeal held the appellant there
established a due process violation by making “a showing of
actual bias based on comments by the judge[ ] about women . . . .”
(See Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.)
That aspect of Iverson does not help Gill.
In Iverson, a wife who filed a dissolution action sought to
invalidate a premarital agreement with her husband. (See
Iverson, supra, 11 Cal.App.4th at p. 1497.) In rejecting the wife’s
testimony that the husband “ ‘was the one that proposed
marriage to her[,]’ ” the family court judge remarked, “ ‘[W]hy, in
heaven’s name, do you buy the cow when you get the milk
free[?]’ ” (See id. at pp. 1498–1499.) In contrast, when the family
court’s statements regarding Paletz and Ho are considered in
context, it is apparent the family court did not harbor gender
bias. (See Discussion, part A.1, ante.) Instead, the family court
16 Although Gill cites the Pratt decision in passing, he
does not claim the instant case is analogous to Pratt or attempt to
reconcile Pratt with Freeman. We thus decline to discuss Pratt
further. (See Hernandez, supra, 37 Cal.App.5th at p. 277
[“ ‘We are not bound to develop appellants’ arguments for
them.’ ”]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012)
211 Cal.App.4th 1, 10 [“[A]n appellant is required to not only cite
to valid legal authority, but also explain how it applies in his
case.”].)
25
explained it preferred to have the attorney who worked on the
child support issue meet and confer with opposing counsel
regarding that issue and to give younger lawyers an opportunity
to participate in court proceedings on issues on which they
worked. (See ibid.)
Webber is also distinguishable. There, “before having heard
[the wife’s] evidence as to need, condition of health, or lack of
means of support,” the trial judge in a dissolution action
repeatedly stated he would not award any alimony to the wife.
(See Webber, supra, 33 Cal.2d at pp. 155–157.) In particular, the
trial judge twice stated at the outset of the proceeding that he
“will waive [alimony] for” the wife, and, when the wife’s counsel
insisted on presenting evidence in support of her request for
alimony, the judge responded, “ ‘Go ahead and wash your dirty
linen. I won’t stop you.’ ” (See id. at pp. 156–157, italics
omitted.) When the wife’s counsel later sought to recall the wife
to the witness stand, the trial judge responded: “ ‘I have told you
that I am not going to award any support. I have told you that
several times . . . I wish you would please stop wasting the
Court’s time.’ ” (See id. at p. 157.)
In contrast, here, although the family court provided the
parties with its initial impressions regarding certain
documentary evidence and had questioned the utility of having
live testimony at the May 11, 2021 hearing, the court did not
foreclose the possibility that Gill’s cross-examination of Perez
could affect the court’s decision on Badial’s RFO. (See
Discussion, part A.2, ante.) In fact, the family court stated it
would accept the documentary evidence subject to the cross-
examination of that witness. (See ibid.)
26
Accordingly, Gill fails to establish that he was deprived of
his due process right to a trial before an impartial adjudicator.
B. Gill Was Not Entitled to a Statement of Decision
Gill argues the family court “committed reversible error,
warranting reversal of its sanctions orders” by “fail[ing] to
prepare a written statement of decision” upon Gill’s request.17
(Boldface & capitalization omitted from second quotation.)
Whether a party may obligate a family court to issue a
statement of decision regarding a sanctions award appears to be
an open question.18 We need not resolve that question because,
assuming arguendo Gill had a right to a statement of decision, he
failed to invoke that right properly.
Code of Civil Procedure section 632 provides: “In superior
courts, upon the trial of a question of fact by the court, written
17 The only finding Gill attacks in his briefing based on the
absence of a statement of decision is the family court’s award of
sanctions under section 271. We acknowledge that at one point
in his opening brief, Gill intimates that the family court should
have issued a statement of decision concerning Badial’s request
for “a modification of support.” Because Gill does not develop this
point beyond mere intimation, we do not consider it. (See United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th
142, 154 [“We are not ‘obliged to speculate about which issues
counsel intend to raise.’ ”].)
18 (See Hogoboom & King, Cal. Prac. Guide: Family Law
(The Rutter Group 2023) ¶ 15:129, pp. 15–31 to 15–32 [stating “it
is quite arguable that” a party should be entitled to request a
statement of decision “in connection with family law motion and
OSC hearings,” but acknowledging that several Courts of Appeal
have concluded “ ‘nothing requires’ ” a court to honor such a
request “in instances other than trial”].)
27
findings of fact and conclusions of law shall not be required. The
court shall issue a statement of decision explaining the factual
and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party
appearing at the trial. The request must be made within 10 days
after the court announces a tentative decision unless the trial is
concluded within one calendar day or in less than eight hours
over more than one day in which event the request must be made
prior to the submission of the matter for decision. The request
for a statement of decision shall specify those controverted issues
as to which the party is requesting a statement of decision. After
a party has requested the statement, any party may make
proposals as to the content of the statement of decision. [¶] The
statement of decision shall be in writing, unless the parties
appearing at trial agree otherwise; however, when the trial is
concluded within one calendar day or in less than 8 hours over
more than one day, the statement of decision may be made orally
on the record in the presence of the parties.” (Code Civ. Proc.,
§ 632.)
Gill identifies two instances in which he requested a
statement of decision from the family court. First, Gill claims his
attorney requested a statement of decision at the August 6, 2021
hearing after the court “recit[ed] . . . [its] sanction orders, but
prior to the . . . issu[ance of the] child support orders . . . .”
