Marriage of Cole CA1/3

Filed 8/11/23 Marriage of Cole CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re MARRIAGE of KIKIANNE and
SCOTT COLE.
___________________________________
A162601
KIKIANNE COLE,
Petitioner and Appellant, (Contra Costa County
Super. Ct. No. D12-03933)
v.
SCOTT COLE,
Respondent.
This appeal arises from a family law proceeding involving former
spouses Kikianne Cole and Scott Cole.1 Kikianne contends the trial court
abused its discretion in awarding Scott $6,000 in sanctions pursuant to
section 271 of the Family Code.2 We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit the background to the facts relevant to this appeal.
1 Because the parties share the same last name, we will refer to them by
their first names for the sake of clarity and intend no disrespect.
2 All further statutory references are to this code unless otherwise
specified.
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In January 2021, Scott filed a motion to compel Kikianne’s attendance
at a deposition, citing the failure of Kikianne’s counsel to agree to a
rescheduled date after having received a continuance of a properly noticed
deposition. Scott also requested $10,000 in attorney fees and costs as a
sanction that is “just and reasonable under the circumstances.” However,
Scott’s briefing did not cite section 271 as a basis for the sanctions.
Kikianne filed an opposition to Scott’s motion, disputing Scott’s claim
that her deposition had been properly noticed. Thus, she contended, her
counsel’s conduct was not wrongful and did not warrant sanctions.
The court held a hearing and granted Scott’s motion to compel and
request for sanctions. As relevant here, the court indicated satisfaction with
Scott’s offer of proof regarding his request for attorney fees and costs as
sanctions. Accordingly, it ordered Kikianne to pay $3,924 pursuant to Code
of Civil Procedure sections 2023.010 and 2023.030 and to pay further
sanctions in the amount of $6,000 pursuant to section 271.
Kikianne appealed.
DISCUSSION
Section 271 permits a trial court to impose an award of attorney fees
and costs as a sanction where the conduct of a party or their counsel
“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.” (§ 271, subd. (a); see Featherstone v.
Martinez (2022) 86 Cal.App.5th 775, 783.) Notice and an opportunity to be
heard must be provided to the party against whom the sanction is proposed.
(§ 271, subd. (b).) An award of sanctions under section 271 is reviewed for
abuse of discretion and will be overturned “ ‘only if, considering all of the
evidence viewed most favorably in its support and indulging all reasonable
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inferences in its favor, no judge could reasonably make the order.’ ” (In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995.)
On appeal, Kikianne no longer disputes whether her counsel’s conduct
warranted sanctions. Instead, she argues the trial court abused its discretion
in making the $6,000 award because (1) she was not given the requisite
notice under section 271 and (2) sanctions under section 271 are limited to
attorney fees and costs, and here she claims the $6,000 award was not
tethered to attorney fees and costs.
As a preliminary matter, we note Kikianne’s opening brief fails to
substantially comply with court rules requiring accurate citations to the
record to support her factual assertions. (Cal. Rules of Court, rule
8.204(a)(1)(C).) Not only are record citations largely missing, but one
document in the appellate record—to which Kikianne does not cite—
contradicts the assertion in her opening brief that the court’s minute order
did not include an award of $6,000 as sanctions under section 271.
In any event, a party may be found to have forfeited review of
contentions that were not raised in the proceedings below. For example, in In
re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, a wife claimed the
family court denied her an adequate opportunity to be heard on section 271
sanctions by not conducting a separate hearing. Petropoulos held the wife
had forfeited that claim because she failed to request a separate hearing and
instead acquiesced in the court’s briefing schedule for written submissions on
sanctions issue; she also failed to move for reconsideration or for a new trial
on the issue. (Id. at p. 179; see In re Marriage of Falcone & Fyke, supra, 203
Cal.App.4th at pp. 983–984 [by not objecting at beginning of trial, party
forfeited claim that all-purpose family court judge, and not the civil court
judge, should have heard issue of attorney fees and sanctions]; see also
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Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1170
[attorney sanctioned under Code Civ. Proc., § 128.5 waived issue of
inadequate statutory notice by failing to raise the issue during hearing,
failing to request a further hearing, and failing to move for reconsideration].)
Here, the record establishes that Kikianne failed to raise her present
contentions when she had the opportunity to do so in the proceedings below.
True, Kikianne is correct that Scott’s written briefing did not
specifically cite section 271 as a basis for his sanctions request. However,
Scott’s briefing did in fact request $10,000 as sanctions for Kikianne’s
“subversive and deliberately confusing tactics,” which had cost him
“thousands of dollars in back and forth correspondence” and other attorney
services.
Moreover, the arguments at the court hearing made crystal clear that
Scott was seeking sanctions under section 271. When Scott’s attorney
expressly argued for section 271 sanctions in the amount of $6,000, the court
questioned whether it had authority to award something more than the
attorney fees and costs already incurred (i.e., $3,924). Scott’s attorney
clarified that the $6,000 in sanctions were being sought as attorney fees and
costs, and she cited a case for the proposition that a section 271 sanction does
“not have to be tethered to the actual number of hours or the amount of fees
and costs incurred.” The trial court then invited a response from Kikianne’s
attorney, who argued that the sanctions would be “totally inappropriate”
because he and Kikianne did “nothing . . . to frustrate the policy of the law to
encourage settlement or encourage cooperation.” Kikianne’s attorney made
no objection on grounds of inadequate notice and made no contention that the
request for $6,000 in sanctions went beyond the scope of attorney fees and
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costs authorized by section 271. Nor did he request a further hearing on the
matter or move for reconsideration of the issue.
We note our agreement with Kikianne that section 271 does not
authorize an award of sums that are not tethered to attorney fees and costs.
(Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1144, 1153.) But here, the
transcript of the hearing and the trial court’s statements and order on the
matter are unclear as to whether and to what extent the $6,000 award was
based on attorney fees and costs. Because Kikianne had the opportunity to
clarify these matters in the proceedings below but did not, application of the
forfeiture doctrine appears particularly appropriate.
In sum, Kikianne’s failure to raise her contentions to the trial court at
the hearing or at any other point forfeits their review on appeal.
DISPOSITION
The order awarding Scott $6,000 in sanctions pursuant to section 271 is
affirmed. Scott is entitled to his costs on appeal.
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
Cole v. Cole (A162601)
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