Marriage of Thompson CA2/2 ( 2024 )

Filed 10/21/24 Marriage of Thompson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of PAUL B332150
and SHELLY THOMPSON.
(Los Angeles County
_____________________________ Super. Ct. No. VD072834)
PAUL THOMPSON,
ORDER MODIFYING
Respondent,
OPINION AND
v. DENYING REHEARING
[CHANGE IN JUDGMENT]
SHELLY THOMPSON,
Appellant.
THE COURT:
It is ordered that the opinion filed herein on September 24,
2024, be modified as follows:
1. On page 1, the one-word sentence “Affirmed” is changed to
read:
Affirmed in part and reversed in part.
2. On page 2, the final sentence of the first paragraph, which
reads, “We affirm” is deleted and the following sentences are
inserted in its place:
We conclude the court erred in imposing the
$10,000 sanctions against Paul because the award was
untethered to his attorney fees and costs. We therefore
reverse the June 14, 2023 order to the extent it imposes
this award and otherwise affirm the order.
3. On page 14, the first sentence under subsection A,
beginning “Family Code section 271 authorizes an award of
attorney fees” is modified to add the words “and costs” so the
sentence reads:
Family Code section 271 authorizes an award of
attorney fees and costs as a sanction where a party’s
conduct “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.”
4. On pages 15 through 17, the headings and texts of
subsections B and C are deleted in their entirety and replaced
with the following subsection B only:
B. Sanctions Award Was Not Tethered to
Attorney Fees and Costs
We agree with Shelly’s contention the $10,000 in
sanctions awarded to Paul must be reversed. The language
of Family Code section 271, subdivision (a) is plain—
2
sanctions available under the statute are limited to
attorney fees and costs. (Menezes v. McDaniel (2019) 44
Cal.App.5th 340, 350.) A party seeking relief under Family
Code section 271 need not show harm as a prerequisite to a
sanctions award. (In re Marriage of Feldman (2007) 153
Cal.App.4th 1470, 1480.) However, the award must be
“tethered to attorney fees and costs.” (Menezes, at p. 351.)
Nothing in the record indicates the $10,000 award of
sanctions was so tethered. We do not conclude that Shelly’s
conduct did not “frustrate the policy of the law to promote
settlement of litigation” and that Paul did not incur
significant attorney fees and costs as a result. But there is
no evidence provided to the family court that would allow
us to tie Paul’s $10,000 award to any of those fees and
costs. Indeed, the family court decided upon the figure of
$10,000 based upon what it felt was “appropriate,”
“guessing” the attorney fees incurred to date “are north of
100,000 [dollars] start to finish.” Because we conclude the
$10,000 in sanctions awarded to Paul is invalid on this
ground, we do not reach Shelly’s other challenges to the
sanctions award.
5. The DISPOSITION on page 18 is modified to read as
follows:
The $10,000 award of sanctions to respondent Paul
Thompson in the June 14, 2023 order is reversed;
otherwise, the order is affirmed. The parties are to bear
their own costs on appeal.
3
Shelly’s petition for rehearing is denied.
This modification changes the judgment.
LUI, P. J. ASHMANN-GERST J. CHAVEZ, J.
4
Filed 9/24/24 Marriage of Thompson CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of PAUL B332150
and SHELLY THOMPSON.
(Los Angeles County
_____________________________ Super. Ct. No. VD072834)
PAUL THOMPSON,
Respondent,
v.
SHELLY THOMPSON,
Appellant.
APPEAL from postjudgment orders of the Superior Court of
Los Angeles County, James E. Horan, Judge. Affirmed.
Decker Law, James D. Decker and Griffin R. Schindler for
Appellant.
Paul Thompson, in pro. per., for Respondent.
________________________
Shelly Thompson believed she was being overcharged by
the court-appointed counsel representing her minor child in a
custody dispute with her former husband, Paul Thompson. 1
Shelly attempted to initiate nonbinding fee arbitration under the
Mandatory Fee Arbitration Act (MFAA), Business and
Professions Code section 6200 et seq. The family court concluded
the MFAA was inapplicable in this instance and refused to stay
the proceedings for MFAA arbitration with the Los Angeles
County Bar Association. The court awarded appointed counsel
the overdue attorney fees and sanctioned Shelly under Family
Code section 271. Shelly challenges both rulings on appeal. We
affirm.
