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self-study / Family Law

271 sanctions: game changer or just the bogeyman?

Michael Antonovich Antelope Valley Courthouse

Scott J. Nord

Commissioner, Los Angeles County Superior Court

Family Court

"Your honor, we are asking for 271 sanctions against the other party" is the refrain often hurled by one, or both, counsel during family law proceedings. But are sanctions under the Family Code Section 271 a game changer, or are they just the scary figure lurking in the dark that no one has ever seen, but everyone has heard about?

Consider this hypothetical: The petitioner filed for divorce almost 18 months ago. The respondent timely filed a response and provided the preliminary declarations of disclosures to the petitioner. Respondent also filed with the court the Declaration of Service of Declaration of Disclosure. (Judicial Council Form, FL-141). The parties sold the community property residence before the filing of the dissolution proceedings and equally divided the proceeds, with each party receiving $75,000. There are no minor children and no debts from the marriage. The only assets are two retirement plans of roughly equal value and their respective leased vehicles. According to the pleadings, the marriage was of short duration, and both parties waived spousal support from the other party. Approximately six months ago, respondent's counsel sent a letter to petitioner's counsel requesting petitioner's preliminary declaration of disclosure. No reply was received. Respondent's counsel continued to send six more letters over the next three months. With the sixth letter, respondent's counsel also included a settlement agreement, signed by respondent and his counsel, fairly resolving all issues between the parties. Again, all letters went unanswered.

Unable to resolve the matter, respondent's counsel filed a Request for Trial Setting and a Request for Order to Compel the Petitioner to provide her Preliminary Declaration of Disclosure (Family Code, Section 2104(b)(1)) and for sanctions (under Family Code Sections 2104(c) and 271) of $4,000. As the matter was called for hearing, petitioner's counsel, appearing without the petitioner, states to the court that the client has the completed preliminary declarations of disclosures and the FL-141 and presented the fully executed settlement agreement signed by all counsel and parties. Petitioner's counsel asks that all matters go off-calendar as the case has settled. Respondent's counsel objects and states that Respondent will waive the sanctions under Section 2104(c) but still wants sanctions under Section 271. How should the court rule?

Section 271

Family Code Section 271(a) states: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys."

Conduct of Each Party or Attorney

Section 271 imposes a "minimum level of professionalism and cooperation" to effect the policy favoring settlement in family law litigation -- and a reduction of the attendant costs. In re Marriage of Daniels, 19 Cal. App. 4th 1102, 1107 (1993). Some courts have characterized the attorney fees and costs as a penalty for obstreperous conduct. See Robert J. v. Catherine D., 171 Cal. App. 4th 1500, 1520 (2009). In In re Marriage Gutierrez, 48 Cal. App. 5th 877, 882 (2020), the court stated that the Section 271 sanctions "create incentives for divorcing parties to be candid with each other and the Court. These sections look forward to spur good conduct, not backward to right past wrongs." Family law litigants who flout this policy by engaging in conduct that increases litigation costs are subject to the imposition of attorney fees and costs as a sanction. In re Marriage of Burgard, 72 Cal. App. 4th 74, 82 (1999).

Examples of conduct that have been sanctioned under Section 271 include continued failure to disclose assets (In re Marriage of Feldman, 153 Cal. App. 4th 1470 (2007); Marriage of Tharp, 108 Cal. App. 4th 1295 (2010)); filing of frivolous or unnecessary motions and appeals (Parker v. Harbert, 212 Cal. App. 4th 1172; Marriage of Schnabel, 30 Cal. App. 4th 747 (1995); Marriage of Greenberg, 194 Cal. App. 4th 1095 (2011)); filing a separate civil action for intentional infliction of emotional distress for failure to comply with interim support orders (Burkle v. Burkle, 144 Cal. App. 4th 387 (2006)); and one-sided onerous settlement offers in exchange for an agreement to allow a move-away (Marriage of Abrams, 105 Cal. App. 4th 979 (2003)). In In re Marriage of Quay, 18 Cal. App. 4th 961, 970 (1993), the court stated that litigants who take unreasonable positions and shop around for a law firm willing to support those unreasonable positions is something more than simply taking a hard stand and aggressively litigating claims and is sanctionable conduct.

While other statutes allow sanctions against both the client and counsel for their conduct (i.e., discovery statutes), under Section 271, all financial responsibility lies with the party for both known and unknown behavior taken on their behalf. Daniels, 19 Cal. App. 4th at 1110; Burkle, 144 Cal. App. 4th at 403. However, attorneys should not assume they are immune from liability merely because Section 271 only applies to their client. Courts may be separately sanctioned counsel for their inappropriate conduct. See California Code of Civil Procedure Sections 128.5 and 177.5.

