Sagonowsky v. Kekoa

Filed 12/21/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
CHRISTINA M. SAGONOWSKY,
Plaintiff and Appellant, A142866/A143234
v. (San Francisco Super. Ct.
No. FDI03755091)
CURTIS KEKOA, JR.,
Defendant and Respondent.
_____________________________________/
In the latest chapter of this lengthy and acrimonious marital dissolution — which
the trial court dubbed a “litigation war” — the court partially granted Curtis Kekoa Jr.’s
motion for Family Code section 2711 sanctions (section 271 motion). The court
sanctioned Christina M. Sagonowsky $767,781.23, which included: (1) $500,000 for her
“relentless and culpable conduct” in “driv[ing] up the cost of the litigation” and
“purposefully frustrat[ing] the final settlement of” the case; (2) $180,000 for causing a
reduction in the sale price of real property awarded to Kekoa in the dissolution judgment;
and (3) $45,000 in interest on Kekoa’s attorney fees bill. The court also partially granted
Kekoa’s motion for rents and security deposits (rents motion) Sagonowsky received on
properties awarded to Kekoa in the dissolution judgment and ordered Sagonowsky to pay
Kekoa $28,510.80.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.
1
All undesignated statutory references are to the Family Code.
1
Sagonowsky appeals, challenging the sanctions award on several grounds. She
also contends the court erred by granting the rents motion; the court violated the
Americans with Disabilities Act of 1990 (42 U.S.C., § 12101 et seq., (ADA)) by denying
her requests for accommodation and holding a hearing on various motions in her absence;
and that Kekoa was not entitled to attorney fees because he used the services of an
attorney who previously represented Sagonowsky.
We reverse in part and affirm in part. We conclude sanctions awarded pursuant to
section 271 are limited to “attorney’s fees and costs” and, as a result, the court erred by
imposing sanctions of $500,000 for Sagonowsky’s conduct in increasing the cost of the
litigation and frustrating settlement, and by imposing sanctions of $180,000 for causing a
reduction in the sale price of real property awarded to Kekoa in the dissolution judgment,
because these amounts were untethered to attorney fees and costs incurred by Kekoa. In
all other respects, we affirm.2
FACTUAL AND PROCEDURAL BACKGROUND
This case has a lengthy and complicated procedural history. We provide an
overview, summarizing only those facts relevant to the issues raised on appeal.
Sagonowsky and Kekoa married in 1992. They owned several San Francisco
rental properties, including properties on Ashbury Street, Filbert Street, and two on
Greenwich Street. In 2003, Sagonowsky petitioned for dissolution. The marriage was
dissolved in 2005 as to status only. Sagonowsky managed the San Francisco rental
properties until the parties agreed on a division of marital property. In 2006,
Sagonowsky inherited approximately $2 million in real property from her mother. In
2
We grant Kekoa’s unopposed request for judicial notice of documents relating to
lawsuits Sagonowsky filed against Kekoa and his attorneys, and against various state
court judges. (Evid. Code, §§ 452, 453, 459.) We deny Kekoa’s July 22, 2015 request to
file a motion for monetary sanctions against Sagonowsky for filing a frivolous appeal
(Code Civ. Proc., § 391.7). The trial court sealed documents relevant to the ADA issue.
The sealed documents and transcripts were filed under seal in this court. (Cal. Rules of
Court, rule 8.46(c).) We have reviewed the sealed materials and describe them in general
terms to maintain their confidentiality.
2
2008, Sagonowsky recorded lis pendens (Code Civ. Proc., § 405.20) against the Ashbury
and Filbert Street properties.
In a 2010 judgment, the court awarded Kekoa the Ashbury and Filbert properties
and a property on Ainakea Way in Honolulu. Sagonowsky received five properties,
including the Greenwich properties. The judgment provided all “final transfers of the
real property shall occur by December 15, 2010.”
Sagonowsky’s Refusal to Comply with the Judgment
In early 2011, Sagonowsky appealed from the judgment. While her appeal was
pending, Sagonowsky refused to comply with the judgment and sought to delay her
obligation to transfer management and control of the Ashbury and Filbert properties to
Kekoa.3 In early 2011, Kekoa filed the rents motion, described in more detail below, to
recover approximately $45,000 in rents and security deposits Sagonowsky received on
the Ashbury and Filbert properties. In February 2011, the court transferred control of the
Ashbury and Filbert properties to Kekoa and ordered Sagonowsky to deliver to Kekoa
“all funds” she received after December 15, 2010 for managing those properties.
In December 2012, this court dismissed Sagonowsky’s appeal after she failed to
file an opening brief, despite receiving two extensions. The California Supreme Court
denied Sagonowsky’s petition for review. Following this court’s 2013 remittitur,
Sagonowsky refused to sign deeds to the Ashbury, Filbert, and Ainakea properties. From
April to June 2013, Kekoa’s attorney, Casimir Wilson, sent Sagonowsky five letters
asking her to sign proper deeds transferring title to Kekoa. Sagonowsky did not respond,
forcing Kekoa to move to have the trial court execute the grant deeds and to appoint the
3
During this time period, Sagonowsky filed several lawsuits against Kekoa and his
then attorney regarding the Greenwich properties. According to the court, Sagonowsky’s
“idea of how to proceed is . . . she should get everything she wants, including things not
addressed in the [j]udgment . . . [t]hese claims are repeatedly raised and [Sagonowsky]
takes the further step of filing other lawsuits raising these very same issues” against
Kekoa and others. The court referred to Sagonowsky’s conduct as a “reign of terror
against Kekoa by holding up his property and further delaying [the dissolution]
proceedings with frivolous requests and filings.”