BACKGROUND
The marriage of Paul and Shelly Thompson was dissolved
by a judgment entered in 2015. By November 1, 2018, the parties
were embroiled in a “High Conflict” custody dispute over their
minor child. On that date, the family court appointed Marie
Koestner, a family law attorney, to represent the minor child.
The court reviewed the parties’ most recent income and expense
declarations and ordered Paul and Shelly to share equally (50–
50) the costs and fees for Koestner’s representation of their minor
child. Neither party objected.
Disputed Attorney Fees and MFAA Arbitration Demand
A. Events Leading Up To and Including
the Fee Dispute
Shelly represented herself at a February 21, 2023 custody
hearing. At the conclusion of the hearing, Attorney Koestner
1 For simplicity and clarity, the first names of the parties
are used in this opinion.
2
requested the family court to order Shelly to pay her outstanding
attorney fees “forthwith.” Koestner would then resume billing
Shelly monthly. To date, Shelly’s unpaid accumulated fees
amounted to approximately “6,000.” Koestner reminded the
court that Shelly’s Income and Expense Declaration indicated she
had $40,000 in cash and $600,000 in property value.
In response, Shelly acknowledged to having shown her
liquid assets were $40,000. Shelly then explained she also had to
pay her former counsel. The family court told Shelly she “can’t
pick and choose” and ordered Shelly “to bring [Attorney
Koestner’s] bill current forthwith.” Shelly did not object to the
amount of the fees or challenge the nature of the legal services
rendered as being unreasonable.
On April 13, 2023, Attorney Koestner filed a request for an
order (RFO) compelling Shelly to pay $7,670.50 in legal fees. In
her supporting declaration, Koestner averred she was the court-
appointed attorney for the parties’ minor child, whom she
represented at all stages of the custody proceedings through the
last scheduled hearing on February 21, 2023. Following her
November 1, 2018 appointment, Koestner sent Shelly and Paul a
letter requesting an initial retainer of $1,000, which they both
paid. Koestner also informed the parties she would billing at an
hourly rate of $300 for her work on this matter. As of April 13,
2023, the total bill was $41,191, for which Paul and Shelly were
to each pay half ($20,595.50). Paul fully paid his share of legal
fees. Shelly did not.
Attorney Koestner further testified she mailed monthly
billing statements to both parties. Over time, Shelly insisted she
had not received the statements, which had been sent to her
confirmed mailing address. At Shelly’s request, Koestner
3
thereafter began e-mailing Shelly her continuously accruing and
updated billing statements. Shelly’s bill remained unpaid for
months. Koestner then agreed to a payment plan in which Shelly
was to make $500 monthly payments on the balance due.
Attorney Koestner averred Shelly made no payments from
November 27, 2019, through June 10, 2020. When Koestner
requested payment, Shelly resumed making $200 to $250
payments from June 10, 2020, through May 31, 2022. From May
31, 2022, through August 29, 2022, Shelly again ceased making
payments. In response to another request by Koestner, Shelly
resumed making payments on August 29, 2022, through January
31, 2023, but in the amount of $100 per month with one payment
of $250.
Attorney Koestner testified Shelly repeatedly sought
itemized statements of Koestner’s charges before making a
payment. In response, Koestner provided complete itemized
statements to Shelly on numerous occasions. Koestner stated:
Shelly “never indicated any dispute of the charges that were
incurred during the reflected billing periods.”
Attorney Koestner’s declaration related that she received
from Shelly a $500 payment on March 1, 2023, notwithstanding
the family court’s February 21, 2023 order that Shelly pay in full
all outstanding charges. Koestner then agreed to delay Shelly’s
payment until March 10, 2023, because of the illness of Shelly’s
mother.
