Fauerbach v. Carlisle CA3 ( 2023 )

Filed 6/12/23 Fauerbach v. Carlisle CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
----
CAROL FAUERBACH, C092170
Plaintiff and Respondent, (Super. Ct. No. PFL20150037)
v.
WILLIAM CARLISLE,
Defendant and Appellant.
This appeal is one in a series of appeals concerning an ongoing feud between
former spouses, William Carlisle and Carol Fauerbach. Carlisle, an attorney representing
himself in propria persona, asserts a myriad of arguments challenging the trial court’s
May 19, 2020 order, in which the trial court denied his claims of exemption from levies
to enforce Fauerbach’s money judgment. We deem the majority of Carlisle’s arguments
forfeited and find no merit in the remainder. We thus affirm.
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FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
We take some of the background facts from our unpublished opinions in prior
appeals between the parties because Carlisle failed to provide this court with an adequate
record from which to glean all pertinent facts. (Cal. Rules of Court, rule 8.115(b)(1)
[court may cite an unpublished case “[w]hen the opinion is relevant under the doctrines
of law of the case, res judicata, or collateral estoppel”].)
“The parties married in 1991 and divorced in 2015.” (Fauerbach v. Carlisle
(Mar. 8, 2023, C090306) [nonpub. opn.].) “Among other rulings made in a 2018
judgment arising out of the parties’ divorce proceedings, the trial court (1) divided the
parties’ community property, (2) ordered Carlisle to pay $8,000 a month in permanent
spousal support to Fauerbach, (3) ordered Carlisle to pay to Fauerbach $125,000 in
sanctions pursuant to Family Code section 271, and (4) awarded to Carlisle” certain bank
accounts and funds. (Ibid., fn. omitted.) This court upheld the 2018 judgment in 2021.
(In re Marriage of Carlisle (Jan. 6, 2021, C086346) [nonpub. opn.].)
At issue in this appeal is the trial court’s denial of Carlisle’s claims of exemption
from levies to enforce Fauerbach’s money judgment. The trial court explained the
dispute centered around “monies levied from purported retirement accounts held at Bank
of the West ($147,564.83), Union Bank ($143,143.54), El Dorado Savings [Bank]
($57,825.07), and U.S. Bank ($1,888.83)” and “$30,000 deposited in an account held at
Bank of the West, which [Carlisle] claims is not subject to levy because it was money
being held in trust (relating to an attorney fee lien) at the time of levy.” To set the stage
for the trial court’s ruling, we briefly provide a general summary of the pertinent law
regarding claims of exemption.
2
“Except as otherwise provided by law, all property of the judgment debtor is
subject to enforcement of a money judgment.” (Code Civ. Proc., § 695.010, subd. (a).)1
The types of property exempt from this rule are enumerated in sections 704.010 to
704.230. Private retirement accounts are generally a type of property exempt from
enforcement of a money judgment. (§ 704.115, subd. (b).) When money in a private
retirement plan, as described in section 704.115, subdivision (b), however, “is sought to
be applied to the satisfaction of a judgment for child, family, or spousal support” (id.,
subd. (c)(1)), the trial court must “determine the extent to which the exempt property
nevertheless shall be applied to the satisfaction of the judgment” (§ 703.070, subd. (c)).
“In making this determination, the court shall take into account the needs of the judgment
creditor, the needs of the judgment debtor and all the persons the judgment debtor is
required to support, and all other relevant circumstances. The court shall effectuate its
determination by an order specifying the extent to which the otherwise exempt property
is to be applied to the satisfaction of the judgment.” (Ibid.) To assist in the foregoing
review, section 703.530, subdivision (a) provides, “If property is claimed as exempt
pursuant to a provision exempting property to the extent necessary for the support of the
judgment debtor and the spouse and dependents of the judgment debtor, the claim of
exemption shall include a financial statement,” as more specifically described in
subdivision (b). “The financial statement shall be executed under oath by the judgment
debtor and, unless the spouses are living separate and apart, by the spouse of the
judgment debtor.” (Id., subd. (c).)
“In general, any property of the judgment debtor that is subject to enforcement of
a money judgment is subject to levy under a writ of execution under section 699.710.”