3
clerk as Sagonowsky’s agent to execute the deeds transferring the properties.4 Kekoa
also moved to expunge the lis pendens Sagonowsky had filed on the Ashbury and Filbert
properties, and for attorney fees and costs.
In 2013, the trial court granted Kekoa’s request to expunge the lis pendens and for
attorney fees, and to appoint the court clerk as agent to execute the deeds for Ashbury,
Filbert and Ainakea.
The Rents Motion and Wilson’s Motion for a Protective Order
In 2011, Kekoa filed the rents motion, and the court ordered the parties to present
evidence on Sagonowsky’s failure to transfer money she received arising from her
management of the Ashbury and Filbert properties. In particular, the court ordered
Sagonowsky to provide evidence regarding loan payments, utilities, and taxes between
December 15, 2010 and February 9, 2011, and evidence supporting her request for
property management fees for those properties. Sagonowsky did not file any pleadings
before the court-ordered deadline. Instead — and shortly before the hearing on the rents
motion — Sagonowsky claimed she suffered from a disability preventing her from
attending the hearing. The court continued the hearing several times, eventually until the
resolution of Sagonowsky’s appeal from the judgment.5
The court set an October 2013 hearing date for the rents motion. Sagonowsky
filed a written opposition but did not appear at the hearing. At the conclusion of the
hearing, the court determined Sagonowsky had wrongfully withheld $58,028.75 on the
Ashbury and Filbert properties from December 15, 2010 to February 9, 2011.
4
In 2011, Sagonowsky deposited the deeds with the superior court to stay
enforcement of the judgment on appeal (Code Civ. Proc., § 917.3), but the deeds were
defective because they lacked proper notary acknowledgment. Wilson claimed
Sagonowsky, then a licensed California real estate broker, knew the deeds were
defectively acknowledged and could not be recorded, even after the appeal from the
judgment was final.
5
In late 2011, the court sanctioned Sagonowsky $35,000 for her “repeated failure to
comply with the mandate of . . . section 271.”
4
Sagonowsky successfully petitioned this court for writ relief, and the trial court vacated
the order and set a new hearing date for the rents motion.6
In late 2013, Sagonowsky retained attorney Bradley White.7 White served Wilson
with a deposition subpoena seeking Wilson’s testimony on Kekoa’s entitlement to rents
and deposits. When White refused to withdraw the subpoena, Wilson moved for a
protective order and for monetary sanctions. The day before the protective order hearing,
Sagonowsky moved to disqualify the judge pursuant to Code of Civil Procedure section
170.6. The court granted the challenge, continued the hearing on the motion for
protective order to late January 2014, and reassigned the matter to Judge Anne-Christine
Massullo.
On the morning of the continued hearing, Sagonowsky served a “notice of
unavailability due to disability” indicating she would be “unavailable for all purposes . . .
including but not limited to receiving notices of any kind, appearing in court, responding
to ex parte applications, motions or attending depositions” until late April 2014. The
doctor’s note attached to the unavailability notice, however, did not recommend such
broad limitations — it simply stated Sagonowsky’s symptomatology precluded
“prolonged sitting, prolonged weight-bearing, and other physical activities.” While
Sagonowsky claimed to be unable to receive notices or respond to pleadings, she was
actively pursuing at least two other lawsuits against Kekoa in San Francisco and San
Mateo Superior Courts.
6
In 2009, a division of this court declared Kekoa a vexatious litigant. (Sprague v.
Kekoa (Dec. 8, 2009, A122018) [nonpub. opn.].) Sagonowsky routinely challenged
Kekoa’s motions and the trial court’s rulings for noncompliance with the requirements of
the vexatious litigant statute (Code Civ. Proc., § 391.7). In three instances, this court
issued alternative writs, and in 2014, we “reluctantly again intervene[d]” regarding the
trial court’s initial ruling on the rents motion.
7
The court observed Sagonowsky and White are engaged, and held joint interest in
several properties. According to the court, White appeared to provide legal services and
advice to Sagonowsky when she claimed to be acting in propria persona. White had
“emotional outbursts during . . . proceedings, threatened the Court,” and took “legal
positions that were frivolous and intended solely for the purpose of delay.”
5
The court stayed the protective order hearing because neither Sagonowsky nor
White appeared, and because it was not clear whether Sagonowsky was seeking an
accommodation due to a disability. Eventually, the court held a hearing and granted the
motion for a protective order. White agreed to pay sanctions for requiring Wilson to seek
a protective order.
