Marriage of Presti and Chu CA2/8 ( 2023 )

Filed 8/28/23 Marriage of Presti and Chu CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re the Marriage of MATTHEW B309231, B317198
PRESTI and JANEY CHU.
MATTHEW PRESTI, Los Angeles County
Super. Ct. No. 20PDFL00918
Appellant,
v.
JANEY CHU,
Respondent.
APPEALS from orders of the Superior Court of Los Angeles
County. Amy M. Pellman and Sarah J. Heidel, Judges. Case
No. B309231 is affirmed. Case No. B317198 is reversed in part
and remanded for further proceedings.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M.
Baca for Appellant.
James Karagianides; McAlarnen & Sun and Julie
McAlarnen for Respondent.
___________________________
These are consolidated appeals from orders of the Los
Angeles Superior Court in the parties’ dissolution proceeding. At
issue is whether the trial court erred in (1) denying appellant
Matthew Presti’s request for modification of a March 2019
stipulated child support order (case No. B309231); and
(2) granting respondent Janey Chu’s request for sanctions
against Matthew and denying Matthew’s request for sanctions
against Janey (case No. B317198).1 We answer the first issue in
the negative because Matthew failed to timely raise below the
grounds he now urges for reversal. As to the second issue, we
conclude the court failed to properly exercise its discretion in
awarding fees against Matthew because it relied on findings
unsupported by the record and considered inappropriate factors,
but we find no abuse of discretion in its denial of Matthew’s
request for sanctions against Janey.
We therefore affirm the trial court’s denial of Matthew’s
request to modify the March 2019 order, reverse its sanctions
order as against Matthew, and affirm its denial of Matthew’s
request for sanctions against Janey. We remand for
reconsideration of Janey’s request for sanctions subject to the
limitations imposed by this opinion.
BACKGROUND
Matthew and Janey wed in July 2009. In March 2011, they
had a daughter, K.P. In January 2012, the couple separated. For
the duration of their marriage, they lived in Orange County
where Matthew held an information technology position with
1 Despite their different surnames, we follow the parties’
lead in referring to them by their first names.
2
Citigroup. Following their separation, Janey moved to Los
Angeles County.
Court proceedings in Orange County followed. In
November 2012 the Orange County Superior Court entered a
status only dissolution judgment, reserving other issues for later
resolution. In July 2013, it entered a judgment on child custody
issues, which provided K.P. would spend the substantial majority
of her time with Janey. In March 2015, the court entered a
stipulated judgment on child support issues, which required
Matthew to pay Janey child support of $1,123 per month. The
judgment described this rate as “guideline”—a reference to the
statewide uniform guideline for child support payment amounts
adopted pursuant to Family Code2 division 9, part 2, chapter 2,
article 2. (§§ 4050–4105.)
Matthew lost his job at Citigroup in September 2017. A
few months later, in June 2018, he moved to Los Angeles County,
near where Janey and K.P. lived.
With the parties living closer together, they agreed to
revisit their custody and support arrangements. In March 2019,
they stipulated to an order whereby K.P. would stay with each
parent approximately half the time and neither would pay the
other child support.
The March 2019 stipulation and order was prepared on an
Orange County Superior Court form that made no mention of
whether the “$0” support payment was above, below, or at the
guideline amount. It did, however, contain the five statements
section 4065, subdivision (a) makes mandatory for the court to
2 Undesignated statutory references are to the Family Code.
3
approve a below-guideline support stipulation.3 Despite
containing the statements required for a below-guideline support
stipulation, Janey claims,4 and Matthew does not dispute, that
the Orange County Superior Court entered the March 2019 order
without making the findings it would have been required to make
under section 4056 to issue a child support order that was below
guideline.5
3 Section 4065 provides, in relevant part, that “the parties
may stipulate to a child support amount subject to approval of
the court. However, the court shall not approve a stipulated
agreement for child support below the guideline formula amount
unless the parties declare all of the following: [¶] (1) They are
fully informed of their rights concerning child support.
[¶] (2) The order is being agreed to without coercion or duress.
[¶] (3) The agreement is in the best interests of the children
involved. [¶] (4) The needs of the children will be adequately
met by the stipulated amount. [¶] (5) The right to support has
not been assigned to the county . . . and no public assistance
application is pending.” (Id., subd. (a).)