Second, Gill directs us to a written request for a statement of
decision that he filed on August 13, 2021. As we explain below,
neither of these requests triggered the family court’s duty to
issue a statement of decision.
28
1. Gill’s oral request for a statement of decision was
deficient
Regarding Gill’s oral request for a statement of decision,
the reporter’s transcript from the August 6, 2021 hearing reflects
the following colloquy occurred between the family court and
Gill’s trial counsel:
“[Gill’s counsel:] Your Honor, this is [Gill’s] counsel.
I would like to ask you to do a statement of decision
because this matter has been continued over multiple
dates so, and it’s lasted well over eight hours now in
combination. So if you could do a written statement
in writing [sic] so that we can respond we would
greatly appreciate that.
“The Court: I don’t think it’s over eight hours.
Absolutely not. You guys were here for one afternoon
and now—
“[Gill’s counsel:] No, Your Honor, in culmination
with [sic] the other hearing, the other two hearings.
“The Court: What other two hearings? No. I still—I
still don’t believe it’s over eight hours. No. I’ll take a
look at the statement of decision statute again, and if
I believe that it does fall within the statement of
decision statute then I will do that, but I’m telling
you right now I don’t think it does, but I will take a
look again.
“[Gill’s counsel:] Thank you, Your Honor.”
The passage reproduced above demonstrates Gill’s trial
counsel requested a written statement of decision from the family
court based on the attorney’s belief that the duration of the
proceedings on Badial’s RFO was longer than eight hours. The
29
parties agree on appeal, however, that for the purposes of Code of
Civil Procedure section 632, “[t]he matter . . . last[ed] less than
eight (8) hours” over more than one day. (See Artal, supra,
111 Cal.App.4th at p. 275, fn. 2 [noting that we may construe a
statement in a brief as an admission against the party making
it].) For that reason, we agree with the family court that it had
no obligation to prepare a written statement of decision. (See
Code Civ. Proc., § 632 [“[W]hen the trial is concluded within one
calendar day or in less than 8 hours over more than one day, the
statement of decision may be made orally on the record in the
presence of the parties.”].)
Further, insofar as Gill’s trial counsel’s entreaty may be
construed as a request for an oral statement of decision, it did not
trigger the family court’s obligation to issue such a ruling.
“Whether made orally or in writing, the request for a statement
of decision ‘shall specify’ the particular controverted issues the
requesting party wishes the court to address.” (Fairbank et al.,
Cal. Prac. Guide: Civil Trials & Evidence (The Rutter Group
2022) ¶ 16:149, p. 16–34; see also Code Civ. Proc., § 632 [“The
request for a statement of decision shall specify those
controverted issues as to which the party is requesting a
statement of decision.”].) Put differently, “Code of Civil
Procedure section 632 requires a party requesting a statement of
decision to specify those controverted issues as to which it is
requesting a finding.” (Atari Inc. v. State Bd. of Equalization
(1985) 170 Cal.App.3d 665, 674–675 (Atari Inc.).) “[A] general,
nonspecific request for a statement of decision does not operate to
compel a statement of decision as to all material, controverted
issues.” (City of Coachella v. Riverside County Airport Land Use
Com. (1989) 210 Cal.App.3d 1277, 1292–1293.)
30
The colloquy reproduced above shows that Gill’s counsel
did not specify any controverted issues as to which the attorney
was seeking a statement of decision. Indeed, the court observed
in its minute order for the hearing that Gill “did not
articulate . . . the issues . . . as to which he was belatedly
requesting a statement of decision.”19 Because Gill did not
request findings on any specific issues, his challenge based on the
absence of a statement of decision on the section 271 sanction
award fails. (See Atari Inc., supra, 170 Cal.App.3d at p. 675
[“Failure to request findings on specific issues results in a waiver
as to those issues.”].)
2. Gill’s August 13, 2021 written request for a statement
of decision was untimely
On August 13, 2021, Gill filed a request for a written
statement of decision. In the filing, Gill requested that the family
court address the following issues:
“1. The legal and factual basis as to the
Court’s determination that [Gill] shall
pay to [Badial] Family Code § 271
sanctions and/or attorney fees and costs
to [Badial] in the amount of $122,760.00.
“2. . . . [A]ll legal and factual bases for the
Court’s ruling, including, but not limited
to whether [Gill] was given proper notice
of the amount of Family Code § 271
sanctions being sought; whether the
sanction imposes an unreasonable
19 For the purpose of this analysis, we assume arguendo
that Gill’s counsel’s oral request was timely.
31
financial burden upon [Gill]; the legal
basis for which the Court considered
[Badial’s] Brief Regarding Remaining
Issues for Hearing filed July 30, 2021,
wherein [Badial’s] counsel amends
[Badial’s] sanctions request to
$122,760.00 and legal fee request to
$54,152.00 from the combined request of
$13,455.00 in the Request for Order filed
August 31, 2021 [sic]; and whether the
Court considered the lack of an updated
In re Marriage of Keech (1999)75
Cal.App. 4th 860 [sic].”
As we noted in Discussion, part B.1, ante, it is undisputed
that the trial on Badial’s RFO lasted less than eight hours.
