Fourth District, Division 2 Upholds No Sanctions Award in Unpublished Opinion.
In our category “Family Law Awards,” we have surveyed many past decisions awarding fees against family law litigants based on Family Code section 271, which allows an award of fees as a sanction against a litigant that frustrates settlement, increases the cost of litigation, or is uncooperative in the family law case. Sometimes, section 271 has resulted in sanctions where a litigant brings a civil court action that duplicates proceedings taking place in family law court. (See, e.g., Burkle v. Burkle, 144 Cal.App.4th 387, 401 (2006).) However, awards under section 271 are fact intensive. The next case we review affirmed a trial court’s decision to not award section 271 sanctions in a duplicative proceeding context.
Marriage of Wanless, Case No. E044784 (4th Dist., Div. 2 June 10, 2009) (unpublished) involved a wife challenge to a husband’s signing of a trust deed without her consent in family law court and subsequently bringing a complaint in intervention in an ongoing civil action against husband for emotional distress arising from the same trust deed events. Husband brought an appellate writ petition that resulted in the Court of Appeal agreeing that his demurrer to the civil action should have been sustained, awarding him writ costs but not attorney’s fees. Husband moved to recover $37,040.82 in fees for defending against the civil action and pursuing the writ. The family court denied the request (mainly predicated on section 271), finding wife’s action was not frivolous, sanctions would create an unreasonable financial burden on wife, and the emotional distress claim did not impede settlement when viewed in light of 18 prior family law motions filed by husband (only one of which was successful). Husband still wanted his fees, and appealed.
He lost.
Even though the appellate court earlier reversed the demurrer ruling, even the trial court—who could be labeled a “reasonable attorney”—thought the emotional distress claim had enough vitality to find it nonfrivolous when overruling the demurrer. The Court of Appeal also agreed that the civil action did nothing to discourage cooperation or settlement efforts in the family law case—an argument that husband’s counsel admitted was not being made in the law and motion hearing below. Unlike Burkle, the facts here were different such that the duplicative proceeding was not the proper subject of sanctions. However, the appellate panel did find that husband was entitled to his routine writ costs for having won the prior appellate proceeding.
(BLOG BONUS COVERAGE—Husband also sought fees under Code of Civil Procedure section 128.7. He lost this bid, because (1) he did not give the requisite 21 day safe harbor warning, and (2) he failed to file the 128.7 sanctions request separately, but improperly combined it with the section 271 request. See Code Civ. Proc., sec. 128.7(c)(1) [128.7 sanctions motion must be made separately from other motions or requests].