Kekoa’s Section 271 Motion, Sagonowsky’s Campaign Against the Judiciary, and the
Court’s Tentative Order on the Rents Motion
In February 2014, Kekoa moved for $776,732.46 in section 271 sanctions against
Sagonowsky based on her: (1) failure to sign recordable grant deeds to the Ashbury,
Filbert, and Ainakea properties; (2) refusal to sign new grant deeds after the defective
grant deeds could not be recorded; (3) refusal to withdraw her lis pendens notices from
the Ashbury and Filbert properties after the judgment became final; (4) delaying Kekoa
from expunging the lis pendens and appointing the court clerk as an agent to sign the
grant deeds; (5) preventing Kekoa from moving into the Filbert property; (6) preventing
Kekoa from selling the Ashbury property; and (7) seeking numerous continuances to
delay resolution of the parties’ claims. Kekoa sought $42,781.23 in attorney fees and
costs, $165,585 in interest on the attorney fees and costs, and $180,000 for the reduced
sales price of the Ashbury property, for a total of $388,366.32, multiplied by a 2.0
lodestar.
In his memorandum of points and authorities and a detailed supporting
declaration, Kekoa explained he incurred $42,781.23 in attorney fees and costs to
expunge the lis pendens, to appoint clerk as agent to execute the deeds for the Ashbury
and Filbert properties, and to file the rents motion and section 271 motion. Kekoa also
stated he lost $180,000 when Sagonowsky interfered with the sale of the Ashbury
property by “scaring off all potential buyers . . . by falsely claiming to be a tort creditor
and threatening to sue” under the Uniform Fraudulent Transfer Act (UFTA). Kekoa
explained that a buyer made a $1.85 million dollar offer to buy the Ashbury property, but
withdrew it because of the “defective grant deed problem and the lis pendens” and
Sagonowsky’s threat to sue under the UFTA. Another buyer eventually made an offer —
6
for $180,000 less — which Kekoa accepted because he “needed to pay his attorneys and
other creditors[.]” Kekoa sought a multiplier of 2.0 to punish Sagonowsky’s “misconduct
and deter her from any future misconduct.” Finally, Kekoa described Sagonowsky’s
significant wealth.
Shortly after Kekoa moved for sanctions, Sagonowsky began a campaign against
the San Francisco Superior Court judiciary. In March 2014 — on the date set for the
hearing on Wilson’s motion for a protective order — Sagonowsky moved to disqualify
Judges Cynthia Ming-Mei Lee and Massullo pursuant to Code of Civil Procedure
sections 170.1 and 170.3, forcing the court to continue the hearing on Wilson’s protective
order motion. Both motions to disqualify were denied. Sagonowsky filed a petition for
writ of mandate challenging, among other things, the ruling on her challenge to Judge
Massullo, which this court denied on May 1, 2014.
The next day — on the date set for a case management hearing — Sagonowsky
filed a complaint for damages and injunctive relief in federal court against Judges Lee,
Julie Tang, and Massullo, and others. The trial court continued the case management
hearing until May 2014.8 On the morning of the case management conference,
Sagonowsky moved to disqualify Judge Massullo. Judge Massullo held the case
management conference and granted Wilson’s motion for a protective order. The court
later denied Sagonowksy’s motion to disqualify Judge Massullo.
Neither Sagonowsky nor White appeared at the January 2014 hearing on the rents
motion. In June 2014, the court issued a tentative order partially granting the motion,
concluding: (1) Sagonowsky received notice of the hearing and Kekoa’s request for
relief; and (2) Kekoa was entitled to $28,510.80 in rents and security deposits, including
interest, for the Ashbury and Filbert properties because Sagonowsky did “not dispute that
she kept the rents and security deposits at issue” and that Sagonowksy was not entitled to
8
Shortly before the case management conference, Sagonowsky requested an
“indefinite[e]” continuance for “[a]ll hearings and trials” because of various medical
conditions, and attached a note from her psychiatrist.
7
keep this money to offset money she claimed Kekoa owed her under the judgment. The
court rejected Sagonowsky’s claims for affirmative relief.
The court set July 2014 hearing dates for the rents motion and Kekoa’s section 271
motion, and for a prehearing conference pursuant to Vesco v. Superior Court (2013) 221
Cal.App.4th 275 (Vesco) “in recognition of Sagonowsky’s previous and numerous
requests for accommodation” under the ADA.
ADA Accommodation Requests
In late June 2014, Sagonowsky requested a “[s]tay of all proceedings, trials and
hearings” — including the Vesco hearing and the hearing on the rents motion and the
section 271 motion — “for 6 months . . . due to total disability[.]” Sagonowsky’s
psychiatrist, Donald Stanford, M.D., submitted a supporting declaration. In July 2014,
the court held the Vesco hearing. White appeared at the hearing, but Sagonowsky did
not. Kekoa and his attorney appeared. Both parties presented evidence and argued their
respective positions.
In a July 2, 2014 written order, the court denied “Sagonowsky’s request to
accommodate her by continuing the July 8 and 9 proceedings for 6 months.” The court
detailed the reasons why the declaration did not support the ADA request, and noted
Sagonowsky was pursuing other cases and appearing in those cases while she claimed to
be disabled. The court allowed Sagonowsky “to present live testimony through a video
deposition which she will be required to complete before the July 8, 2014 hearing if she
chooses to testify in that manner. Her attorney is required to give notice to the Court and
opposing counsel as to the date, location and time of the video testimony to insure that all
parties will be available. Sagonowsky will have 1.5 hours to present her direct testimony,
Kekoa will have 2 hours for cross examination and Sagonowsky will have 30 minutes for
redirect. . . . [¶] The Court will not accept testimony from Sagonowsky by phone or
Skype.”