Consequently, for Gill to secure a statement of decision, he
needed to request one “prior to the submission of the matter for
decision.” (See Code Civ. Proc., § 632; see also Cal. Rules of
Court, rule 3.1590(n) [“When a trial is completed within one day
or in less than eight hours over more than one day, a request for
statement of decision must be made before the matter is
submitted for decision and the statement of decision may be
made orally on the record in the presence of the parties.”].)
“A cause is deemed submitted” under Code of Civil
Procedure section 632 “when either of the following first occurs:
[¶] ‘(1) the date the court orders the matter submitted; or [¶]
‘(2) the date the final paper is required to be filed or the date
argument is heard, whichever is later.’ ” (See In re Marriage of
Gray (2002) 103 Cal.App.4th 974, 977 (Gray); see also Cal. Rules
32
of Court, rule 2.900(a) [indicating that “[a] cause is deemed
submitted in a trial court” under these circumstances].)
Gill’s written request for a statement of decision was
untimely. Neither side claims that the family court had at some
point “ ‘order[ed] the matter submitted’ ” for the purpose of Code
of Civil Procedure section 632. (Gray, supra, 103 Cal.App.4th at
p. 977.) Further, Gill does not claim that he filed his request at
some point before “ ‘the final paper [was] required to be
filed . . . .’ ” (See ibid.) It follows that the date the matter was
deemed to have been submitted was “the date argument [was]
heard”—i.e., August 6, 2021. (See ibid.) Gill filed his request
seven days after that hearing. He thus waived his right to a
statement of decision. (See A.G. v. C.S. (2016) 246 Cal.App.4th
1269, 1281 (A.G.) [noting that a party may “ ‘waive[ ] a statement
of decision . . . by not requesting one in a timely manner’ ”].)
In sum, the family court did not err in denying Gill’s
requests for a statement of decision.
C. Although We Affirm the Family Court’s Decision to
Award a Sanction Under Section 271, We Reverse the
Amount of the Sanction
Section 271 provides:
“(a) 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
33
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.
“(b) An award of attorney’s fees and costs as a sanction
pursuant to this section shall be imposed only after notice
to the party against whom the sanction is proposed to be
imposed and opportunity for that party to be heard.
“(c) An award of attorney’s fees and costs as a sanction
pursuant to this section is payable only from the property
or income of the party against whom the sanction is
imposed, except that the award may be against the
sanctioned party’s share of the community property.”
(§ 271.)
“Sanction orders under section 271 are . . . reviewed under
the abuse of discretion standard. [Citation.] Applying the abuse
of discretion standard, we consider de novo any questions of law
raised on appeal, but will uphold any findings of fact supported
by substantial evidence.” (In re Marriage of Smith (2015)
242 Cal.App.4th 529, 532.) Under the substantial evidence
standard, “ ‘ “ ‘ “all conflicts must be resolved in favor of the
[prevailing party], and all legitimate and reasonable inferences
indulged in [order] to uphold the [finding] if possible.” ’ ” ’
[Citation.]” (See In re Marriage of Feldman (2007)
153 Cal.App.4th 1470, 1479.) An aspect of the substantial
evidence standard is “ ‘the doctrine of implied findings[,]’ ” which
34
provides that “ ‘the reviewing court must infer . . . that the trial
court impliedly made every factual finding necessary to support
its decision.’ [Citation.]” (See Thompson, supra, 6 Cal.App.5th at
p. 981; see also id. at pp. 982–983 [indicating that if “the doctrine
of implied findings [is not] disabled on appeal,” then review of
factual findings is governed by “ ‘the substantial evidence rule’ ”];
A.G., supra, 246 Cal.App.4th at p. 1281 [“ ‘[U]nder the doctrine of
“implied findings,” . . . appellate courts reviewing the appealed
judgment must presume the trial court made all factual findings
necessary to support the judgment for which there is substantial
evidence.’ ”].)
Gill argues the family court abused its discretion in
awarding $122,760 under section 271 because: (1) “there was no
evidence” that he or his attorney “frustrated the promotion of
settlement and the reduction of litigation costs”; and (2) “the
sanctions amount awarded by the Court is not ‘tethered to
attorney fees and costs[.]’ ” Although we disagree with Gill’s first
contention, we conclude the family court abused its discretion
in calculating the amount of the sanctions award because
section 271 and cases interpreting it require the award be based
on attorney fees and costs and do not permit the net rental
proceeds measure the family court employed here.
Before turning to the substance of Gill’s claim of error, we
reject Gill’s assertion that because the trial court refused to issue
a statement of decision, the doctrine of implied findings is
inapplicable. As we explained in Discussion, part B, ante, Gill
waived his right to obtain a statement of decision. (See A.G.,
supra, 246 Cal.App.4th at p. 1282 [“ ‘ “[A]ppellant’s express or
implied waiver of a statement of decision on the appealed issues
unequivocally invokes the doctrine of ‘implied findings.’ ” ’ ”].)
35
1. The family court’s decision to award a section 271
sanction is supported by substantial evidence
As set forth in Discussion, part A.2, ante, the order
granting Badial’s request for sanctions under section 271 stems
from the family court’s finding that Gill had intentionally delayed
sale of the rental properties. Gill disputes that finding by
arguing that “[a] reading of the pleadings and testimony in this
matter[ ] clearly demonstrates [Gill’s] compliance and cooperation
in the sale of the rental properties.” Gill attributes the delay in
the sale of the properties to Perez, Badial, and the “lack of
cooperation from tenants.”
