L.A. Local Rule Had to Yield to Family Code Allowing for Oral Fee Request.
In Sadegh v. Nikjeh, Case No. B201036 (2d Dist., Div. 2 May 6, 2009) (unpublished), a family law judge denied an oral request for a temporary “needs” attorney’s fees award under Family Code section 2031 because L.A. County Superior Court Local Rule 1.10 required a written declaration to accompany a fee request above $1,000 subject to limiting the evidence that could be considered in the fee proceeding. The Second District, Division 2 reversed, determining that an oral fee motion is authorized under section 2031 and that the local rule requiring a written declaration was invalid in light of the statutory provision to the contrary. (Elkins v. Superior Court, 41 Cal.4th 1337, 1351 (2007).) Besides that, in a footnote, the appellate court also indicated that it did not perceive a conflict—a written declaration was not mandated, but only limited the evidentiary submissions before the lower court. However, it did proceed to indicate that the statute allowing an oral motion controlled over a local rule requiring a written declaration.
Nonstatutory Sanctions Order Awarding Fees—A Contempt Finding—Violated Due Process.
Marriage of Murray, Case No. B206890 (2d Dist., Div. 4 May 6, 2009) (unpublished) involved a situation where a wife’s attorney was assessed with attorney’s fees as a contempt sanction even though no statutory section was specified, such as Family Code section 290 [contempt statute]. This was found to be a due process violation, because Bauguess v. Paine, 22 Cal.3d 626 (1978) required a statutory basis to use fee awards as sanctions. Because wife’s attorney was not given proper notice or specification of the statutory grounds for a contempt finding, the sanctions order was defective and was reversed on appeal.