Attorney Koestner testified that in a March 13, 2023
e-mail, Shelly disputed for the first time Koestner’s charges for
4
eight 2019 court appearances and a 2019 transcript fee.2 Shelly
also insisted that Koestner provide proof of Paul’s payment of his
share of attorney fees. Subsequent telephone conversations with
Shelly proved fruitless, the outstanding bill remained unpaid,
and Shelly continued to contest the charges. Paul owed Koestner
no unpaid attorney fees.
B. Shelly’s Attempts To Compel Arbitration
In an e-mail to Attorney Koestner, apparently dated
March 20, 2023, Shelly wrote that if their fee dispute could not be
resolved informally, her “legal advisor” suggested she had a right
to MFAA arbitration.
In an April 26, 2023 letter to Koestner, Shelly offered to
settle their fee dispute for $1,500 and stated her intention to
request MFAA arbitration if her offer were rejected.
On May 19, 2023, Shelly e-mailed Koestner that: (1) she
had received Koestner’s notice of the RFO hearing to her “horror
and surprise”; (2) their fee dispute would not be litigated in
superior court, but arbitrated instead by the Los Angeles County
Bar Association; and (3) Koestner had two days to withdraw her
RFO filing to avoid arbitration.
On May 24, 2023, Shelly submitted a “Client Petition for
Arbitration” to the Los Angeles County Bar Association. Shelly
purportedly served Koestner with notice of the arbitration.
C. Shelly’s Efforts to Stay Proceedings
On June 1 and 7, 2023, the superior court clerk received,
but did not file, Shelly’s notice and amended notice of stay of the
2 The record shows in the same e-mail Shelly contested fees
charged for an additional six court appearances made from 2020
through 2023.
5
family court proceedings to allow MFAA arbitration. The RFO
hearing remained on calendar.
D. RFO Hearing and Family Court’s Ruling
A hearing on Attorney Koestner’s RFO was set for May 31,
2023, but rescheduled at Koestner’s request to June 14, 2023.
The same day, Paul filed points and authorities arguing the
MFAA did not apply and the family court determines Koestner’s
attorney fees. Shelly, acting in propria persona, filed opposition
contending the proceedings must be stayed for MFAA arbitration
of the fee dispute.
Following argument by counsel for Paul and Koestner and
by Shelly, representing herself, the family court: (1) denied
Shelly’s demand for a stay of proceedings, concluding the MFAA
is inapplicable, (2) found Shelly owed Koestner $5,880 in past due
attorney fees, (3) found Shelly was obligated to pay $4,250 in
attorney fees related to Koestner’s RFO, (4) ordered Shelly to pay
a total of $10,130 in attorney fees “forthwith” to Koestner, and
(5) ordered interest to begin to accrue 30 days from the date of
the order if the fees owed to Koestner were not paid in full.
The order was entered on August 2, 2023. Shelly timely
appealed.
DISCUSSION3
I. Mandatory Fee Arbitration Act
The MFAA, Business and Professions Code, sections 6200
et seq., was enacted in 1978.4 (Aguilar v. Lerner (2004) 32
Cal.4th 974, 983.) The legislation was intended “to provide an
3 Attorney Koestner has not participated in this appeal.
4 Statutory references are to the Business and Professions
Code unless otherwise indicated.
6
effective, expeditious, simple, low cost forum in which an
attorney and a client may resolve a dispute over legal fees.”
(Hargarten & Ardisson, Fine Tuning California’s Mandatory
Attorney Fee Arbitration Statute (1982) 16 U.S.F. L.Rev. 411,
citing State Bar of California, Report of the Special Committee on
Resolution of Fee Disputes (Apr. 29, 1976).)
The MFAA is an arbitration scheme separate and distinct
from the generally applicable California Arbitration Act (Code
Civ. Proc., § 1280 et seq.) and has its own rules and limitations:
The MFAA applies solely to contested attorney fees and/or costs;
the obligation to arbitrate derives from statute not from contract;
arbitration under the statute is voluntary for the “client” and
mandatory for the attorney; and the arbitration award is
nonbinding, with each party having the right to demand a trial
de novo. (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 983–985.)
The arbitration is conducted by local bar associations under the
MFAA. (Bus. & Prof. Code, § 6200, subd. (d); Aguilar v. Lerner,
at p. 984.)