(FirstMerit Bank, N.A. v. Reese (2015) 242 Cal.App.4th 408, 412.) The judgment debtor
1 All undesignated section references are to the Code of Civil Procedure.
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may file a claim of exemption after being served with a notice of levy (§ 703.520,
subd. (a)), and the judgment creditor, in turn, may file a notice of opposition and notice of
motion for an order determining the claim of exemption (§ 703.550, subd. (a)). If a
notice of opposition to the claim of exemption is filed, the judgment creditor is entitled to
a hearing. (§ 703.570.) “The claim of exemption and notice of opposition to the claim of
exemption constitute the pleadings, subject to the power of the court to permit
amendments in the interest of justice.” (§ 703.580, subd. (a).) At the hearing, “the
exemption claimant has the burden of proof.” (Id., subd. (b).) If the court is “satisfied
that sufficient facts are shown by the claim of exemption . . . and the notice of opposition,
[the trial court] may make its determination thereon. If not satisfied, the court shall order
the hearing continued for the production of other evidence, oral or documentary.” (Id.,
subd. (c).) “At the conclusion of the hearing, the court shall determine by order whether
or not the property is exempt in whole or in part,” but the trial court is not required to
make findings. (Id., subd. (d).)
In its ruling on Carlisle’s claims of exemption, the trial court initially addressed
Carlisle’s procedural arguments. The trial court rejected Carlisle’s contention that his
pending appeal of the trial court’s January 4, 2018 decision stayed the enforcement of a
writ of execution because “no stay was ordered by the court of appeal and [Carlisle] did
not post an appeal bond or an undertaking.” Second, the trial court found unpersuasive
Carlisle’s argument that “there were service defects with the notices of levy.” Third, the
trial court found “nothing procedurally improper regarding [Fauerbach’s] engagement of
[an] attorney . . . on a limited scope basis on September 9, 2019.” Finally, the trial court
found “that no protective order was issued for [Carlisle’s] accounts” and explained it
“had recently ruled again that the issue of a protective order was moot given that no
contempt matter was pending.”
Turning to the merits of Carlisle’s claims, the trial court explained that, following
its tentative rulings on Carlisle’s procedural arguments on February 25, 2020, “the court
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indicated to the parties that despite [Carlisle] having had months to provide evidence to
the court to establish which accounts are retirement accounts, he had not yet done so.
[Citation.] Pursuant to section 703.580, [subdivision (c),] the court continued the matter
to February 28[, 2020,] in order for [Carlisle] to produce additional evidence.”
The trial court denied Carlisle’s claim of exemption as to the El Dorado Savings
Bank account and the U.S. Bank account because Carlisle conceded during the hearing
that the accounts are not retirement accounts. As to the Bank of the West accounts, the
trial court ruled: “[Carlisle] is an experienced attorney with more knowledge and legal
skills than the typical self-represented litigant. Despite having ample time to provide
evidence about these accounts as the notices of levy were served in September 2019, the
court agrees with [Fauerbach] that [Carlisle] has not met his burden of proof that the levy
was made upon retirement accounts.” The trial court specifically noted Carlisle failed to
meet his burden of proof because he “provided no evidence that the money levied was
taken from his two [individual retirement] accounts as opposed to the other type of
accounts held at this bank,” Carlisle “never designated the [individual retirement]
accounts at this bank as retirement accounts during the division of assets,” and, “even
assuming, arguendo, the levy was upon retirement accounts, [Carlisle] did not provide the
court with a financial statement setting forth all of his assets and liabilities, his
dependents, and all accounts he owns” to allow the trial court to “determine what amount
would be reasonably necessary to support him in retirement,” as provided in section
703.530.
As to the Union Bank accounts, the trial court discussed the documents provided
by Carlisle and found “[n]one of the account statements show any withdrawals from the
[individual retirement accounts]” and Carlisle “did not provide any documentary
evidence establishing which account(s) the levy was made upon.” The trial court further
reiterated that, “even assuming[] the levy was upon retirement accounts, [Carlisle] did not
provide adequate financial information for the court to determine what amount would be
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reasonably necessary to support him in retirement.” Thus, the trial court denied that
portion of Carlisle’s claim of exemption.
Next, the trial court considered Carlisle’s claim of exemption as to the $30,000 in
the Bank of the West account, which, according to Carlisle, constituted a payment for
disputed attorney fees. Carlisle asserted the money was for his work in a worker’s
compensation matter and the money was being held in trust pending resolution of a lien
for attorney fees. The lien was ultimately rejected and that decision became final on
February 11, 2020.
