Fourth District, Division 1 Offers a Tutorial on Section 271 Awards.
Under our category “Family Law,” we have surveyed past attorney’s fees awards under various sections of the Family Code because, after all, we are an equal opportunity blogger and like to survey fee decisions across the board in California. One of the most frequently used provisions in this area is section 271, which allows a family law judge to assess fees as a sanction against litigants who complicate proceedings, frustrate settlement, or increase the costs of resolution in the family law arena. The next case we look at is a published decision considering section 271, containing a virtual tutorial on germane principles relating to fee awards under this statutory provision.
Marriage of Corona, Case No. D052502 (4th Dist., Div. 1 Apr. 7, 2009) (certified for publication) involved a small fee award—husband was sanctioned $5,000 in family law proceedings over housing arrearages with his ex-wife. However, this gave rise to an appeal challenging this award, along with other rulings by an arbitrator and the family law judge. Despite some ambiguity in the basis for the fee award, it was affirmed on appeal by the San Diego-based Court of Appeal.
Husband first challenged the award as not justified under Code of Civil Procedure section 128.6(b)(2) because it was nonfrivolous in nature. This argument did not go far, because the appellate court found that section 128.6 never became operative unless section 128.7 expired. However, because section 128.7 has been expended indefinitely by the Legislature, his section 128.6 argument went POOF!
The appellate panel did concede that the trial court did not specify the basis for its sanction award, with wife not helping things by failing to clarify the grounds for fee imposition in her order to show cause request. Husband then argued that the award was not sustainable under either Code of Civil Procedure section 128.5 or 128.7. The problem with this argument is that section 128.5 was long gone (applying to matters filed before 1995) and wife never complied with section 128.7’s “safe harbor” rules (by sending a section 128.7 unfiled motion asking for withdrawal of the offensive conduct).
However, the Court of Appeal did decide that it could affirm the lower court’s sanctions order on any grounds supported by the record, in line with a fundamental appellate tenet on review of lower court matters. (See In re Marriage of Feldman, 153 Cal.App.4th 1470, 1478 n. 6 (2007).) This meant, in line with an argument advanced by wife, that the appellate panel could sustain the award if it passed muster under Family Code section 271—an award that is reviewed under the deferential abuse of discretion standard.
That brought the appellate panel to reviewing certain aspects of section 271 awards that are very favorable to the winning party and hard to defeat on appeal:
- No actual injury needs to be demonstrated for imposition of sanctions under section 271 (Feldman, supra, 153 Cal.App.4th at 1478-1480);
- Fees awarded under section 271 are not limited to the cost suffered by the other side from the resulting bad conduct (Marriage of Quay, 18 Cal.App.4th 961, 970 (1993) [construing a substantively identical predecessor statute to section 271]); and
- Section 271 fee awards do not have to be based on a party’s financial need or ability to pay (Burkle v. Burkle, 144 Cal.App.4th 387, 403 (2006) [filing of income and expense declaration is not a jurisdictional barrier to a section 271 award].)
After surveying the record, the section 271 award was determined to be no abuse of discretion. To make the decision even clearer, wife had filed financial information demonstrating that she owed $146,577.97 in fees and had paid $183,000 in fees through the OSC request, while husband submitted no income/expense declaration to demonstrate he could not pay the $5,000 fee award. Section 271 came to the rescue again and wife’s fee history showed that the payment to attorneys—whether recoverable or not—can make or break many a litigant!