II. MFAA Does Not Apply Here
Contrary to Shelly’s contention, her fee dispute with
Attorney Koestner does not qualify for arbitration according to
section 6200 et seq.
A. The Standard of Review and Rules of Statutory
Construction
Whether the MFAA applies here, as Shelly contends, is a
question of law, subject to our independent review. (In re
Marriage of Knox (2022) 83 Cal.App.5th 15, 25.) As our primary
task is to determine the Legislature’s intent, we first look to the
plain meaning of the statute’s language. Where the language is
clear, we need go no further. Where the language is open to
7
multiple reasonable constructions, we consider the statute’s
legislative history. (Valdez v. Costco Wholesale Corp. (2022) 85
Cal.App.5th 466, 472.)
B. Attorney Koestner’s Fees Were Determined by
Statute and Court Order
Not all attorney fee disputes are subject to MFAA
arbitration. Section 6200 excludes from its provisions “[d]isputes
where the fee or cost to be paid by the client or on the client’s
behalf has been determined pursuant to statute or court order.”
(§ 6200, subd. (b)(3).) The family court concluded this exception
precluded Shelly from invoking MFAA arbitration. Based on our
statutory construction of that exception and the relevant Family
Code provisions, we agree.5
Family Code section 2010 provides: “In a proceeding for
dissolution of marriage . . . the court has jurisdiction to inquire
into and render any judgment and make orders that are
appropriate concerning . . . [¶] . . . the award of attorneys’ fees
and costs.” (Fam. Code, § 2010, subd (f).) In addition, the
Family Code and related California Rules of Court together
promulgate a comprehensive scheme of provisions specifically
5 Shelly initially argues, while the term “client” is not
defined in sections 6200 et seq., as the “payor” of her minor
child’s attorney fees, she is the client for purposes of the MFAA.
(Citing Wagner v. Mirzayance (1998) 67 Cal.App.4th 1187, 1190
[“When the attorney is retained by one person to provide legal
services to another, the one who has agreed to pay the lawyer’s
bills is the one entitled to arbitrate any fee dispute”].) We do not
decide whether this holding applies equally to appointed counsel
in this situation because we conclude Shelly’s fee dispute is
excluded by section 6200, subdivision (b)(3).
8
governing the family court’s discretionary authority over the
appointment of counsel for a minor child and payment of
appointed counsel’s fees: Family Code section 3150 authorizes
the court to appoint private counsel to represent the interests of
a minor child in a custody or visitation proceeding if the court
determines that such an appointment would be in the child’s
best interest. (Fam. Code, § 3150, subd. (a).) A 2010
amendment to that provision states “the court and counsel” must
“comply with the requirements set forth in Rules 5.240, 5.241,
and 5.242.”6 (Stats. 2010, ch. 352, § 14.) Rule 5.240 states what
factors are to be considered in appointing counsel, who may seek
the appointment, and what “must” and “may” be specified in an
appointment order. (Rule 5.240.) “Counsel’s rate or amount of
compensation” may be included in the orders. (Rule
5.240(c)(2)(E).)
Rule 5.241 and Family Code section 3153 address the
payment of fees for the minor child’s appointed counsel. Counsel
so appointed is entitled to “a reasonable sum for compensation
and expenses, the amount of which shall be determined by the
court.” (Fam. Code, § 3153, subd. (a).) That sum must “be paid
by the parties in the proportions the court deems just.” (Ibid.)
Subdivision (b) of section 3153 provides: “Upon its own motion
or that of a party, the court shall determine whether both parties
together are financially unable to pay all or a portion of the cost
of counsel appointed pursuant to this chapter, and the portion of
the cost of that counsel which the court finds the parties are
unable to pay shall be paid by the county.” Similarly, rule 5.241
6 All references to rules are to the California Rules of
Court.
9
provides the “court must determine the reasonable sum for
compensation and expenses for counsel appointed to represent
the child in a family law proceeding, and the ability of the
parties to pay all or a portion of counsel’s compensation and
expenses.” (Rule 5.241.) Finally, rule 5.242 addresses the
qualifications, rights, and responsibilities of appointed counsel.