Each side vigorously disputes the other party’s account of
the events occurring between the entry of the dissolution
judgment and the ultimate disposition of the rental properties.
Under our deferential standard of review, we need not wade into
every point of evidentiary contention asserted by the parties.
“Our job is only to see if substantial evidence exists to support
the [ruling] in favor of the prevailing party, not to determine
whether substantial evidence might support the losing party’s
version of events.” (See Schmidt v. Superior Court (2020)
44 Cal.App.5th 570, 582 (Schmidt).) We conclude substantial
evidence supports the family court’s finding that Gill deliberately
thwarted the sale of the two rental properties.
On August 31, 2020, Badial filed a declaration from Perez.
In that declaration, Perez attested he was a “broker associate . . .
with over 20 years of experience with real estate sales and
brokering, land management, property management, business
administration, and real estate investment.” Perez stated, “In
[his] professional opinion, the[ rental] properties should have sold
in 2019” because “the market [was] . . . very active, the properties
36
[were] attractive salable investment properties in desirable areas
. . . with positive cash flows, good capitalization rates, and high
potential for long-term equity growth,” and he claimed to have
“received over 40 credible offers for both properties combined.”
Perez further claimed that “COVID-19 [was] not proving to be an
impediment to motivated and willing sellers,” and that during
the pandemic, Perez had “continued to sell similar properties in
the same neighborhood.”
Perez declared that the 48th Street property’s listing
expired on July 10, 2020, the Kenwood property’s listing had
expired on August 3, 2020, and he was “not able to relist [the
properties] since Mr. Gill ha[d] ceased communication and not
been willing to move forward with the sales.” Perez further
attested that Gill had “restricted access to the properties,
developed overly extensive escrow terms and conditions,
prolonged and delayed responses when timely decisions/sign-offs
were required, initiated lengthy and drawn out negotiations,
aggravated potential buyers in escrow, frustrated the escrow
agent, and created many obstacles and nuances throughout the
entire process.”
For instance, Perez claimed that after escrow opened on the
48th Street property at the price of $1,099,000 on
November 11, 2019, the buyer requested approximately $10,000
as a credit for termite extermination. Perez stated that although
Perez, the buyer’s agent, and Badial had each agreed to “credit
the buyer for . . . $7,500 split 3 ways[,] Mr. Gill refused to
negotiate and wanted to fully terminate escrow . . . .” According
to Perez, “the sale did not go through because Mr. Gill was
extremely difficult to move forward with on the transaction.”
37
Perez related that “[t]he buyer’s appraisal eventually expired,
and escrow was fully cancelled in March 2020.”
Another example of Gill’s alleged intransigence identified
in Perez’s August 31, 2020 declaration was Gill’s 21-day delay in
opening escrow for the Kenwood property. Perez stated he
“received a cash offer above the asking price at $1,125,000” on
March 6, 2020, but escrow was not opened until March 25, 2020
because Gill kept adding “escrow terms and conditions” and
provided “delayed responses/approvals and signatures.” Perez
asserted the buyer ultimately “got nervous” and terminated
escrow because of the onset of the COVID-19 pandemic.
In May 2021, Badial filed Perez’s supplemental declaration.
Perez stated he relisted the rental properties for sale in
January 2021. But, according to Perez, “Gill once again ha[d] no
intention to sell the properties and all the same issues with Mr.
Gill’s lack of motivation to sell ha[d] been apparent, such as
finding fault in buyers/offers when they [we]re strong offers and
creating nuances and roadblocks [at] every step of the sales
process . . . .” For example, Perez attested that although he
received an “ ‘all-cash offer’ with no inspection” for the Kenwood
property in January 2021, the sale ultimately did not occur
because Gill refused to allow this buyer to conduct “a final walk
through” of the property “once the lock-down was over.”
Although Gill acknowledges Perez made “statements . . . in
his declarations indicating the rental properties ha[d] not sold
due to [Gill’s] actions,” Gill argues his trial counsel elicited on
cross-examination testimony from Perez that “directly
contradicted” Perez’s prior written testimony. Under the
substantial evidence standard of review, we may reject “the
statements of a witness who has been believed by the trier of
38
fact” only if “it [is] physically impossible for the statements to be
true, or their falsity [is] apparent without resorting to inferences
or deductions.” (See In re Jordan R. (2012) 205 Cal.App.4th 111,
135–136, citing People v. Friend (2009) 47 Cal.4th 1, 41 (Friend).)
Gill’s arguments fall short of satisfying this standard. For
example, in an apparent attempt to show that Gill was not the
cause of the delay in the sale of the rental properties, Gill asserts
Perez testified that Perez “had difficulty gaining access to the
rental properties after the pandemic broke out.” Gill further
claims Perez confirmed that Gill “promptly signed” listing
agreements when Gill had been asked to do so. Similarly, Gill
argues Perez testified that Gill “signed off on every offer that
[Badial] had signed off on.” Gill lists eight other propositions
that he claims are supported by Perez’s cross-examination
testimony. All of Gill’s challenges to Perez’s credibility require us
to resort to inferences and deductions in order to determine how
they supposedly support Gill’s position. Also, “impeachment
arguments” that amount to nothing more than “simple conflicts
in the evidence” do not warrant reversal (e.g., the trial testimony
“differed in some details from [the witness’s] previous
statements”). (See Friend, supra, 47 Cal.4th at pp. 40–41.)