4 Janey’s claim is not supported by proper citation to the
record. For the proposition, she cites a brief she filed with the
trial court. “A trial brief is not evidence, it is argument.” (In re
Marriage of Pasco (2019) 42 Cal.App.5th 585, 591 (Pasco).)
5 Section 4056 provides, in relevant part, that “the court
shall state, in writing or on the record, the following information
whenever the court is ordering an amount for support that differs
from the statewide uniform guideline formula amount under this
article: [¶] (1) The amount of support that would have been
ordered under the guideline formula. [¶] (2) The reasons the
amount of support ordered differs from the guideline formula
amount. [¶] (3) The reasons the amount of support ordered is
consistent with the best interests of the children.” (Id., subd. (a).)
4
1. Matthew’s Efforts to Modify the March 2019 Order
Just a few months after agreeing to the March 2019 child
support order, Matthew decided he wanted child support
payments from Janey. In August 2019, he filed a request for
modification with the Los Angeles Child Support Services
Department. A few months later, the Los Angeles Child Support
Services Department advised Matthew it was unable to assist
him because the parties’ dissolution proceeding was still pending
in Orange County. Matthew then filed a request to modify the
March 2019 child support order in Orange County Superior
Court, but failed to properly serve Janey, thereby delaying its
hearing. Before the Orange County Superior Court was able to
hear the matter, Janey moved to transfer venue to Los Angeles
County. The Orange County Superior Court granted Janey’s
motion. Following the transfer, in July 2020, Matthew renewed
his request for modification in the Los Angeles Superior Court.
Matthew’s request stated he sought “[child] support
[payments] within guidelines.” He did not assert that the March
2019 order was below guideline when entered. This is important
because, as discussed further below, a party seeking to modify a
child support order ordinarily must show circumstances have
changed since the previous order. But section 4065,
subdivision (d) does not require a party to show changed
circumstances to request modification of a below-guideline child
support order.
Instead of asserting he did not have to show changed
circumstances, Matthew supported his request with a discussion
of his circumstances. He explained he had been laid off from his
job at Citigroup in 2017; that he had thereafter moved to Los
Angeles; and that since moving to Los Angeles the parties had
5
agreed to split time with K.P. equally. He continued that, since
obtaining equal time with K.P., he had been “aggressively looking
for [jobs]” but “having a difficult time finding employment.” The
job market in Los Angeles proved weaker for his skillset than the
market in Orange County. This brought Matthew “to the
realization that the cost of living [in Los Angeles] is much more
expensive than it is in Orange County and [he] [wa]s burning
through [his] savings quickly as a result.”
Janey opposed Matthew’s request. She argued that, to
obtain a modification of the March 2019 order, Matthew was
required, but failed, to show a material change in his
circumstances. Circumstances had not changed because, when
Matthew and Janey entered into the March 2019 stipulation,
Matthew was already unemployed, had already moved to Los
Angeles, and had already obtained a 50-50 timeshare of physical
responsibility for K.P.
The trial court, Judge Amy Pellman presiding, heard
Matthew’s modification request in August 2020. At the hearing,
the court pressed Matthew, who was representing himself, to
articulate changed circumstances. Matthew expressed “concern[]
that we’re even questioning the fact there’s no change in
circumstance,” but never took the position that no such showing
was required under section 4065, subdivision (d). Janey’s counsel
argued there was no evidence the March 2019 stipulated order
was below guideline, and further asserted it was “presumptively
a guideline support” because it was, according to Janey,
unaccompanied by findings that the court is required to make
under section 4056, subdivision (a) to support below-guideline
orders. The court was receptive to this argument, calling the
“point that this was a guideline support . . . well taken.” It
6
denied Matthew’s request for modification. It explained on the
record that Matthew failed to demonstrate changed
circumstances. The minute order that followed stated, “The
Court finds that there is a lack of change in circumstances.”
Several months later, the trial court entered formal
findings that echoed the minute order: “The Court finds that
[Matthew] did not meet his burden of proof to show any change of
circumstances warranting a modification of the March 13, 2019
Order.” The court did not address whether the March 2019 order
was either guideline or below guideline.