The trial court denied Carlisle’s claim of exemption as to the $30,000, finding he
“did not deposit the money into a trust account such as an [Interest on Lawyers’ Trust
Account]” and instead commingled the money with other funds when he deposited the
money into “one of his business accounts.” The trial court further found the money was
subject to levy because “the claim of exemption period runs from the time of levy
through the hearing on the exemption” and the lien dispute decision became final “during
the exemption period and prior to the hearings in th[e] matter” before the trial court.
Carlisle appeals.
DISCUSSION
“It is the appellant’s burden to demonstrate the existence of reversible error.” (Del
Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error. [Citations.] When a point
is asserted without argument and authority for the proposition, ‘it is deemed to be without
foundation and requires no discussion by the reviewing court.’ [Citations.] Hence,
conclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
With respect to citations to the record, the appellant must “[s]upport any reference
to a matter in the record by a citation to the volume and page number of the record where
the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “If a party fails to
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support an argument with the necessary citations to the record, that portion of the brief
may be stricken and the argument deemed to have been [forfeited].” (Duarte v. Chino
Community Hospital (1999) 72 Cal.App.4th 849, 856.) As the reviewing court, we will
not perform an independent, unassisted review of the record “ ‘in search of error or
grounds to support the judgment.’ ” (McComber v. Wells (1999) 72 Cal.App.4th 512,
522.)
In addition, the appellant must “[s]tate each point under a separate heading or
subheading summarizing the point.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) “This is
not a mere technical requirement; it is ‘designed to lighten the labors of the appellate
tribunals by requiring the litigants to present their cause systematically and so arranged
that those upon whom the duty devolves of ascertaining the rule of law to apply may be
advised, as they read, of the exact question under consideration, instead of being
compelled to extricate it from the mass.’ ” (In re S.C., supra, 138 Cal.App.4th at p. 408.)
“Failure to provide proper headings forfeits issues that may be discussed in the brief but
are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172,
179.) Finally, “ ‘ “[a]rguments should be tailored according to the applicable standard of
appellate review.” [Citation.] Failure to acknowledge the proper scope of review is a
concession of a lack of merit,’ ” rendering the arguments subject to forfeiture. (Ewald v.
Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)
The foregoing rules apply to all litigants, including those who represent
themselves on appeal. (McComber v. Wells, supra, 72 Cal.App.4th at p. 523.) We deem
the majority of Carlisle’s arguments forfeited under the foregoing legal principles, as
explained post.
Before we analyze Carlisle’s arguments, however, we note that we do not consider
postjudgment items included in the appellant’s appendix because the documents do not
assist in our review of the trial court’s ruling. Nor do we consider any documents that
were not filed in the trial court with regard to the claims of exemption that form the basis
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for this appeal. “It is an elementary rule of appellate procedure that, when reviewing the
correctness of a trial court’s judgment, an appellate court will consider only matters
which were part of the record at the time the judgment was entered.” (Reserve Insurance
Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Carlisle has identified no exceptional
circumstances that would justify deviation from this rule. (See Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
We also do not consider Carlisle’s motion for reconsideration or his supplemental
declaration in support of that motion that was filed after the trial court issued its ruling.
The trial court did not have an opportunity to review and rule on the motion for
reconsideration because Carlisle divested the trial court of jurisdiction by filing the notice
of appeal prior to the hearing on the motion. (People v. Espinosa (2014) 229 Cal.App.4th
1487, 1496 [filing of notice of appeal generally “divests the trial court of jurisdiction to
make any order affecting the judgment”].) We find no merit in Carlisle’s conclusory
assertion, without any citation to the record or any associated legal analysis, that the
hearing on the motion for reconsideration “could not be heard within a timeframe which
would not obviate [his] right to file an appeal.” We now turn to Carlisle’s arguments.
Carlisle first asserts the trial court failed to weigh and consider the Moffat factors
in determining whether the retirement funds claimed by Carlisle to be exempt are
necessary for his support in retirement. (Citing In re Moffat (Bankr. 9th Cir. 1990)
119 B.R. 201, 206 [listing factors to be considered by the court in determining what is
reasonably necessary for support of a debtor].) Carlisle presents his analysis with respect
to the Moffat factors and then summarily asserts the trial court’s decision must be
reversed because it “reveals that very little attention was paid to the Moffat factors.”