Further, we read Family Code section 3153 as allowing the
family court authority to revisit the parties’ abilities to pay the
attorney fees of their minor child’s appointed counsel, whether at
the request of either party or on its own motion. (Fam. Code,
§ 3153, subd. (b).) No time limits are indicted within which the
court or the party shall bring such a motion. Nor does the
statute state the court’s original allocation shall not be
reconsidered even if there are changed circumstances.
The plain language of Family Code section 3153 evinces
the clear legislative intent, buttressed by the related Rules of
Court, that fees for a minor child’s appointed counsel are to be
paid either by the parties or by the county, the family court has a
duty to determine and award such fees, appointed counsel has a
vested right to receive reasonable compensation for legal services
rendered, and the court retains jurisdiction to reconsider issues
concerning the amount and allocation of the attorney fees. (See
In re Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1576.) In
other words, fees for appointed counsel in child custody cases are
determined by both statute and court order.
In this case, after appointing Attorney Koestner, the
family court complied with Family Code section 3153 and related
Rules of Court by (1) evaluating the ability of the parties to pay
Attorney Koestner’s legal fees based on their respective Income
and Expense Declarations; (2) deciding, without objection, that
10
each party was to pay half of Koestner’s total fees; and
(3) ordering Shelly to pay her outstanding share of attorney fees
in February 2023. Thus, Koestner’s fees were determined by
both statute and by court order under section 6200, subdivision
(b)(3). Shelly was not entitled to resolve her fee dispute by
MFAA arbitration.
Shelly resists this conclusion by relying chiefly on Aerotek,
Inc. v. Johnson Group Staffing Co., Inc. (2020) 54 Cal.App.5th
670 (Aerotek). In Aerotek, the plaintiff sued the defendant for
misappropriation of trade secrets by soliciting the plaintiff’s
customers and hiring one of the plaintiff’s employees. (Id. at pp.
672–673.) Years of litigation ensued, the defendant suffered
severe financial losses, and defense counsel moved to withdraw
for nonpayment of legal fees. (Id. at p.673.) The defendant and
counsel then agreed in writing that the defendant would pay
counsel’s costs but not legal fees, with an added footnote to the
agreement that should the defendant be awarded fees in the
future, all fees were reimbursable to counsel and the waiver
would not apply. (Ibid.) After two jury trials, the defendant
ultimately prevailed. (Aerotek, at p. 674.)
Defense counsel moved for attorney fees under Civil Code
section 3426.4, which allows the recovery of attorney fees for bad
faith claims under California’s Uniform Trade Secrets Act.7
(Aerotek, Inc. v. Johnson Group Staffing Co., Inc., supra, 54
Cal.App.5th at pp. 674–675.) Counsel argued statutorily
7 Civil Code section 3426.4 provides in part: “If a claim of
misappropriation is made in bad faith, a motion to terminate an
injunction is made or resisted in bad faith, or willful and
malicious misappropriation exists, the court may award
reasonable attorney’s fees and costs to the prevailing party.”
11
awarded fees are presumptively vested in the attorney and the
parties’ fee agreement supported counsel’s entitlement to the
fees. (Id. at p. 675.) The defendant argued there should be
either a jury trial or MFAA arbitration to resolve the dispute.
(Ibid.) The trial court awarded the fees to defense counsel less
the amount the defendant had already paid. The defendant
appealed. (Aerotek, at p. 675.)
As pertinent here, the Court of Appeal concluded the
Business and Professions Code section 6200, subdivision (b)(3)
exception applied because the disputed fees were determined
pursuant to Civil Code section 3426.4 and were thus excluded
from MFAA arbitration. (Aerotek, supra, 54 Cal.App.5th at
pp. 686–687.) Specifically, the Aerotek court held: “To the extent
the dispute here concerns ‘fees . . . charged’ to [the defendant by
defense counsel] (Bus. & Prof. Code, § 6200, subd. (a)), we find it
concerns fees ‘determined pursuant to statute’ (id., subd. (b)(3))
and thus is exempted from the MFAA’s requirements. Again, as
discussed above, we find the award of fees to [counsel], rather
than [the defendant], follows from [Civil Code] section 3426.4’s
default disposition of fees in favor of the attorney. And because
the fee to be paid has thus ‘been determined pursuant to statute,’
the MFAA’s arbitration requirement is expressly inapplicable.