2. Matthew’s Request to Vacate
Two weeks after the hearing on his modification motion,
Matthew filed a notice of intention to move to vacate pursuant to
Code of Civil Procedure section 663. For the first time, he
asserted the March 2019 support order was below guideline, and
he invoked section 4065, subdivision (d) to excuse a showing of
changed circumstances. When he filed his motion to vacate,
Matthew also filed a request that it be heard before
November 18, 2020. This date was significant, he explained,
because it was the statutory deadline for the court to decide his
motion to vacate under Code of Civil Procedure section 663a,
subdivision (b). The trial court granted Matthew’s scheduling
request, setting the hearing for October 22, 2020.
Janey opposed Matthew’s motion to vacate on multiple
grounds. These included that Matthew could not raise the
benefit of section 4065, subdivision (d) on a motion to vacate
because he had not established in the modification proceeding
that the March 2019 order was below guideline.
At the October 22, 2020 hearing, the trial court (Judge
Pellman again presiding) considered Matthew’s arguments and
7
expressed an inclination to “revisit” denial of Matthew’s request
to modify the March 2019 order. The court felt a full hearing was
the “fairest” way to address his points, but Janey’s counsel
steadfastly argued such a hearing was pointless under Code of
Civil Procedure section 663 given the lack of evidence the
March 2019 order was below guideline. Despite agreeing with
Janey’s counsel that “that’s actually true under the 663,” the
court stated: “What I can . . . do, if parties don’t agree, is set the
matter for a hearing on – [sic] and vacate.” The court then
offered a hearing date of February 8, 2021, which counsel for both
parties accepted. Shortly thereafter, Janey’s counsel asked,
“what exactly is set for hearing on February 8?” The court
responded “[w]e’ll do it in accordance with 663.” Janey’s counsel
expressed understanding, and the hearing ended.
Counsel for Matthew did not share Janey’s counsel’s
understanding. She prepared a form of order stating that the
motion to vacate had been granted and sent that to Janey’s
counsel on November 6, 2020. Janey’s counsel responded 10 days
later that she disagreed the trial court had vacated its denial of
Matthew’s request for modification, arguing the hearing had
merely been continued. Matthew’s counsel then filed an ex parte
motion to clarify on November 19, 2020, advising that if the
motion to vacate had not been granted on October 22, it had been
denied by operation of law on November 18, and Matthew would
need to promptly appeal denial of his modification request. The
court denied the motion for clarification, stating it had not
decided Matthew’s motion to vacate and reiterating that the
matter would go forward on February 8, 2021.
8
Matthew filed a notice of appeal of the denial of his request
for modification on November 20, 2020.6
The trial court, Judge Sarah Heidel presiding, held a
hearing on Matthew’s motion to vacate in February 2021. It
denied the motion as untimely because the statutory period to
consider it under section 663a had expired.
3. Janey’s Request for Sanctions and Matthew’s
Cross-request
In September 2021, pursuant to section 271, Janey filed a
request for sanctions against Matthew of $134,860.07 for conduct
dating back to 2012. The request recited that “$75,587.62
represents the fees and costs [Janey] incurred in connection with
[Matthew’s] custody litigation [from 2012] through 2018. The
remaining $59,272.45 represents the fees and costs [Janey] has
incurred since 2019 . . . .”
Matthew opposed Janey’s request and made a cross-request
for sanctions against Janey in the amount of $20,000. Among
other things, Matthew argued Janey could not recover for conduct
before March 2019 because, by stipulations dated October 2016
and March 2019, the parties had agreed to waive the right to
recover attorney fees for the periods 2012 through 2016 and 2018
through 2019.
The trial court (Judge Heidel again presiding) heard the
sanctions matters in October 2021. For reasons detailed later in
this opinion, the court granted Janey’s request in the amount of
$38,092.70 and denied Matthew’s request.
6 Matthew’s notice of appeal also referred to the trial court’s
October 22, 2020 order. He does not argue grounds for reversal of
this order so his appeal from that order is waived.
9
Matthew timely appealed this order. We consolidated that
appeal with the earlier appeal of the denial of his request for
modification on November 20, 2020.
DISCUSSION
1. Modification
a. Appealability
Janey notes Matthew appealed from the trial court’s
August 20, 2020 minute order stating his request for modification
was denied, but not its subsequent December 2020 findings and
order further memorializing that decision. Janey asserts that
this “rais[es] a question as to whether his first notice of appeal
was premature.” Janey does not attempt to answer this
“question” or suggest we should not consider Matthew’s appeal of
the denial of his request for modification.