(Italics added.) We find no merit in this argument.
Initially, we note the trial court cited Moffat in its ruling and, under section
703.580, subdivision (d), the trial court was not required to make any specific findings.
More importantly, however, the trial court did not need to apply the Moffat factors to
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determine the extent to which the purported retirement accounts are reasonably necessary
to support Carlisle. That is because the trial court found Carlisle failed to carry his
burden of proving that any of the accounts were retirement accounts or other types of
property exempt from levy, or that the money levied was taken from a retirement
account. (§ 703.580, subd. (b) [“the exemption claimant has the burden of proof”].) The
trial court also found that Carlisle failed to provide financial statements, as required by
section 703.530, from which “to determine what amount would be reasonably necessary
to support him in retirement.” In light of these findings, the first of which we affirm and
the second of which Carlisle does not challenge, Carlisle’s asserted claim of error cannot
result in a reversal and we thus do not consider it. (Cal. Const., art. VI., § 13 [no
judgment shall be set aside unless “the error complained of has resulted in a miscarriage
of justice”].)
Carlisle next argues the provisions of section 703.530 were met because he “filed
and served extensive financial documentation,” and the trial court failed “to properly
incorporate this financial documentation” in its decision. This argument is deemed
forfeited. Carlisle provides no citation to the record in that regard and , other than noting
he filed several financial statements, fails to explain the import of those filings as it
relates to the trial court’s alleged error and exercise of discretion. In the absence of any
reasoned analysis applying the pertinent standard of review with citations to the record
and legal authority, we do not consider the argument.
Carlisle’s third argument is that section 704.115 allows for private retirement
benefits to be exempt from execution. Carlisle asserts he submitted financial
documentation that specifically stated retirement plans were subject to the “levy in
September and early October 2019,” referring us to exhibits pertaining to Bank of the
West and Union Bank accounts. The problem with Carlisle’s argument is that it does not
address the trial court’s ruling, and thus does not provide a basis for reversal.
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Indeed, as to the Bank of the West accounts, the trial court ruled Carlisle failed to
meet his burden of proof because he “provided no evidence that the money levied was
taken from his two [individual retirement] accounts as opposed to the other type of
accounts held at this bank,” Carlisle “never designated the [individual retirement]
accounts at this bank as retirement accounts during the division of assets,” and, “even
assuming, arguendo, the levy was upon retirement accounts, [Carlisle] did not provide the
court with a financial statement setting forth all of his assets and liabilities, his
dependents, and all accounts he owns” to allow the trial court to “determine what amount
would be reasonably necessary to support him in retirement.” As to the Union Bank
account, the trial court similarly found Carlisle failed to “show any withdrawals from the
[individual retirement accounts],” “did not provide any documentary evidence
establishing which account(s) the levy was made upon,” and “did not provide adequate
financial information for the court to determine what amount would be reasonably
necessary to support him in retirement.” Carlisle fails to explain how the trial court erred
in making these findings or how these findings do not support the trial court’s denial of
his claims for exemption. In the absence of any cogent legal reasoning, Carlisle has
failed to demonstrate the existence of reversible error.
Carlisle’s fourth argument concerns section 703.580, subdivision (c). The
argument is difficult to follow and unclear. Carlisle initially agrees with the trial court’s
recitation of section 703.580, subdivision (c) that the trial court “shall” allow for
production of evidence that the trial court finds missing or lacking. Carlisle then notes
his general dissatisfaction with the deadlines in “the writ/levy system” and asserts various
factual arguments without any citations to the record, which we disregard. Carlisle
thereafter asserts, if the trial court believed it lacked adequate financial documentation or
had questions regarding the documents provided by Carlisle, the trial court should have
ordered or allowed Carlisle to produce further documentation or witness testimony.