Sagonowsky petitioned for writ relief; this court denied the petition. In August
2014, the court adopted its tentative ruling regarding the rents motion and ordered
Sagonowsky to pay Kekoa $28,510.80.
8
Sagonowsky’s Opposition to the Section 271 Motion and Kekoa’s Reply
In her opposition to the section 271 motion, Sagonowsky argued, among other
things: (1) the sanctions were “fabricated,” “phony” and calculated to “harass” her; (2)
section 271 does not authorize an award of “economic damages[;]” and such an award
“would be in excess of [the] court’s jurisdiction[;]” (3) the court lacked subject matter
jurisdiction to award damages for alleged “conversion claims for rents and security
deposits[;]” (4) the allegations regarding her financial condition were not supported by
admissible evidence; (5) awarding section 271 sanctions against her would “impose an
unreasonable financial burden[;]” and (6) Kekoa was not entitled to attorney fees.
Sagonowsky objected to the evidence offered in support of the motion and sought section
271 sanctions against Kekoa.
In reply, Kekoa argued the court had broad discretion to consider “numerous
factors” when imposing section 271 sanctions, and that there was sufficient evidence
demonstrating an award of sanctions would not impose an unreasonable burden on
Sagonowsky.
Hearing and Order Imposing Section 271 Sanctions
At the outset of the July 2014 hearing on the section 271 motion, White made an
oral “ADA accommodation request,” which the court denied as untimely. White claimed
Sagonowsky was unable to have her deposition taken and could not present live
testimony. White explained Sagonowsky had “been precluded from . . . being able to
participate at [the] hearing in violation of her rights under the ADA . . . equal protection
and due process[.]” White tried to leave the courtroom, but the court ordered him to
remain.
Kekoa testified he received an offer of $1,850,000 to purchase the Ashbury
property, but the offer was withdrawn after Kekoa disclosed his difficulty securing a
recordable deed to the property and the “wrongful liens” Sagonowsky had filed against it.
Kekoa eventually sold the Ashbury property for $1,670,000. Testifying as an expert in
San Francisco real estate valuation, Kekoa stated Sagonowsky’s San Francisco real
property had a value of $13 million. Real estate broker Allison Chapleau testified for
9
Sagonowsky. Chapleau listed the Ashbury property for $1,595,000 and received multiple
offers.
At the conclusion of the hearing, the court asked White how a family court judge
could deter a litigant who “at every turn thwarts any opportunity to resolve a matter and
files numerous motions? Even after judgment, refuses to sign over deeds to property that
clearly pursuant to the judgment that has now has been upheld on appeal . . . because the
litigant . . . never filed an opening brief[?]” The court characterized much of
Sagonowsky’s opposition to the section 271 motion — including her evidentiary
objections — as “frivolous and not supported by the law” and observed the purpose of
section 271 was to “prevent what has happened in this case. This case is a hallmark case
for [section] 271. [¶] . . . Section 271 [was enacted] by the legislature to discourage this
very behavior that has been demonstrated since the judgment [became] final in this
action.”
In a lengthy written order following the hearing, the court partially granted the
section 271 motion and ordered Sagonowsky to pay Kekoa $767,781.23 in sanctions
pursuant to section 271, comprised of the following: (1) $180,000 for the reduction in
sales price of the Ashbury property; (2) $17,997.17 in attorney fees to release the deeds
and appoint an elisor; (3) $18,549.06 in attorney fees and costs for Kekoa’s rents motion;
(4) $6,235 in attorney fees to prepare the section 271 motion; (5) $45,000 in interest from
March 23 to December 23, 2013 on Kekoa’s bill for attorney fees; and (6) $500,000 for
Sagonowsky’s “relentless and culpable conduct” in driving “up the cost of litigation
against Kekoa” and “purposefully frustrat[ing] the final settlement of this post-judgment
case.”
The court concluded “credible evidence” left “no doubt that Sagonowsky engaged
in a culpable, deliberate and focused campaign to delay as long as possible Kekoa’s
enjoyment of the three properties awarded to him in the . . . 2010 Judgment.”
Additionally, the court concluded its previous sanctions against Sagonowsky were “not a
successful deterrent” and that Sagonowsky had “net real estate holdings valued in excess
of $15 million” and as a result, “clearly ha[d] the ability to pay the award” and that the
10
award of attorney fees, costs and sanctions would not impose an unreasonable financial
burden on her.
Sagonowsky appealed from the order partially granting the rents motion, and from
the order granting the section 271 motion. We consolidated the appeals.
DISCUSSION
As stated above, section 271 authorizes the trial court to award attorney’s fees and
costs based “on the extent to which the conduct of each party or attorney furthers or
frustrates the policy of the law to promote settlement of litigation and, where possible, to
reduce the cost of litigation by encouraging cooperation between the parties and
attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature
of a sanction.” (§ 271, subd. (a).) The purpose of the statute is “‘“to promote settlement
and to encourage cooperation which will reduce the cost of litigation.” [Citation.]’”
(Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1176, quoting In re Marriage of
Petropoulos (2001) 91 Cal.App.4th 161, 177.)
“Section 271 ‘“authorizes sanctions to advance the policy of promoting settlement
of litigation and encouraging cooperation of the litigants’ and “does not require any
actual injury.” [Citation.] Litigants who flout that policy by engaging in conduct that
increases litigation costs are subject to imposition of attorney fees and costs as a section
271 sanction.’ [Citation.]” (In re E.M. (2014) 228 Cal.App.4th 828, 850, fn. omitted.)
“The imposition of sanctions under section 271 is committed to the sound discretion of
the trial court. The trial court’s order will be upheld on appeal unless the reviewing
court, ‘considering all of the evidence viewed most favorably in its support and indulging
all reasonable inferences in its favor, no judge could reasonably make the order.’
[Citation.]” (Ibid.) “To the extent that we are called upon to interpret the statutes relied
on by the trial court to impose sanctions, we apply a de novo standard of review.
[Citation.]” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479 (Feldman).)
11
I.
Section 271 Does Not Authorize Imposition of $500,000
or $180,000 in Sanctions
Sagonowsky does not dispute the court’s description of her conduct as
“unscrupulous,” “relentless and culpable,” nor the court’s characterization of her
behavior as “economic warfare fueled by her wealth, her bitter hatred for Kekoa, and her
complete disregard for the law.” Sagonowsky makes no effort to dispel the court’s
conclusion that her conduct violated the trial court’s 2010 judgment and “purposefully
frustrated the final settlement of this post-judgment case.” Thus, Sagonowsky leaves
unchallenged the court’s determination that her conduct warranted a sanction under
section 271. However, Sagonowsky contends the amount the court awarded was
excessive because $680,000 was untethered to attorney fees and costs incurred by Kekoa.
We agree.
The plain language of section 271 authorizes the court to impose “attorney’s fees
and costs” as a sanction for conduct frustrating settlement or increasing the cost of the
litigation. “‘The statute’s plain meaning controls the court’s interpretation unless its
words are ambiguous. If the plain language of a statute is unambiguous, no court . . .
should, go beyond that pure expression of legislative intent. [Citation.]’ [Citation.]”
(West Hills Farms, Inc. v. RCO AG Credit, Inc. (2009) 170 Cal.App.4th 710, 715 (West
Hills).) Here, the words “attorney fees and costs” are not ambiguous, and Kekoa does not
argue otherwise. Section 271 “means what it says” — sanctions available under the
statute are limited to “attorney fees and costs[.]” (See West Hills, supra, at p. 719
[provision of the Corporations Code did not authorize recovery of attorney fees
independent of the bond; Legislature was capable of drafting a statute authorizing such
recovery, but did not]; Sino Century Development Limited v. Farley (2012) 211
Cal.App.4th 688, 697-699 [rule of court’s “plain language” limited recovery of certain
fees as sanctions; noting the “Judicial Council knew how to draft a broader sanctions
provision” and could have used broader language had it “intended to expand the
recoverable” fees].)
12
Kekoa does not argue $500,000 and $180,000 are “attorney fees” or “costs” under
section 271. Instead — and relying on In re Marriage of Corona (2009) 172 Cal.App.4th
1205 (Corona) and In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 (Quay) — he
contends section 271 authorizes “non-cost sanctions.”9 In Corona, wife filed a motion
for “unpaid support in the form of specified housing costs,” and “asked the family court
to award her attorney fees and costs for [husband’s] conduct in forcing her to file the
motion, as well as sanctions on grounds that as an attorney and drafter of the agreement
[husband] was well aware of his obligations” to pay the housing costs. (Corona, supra,
at pp. 1209, 1213.) The trial court granted the housing costs motion and sanctioned
husband $5,000 “for taking an unreasonable position in connection” with the request for
housing costs. (Id. at p. 1209.)
Husband challenged the sanctions award on appeal, claiming the court’s written
order did not comply with former Code of Civil Procedure section 128.6, and that his
actions were not “frivolous” within the meaning of that statute. (Corona, supra, 172
Cal.App.4th at pp. 1223-1224.) As relevant here, wife argued section 271 authorized the
sanctions. (Id. at p. 1224.) The Corona court upheld the sanction award. It noted the
“family court did not state the statutory basis for its sanction award” but that the court did
not abuse its discretion in ordering sanctions pursuant to section 271 (id. at pp. 1224,
9
We reject Kekoa’s contention that the court had inherent authority to impose
monetary sanctions against Sagonowsky. A trial court has inherent authority to punish
for contempt and control its own proceedings, but a court does not have inherent power to
impose monetary sanctions payable to an opposing party or counsel. (Yarnell &
Associates v. Superior Court (1980) 106 Cal.App.3d 918, 922 [monetary sanctions
intended to compensate party for expense of opposing a frivolous motion could not be
imposed without “statutory authority”]; Andrews v. Superior Court (2000) 82
Cal.App.4th 779, 782 [monetary sanctions not authorized under court’s inherent
powers].) The power to impose monetary sanctions must be authorized by statute.