We have discretion to treat a notice of appeal filed after the
superior court has announced its intended ruling, but before it
has rendered an appealable order, as filed immediately after the
entry of the appealable order. (Cal. Rules of Court,
rule 8.104(d)(2), (e).) To the extent Matthew’s first notice of
appeal may have been premature, we exercise that discretion and
treat the notice as filed upon entry of the court’s December 2020
findings and order.
b. Standard of review
We review an order on a request for modification of child
support for abuse of discretion. (In re Marriage of Leonard (2004)
119 Cal.App.4th 546, 555.) In this context, the trial court’s
exercise of discretion entails “ ‘ “a duty to exercise an informed
and considered discretion with respect to the [parent’s child]
support obligation,” ’ ” and our deference is “ tempered
significantly by the state’s uniform child support guideline . . . .
10
‘[T]he trial court’s discretion is not so broad that it “may ignore or
contravene the purposes of the law regarding child support.” ’ ”
(Ibid., citations omitted.)
c. Purposes of California’s child support laws
“ ‘California has a strong public policy in favor of adequate
child support. [Citations.] That policy is expressed in statutes
embodying the statewide uniform child support guideline.
[Citations.]’ [Citation.] ‘The guideline seeks to place the
interests of children as the state’s top priority.’ [Citation.] In
setting guideline support, courts are required to adhere to the
principles set forth in section 4053, which include: (1) ‘A
parent’s first and principal obligation is to support his or her
minor children according to the parent’s circumstances and
station in life’; (2) ‘[b]oth parents are mutually responsible for the
support of their children’; (3) ‘[e]ach parent should pay for the
support of the children according to his or her ability’; (4) ‘[c]hild
support orders in cases in which both parents have high levels of
responsibility for the children should reflect the increased costs of
raising the children in two homes and should minimize
significant disparities in the children’s living standards in the
two homes’; and (5) ‘[c]hildren should share in the standard of
living of both parents. Child support may therefore appropriately
improve the standard of living of the custodial household to
improve the lives of the children.’ ” (In re Marriage of Bodo
(2011) 198 Cal.App.4th 373, 385, fn. omitted (Bodo).)
d. Guideline support and stipulated exceptions
To implement these policies, courts are ordinarily required
to set child support in accordance with the mathematical formula
in section 4055. (Bodo, supra, 198 Cal.App.4th at p. 385.) This
formula takes into account, among other things, the parents’
11
respective net incomes and their relative share of time having
primary physical responsibility for the supported children. (See
§ 4055, subd. (b).) Support orders may deviate from the guideline
only in limited circumstances, including, as relevant here, where
the “parties have stipulated to a different amount of child support
under subdivision (a) of Section 4065.” (§ 4057, subd. (b)(1).)
When stipulating to a below-guideline support payment,
the parties must make the declarations required by
subdivision (a) of section 4065, recited in footnote 3, ante. And
regardless of whether the stipulated amount is above or below
guideline, a court considering any nonguideline stipulation must
make the findings required by subdivision (a) of section 4056,
recited in footnote 5, ante, including what the amount of the
guideline payment would have been in the absence of the
stipulation. (See § 4056, subd. (a)(1).) This is a “sua sponte
obligation” the law imposes upon a court. (In re Marriage of
Laudeman (2001) 92 Cal.App.4th 1009, 1014 (Laudeman).)
e. Modification of stipulated support amounts
Section 3651 provides, in relevant part, that “a support
order may be modified or terminated at any time as the court
determines may be necessary.” (Id., subd. (a).) This is true
“whether or not the support order is based upon an agreement
between the parties.” (Id., subd. (e).)
Generally, a party seeking modification of a child support
order bears the burden of introducing “ ‘admissible evidence of
changed circumstances as a necessary predicate for
modification.’ ” (In re Marriage of Williams (2007)