Because Gill’s attempts to undercut Perez’s written
testimony regarding Gill’s obstreperous behavior ignore the
applicable standard of review, we conclude the family court
did not err in relying on that testimony. Viewing that evidence in
the light most favorable to Badial, we conclude it supports the
court’s express finding that Gill “frustrated the policy of the law
to promote settlement of litigation” and “reduce the cost of
litigation by encouraging cooperation between the parties and
attorneys.” (Schmidt, supra, 44 Cal.App.5th at p. 582 [“We
39
must . . . view the evidence in the light most favorable to the
prevailing party.”].) Accordingly, substantial evidence supported
the family court’s decision to impose sanctions against Gill under
section 271. (See § 271, subd. (a) [permitting a family court to
impose a sanction under such circumstances]; Thompson, supra,
6 Cal.App.5th at p. 981 [“A single witness’s testimony may
constitute substantial evidence to support a finding.”].)
2. The family court erred in awarding sanctions not
tethered to attorney fees and costs
Gill argues the family court abused its discretion in
awarding Badial $122,760 as a sanction under section 271, which
amount Badial “represented was half the net rental proceeds.”20
Gill also contends the award is inconsistent with the family
court’s denial of Badial’s request for reimbursement of those
rental proceeds. He further contends “any sanctions orders were
limited to $53,415, which reflects attorney fees and costs [Badial]
actually incurred.” As set forth in our Factual and Procedural
Background, part 2, ante, the $53,415 figure is the amount
Badial’s counsel proffered in her declaration in support of her
request for “Attorney Fees and Costs per Family Code §271.”
(Boldface & italics omitted.)
Badial agrees that “[a] section 271 sanction must be
‘tethered to charged or anticipated attorney fees and costs’ ” and
that a “sanction will be reversed if it ‘bear[s] no relationship to
20 In connection with this claim of error, Gill argues in
passing that Badial “falsely represented” that $122,760
constituted half the net rental proceeds. Because Gill does not
develop this argument further, we decline to address it. (See
Hernandez, supra, 37 Cal.App.5th at p. 277.)
40
[the moving party’s] attorney fees and costs.’ ” She, however,
claims the family court “could have sanctioned Gill any amount
that it thought proper, provided that it was less than Badial’s
total attorney’s fees and costs” and the amount did not impose an
unreasonable financial burden on Gill. She relies on In re
Marriage of Corona (2009) 172 Cal.App.4th 1205 (Corona) for this
proposition.
Badial contends “[h]er total attorney’s fees and costs were
approximately $200,000 ($124,486.30 in attorney’s fees with
Butterworth [citation] and $82,210 with her prior attorneys
[citation].” She further claims that “[i]n selecting $122,760, or
half the net rental income that Gill improperly obtained because
of his delay in selling the properties, the [family] court set the
sanctions award within the appropriate range[,] . . . resulting in
Gill losing his improperly received profits.” According to Badial,
“This remedy satisfies the public policy goals of Section 271”
because “[a] party that knows he will lose his profits caused by
his improper delay and lack of cooperation will lose his incentive
to engage in such sanctionable tactics.” She asserts that an
award of a section 271 sanction is not merely compensatory but
also intended to “punish and deter the problematic conduct.”
Badial’s position that a family court can award section 271
sanctions as long as (1) the award does not exceed the requesting
spouse’s total attorney fees and costs and (2) does not impose an
unreasonable financial burden is not supported by the text of
section 271 or case law. Accordingly, the family court abused its
discretion in measuring sanctions based on half the net rental
proceeds from the subject properties. (See Miyamoto v.
Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1218
[“ ‘ “Action that transgresses the confines of the applicable
41
principles of law is outside the scope of discretion and we call
such action an ‘abuse’ of discretion.” ’ ”].)
a. Badial’s interpretation of section 271 is
inconsistent with its text and cases interpreting
that statute
Badial’s argument that the only limits on an award of
section 271 sanctions are her total attorney fees and costs and
Gill’s financial circumstances is inconsistent with the text of
section 271. Section 271 states that a “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.” (See § 271, subd. (a), italics added.) On
its face, the statute requires an award of attorney fees and costs
that is at least logically connected to the sanctionable conduct. If
averting an unreasonable financial burden and ensuring that a
sanction does not exceed a party’s total attorney fees and costs
were the only limitations on an award under section 271, then
there would be no need to include text providing that the amount
of the award be “base[d] . . . on the extent” of a party’s or an
attorney’s sanctionable conduct. Because “ ‘[w]e do not presume
that the Legislature performs idle acts, nor do we construe
statutory provisions so as to render them superfluous[,]’
[citation]” (see Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4th 381, 390), we decline to adopt Badial’s interpretation
of section 271.
Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142(Sagonowsky), and Menezes v. McDaniel (2019) 44 Cal.App.5th
42340 (Menezes), shed further light on the meaning of this statutory
text.