(Bus. & Prof. Code, § 6200, subd. (b)(3).)” (Aerotek, at pp. 686–
687.)
Shelly argues this holding means the Aerotek court
concluded “the fees in question were ‘determined pursuant to
statute’ because the trial court had already issued an award of
attorneys’ fees—i.e., determined the amount of reasonable
attorneys’ fees awardable to the prevailing attorney.” Shelly is
simply wrong, and Aerotek does not assist her.
12
In brief, Civil Code section 3426.4 is one of many fee-
shifting statutes for which courts have had to decide who—
between the attorney and the client—is entitled to recover
attorney fees and costs as “the prevailing party.” Since Flannery
v. Prentice (2001) 26 Cal.4th 572, courts have similarly construed
various fee-shifting statutes, holding the fee award belongs to
the attorney. (Aerotek, supra, 54 Cal.App.5th at p. 682.) This
then is a fee-shifting statute’s “default disposition” of attorney
fees, where there exists no separate agreement requiring a
different disposition of an attorney fee award. (Ibid.)
Contrary to Shelly’s argument, Aerotek does not hold an
award of attorney fees is “determined pursuant to statute” solely
if the trial court has already assessed and issued the fee award.
Instead, the language quoted by Shelly means Civil Code section
3426.4’s default disposition of attorney fees governs in Aerotek,
and as the fees are thus determined by statute, MFAA
arbitration is not permitted.
In a related argument, Shelly maintains Attorney
Koestner’s fees were not determined by court order within the
meaning of section 6200, subdivision (b)(3), for two reasons:
(1) In appointing Koestner on November 1, 2018, the family
court left blank the amount of her compensation on the Judicial
Council form order; and (2) In ordering Shelly to bring
Koestner’s bill current “forthwith” on February 21, 2023, the
family court failed to state an amount of attorney fees as
required by Aerotek for section 6200, subdivision (b)(3) to apply.
This argument fares no better. That the family court did
not state the dollar amount Shelly was ordered to pay Koestner
is of no consequence. Shelly never maintained she was unaware
of the amount of attorney fees due. Nor did Shelly claim she did
13
not understand what the court meant by ordering her to bring
her bill current “forthwith,” or that she had been ordered to pay
half of Koestner’s legal fees.8
III. Sanctions Award Against Shelly
Apart from ordering Shelly to pay Attorney Koestner’s legal
fees, on June 14, 2023, the family court imposed $10,000 in
sanctions against Shelly payable to Paul under Family Code
section 271. Shelly challenges the imposition of the sanctions.
A. Family Code Section 2719 and Standard of
Review
Family Code section 271 authorizes an award of attorney
fees as a sanction where a party’s conduct “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.” (Fam. Code, § 271, subd. (a).) The
party requesting an award under this section is not required to
demonstrate any financial need for the award. (Ibid.) The
sanction must not impose an unreasonable financial burden on
the sanctioned party. (Ibid.) An award may be imposed only
8 Because we hold Shelly was not entitled to MFAA
arbitration of her attorney fee dispute, we do not reach the issues
of whether the fee award was void for the family court’s failure to
stay the proceedings or for Koestner’s failure to give notice under
the MFAA.
9 The Legislature made minor amendments to Family Code
section 271 that became effective in January 2024. (Assem. Bill
No. 1179 (2023–2024 Reg. Sess.).) As the family court ordered
sanctions pursuant to the version of Family Code section 271 in
existence in 2023, we quote from and premise our analysis on
that version of the statute, unless stated otherwise.
14
“after notice to the party against whom the sanction is proposed
to be imposed and opportunity for that party to be heard.” (Fam.
Code, § 271, subd. (b).)
We review the family court’s imposition of sanctions under
Family Code section 271 for an abuse of discretion. (In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995.)