150 Cal.App.4th 1221, 1234.) A narrow exception to the changed
circumstances requirement applies to requests for modification of
below-guideline stipulated orders. (Ibid.) Where such a
12
stipulation has been made, “no change of circumstances need be
demonstrated to obtain a modification of the child support order
to the applicable guideline level or above.” (§ 4065, subd. (d).) In
such a scenario, therefore, the party seeking the modification to
guideline need only show the prior stipulated order was below
guideline. (See In re Marriage of Hein (2020) 52 Cal.App.5th 519,
536 [Evid. Code, § 500 rule imposing burden of proof on party to
whose case fact is essential applies in proceedings under the
Family Code].) This rule has been described as an unqualified
right to “ ‘ “renege” ’ on [a below-guideline] stipulation at any
time, and without ‘ “grounds.” ’ ” (Laudeman, supra,
92 Cal.App.4th at p. 1015.)
Matthew cites two cases, In re Marriage of Thomas (1981)
120 Cal.App.3d 33 and In re Marriage of Catalano (1988)
204 Cal.App.3d 543, for the proposition that a prior stipulation
may be modified based on a showing of current circumstances
alone. A similar argument based on these same authorities was
rejected in In re Marriage of Cohen (2016) 3 Cal.App.5th 1014,
1023–1025 and we reject it for the same reasons. As to Catalano,
a change of circumstances was actually found, rendering the
point on which Matthew relies dicta. (Cohen, at pp. 1023–1024,
citing Catalano, at p. 549.) As to Thomas, this summary opinion
was not well supported by authority and, if more closely
considered, would have required the party seeking modification
to at least show proof of prior circumstances in order to obtain
modification. (Cohen, at p. 1025.) In any event, Thomas
described the authority to consider modification based on current
circumstances alone as discretionary. (Thomas, at p. 35.) Thus,
that the Thomas trial court did not abuse its discretion in
modifying without changed circumstances does not compel the
13
conclusion that the trial court here abused its discretion in
declining to modify in the absence of changed circumstances.
f. The trial court did not abuse its discretion in
rejecting Matthew’s modification request.
Matthew requested modification of the stipulated
March 2019 $0 support order based on a changed circumstances
theory. He asserted that, since the date of the stipulation, his
cost of living was higher than he expected it to be, he was not
having the success he had hoped in finding a new job, and, as a
result, he was burning through his savings. For whatever
reason, he failed in his August 2019 request to claim the benefit
of section 4065, subdivision (d). As Janey explains, “he did not
even attempt to carry” the burden of showing the 2019 stipulated
order was below guideline. The trial court denied Matthew’s
request for failure to “meet his burden of proof to show any
change of circumstances warranting a modification of the
March 13, 2019 order.”
i. The trial court did not err in finding
no changed circumstances.
On appeal, Matthew does not argue he demonstrated
changed circumstances to the trial court, assuming they were
required. For completeness, we agree with Janey that the court
did not abuse its discretion in denying Matthew’s request for
modification for failure to show changed circumstances. When
Matthew and Janey entered into the March 2019 stipulation,
Matthew was already unemployed, had already moved to Los
Angeles, and had already obtained a 50-50 timeshare of physical
responsibility for K.P. The only change in circumstances
Matthew identified were the disappointment of his expectations,
the passage of time, and its attendant effect on his savings. It
14
was well within the trial court’s discretion to conclude these
changes were inadequate to support his request to modify the
March 2019 order.
ii. Matthew forfeited his argument that
section 4065, subdivision (d) excused a
showing of changed circumstances.
Matthew argues the trial court should not have required a
showing of changed circumstances because the March 2019 order
was not guideline. We agree with Janey that the applicability of
the section 4065, subdivision (d) exception is not properly before
us.
“ ‘[I]t is fundamental that a reviewing court will ordinarily
not consider claims made for the first time on appeal which could
have been but were not presented to the trial court.’ . . . Such
arguments raised for the first time on appeal are generally
deemed forfeited.” (Perez v. Grajales (2008) 169 Cal.App.4th 580,
591–592, citations omitted.) “ ‘ “ ‘The purpose of this rule is to
encourage parties to bring errors to the attention of the trial
court, so that they may be corrected.’ ” ’ ” (People v. Gonzalez
(2020) 57 Cal.App.5th 960, 975.) “[I]t is unfair to the trial judge
and the adverse party to take advantage of an alleged error on
appeal where it could have easily been corrected in the trial
court.” (Glassman v. Safeco Ins. Co. of America (2023)
90 Cal.App.5th 1281, 1326.)
At the August 2020 hearing, Matthew failed to object on
the grounds that section 4065, subdivision (d) excused him from
proving changed circumstances. At best, he expressed “concern[]
that we’re even questioning the fact there’s no change in
circumstance.” Matthew’s apparent belief that it was undeniable
his circumstances had changed would not have put the trial court
on notice of his position that he did not have to prove changed
15
circumstances. Absent a clear invocation of a statutory right, we
will not reverse for a trial court’s failure to develop an appellant’s
theory for them. (Cf. Planned Protective Servs. v. Gorton (1988)
200 Cal.App.3d 1, 13 [declining to consider issue under doctrine
of invited error where the appellant failed to raise claimed
statutory right to trial court, rendering trial court “not informed
about” the issue], disapproved on another ground in Martin v.