In Sagonowsky, the appellate court reversed the family
court’s section 271 sanctions award of (1) $500,000 for the wife’s
“conduct in increasing the cost of the litigation and frustrating
settlement”; and (2) “$180,000 for causing a reduction in the sale
price of real property awarded to [the husband] in the dissolution
judgment, because these amounts were untethered to attorney
fees and costs incurred by [the husband].” (Sagonowsky, supra,
6 Cal.App.5th at p. 1144.) In arriving at this conclusion, the
Sagonowsky court explained that section 271 does not limit
sanctions “ ‘to the cost to the other side resulting from the bad
conduct’ ” because “the misconduct may increase attorney fees in
ways that are indirect and difficult to prove.” (See Sagonowsky,
at pp. 1155–1156.) Consequently, “the party seeking sanctions
pursuant to section 271 need not establish with great precision an
amount directly caused by the improper conduct.” (See
Sagonowsky, at p. 1155, italics added.)
Although Badial relies on Sagonowsky, we fail to see how it
supports her arguments. First, the Sagonowsky court rejected a
measure of sanctions that was not based on attorney fees and
costs. (See Sagonowsky, supra, 6 Cal.App.5th at p. 1156 [“[W]e
must conclude the plain language of section 271 did not authorize
the court to award $500,000 to punish [the wife] for her culpable
conduct, or $180,000 for the reduction in the sales price of the
[real] property, because those amounts bear no relationship to
[the husband’s] attorney fees and costs.”].) Second, as to awards
of attorney fees and costs under section 271, Sagonowsky merely
recognized that a sanction may be measured based on an
approximation of such fees and costs. (See Sagonowsky, at
43
p. 1155 [“[T]he party seeking sanctions pursuant to section 271
need not establish with great precision an amount directly caused
by the improper conduct.”].) Nowhere did the Sagonowsky court
hold that any amount of fees and costs not exceeding a spouse’s
total fees and costs would satisfy section 271’s requirement that
fees and costs be “tethered to attorney fees and costs incurred by
[that spouse]” for the purpose of the statute. (See Sagonowsky, at
p. 1144 [summarizing the court’s holding].)
Badial’s reliance on Menezes is similarly of no avail. There,
the family court awarded $200,000 as a section 271 sanction for
the wife’s noncompliance with court orders facilitating the
transfer of real property in Brazil to her husband. (See Menezes,
supra, 44 Cal.App.5th at pp. 343–345.) Included in the husband’s
request for sanctions were costs like travel expenses to Brazil and
lost vacation time that the Menezes court rejected because they
were “not tethered to attorney fees and costs.” (See id. at p. 351.)
The husband’s request for sanctions encompassed other expenses
as well, including “approximately $80,000–$90,000 in California
attorney fees and $16,000–$17,000 in Brazil attorney fees . . . .”
(See ibid.)
The Court of Appeal concluded the trial “court’s order
sanctioning [the w]ife $200,000 lack[ed] detail that [would have]
allow[ed the appellate court] to track the award to the evidence in
the record.” (See Menezes, supra, 44 Cal.App.5th at p. 352.)
“Because there [was] not sufficient evidence demonstrating
$200,000 tethered to charged or anticipated attorney fees and
costs,” the Court of Appeal reversed the award, and remanded
the matter to the family court with an instruction to “include in
its order information regarding the basis for the sanction to allow
for meaningful review.” (See ibid.)
44
Quoting Sagonowsky, the Menezes court reiterated the fact
that the very words of section 271 provide that a sanction must
be measured in attorney fees and costs. (See Menezes, supra,
44 Cal.App.5th at p. 350 [“ ‘The plain language of section 271
authorizes the court to impose “attorney’s fees and costs” as a
sanction for conduct frustrating settlement or increasing the cost
of the litigation[,]’ ” quoting Sagonowsky, supra, 6 Cal.App.5th at
p. 1153].) Menezes also confirms what is apparent from the plain
language of section 271: The statute exposes “ ‘ “a party who . . .
engages in conduct frustrating or obstructing the public policy” ’ ”
of promoting settlement and encouraging cooperation to “ ‘
“liability for the adverse party’s costs and attorney fees such
conduct generates.” [Citation.]’ [Citation.]” (See Menezes, at
pp. 348–349, italics added.)
In sum, this case law collectively establishes that although
section 271 does not require a direct relationship between a
party’s improper behavior and the opposing party’s attorney fees
and costs, the statute still requires some connection between the
two. Although we agree with Badial that section 271 is designed
to discourage a party’s “improper delay and lack of cooperation,”
the means by which the Legislature sought to achieve that
objective is “an award of attorney’s fees and costs” that is
“base[d]” 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 “encourag[es] cooperation between
the parties and attorneys.” (See § 271, subd. (a).) In requesting
section 271 sanctions, Badial asked for approximately $54,000
and change as attorney fees and costs. (See Factual & Procedural
Background, part 2, ante.) We fail to discern how an amount
more than double those fees and costs is connected to the
45
sanctionable conduct. Accordingly, we reject Badial’s assertion
that the statute empowered the family court to disgorge from Gill
$122,760 in “improperly received profits” as long as the disgorged
amount did not (1) exceed her total attorney fees and costs and
(2) impose an unreasonable financial burden on him. (See
Sagonowsky, 6 Cal.App.5th at p. 1153 [“Section 271 ‘means what
it says’—sanctions available under the statute are limited to
‘attorney fees and costs.’ ”]; see also T-Mobile West LLC v. City
and County of San Francisco (2019) 6 Cal.5th 1107, 1123 [“[N]o
legislation pursues its objectives at all costs.”].)