(Bauguess v. Paine (1978) 22 Cal.3d 626.) At oral argument, Kekoa claimed his trial
attorney, Wilson, charged $165,585 in interest on Kekoa’s attorney fee bill, and from this
amount, we can infer Kekoa paid more than $500,000 in attorney fees. We reject this
claim because it was made for the first time at oral argument, and because the trial court
imposed $500,000 to punish Sagonowsky for her “relentless and culpable conduct[,]” not
because that amount bore any relationship to the attorney fees paid by Kekoa.
13
1226.) As the court explained, husband never “questioned the statutory basis for [the]
sanctions request at any point before the family court reached its decision. [Wife] was
not required to establish any particular harm as a prerequisite to a sanctions award under
section 271. [Citation.] Finally, at the hearing, [wife’s] counsel stated that the requested
sanctions were in the nature of a contribution to [her] attorney fees.” (Id. at p. 1226, fn.
omitted.)
Corona also rejected husband’s argument that insufficient evidence supported the
“amount of attorney fees and costs” wife incurred. (Corona, supra, 172 Cal.App.4th at p.
1226.) The court noted husband’s “argument as to the lack of supporting evidence fails
because a sanctions award under section 271 need not ‘be limited to the cost to the other
side resulting from the bad conduct.’ [Citation.] Because section 271 is not a need-based
statute and does not require a correlation between the sanctioned conduct and specific
attorney fees, it was not essential that [wife] demonstrate her current financial situation
and attorney fees by submitting an income and expense declaration.” (Id. at pp. 1226-
1227, quoting Quay, supra, 18 Cal.App.4th at p. 970.)
Corona is distinguishable. In Corona, husband did not challenge the statutory
basis for the award of sanctions and wife argued the “sanctions were in the nature of a
contribution to [her] attorney fees.” (Corona, supra, 172 Cal.App.4th at p. 1226.) As a
result, the Corona court did not consider the issue presented in this case: whether section
271 authorizes a trial court to award sanctions outside of attorney fees and costs. Here,
Sagonowsky argued section 271 did not authorize the sanctions, and Kekoa did not — as
in Corona — claim these amounts were “a contribution” to his attorney fees. (Corona, at
p. 1226.) The Corona court’s statement that sanctions awarded pursuant to section 271
“need not ‘be limited to the cost to the other side resulting from the bad conduct’” does
not assist Kekoa because the “costs” to which the Corona court referred were wife’s
attorney fees. (Ibid.) Here, there is no relationship between the sanctions of $500,000
and $180,000, and Kekoa’s attorney fees.
The Corona court’s comment that a party seeking sanctions is “not required to
establish any particular harm as a prerequisite to a sanctions award under section 271”
14
does not, as Kekoa seems to suggest, authorize the sanctions at issue. (Corona, supra,
172 Cal.App.4th at p. 1226.) To support this statement, Corona cited Feldman without
explanation. In Feldman, the husband breached his fiduciary duty to disclose financial
information to the wife, and the court imposed sanctions pursuant to section 271.
(Feldman, supra, 153 Cal.App.4th at pp. 1474-1475.) On appeal, husband claimed
section 271 sanctions “may not be imposed on a spouse who breaches his fiduciary duty
of disclosure if the other party fails to establish any harm resulting from the breach.” (Id.
at p. 1479.) The Feldman court rejected this argument and explained section 271
“authorizes sanctions to advance the policy of promoting settlement of litigation and
encouraging cooperation of the litigants. [It] does not require any actual injury.” As a
result, wife was not required “show harm as a prerequisite to an award of sanctions[.]”
(Id. at p. 1480.) This statement, which has been repeated in Corona and other cases, does
not authorize a trial court to impose sanctions outside of attorney fees and costs. It
simply means a party seeking sanctions pursuant to section 271 need not show the other
side’s sanctionable conduct, like the failure to disclose in Feldman, caused independent
harm.
Nor are we persuaded by Kekoa’s reliance on Quay. In Quay, the trial court
ordered the husband to pay $100,000 of the wife’s attorney fees under former Civil Code
section 4370.6, the predecessor to section 271. (Quay, supra, 18 Cal.App.4th at p. 969.)
On appeal, the husband claimed the sanctions award was improper because “the only
attorney fees before the court were incurred after his wrongful conduct[.]” (Id. at p. 970.)
The Quay court disagreed, concluding the statute “contemplates assessing a sanction at
the end of the lawsuit, when the extent and severity of the party’s bad conduct can be
judged.” (Ibid.) Quay’s holding regarding attorney fees has no application here because
the sanctions at issue — $500,000 for Sagonowksy’s culpable conduct and $180,000 in
the reduction of the Ashbury property sales price — are not attorney fees. The Quay
court also rejected the argument that “the sanctions must be limited to the cost to the
other side resulting from the bad conduct. . . . There is no such limitation in Civil Code
section 4370.6.” (Ibid.) This comment simply means the party seeking sanctions
15
pursuant to section 271 need not establish with great precision an amount directly caused
by the improper conduct. (See In re Marriage of Falcone & Fyke (2012) 203
Cal.App.4th 964, 991.) In part, this flexibility exists because the misconduct may
increase attorney fees in ways that are indirect and difficult to prove.
We are not persuaded by Kekoa’s claim that In re Marriage of Falcone and Fyke
(2008) 164 Cal.App.4th 814 (Falcone) supports the imposition of the sanctions at issue.