Szeto (2004) 32 Cal.4th 445, 451, fn. 7.)
It is true that Matthew raised the section 4065,
subdivision (d) exception to the trial court in his Code of Civil
Procedure section 663 motion to vacate. However, this was
inadequate to preserve the issue for appeal because it did not
give the court the opportunity to correct the error he claimed.
Code of Civil Procedure section 663 authorizes a trial court
to vacate a judgment for an “[i]ncorrect or erroneous legal basis
for the decision, not consistent with or not supported by the
facts . . . .” (Id., subd. 1.) The statute does not authorize the
court to make additional, supplemental or different findings.
(Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 682;
see also Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1350 [Code
Civ. Proc., § 663 cannot “be used to secure additional findings
that were not made before judgment was entered”], reversed on
another ground in Hassell v. Bird (2018) 5 Cal.5th 522, 234.)
For Matthew to have prevailed on his motion to vacate, the
trial court would have had to make a finding that the March 2019
order was, in fact, below guideline. The record evidence Matthew
claims supports such a conclusion is insufficient to support Code
of Civil Procedure section 663 relief without a prior finding.
Although a $0 support order may be below guideline, it is not
manifestly below guideline as a matter of law. The guideline
16
amount is inherently factual. Because Matthew failed to obtain a
finding that the March 2019 order was below guideline, his
motion to vacate did not afford the trial court the opportunity to
correct the error he claims and did not preserve the issue for
appeal.
iii. Matthew’s other claims of error fail
because the trial court did not enter
a child support order.
Matthew argues the trial court erred in imputing to him
income without an adequate basis and in failing to make the
findings required when deviating from the amount of guideline
support. We find no error in this regard. For the reasons already
stated, the court properly denied Matthew’s request for
modification, leaving in place the child support terms of the
stipulated March 2019 order. Because it did not make any new
order for child support, the court was not required to, and did not,
make any calculation of Matthew’s income; likewise, it was not
required to, and did not, make the findings required for a child
support order that deviates from the guideline amount.
2. Sanctions Orders
a. Standard of review
A sanctions order under section 271 is reviewed for abuse of
discretion. (In re Marriage of Falcone & Fyke (2012)
203 Cal.App.4th 964, 995.) Accordingly, we will overturn such an
order only if “ ‘no judge could reasonably make [it.]’ ” (Ibid.) It is
an abuse of discretion to rely upon improper factors in reaching a
decision. (In re Marriage of Loyd (2003) 106 Cal.App.4th 754,
761; see also People v. Whitaker (2013) 213 Cal.App.4th 999, 1008
[“Generally, a trial court abuses its discretion by basing a
discretionary decision on improper factors.”].) This includes
relying on findings unsupported by the record. (Pasco, supra,
17
42 Cal.App.5th at p. 590.) Likewise, a court abuses its discretion
by failing to consider relevant factors. (Oldham v. California
Capital Fund, Inc. (2003) 109 Cal.App.4th 421, 430.) We review
any findings of fact that formed the basis for the award for
substantial evidence. (In re Marriage of Falcone & Fyke, at
p. 995.)
b. Applicable law
Section 271 provides “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.” (Id., subd. (a).) Awards under
section 271 are appropriate to address “obstreperous conduct
which frustrated the policy of the law in favor of settlement, and
caused the costs of the litigation to greatly increase.” (In re
Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106.) The
statute is aimed at conduct which “ ‘has unreasonably increased
the cost of litigation.’ ” (In re Marriage of Blake & Langer (2022)
85 Cal.App.5th 300, 310.)
An award under section 271 is “in the nature of a sanction.”