b. Corona does not support Badial’s contention
that the family court could award section 271
sanctions in any amount not exceeding her total
attorney fees and costs as long as the award
would not impose an unreasonable financial
burden on Gill
Badial quotes Corona to argue that the family court could
have awarded any amount of sanctions as long as the amount
did not exceed her total attorney fees and costs or impose an
unreasonable financial hardship on Gill: “ ‘[S]ection 271 . . .
does not require a correlation between the sanctioned conduct
and specific attorney fees’ ”; and “ ‘Here, the court had
information permitting it to make a reasoned determination of an
appropriate amount of sanctions that would not impose an undue
hardship on Richard [(the husband)] and would not exceed the
total attorney fees Claire [(the wife)] had incurred.’ ” (Quoting
Corona, supra, 172 Cal.App.4th at pp. 1226–1227, italics added
by Badial.) Corona, however, never had occasion to decide the
validity of the rule Badial advocates.
46
In that case, the appellate court upheld under section 271
the family court’s award of $5,000 in sanctions to the wife, even
though the family court did not identify the statutory basis for its
award. (See Corona, supra, 172 Cal.App.4th at pp. 1209–1210,
1213–1214, 1223–1224, 1228.) On appeal, the husband relied on
a defunct statute in the Code of Civil Procedure as the relevant
sanctions statute. (See id. at pp. 1223–1224.)
The $5,000 sanctions award was based on the husband’s
failure to comply with obligations regarding paying housing costs
under a marital settlement agreement. (See Corona, supra,
172 Cal.App.4th at pp. 1210–1211, 1213–1214.) The wife had
submitted a declaration indicating that obtaining the award of
housing cost “ ‘arrears cost [her] in excess of $200,000 in attorney
fees.’ ” (See id. at p. 1227.) The parties had also litigated other
issues concerning the enforcement of the settlement agreement
(see, e.g., id. at p. 1212 [indicating that the wife sought awards of
other amounts allegedly due under the settlement, including
“payments for her telephone long-distance bills and automobile
insurance”]), and the wife indicated in one of her income and
expense reports that “she still owed her attorneys over
$146,577.97 in fees, and had paid them approximately $183,000
as of that time” (see id. at p. 1227). It was in this context that
the appellate court ruled the family court “had information
permitting it to make a reasoned determination of an appropriate
amount of sanctions that would not impose an undue hardship on
[the husband] and would not exceed the total attorney fees [the
wife] had incurred.” (See ibid.)
Badial extrapolates from this language that any award not
exceeding her total attorney fees and costs would be appropriate
and, presumably, not an abuse of discretion. This is simply a
47
non-sequitur given the facts of Corona.21 (See In re H.E. (2008)
169 Cal.App.4th 710, 721 [“ ‘Language used in any opinion is of
course to be understood in the light of the facts and the issue
then before the court, and an opinion is not authority for a
proposition not therein considered.’ ”].)
For all these reasons, we reverse the amount of the
sanctions award, and remand the matter to the family court to
determine an amount of attorney fees and costs that is consistent
with our opinion. (See Menezes, supra, 44 Cal.App.5th at p. 352
[reversing an award under section 271 “to the extent it impose[d]
a . . . sanction untethered to . . . attorney fees and costs” and
“remand[ing] the matter for further consideration”].)
21 Badial also cites Corona’s statement to the effect that
section 271 does not “require a correlation between the
sanctioned conduct and specific attorney fees . . . . ” (Corona,
supra, 172 Cal.App.4th at p. 1226.) The Corona court made this
statement in the course of rejecting the husband’s substantial
evidence attack on the award for lack of evidence of the wife’s
financial condition. (See ibid.) The court responded with the
aforementioned quotation and observed that section 271 “is not a
need-based statute” apparently to distinguish section 271
attorney fee awards from other Family Code statutes awarding
attorney fees based on the spouses’ relative financial condition.
(See id. at pp. 1226–1227; see, e.g., In re Marriage of Knox (2022)
83 Cal.App.5th 15, 39–40 [characterizing an award of pendente
lite attorney fees as a “need-based fee award”].) Given this
context, the quoted language cannot carry the weight Badial’s
argument imposes on it.
48
D. Even if Arguendo Badial’s Declarations Exceeded
Applicable Page Limitations, Gill Fails To Show
These Violations of State Law Prejudiced Him
Gill contends the family court “should not have considered
[Badial’s] multitude of filings as they far exceeded the permitted
page allotment.” In particular, he asserts that Badial’s
“declarations filed in relation to her RFO, not including those of
her attorney, totaled 32 pages.” He argues the aggregate length
of Badial’s declarations violated California Rules of Court,
rule 5.111(a), which provides: “A declaration included with a
request for court order or a responsive declaration must not
exceed 10 pages in length. A reply declaration must not exceed
5 pages in length, unless: [¶] (1) The declaration is of an expert
witness; or [¶] (2) The court grants permission to extend the
length of a declaration.” (Cal. Rules of Court, rule 5.111(a).)
“Because we are addressing state law error, [Gill] must
show” that it is “ ‘ “reasonably probable that a result more
favorable to [him] would have been reached in the absence of the
error.” ’ [Citations.]”22 (See People v. Gonzalez (2018) 5 Cal.5th
186, 195, 201; see also Parkford Owners for a Better Community
v. County of Placer (2020) 54 Cal.App.5th 714, 721 [“[T]he
ultimate burden of demonstrating reversible error is always on
the appellant,” italics added].) Absent from Gill’s briefing is any
explanation as to how Badial’s alleged contravention of the page
22 Gill does not contend that this purported error was
structural. (See also People v. Lewis (2021) 11 Cal.5th 952, 973
[noting that errors of state law are “[t]ypically” subject to
harmless error review].)