“ ‘[T]he term judicial discretion implies absence of arbitrary
determination, capricious disposition, or whimsical thinking. It
imports the exercise of discriminating judgment within the
bounds of reason.’ ” (In re Marriage of Tharp (2010) 188
Cal.App.4th 1295, 1316.) “[W]e will overturn such an order only
if, considering all of the evidence viewed most favorably in its
support and indulging all reasonable inferences in its favor, no
judge could reasonably make the order.” (In re Marriage of
Corona (2009) 172 Cal.App.4th 1205, 1225–1226.)
B. Imposition of Sanctions Was Not an Abuse
of Discretion
Shelly correctly observes that Paul and Attorney Koestner
each sought sanctions against Shelly payable to Koestner.
However, the record shows Paul also sought sanctions for himself
against Shelly, first for $10,000 and then for $15,000. Shelly is
further correct the family court’s decision to impose sanctions
followed a lengthy and rambling stream of consciousness.
Nonetheless, we discern the following sufficient findings
embedded in that narrative: The court found true some of the
acts Paul attributed to Shelly in his requests for sanctions, which
the court agreed unnecessarily prolonged the eight-year litigation
and increased attorney fees for Paul’s counsel and Koestner. The
court was not persuaded by Shelly’s opposing argument.
15
The family court imposed sanctions payable to Paul based
on some particular acts described in Paul’s sanctions requests:
(1) Shelly repeatedly lied to the court concerning a physical
altercation she had with her minor child; (2) Shelly repeatedly
ignored orders to stop attaching the minor child’s confidential
therapy records to pleadings filed with the court; (3) Shelly used
one of her attorney’s letterheads to prepare a document filed with
the court; and (4) Shelly failed to pay Attorney Koestner’s fees as
previously ordered by the court. The court found Shelly’s acts
generated needless litigation and increased attorney fees—
“definitely not consistent with Family Code [section] 271.” After
reviewing Shelly’s latest Income and Expense Declaration, the
court elected to impose $10,000 rather than $15,000 in sanctions,
finding that amount would not be an unreasonable financial
burden on Shelly. We find no abuse of discretion.
C. No Due Process Violations
Shelly maintains at length that because of “procedural
improprieties” she was sanctioned in violation of her due process
rights at the June 14, 2023 hearing. Shelly argues (1) the family
court failed to provide her with written notice identifying her
potentially sanctionable conduct; (2) she did not engage in
conduct that was sanctionable; and (3) the sanctions imposed
were not properly tethered to attorney fees.
Shelly’s claims are unavailing. First, she received
adequate notice of the substance of the pending hearing. Shelly
filed nearly identical “responsive pleadings” to both Paul’s and
Attorney Koestner’s requests for sanctions in advance of the
June 14, 2023 hearing. She refuted their contentions that she
engaged in any sanctionable conduct, claiming their “Vexatious
litigation caused by Maximalist demands” increased her legal
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fees. Second, we have determined the family court did not abuse
its discretion in finding Shelly engaged in sanctionable conduct.
In arguing the sanctions were untethered to Paul’s attorney
fees, Shelly relies on Sagonowsky v. Kekoa (2016) 6 Cal.App.5th
1142 (Sagonowsky), but that decision does not address similar
circumstances. The appellate court in Sagonowsky reversed a
sanctions award of $680,000 under Family Code section 271 as
excessive because there was no dispute that those amounts did
not relate to attorney fees or costs and “sanctions available under
[Family Code section 271] are limited to ‘attorney fees and
costs.’ ” (Sagonowsky, at p. 1153.) The Sagonowsky court
concluded, “[T]he plain language of [Family Code] section 271 did
not authorize the court to award $500,000 to punish” a party or
$180,000 for the reduction in the sales price of a property because
those amounts were unrelated to attorney fees and costs borne by
the other party. (Id. at p. 1156.) Here, by contrast, Shelly’s
misconduct, particularly her lies to the court and court filings of
her child’s confidential therapy records, prolonged the custody
dispute and led directly to greater fees charged by Attorney
Koestner to both Paul and Shelly.
In any event, Shelly forfeited her due process claims by
failing to raise them before the court. (Carlton v. Quint (2000) 77
Cal.App.4th 690, 698 [forfeiture of lack of notice argument].)
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DISPOSITION
The orders are affirmed. Respondent Paul Thompson is
entitled to recover his costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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