(Id., subd. (a).) Unlike some other sanctions statutes, section 271
does not require a showing of malintent or bad faith. (Compare
§ 271, subd. (a), with Code Civ. Proc., § 128.5, subd. (a) [providing
for sanctions for “bad faith” conduct that is “frivolous or solely
intended to cause unnecessary delay”]; see also In re Marriage of
Melone (1987) 193 Cal.App.3d 757, 764 [no bad faith
requirement], superseded by statute as stated in In re Marriage
of Daniels, supra, 19 Cal.App.4th at p. 1108; In re Marriage of
Tharp (2010) 188 Cal.App.4th 1295, 1318 [§ 271 contains no
18
frivolity or purpose of delay requirement].) It is sufficient that
the party’s conduct frustrated the policies favoring settlement or
cooperation in the litigation process. It is not sanctionable
merely to engage in aggressive litigation conduct or to take a
position that is unsuccessful. Public policy does not prohibit
zealous advocacy. It is only when the conduct becomes
unreasonable that sanctions may be awarded. (See In re
Marriage of Quay (1993) 18 Cal.App.4th 961, 970; In re Marriage
of Corona (2009) 172 Cal.App.4th 1205, 1227 (Corona) [“sanctions
under [§] 271 are justified when a party has unreasonably
increased the cost of litigation” (italics added)].)
In determining the amount of a sanction award, the trial
court must consider “all evidence concerning the parties’ incomes,
assets, and liabilities.” (§ 271, subd. (a).) The party requesting
the award need not “demonstrate any financial need for the
award.” (Ibid.) However, the court may not “impose[] an
unreasonable financial burden” on the sanctioned party. (Ibid.)
c. Analysis
Matthew argues the trial court erred in awarding
$33,873.75 in sanctions to Janey.7 He also argues it erred in
denying him $20,000 in sanctions he requested against Janey.
For the reasons that follow, we agree the sanction award against
7 He does not dispute the trial court’s award of sanctions for
$4,218.95 of attorney fees Janey incurred when Matthew refused
to cooperate in getting K.P. a COVID-19 test before a planned
trip to Hawaii with Janey. This amount shall not be revisited on
remand but, to the extent the court orders other sanctions
against Matthew, it should be considered in connection with the
determination of whether the aggregate award “imposes an
unreasonable financial burden” on Matthew. (§ 271, subd. (a).)
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Matthew was error but do not find error in the trial court’s
decision not to sanction Janey.
Even though tying its award to specific attorney fees was
not required (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142,
1155 [§ 271 sanctions requestor “need not establish with great
precision an amount directly caused by the improper conduct”]),
the trial court explained the sanctions against Matthew were for
“fees associated with the motion to vacate the August 20, 2020
child support order (where [Matthew] pursued competing legal
theories and took an appeal while the motion to vacate was still
pending), and . . . for the cost of preparing [Janey’s] request for
order for the Section 271 fees.” The fees for the motion to vacate
amounted to $24,643.75, and the fees for the sanctions request
amounted to $9,230. The court based its award on detailed
factual findings and “additional context [Janey] described in her
declaration and moving papers . . . .”
The trial court denied Matthew’s request for sanctions
against Janey without reference to any specific findings,
concluding only that Matthew “failed to meet his burden that
such fees are appropriate.”
Matthew makes several arguments as to why the trial
court erred in awarding Janey sanctions and contends Janey’s
conduct was manifestly sanctionable under section 271. Some of
his arguments compel the conclusion that remand is necessary
for reconsideration of the fee award against Matthew in
accordance with this opinion.
We need not address Matthew’s points that are not well
taken. For example, we reject his argument that there was
inadequate evidence of the parties’ respective financial situations
to support the sanctions order because the information before the
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court at the time of the hearing was not current. The court was
entitled to rely on historical income and expense information in
setting amount of award. (See Corona, supra, 172 Cal.App.4th at
p. 1227.) If Matthew wished to update his income and expense
declaration to show a reduced ability to pay, he had the right to
do so. His decision not to cannot form the basis for error. (Ibid.)
And, contrary to Matthew’s claim, the court did not sanction him
for losing his request to modify the March 2019 order.
Finally, we do not believe Matthew has shown the trial
court abused its discretion in denying his request for fees against
Janey. While Matthew raises valid concerns about Janey seeking
fees for conduct that was the subject of prior waivers, his
argument on appeal is merely that “[her] conduct was
sanctionable.” (Italics added.) That is not an adequate argument
to demonstrate an abuse of discretion. Trial courts have broad
discretion in determining whether to sanction under section 271.
(In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92,
122.) That the trial court could have sanctioned Janey does not
mean that it had to, or that no judge could reasonably decline to
sanction her.
That said, we do find error in the trial court’s sanction
order against Matthew. First, certain findings the court relied
upon in ordering sanctions are contrary to the record. Second,
the court impermissibly considered Matthew’s conduct during a
period for which the parties had already resolved the issue of
fees.
