Courtesy of: The F.M. Zavala Law Firm, Inc.
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As Sanction for Frustrating Policy of Law to Promote Settlement and Encourage Cooperation or for Violation of Court Rules
Frustrating policy of promoting settlement and encouraging cooperation. Notwithstanding any other Family Code provision, the court may base an award of attorney fees and costs on the extent to which each party’s or attorney’s conduct furthers or frustrates the policy of the law to promote settlement and to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. Fam C §271(a). For representative cases, see
Parker v Harbert (2012) 212 CA4th 1172, 1176 (sanctions imposed for filing largely frivolous contempt allegations, but court may impose sanctions even without finding of frivolity);
Marriage of Falcone & Fyke (2012) 203 CA4th 964 (sanctions appropriate after former wife filed many unmeritorious appeals; wife also found to be vexatious litigant within meaning of CCP §391(b)(1);
Marriage of Davenport (2011) 194 CA4th 1507, 1524 (sanctions proper against former wife); and
Marriage of Greenberg (2011) 194 CA4th 1095, 1100 (sanctions proper against former husband).
An award of attorney fees and costs under Fam C §271 is in the nature of a sanction. In making such an award, the court must take into consideration all evidence concerning the parties’ incomes, assets, and abilities. The court may not order a sanction under Fam C §271 that imposes an unreasonable financial burden on the party against whom it is imposed. To obtain such an award, the requesting party need not demonstrate any financial need. Fam C §271(a).
An award under Fam C §271 may be imposed only after the party against whom the sanction is requested has received notice and been provided an opportunity to be heard. Fam C §271(b); Parker v Harbert (2012) 212 CA4th 1172, 1178; Marriage of Duris & Urbany (2011) 193 CA4th 510, 513. There is no specification in the statute regarding the exact form of notice. Case law provides that the notice must also advise the specific grounds and conduct for which the fees or sanctions are sought, and must be directed to the specific person against whom they are sought. Marriage of Davenport (2011) 194 CA4th 1507, 1529 (notice was sufficient).
One court has stated that the statute contemplates assessing a sanction at the end of the lawsuit, when the extent and severity of the improper conduct can be judged, and the amount is not limited to costs incurred by the innocent party as a result of the improper conduct. Marriage of Quay (1993) 18 CA4th 961, 970 (upheld award of $100,000 in attorney fees under former CC §4370.6, predecessor of Fam C §271). However, in the view of another appellate court, a trial court must be able to apply sanctions during the course of the litigation when uncooperative conduct arises in order to encourage better behavior as the litigation progresses. Marriage of Feldman (2007) 153 CA4th 1470 (distinguishing Quay). In fact, actual injury is not required to obtain sanctions under Fam C §271. Marriage of Tharp (2010) 188 CA4th 1295, 1317; Marriage of Corona (2009) 172 CA4th 1205, 1225; Feldman, 153 CA4th at 1479. In addition, the amount assessed need not compensate the innocent party for all fees and costs expended. Marriage of Battenburg (1994) 28 CA4th 1338, 1345, disapproved on other grounds in Marriage of Whealon (1997) 53 CA4th 132, 140.
Sanctions under the statute may be assessed only against a party; they may not be assessed against an attorney, even when the attorney is solely responsible for the conduct on which the sanctions are based and the client is blameless. If sanctions against an attorney are desired, they must be sought under CCP §128.5 or §128.7 (see §9.5). Marriage of Daniels (1993) 19 CA4th 1102, 1110. Note, however, that the burden of proof under CCP §128.5 or §128.7 is greater than under Fam C §271. For sanctions against an attorney who has knowingly made a false accusation of child abuse or neglect during a custody proceeding, see §7.55.
An award of sanctions under Fam C §271 may be conditional. Marriage of Hargrave (1995) 36 CA4th 1313, 1323 (court of appeal upheld award of sanctions conditional on sanctioned party’s failure to comply with court order for payment of taxes to IRS). An overreaching settlement demand may be the basis of Fam C §271 sanctions. Marriage of Abrams (2003) 105 CA4th 979, 992 (settlement offer so onerous it will not seriously be considered by opposing party held not designed to promote settlement, but to antagonize or to gain unfair advantage).
The attorney should keep an ongoing record of conduct by the opposing party or attorney that might support an award of fees and costs under Fam C §271.
Violation of court rules. Furthermore, in any family law proceeding, a court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or to an aggrieved person, or both, for failure without good cause to comply with the applicable court rules. The sanction must not put an unreasonable financial burden on the person ordered to pay. Cal Rules of Ct 5.14(a), (c). The sanctions order may be directed to “a party, a party’s attorney, a law firm, a witness, or any other individual or entity whose consent is necessary for the disposition of the case.” Cal Rules of Ct 5.14(b)(2).
In addition to sanctions under Rule 5.14, a court may order a person who has violated an applicable court rule to pay to the party aggrieved by the violation that party’s reasonable expenses, including reasonable attorney fees and costs, incurred in connection with the motion or request for order for sanctions. Cal Rules of Ct 5.14(e).
The required notice procedure for an award under Rule 5.14 is set forth in Cal Rules of Ct 5.14(d). An order for sanctions under that rule must be in writing and recite in detail the conduct or circumstances justifying the order. Cal Rules of Ct 5.14(f).
Rule 5.14 became operative on January 1, 2013. See Marriage of Bianco (2013) 221 CA4th 826, 829 n5. Sanctions under Cal Rules of Ct 5.14, however, apparently are not available for violations of the State Bar Rules of Professional Conduct, unless they also violate applicable court rules. 221 CA4th at 829 (violation of state bar rules alone did not permit sanctions under Cal Rules of Ct 2.30(b), applicable to general civil proceedings).