10
We are unable to address Carlisle’s argument because we can find no basis for
analyzing any asserted claim of error. In the decision, the trial court wrote it continued
the hearing on the exemption claims pursuant to section 703.580, subdivision (c) “in
order for [Carlisle] to produce additional evidence.” In other words, the trial court gave
Carlisle the benefit of section 703.580, subdivision (c). Carlisle presents no argument
with reasoned analysis that the trial court was required to provide him with yet another
bite at the apple. To the extent Carlisle believes the trial court was required to request
additional documentation or evidence until the trial court was satisfied Carlisle proved his
exemption claim, we disagree. Not only has Carlisle provided no reasoned argument or
cited any legal authority for such a proposition, but also nothing in the statute imposes
such a duty on the trial court. In fact, it is clear “the exemption claimant has the burden
of proof.” (§ 703.580, subd. (b).) In other words, Carlisle had to prove his claim. The
trial court did not have a duty to give Carlisle unlimited opportunities to furnish
documents and evidence to substantiate his claims of exemption.
Carlisle’s fifth argument is also difficult to follow. Carlisle states section 703.610,
subdivision (b) provides the trial court “may make any orders proper during the pendency
of the proceedings.” (Boldface & underlining omitted.) That code provision provides:
“At any time while the exemption proceedings are pending, upon motion of the judgment
creditor or a claimant, or upon its own motion, the court may make any orders for
disposition of the property that may be proper under the circumstances of the case. The
order may be modified or vacated by the court at any time during the pendency of the
exemption proceedings upon any terms that are just.” (Ibid.) As Carlisle acknowledges,
the statute is permissive. While Carlisle addresses things the trial court “could have”
done, he does not assert the trial court erred in any specific regard. We further fail to see
the pertinence of the citations to the reporter’s transcript in the second part of the
argument and disregard them. Carlisle fails to explain the import of the statements and
11
how the statements support any assertion of error. In the absence of finding any
ascertainable assertion of error, we disregard the argument.
In his sixth argument, Carlisle states the trial court has the “equitable power to
recall . . . or quash a writ of execution and vacate an execution levy.” (Boldface &
underlining omitted.) Carlisle asks us to “see” two cases but fails to explain with
reasoned analysis how the cases apply to the facts of this case or demonstrate error on
appeal. Carlisle further attacks Fauerbach’s purported failure to provide certain
documents (without providing any citations to the record in that regard); states the trial
court should have used “its equitable power to ensure a fair result, including but not
limited to production of whatever additional documents as the [c]ourt might find to be
missing or lacking”; and generally discusses the nature of a trial court’s equitable powers.
Given the lack of any reasoned analysis by application of legal authority through the
prism of the applicable standard of review to the facts in this case (as supported by
appropriate record citations), we deem the argument forfeited.
Carlisle next argues, “A motion to quash is a proper remedy to correct any errors
or unauthorized acts of the [c]ourt’s ministerial officers.” (Boldface & underlining
omitted.) Carlisle asserts his “pleadings indicate that [he] requested that the levy and
underlying writ be quashed and/or recalled” but he provides no citation to the record for
this assertion. He further argues he was invalidly or untimely served with various
documents but identifies no errors or unauthorized acts by the trial court’s ministerial
officers. It appears Carlisle may be referring to Fauerbach’s service of documents;
however, we note the trial court found unpersuasive Carlisle’s argument that “there were
service defects with the notices of levy” and Carlisle asserts no error as to that finding on
appeal. Carlisle merely refers us to various record citations regarding statements made in
the trial court without indicating, through reasoned analysis, how the record citations
assist in our review of his appeal in this case. We thus do not address the argument.
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Carlisle’s eighth argument heading states section 918.5 “provides that the trial
court has discretion to stay enforcement of a judgment or order when the judgment debtor
has another action pending on a disputed claim against the judgment creditor.”
(Boldface, underlining, & capitalization omitted.) Carlisle asserts he “had a pending
claim for a gross overpayment of spousal support,” which was not heard until
September 21, 2020, and was decided in his favor on December 21, 2020; there was an
appeal pending pertaining to a probate court decision, which included a dispute as to
“missing funds from the Bank of America [account] during late 2014 and early 2015”;
and he filed a motion for reimbursement of the gross overpayment of spousal support on
January 21, 2021. Carlisle provides no cogent legal analysis applying any pertinent
authority to establish there was “another action” pending on a disputed claim against
Fauerbach. Moreover, Carlisle does not address the standard of review and explain how
the trial court abused its discretion. He merely summarily asserts the trial court “should
have stayed the levy proceedings pending determination of these other matters involving
[his] claims against . . . Fauerbach” and “should have continued the hearing on the levy
until it could be heard at the same time as [his] June 6, 2018 motion for retroactive
modification of spousal support.” For the reasons already stated, we deem this argument
forfeited and do not address it.