The trial court’s findings that are contrary to the record
include that Matthew failed to notify the court of the necessity of
having his motion to vacate heard within the period prescribed
under Code of Civil Procedure section 663a, subdivision (b)—that
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he “attempt[ed] to raise the timeliness argument only after the
October 22, 2020 hearing”; that he appealed denial of his
modification request “while the motion to vacate was still
pending”; and that noticing an intention to take live testimony at
the February 8, 2021 hearing was somehow inappropriate.
Matthew did raise the issue of timeliness before the
October 2020 hearing. In fact, the reason the hearing was held
on October 2020 was so that Matthew’s motion could be heard
within the statutory period. He stated this explicitly three times
in his ex parte motion requesting the hearing.
Further, Matthew’s November 20, 2020 notice of appeal
was not filed while his motion to vacate was still pending. As the
trial court determined on February 8, 2021, it had been denied by
operation of law on November 18, 2020. (See Garibotti v. Hinkle
(2015) 243 Cal.App.4th 470, 483 [failure to rule on Code Civ.
Proc., § 663 motion within statutory period results in denial as a
matter of law].) Matthew advised the trial court of this fact in his
November 19, 2020 motion for clarification. But instead of
acknowledging this and taking the motion to vacate off calendar,
the trial court said it “ha[d] not made a final determination as to
motion to vacate” and the hearing would go forward on
February 8, 2021. If Matthew had waited until after the
February 2021 hearing to file his notice of appeal, he risked
rendering his appeal untimely.
By the same token, there was nothing unreasonable in
Matthew preparing for the February 8, 2021 hearing on his
motion to vacate as if it was going forward, despite having
treated it as having already been denied in filing his notice of
appeal. The trial court, even after Matthew informed it that it
lost jurisdiction to consider the motion to vacate on November 18,
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2020, maintained that it would hear the matter on February 8.
Under the circumstances, it was entirely reasonable for Matthew
to prepare for the February 8 hearing, including by filing
appropriate notices with respect to the conduct of that hearing.
We acknowledge here, as discussed above, that the motion
to vacate was an improper vehicle for challenging the denial of
Matthew’s support modification request. But it was not so
facially unmeritorious that the trial court dismissed it out of
hand. Indeed, the court stated that it was inclined to revisit its
denial of Matthew’s request for modification, apparently
considering the possibility that the March 2020 order was below
guideline as a matter of law. On remand, the court should
consider the reasonableness of Matthew’s motion in the first
instance. (See In re Marriage of Abrams (2003) 105 Cal.App.4th
979, 991 [reversing § 271 sanctions order where underlying
litigation conduct “was not so devoid of merit that no reasonable
person would have pursued it” and noting statements by judge at
a prior hearing tending to support theory].)
The trial court also abused its discretion in considering
conduct that was the subject of prior settlements in deciding to
sanction Matthew. The court found, based on stipulations dated
October 17, 2016 and March 13, 2019, that “fees resulting from
conduct from those time periods cannot serve as the basis for
future Section 271 fees.” Yet the court went on to find that it
could “consider the conduct covered by the March 13, 2019
stipulation in determining whether such fees are appropriate.”
To say that an award may result from “consider[ing]”
presettlement conduct is effectively providing an award on
account of that conduct. The parties stipulated that they would
not recover fees on account of certain conduct occurring prior to
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March 2019. To circumvent this agreement is to undermine the
policy in favor of settlement—the very policy section 271 is
intended to promote. On remand, the trial court should not
consider conduct as to which the parties waived any fee recovery
in deciding whether to award sanctions against Matthew.
Because we vacate the trial court’s award of $33,873.75 in
sanctions against him, we need not consider Matthew’s
arguments that the award “impose[d] an unreasonable financial
burden” on him within the meaning of section 271.
DISPOSITION
The order denying Matthew’s request for modification of
the March 2019 stipulated child support order is affirmed (case
No. B309231). The sanctions order (case No. B317198) is
reversed to the limited extent of the $33,873.75 portion of the
award against Matthew he challenges on appeal. The sanctions
order is affirmed in all other respects. The matter is remanded to
the trial court for reconsideration of Janey’s request for sanctions
against Matthew subject to the limitations imposed by this
opinion. The parties shall bear their own costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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