In Falcone, the trial court awarded the husband attorney fees pursuant to section 271, and
“$20,000 in additional sanctions.” (Id. at pp. 822, 830.) On appeal, the wife did not
challenge the statutory basis for the “additional sanctions” and Falcone did not hold a
trial court may impose sanctions outside of attorney fees and costs pursuant to section
271. “Cases do not stand for propositions that were never considered by the court.
[Citation.]” (Mares v. Baughman (2001) 92 Cal.App.4th 672, 679.)
Sagonowsky’s deplorable conduct — described in detail by the trial court —
overwhelmingly demonstrates “sanctions under section 271 were warranted.” (In re
Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.) But we must conclude the plain
language of section 271 did not authorize the court to award $500,000 to punish
Sagonowsky for her culpable conduct, or $180,000 for the reduction in the sales price of
the Ashbury property, because those amounts bear no relationship to Kekoa’s attorney
fees and costs. (See, e.g., Bidna v. Rosen (1993) 19 Cal.App.4th 27, 35, 38, fn. omitted
[family law courts may impose “attorney fee awards which are intended as a sanction
against a party’s conduct” but “family law sanctions may not afford recovery for
emotional distress,” nor allow recovery of punitive damages].)10
10
Code of Civil Procedure section 128.5 — which authorizes sanctions to
compensate a party for “reasonable expenses, including attorney’s fees, incurred by [the]
party as a result of bad-faith actions or tactics that are frivolous or solely intended to
cause unnecessary delay” — likely would have authorized the sanctions at issue, but
Kekoa did not seek sanctions pursuant to that statute, and there is no indication the
court’s order imposing sanctions was predicated on that statute. (See Corona, supra, 172
Cal.App.4th at p. 1225, fn. 7 [refusing to “uphold the trial court’s sanction” under Code
of Civil Procedure section 128.7 because wife “did not comply with its strict procedural
requirements”]; In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1110 [moving
16
We reach a different conclusion with respect to the court’s award of $45,000 in
interest on attorney fees owed by Kekoa. This amount — comprised of $5,000 per month
from March to December 2013 — is related to Kekoa’s attorney fees. The interest
accumulated when Sagonowsky’s “unscrupulous conduct” delayed Kekoa’s enjoyment of
his share of the Ashbury property, and denied him the funds to pay his attorney fees. The
court was therefore within its discretion under section 271 to award interest on the unpaid
attorney fee bill as an additional fee imposed by his attorney. We are not persuaded by
Sagonowsky’s claim that insufficient evidence supports the award of $45,000 in interest.
She concedes Wilson offered a declaration explaining how Sagonowsky’s tactics delayed
the litigation and caused interest on Kekoa’s attorney fee bill to accrue. The trial court
considered the evidence offered in support of the request for interest and determined
Kekoa was entitled to interest from March to December 2013. Sagonowsky’s sufficiency
of the evidence claim fails. (In re Marriage of Simmons (2013) 215 Cal.App.4th 584,
589 [trial court’s findings on section 271 motion supported by substantial evidence].)
Having concluded the court erred by imposing sanctions of $500,000 and
$180,000 pursuant to section 271, we need not address Sagonowsky’s contention that
insufficient evidence supports that portion of the sanctions award. We have considered
and rejected Sagonowsky’s arguments that the amount of sanctions would impose an
unreasonable financial burden on her, and that Kekoa was not entitled to recover attorney
fees because he used the services of an attorney who previously represented her.
(Southern California Edison Co. v. Public Utilities Com. (2014) 227 Cal.App.4th 172,
203, fn. 23.)
II.
The Court Did Not Violate California Rules of Court, Rule 1.100
Sagonowsky argues the court violated California Rules of Court, rule 1.100 (Rule
1.100), by holding hearings on the rents motion and the section 271 motion in her
absence. Rule 1.100 governs requests for accommodation by persons with disabilities, to
party urged court to award sanctions pursuant to predecessor to section 271, “even though
such sanctions could have been sought” under other statutes].)
17
ensure “persons with disabilities have equal and full access to the judicial system.” (Rule
1.100(b).) Under Rule 1.100(c), a litigant may make a request for an accommodation and
the request “must include a description of the accommodation sought, along with a
statement of the impairment that necessitates the accommodation.” Under appropriate
circumstances, a trial continuance may be an appropriate accommodation. (Vesco, supra,
221 Cal.App.4th at p. 279; In re Marriage of James & Christine C. (2008) 158
Cal.App.4th 1261, 1276 (Marriage of James).)
“A request for accommodation may be denied only when the court determines
that: [¶] (1) The applicant has failed to satisfy the requirements of this rule; [¶] (2) The
requested accommodation would create an undue financial or administrative burden on
the court; or [¶] (3) The requested accommodation would fundamentally alter the nature
of the service, program, or activity.” (Rule 1.100(f).) The court or the ADA coordinator
must grant a request for accommodation under Rule 1.100 unless it makes at least one of
these findings. (Marriage of James, supra, 158 Cal.App.4th at pp. 1272-1274.) “The
court must promptly inform the applicant of the determination to grant or deny an
accommodation request. If the accommodation request is denied in whole or in part, the
response must be in writing. On request of the applicant, the court may also provide an
additional response in an alternative format. The response to the applicant must indicate:
[¶] (A) Whether the request for accommodation is granted or denied, in whole or in part,
or an alternative accommodation is granted; [¶] (B) If the request for accommodation is
denied, in whole or in part, the reason therefore; [¶] (C) The nature of any
accommodation to be provided[.]” (Rule, 1.100(e)(2).)