49
limitations prejudiced him. Accordingly, we do not address this
challenge any further.
E. Badial Fails To Demonstrate that the Net Rental
Proceeds Awarded as a Section 271 Sanction Would
Constitute an Omitted Asset Under Section 2556
Badial contends that even if half the net rental proceeds
could not be awarded as a sanction under section 271, then we
should affirm the family court’s award of $122,760 because her
half of the net rental proceeds was an omitted asset under section
2556. We disagree.
Section 2556 provides in pertinent part: “In a proceeding
for dissolution of marriage, . . . the court has continuing
jurisdiction to award community estate assets or community
estate liabilities to the parties that have not been previously
adjudicated by a judgment in the proceeding.” (§ 2556.) In other
words, an omitted asset is one that has not been adjudicated
previously.
Here, Badial’s claim to net rental proceeds was “previously
adjudicated by a judgment” through the parties’ mediation
proceedings resulting in the memoranda of intent regarding
settlement and the stipulated judgment described in part 1 of our
Factual and Procedural Background. Badial conceded in a
declaration supporting her RFO that in agreeing to the
settlement and stipulated judgment, she was aware of rental
income as a potential marital asset to be divided. Indeed, even
though she believed she was “obviously” entitled to 50% of the net
rental profits, she “agreed to let go” of those profits in return for
Gill’s agreement to add the net monthly rental income for
purposes of calculating child support and to manage the
50
properties “at no cost.”23 Under these circumstances, the net
rental proceeds were not an omitted asset.
F. Our Reversal of the Amount of the Sanction Moots
Gill’s Remaining Appellate Claims
Gill argues that Badial violated provisions of the Code of
Civil Procedure and California Rules of Court by failing timely to
file and serve certain documents, including the brief her counsel
filed on July 30, 2021 requesting “half the net rental proceeds
[Gill] received” as a sanction under section 271. Gill further
claims the family court infringed upon his due process right to a
reasonable opportunity to oppose Badial’s request for sanctions
by considering these untimely filings.
The only harm Gill claims to have suffered as a result of
Badial’s alleged failure to submit her filings in a timely fashion is
his supposed inability adequately to respond to Badial’s assertion
that the $122,760 in net rental proceeds was recoverable as a
sanction under section 271. Gill does not claim that Badial’s
tardy filings deprived him of a reasonable opportunity to oppose
Badial’s claim that he engaged in sanctionable conduct by
delaying the sale of the rental properties.
Accordingly, even if Gill were to prevail on his state law
and federal due process challenges to the timeliness of Badial’s
filings, he would be entitled to a reversal of only the amount of
23 It is not clear what amount of net rental proceeds was to
be considered for purposes of calculating child support because
Badial also claimed in her declaration that when she agreed to
the memoranda of intent regarding settlement and the stipulated
judgment, Gill had misrepresented that the monthly net rental
proceeds were only $1,007.
51
the sanction, and not of the family court’s finding that Gill had
engaged in conduct sanctionable under section 271. (See Gray v.
Cotton (1913) 166 Cal. 130, 139 [“The practice of reversing a
judgment in part only is well settled in this court [citations], and
should be followed where the error found to have been committed
has affected the determination of but one or more of a greater
number of distinct and severable issues or causes of action.”];
9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 917, p. 926
[“The reviewing court may reverse a judgment in part and affirm
it in part, with or without directions, where the judgment is
severable as to causes of action, issues, or parties, and the
erroneous part may be severed from the remainder.”];
Sagonowsky, supra, 6 Cal.App.5th at pp. 1152–1153 [indicating
that whether a party’s “conduct warrant[s] a sanction under
section 271” is an issue severable from whether the amount of the
sanction is proper].)
Gill also claims that the $122,760 the family court awarded
as sanctions “imposed an unreasonable financial burden” on him.
A favorable ruling on this challenge (1) would not affect the
family court’s determination that Gill was deserving of
section 271 sanctions; and (2) would be superfluous given our
reversal of the amount of those sanctions. We thus do not
address it further.
In short, because our reversal of the amount of the
section 271 sanction moots these remaining appellate claims, we
decline to address them. (See In re D.P. (2022) 14 Cal.5th 266,
276 [“A court is tasked with the duty ‘ “to decide actual
controversies by a judgment which can be carried into effect, and
not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the
52
matter in issue in the case before it.” ’ [Citation.] A case becomes
moot when events ‘ “render[ ] it impossible for [a] court, if it
should decide the case in favor of [a party], to grant him any
effect[ive] relief.” ’ ”].)
DISPOSITION
The family court’s October 13, 2021 order awarding a
sanction under Family Code section 271 to respondent
Davinder K. Badial is affirmed in part and reversed in part.
We affirm the family court’s determination that appellant
Baldev S. Gill engaged in conduct warranting sanctions under
section 271, but reverse the amount of the sanction, $122,760.
Upon remand, the family court shall exercise its discretion to
determine the amount of attorney fees and costs under
section 271 and conduct further proceedings consistent with this
opinion. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
53