Fee Sanctions Awards Under Both Code of Civil Procedure section 128.7 and Family Code section 271 Sustained On Appeal.
In another July 8, 2008 post, we discussed In re MacIntyre, a First District unpublished decision affirming an approximately $12,000 attorney’s fees sanction awarded under Family Code section 271. In the next case, a section 271 sanctions award and another under Code of Civil Procedure section 128.7 were at issue. As we show, an appellant must develop cogent arguments of prejudicial error, as well as present legal points that were raised in the lower court below, in order to prevail on appeal.
In re Marriage of Falcon & Fyke,, Case No. H031524 (6th Dist. July 8, 2008) (certified for publication) involved Former Wife’s challenge to a total of $ 64,500 in sanctions, either under CCP section 128.7 or Family Code section 271, for prosecuting meritless contempt and new trial motions against Former Husband. The opinion is very factually intensive, but the “bottom line” was that Former Wife moved for contempt even though Former Husband had paid the amounts at issue (albeit on a slightly different schedule) and the calculation of payments under another portion of a child/spousal support order was ambiguous in nature. Former Wife was put on notice of the contempt motion deficiencies in a prior mandatory settlement conference, but proceeded ahead anyway. Although arguing the award under section 271 would impose an unreasonable financial burden, evidence of record showed the former couple had equity of over $2 million in one property. The Court of Appeal, in a 3-0 decision authored by Justice Premo, affirmed across the board.
The opinion is replete with discussion of two important lessons for any in pro per litigant or practitioner prosecuting appeals in our state appellate system:
· Prejudicial error must be established on the record before the appellate court;
· Appellate courts normally will not consider defects or errors where an objection was not timely raised below (in this case, failing to add another 5 days for the mailing of the section 128.7 “safe harbor” motion—deemed waived because not raised in the lower court); and
· Self-represented parties are entitled to no greater consideration than other litigants and attorneys.
The Sixth District also sided with the Fourth District, Division Three in
regard to the practice of filing “notices of unavailability” with the court or opposing parties. It agreed that filing requirements under the Code of Civil Procedure are not modified when someone decides to take a vacation. The appellate panel quoted from the Fourth District, Division Three’s decision in Carl v. Superior Court, 157 Cal.App.4th 73, 75 (2007), agreeing that a notice of unavailability is “an impermissible infringement of the court’s inherent powers” to control the court’s calendar.