In its written order, the court determined Sagonowsky was not disabled, and that
she did not need the accommodation of a trial continuance. The court also implicitly
determined Sagonwosky’s requested accommodation — a six-month or “indefinite”
continuance — would impose an undue financial or administrative burden on the court.
Substantial evidence supports the court’s conclusions. The court did not violate Rule
1.100 by not continuing the hearings. This case is not, as Sagonowsky seems to suggest,
like Marriage of James, supra, 158 Cal.App.4th 1261, where it was “undisputed [the
18
wife]” was “disabled within the meaning of the ADA” (id. at p. 1277) because she
suffered from “bipolar disorder, a potentially incapacitating mental illness which may
result in disability under the ADA.” (Id. at p. 1273, fn. omitted.) The wife also suffered
from cancer, and “had been hospitalized the day before trial was set to resume.” (Id. at p.
1277.) The trial court’s refusal to continue the trial denied the wife meaningful access to
the proceedings. (Id. at p. 1274.)
Here and in contrast to Marriage of James, there was no undisputed diagnosis of
disability. In fact — and as described in detail by the trial court — the evidence
suggested Sagonowsky was not disabled. Sagonowsky attended proceedings in another
case pending in San Mateo County when she claimed to be “completely disabled.”
Despite determining Sagonowsky was not disabled, the court provided her with an
accommodation — it permitted her to present videotaped testimony, which she declined.
The court’s denial of the continuance did not deprive Sagonowsky of meaningful access
to the proceedings. Finally, this case bears no resemblance to Biscaro v. Stern (2010)
181 Cal.App.4th 702, 710, where the court’s where the court’s refusal to rule on the
application for accommodation resulted in a structural error. There is no structural error
or violation of Rule 1.100 requiring reversal here.
III.
We Reject Sagonowsky’s Challenge to the Award of Rents and Deposits
Sagonowsky claims the court erred by awarding Kekoa $28,510.80 in rents and
deposits on the Ashbury and Filbert properties awarded to him in the 2010 judgment.
According to Sagonowsky, Kekoa’s claim for “conversion of rents and deposits on his
separate property was not cognizable in a dissolution.” We disagree. As relevant here,
the 2010 judgment awarded Kekoa the Ashbury and Filbert properties and required
transfers of those properties to occur by mid-December 2010. Sagonowsky did not
comply with the judgment. Instead, she delayed and avoided transferring management
and control of the properties to Kekoa, forcing him to bring the rents motion. In February
2011, the court transferred control of the Ashbury and Filbert properties to Kekoa and
ordered Sagonowsky to deliver to Kekoa “all funds” she received after December 15,
19
2010 for managing those properties. Sagonowsky withheld the rents and deposits until
the court forced her to divulge them.
Section 290 authorized the court to enforce the 2010 judgment and its February
2011 order. That statute provides: “[A] judgment or order made or entered pursuant to
this code may be enforced by the court by execution, the appointment of a receiver, or
contempt, or by any other order as the court in its discretion determines from time to time
to be necessary.” “Proceedings to redress non-compliance with a family law judgment or
order (as well as other matters arising out of a family law case) belong in the family law
court rather than the general civil side of the superior court.” (Hogoboom, et al., Cal.
Practice Guide: Family Law (The Rutter Group 2016) ¶ 18:2, p. 18-3; Burkle v. Burkle
(2006) 144 Cal.App.4th 387, 394-399.) Here, the court acted within its broad
discretionary authority under section 290 in awarding Kekoa rents and deposits. (In re
Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1483-1484.) We reject
Sagonowsky’s argument to the contrary.
Nor are we persuaded by Sagonowsky’s claim that there was “no admissible
evidence” supporting the award of rents and deposits. Kekoa supported his motion with
“evidence of checks, a declaration, and a full accounting of the income of the properties
by way of bank statements.” Sagonowsky has not demonstrated this evidence was
inadmissible. Sagonowsky’s remaining arguments regarding the award of rents and
deposits “have been considered and merit no further discussion.” (Lyons v. Santa
Barbara County Sheriff’s Office (2014) 231 Cal.App.4th 1499, 1506.)
DISPOSITION
The court’s August 20, 2014 order on Kekoa’s rents motion is affirmed. The
court’s September 22, 2014 order awarding Kekoa sanctions pursuant to section 271 is
20
affirmed in part and reversed in part. The sanctions awarded pursuant to section 271 are
reduced by $680,000. In all other respects, the September 22, 2014 order is affirmed. In
the interest of justice, each party is to bear its own costs on appeal. (Cal. Rules of Court,
rule 8.276.)
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
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Superior Court of the County of San Francisco, No. FDI03755091, Anne-Christine
Massullo, Judge
Joseph A. Hearst, for Plaintiff and Appellant.
Wood Robbins, LLP, B. Douglas Robbins and Sanny Kataoka, for Defendant and
Respondent.
22