The ninth argument heading merely states, “An excessive levy gives rise to a
cause of action for abuse of process.” (Boldface & underlining omitted.) Perhaps that is
true, but we fail to understand how that has any bearing on this appeal. Carlisle’s
argument does not enlighten us either. Carlisle merely argues the trial court “should have
heard [his] motion for retroactive modification of spousal support concurrent with the
levy proceedings” and “should have stayed the writs and levy until the [Court of Appeal]
had resolved the issues which [he] previously discussed relating to [an appellate case].”
He further asserts Fauerbach and her attorney should have done various things with
regard to the overpayment of spousal support and complains that “the levy involving the
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State Compensation Insurance Fund has remained in place.” None of these statements
pertain to the argument heading and we thus decline to address them. (Pizarro v.
Reynoso, supra, 10 Cal.App.5th at p. 179.)
In his tenth argument heading, Carlisle states, “A levy applies only to the funds
which are present in an account at the time of the levy.” (Boldface & underlining
omitted.) This argument appears to focus on the trial court’s ruling as to the $30,000 in
the Bank of the West account, which Carlisle asserts was held in trust due to an attorney
fee dispute. He discusses provisions of section 699.720 but does not apply any of the
provisions to the facts in this case. Carlisle further sets forth various facts without
citations to the record and does not address the reasons stated by the trial court in ruling
that the money was subject to levy. Given the lack of cogent legal reasoning tailored to
the applicable standard of review, we deem the argument forfeited and do not address it.
We deem Carlisle’s final argument forfeited for the same reasons. The final
argument heading states, “It is inconsistent for the [c]ourt to limit testimony as well as the
introduction of documentary evidence, and subsequently find that the [c]ourt lacked
sufficient evidence.” (Boldface & underlining omitted.) Without providing any citations
to the record, Carlisle complains the trial court limited the hearing to one hour, “allowed
very limited time to present [his] case,” limited the documentary evidence, and refused to
allow him to call witnesses. Carlisle refers back to his fourth argument that section
703.580, subdivision (c) provides a trial court “ ‘shall’ allow for production of evidence
which the [c]ourt finds missing or lacking.” He further details difficulty he had in
obtaining documentation regarding the levied accounts and asserts he provided
substantial documentation to the trial court whereas Fauerbach’s attorney presented no
evidence to controvert his testimony or exhibits. Carlisle then quotes portions of the
reporter’s transcript but provides no explanation as to the pertinence of the quoted
sections. Carlisle presents no cogent legal reasoning tailored to the applicable standard of
review to demonstrate reversible error.
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Fauerbach briefly argues we should sanction Carlisle on our own motion “for
pursuing this frivolous and dilatory appeal.” “Section 907 provides that ‘[w]hen it
appears to the reviewing court that the appeal was frivolous or taken solely for delay, it
may add to the costs on appeal such damages as may be just.’ Similarly, California Rules
of Court, rule 8.276(a), provides that an appellate court has the authority to ‘impose
sanctions . . . on a party or an attorney for: [¶] Taking a frivolous appeal or appealing
solely to cause delay. . . .” (McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 1208.)
“[O]ur Supreme Court has advised us that we should hold that an appeal is
‘frivolous only when it is prosecuted for an improper motive—to harass the respondent or
delay the effect of an adverse judgment—or when it indisput[ab]ly has no merit—when
any reasonable attorney would agree that the appeal is totally and completely without
merit. [Citation.] [¶] . . . [T]he punishment should be used most sparingly to deter only
the most egregious conduct.’ ” (McCluskey v. Henry, supra, 56 Cal.App.5th at p. 1208.)
We decline Fauerbach’s invitation to impose sanctions on Carlisle on our own
motion and note Fauerbach could have filed (but did not file) a motion of her own
accompanied by a declaration supporting the amount of monetary sanction sought. (See
Bak v. MCL Financial Group, Inc. (2009) 170 Cal.App.4th 1118, 1127-1128.)
Finding no basis for reversing the trial court’s May 19, 2020 order, we affirm.
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DISPOSITION
The judgment is affirmed. Fauerbach shall recover her costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
EARL, J.
/s/
McADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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