Written by attorney Anthony Payman Azemika

California Appellate Court has ruled that Mother’s lawyer's conduct justified sanctions against her.

A California Court of Appeals has ruled that Trial Court did not make a mistake by denying Mother's motion for California Family Code Section 271 sanctions and granting Father's motion for such sanctions because evidence of Mother's attorney's conduct supported sanctions award, while Mother's evidence regarding Father's conduct did not. In the case of In re Marriage of Davenport, Mother and Father were married in 1948. During their marriage, they acquired a community property estate of close to $57 million. Mother and Father separated in 1990, but Mother did not file for divorce until March of 2006. By that time, the couple's ability to communicate amicably appeared to have deteriorated and reaching an agreement on property issues proved difficult. When Mother filed for divorce, she was represented by an experienced attorney (A-1), but a short time later, a newly-minted attorney (A-2) with little experience assumed primary responsibility for her case. Father retained a series of attorneys, all of whom had extensive family law experience. Early in the proceedings, Trial Court admonished counsel "to change their meet and confer practices" to achieve meaningful meetings. After that, Mother and Father stipulated to have an experienced family law judge act as case manager under California Family Code Section 2450. Nevertheless, cooperation between the parties and their attorneys proved elusive. Motions, discovery requests, and motions to compel piled up, ultimately occupying 19 volumes of court files and a 35-page register of actions. A-1 fired off multiple letters to Father's attorneys, accusing them of unnecessary delay, failure to cooperate, and in one instance, unethical conduct. Father's attorneys did not respond in kind, but took all necessary steps to protect Father's interests, including hiring family law expert to testify regarding good practice and conferring with A-1 about A-2's actions. The level of hostility reached the point that Father allegedly "refused to meet and confer if [A-2] was present in the room." On May 23, 2008, without notifying Trial Court or attempting to meet and confer, Mother filed one motion for accounting and another motion for $933,794 in sanctions and attorney's fees under California Family Code Section 271 [fees as sanctions for conduct that frustrates settlement], Section 2107(c) [non-complying declarations], and In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 [hefty sanctions for multiple non-disclosures of valuable community property assets]. In support of her motions, Mother filed an Income and Expense Declaration, memorandum of points and authorities, declaration of Albert Hickey, MAI, and 52-page declaration from A-2, plus 1,250 pages of exhibits. Much of A-2's declaration contained hearsay, argument, opinion, and conclusion and "was improper on several bases." A-2 asserted that Father used inappropriate negotiating tactics, failed to list valuable assets, understated others, and engaged in discovery abuse. A-2 repeatedly claimed that Father's conduct mirrored that of the husband in the Feldman case. In opposition filed on June 19, 2008, Father filed declarations from each of his former attorneys, his current attorney, and his expert witness, along with his own declaration refuting Mother's claims. On October 6, 2008, Father filed a notice that he would request fees and costs under Section 271 and a declaration from his current counsel. On October 16, 2008, Mother filed opposition to Father's request, claiming that it was technically defective and that requested fees had no connection to Mother's conduct. Mother followed up with a 40-page filing, consisting of eight separate statements of evidentiary objections to declarations of Father's attorneys and expert, plus separate statement of objections to Father's "Evidence of Lack of Cooperation" by Mother. When the hearing began on October 29, 2008, Trial Court limited parties' presentations to their declarations and exhibits. Trial Court judge also reminded parties that she had eight years of experience on family law bench and was able to "separate the wheat from the chaff." In final statement of decision issued on May 19, 2009, Trial Court found, among other things, that Mother's attorney engaged in sanctionable conduct by failing to meet and confer, facts in Mother's moving papers did not approach Feldman level, Mother had failed to present evidence to support expedited hearing, Mother's request for accounting was based on inaccurate representations by A-2 and was unnecessary, A-2's "hostile and disrespectful correspondence" was sanctionable, A-2 violated California Evidence Code Section 1119 [mediation privilege] by making repeated references to matters presented and discussed in mediation, A-2 engaged in inappropriate and sanctionable conduct in relation to extracting computer data believed to include sensitive and privileged information, and fees sought by Mother could have been avoided by A-2. Trial Court denied Mother's motion for sanctions against Father and his attorneys for lack of sufficient proof. However, Trial Court granted Father's motion, based on "uncivil, rude, aggressive, and unprofessional conduct" by A-2. Trial Court ordered Mother to pay $100,000to Father for Section 271 sanctions, plus $304,387 for Father's attorney's fees in defending her motions. Mother appealed, but California Court of Appeals has now affirmed the Trial Court's decision. The Appellate Court has ruled that (1) Mother's procedural arguments lack merit because Mother presented no proof that Trial Court had relied on inadmissible evidence, based orders solely on A-2's correspondence, or was overwhelmed by volume of evidence, or that Father failed to give proper notice of intent to seek sanctions or adequate proof to support fee order; (2) Mother impermissibly attempts to reargue facts on appeal; (3) evidence was clearly sufficient to support sanctions based on A-2's conduct during the litigation; and (4) Mother failed to present sufficient evidence that Father's conduct warranted sanctions order. Therefore, the Appellate Court has affirmed Trial Court's orders for fees and sanctions.

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