Notice

Before being sanctioned under Section 271(a), Section 271(b) provides that "an award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard." In In re Marriage of Duris & Urbany, 193 Cal. App. 4th 510, 513 (2011), an award of attorney fees as a sanction was overturned against a self-represented wife because of her prior attorney's conduct. In Duris, the only request for attorney fees was as a passing statement in the husband's trial brief, filed on the day of the hearing, for $25,000 with no supporting documentation. The trial court first raised the sanctions issue during closing arguments after it had completed the evidentiary hearing on support modification. It then summarily imposed sanctions finding that wife's prior counsel's motion to compel discovery was unnecessary litigation. The wife was not provided any opportunity to present any oppositional evidence or a hearing on the sanction. Id. at 514-15. Niko v. Foreman, 144 Cal. App. 4th 344, 369 (2006), held that the trial court properly denied a request for sanctions when it was included in a closing trial brief submitted after the trial's conclusion without either party having the opportunity to respond to points raised by their opponent.

While in Duris and Niko sanctions were not permitted where the notice was deficient or was not timely requested, a different result was reached when the request for 271 sanctions was in a responsive pleading. Generally, in a responsive pleading or declaration, a party may oppose the requests and relief sought. See City of Stockton v. Superior Court, 42 Cal. 4th 730, 745-46 (2007). A response may also seek affirmative relief, but only if that affirmative relief is alternative to that requested by the moving party and on the same issues raised by the moving party (i.e., a different custody or visitation order than requested in the Request for Order). The restrictions on affirmative relief keep each proceeding limited in scope to the substantive issues raised in the moving papers. The proper way for the responding party to expand the issues is to file a separate motion. See Family Code Section 213.

In In re Marriage of Perow & Uzelac, 31 Cal. App. 5th 984, 990 (2019), wife, in her responsive pleading, along with opposing the requested relief, also sought sanctions under Section 271. The court ruled that "a party seeking attorney fees under Section 271 is not seeking affirmative relief within the meaning of Section 213 because the request for such fees is an attack on the messenger, not his message. That is because attorney fees under Section 271, unlike attorney fees in many other contexts, are wholly "a sanction for conduct frustrating settlement or increasing the cost of the litigation." As such, Section 213 did not prevent the request for sanctions under Section 271. Id.; see also Sagonowsky v. Kekoa, 6 Cal. App. 5th 1142, 1153 (2016).

Mandatory Forms and Timing

California Rules of Court, Rule 1.31(a) states that "forms adopted by the Judicial Council for mandatory use ... wherever applicable, must be used by all parties and must be accepted for filing by all courts." In In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1528-29 (2011), wife contended that husband's request for 271 sanctions was not proper because he did not use mandatory Judicial Council forms in making his request. The court held that there is "no case holding that a section 271 request must be on a Judicial Council form." "Section 271 does not specify the form of notice to be provided and 'the only procedural requirement is notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.'" Id. (citations omitted). The notice must also advise of 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 directed, and the code section or rule relied upon. In re Marriage of Quinlan, 209 Cal. App. 3d at 1421-22 (1989); Levy v. Blum, 92 Cal. App. 4th 625, 638 (2001).

Additionally, 271 sanctions are available at any point in the litigation. A party need not wait until the conclusion of the proceedings to make the request. Feldman, 153 Cal. App. 4th at 1479.

Amount

Section 271(a) states, "An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the Court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The Court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." In making a sanction award, "the court must take into consideration all evidence concerning the parties' incomes, assets, and liabilities, the only stricture imposed by section 271 is that the sanction may not impose 'an unreasonable financial burden' on the party sanctioned." Burkle, 144 Cal. App. 4th at 403. Additionally, Section 271(c), states that "an award of attorney fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property."

In Sagonowsky, 6 Cal. App. 5th at 1152-53, the court wrote that "Sagonowsky does not dispute the court's description of her conduct as 'unscrupulous,' 'relentless and culpable,' nor the Court's characterization of her behavior as 'economic warfare fueled by her wealth, her bitter hatred for Kekoa, and her complete disregard for the law.'" The court went on that, "Sagonowsky makes no effort to dispel the court's conclusion that her conduct violated the trial court's 2010 judgment and 'purposefully frustrated the final settlement of this post-judgment case.' Thus, Sagonowsky leaves unchallenged the Court's determination that her conduct warranted a sanction under section 271." However, Sagonowsky did challenge the amount awarded against her, $680,000, as having no basis. Finding that "Sagonowsky's deplorable conduct -- described in detail by the trial court -- overwhelmingly demonstrates 'sanctions under section 271 were warranted,' it concluded the plain language of section 271 did not authorize the "$500,000 to punish Sagonowsky for her culpable conduct, or $180,000 for the reduction in the sales price of the Ashbury property because those amounts bear no relationship to Kekoa's attorney fees and costs." Id. at 1156.

"Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party's costs and attorney fees such conduct generates." Daniels, 19 Cal. App. 4th at 1110. A party is not required to establish any particular harm as a prerequisite to a sanctions award under section 271. Feldman, 153 Cal. App. 4th at 1479-80. Because section 271 is not a need-based statute, and does not require a correlation between the sanctioned conduct and specific attorney fees, consideration of the party's current financial situation did not have to be considered nor the submission of an income expense declaration. In re Marriage of Corona, 172 Cal. App. 4th 1205, 1226-27 (2009).

Conclusion

Returning to the hypothetical, the petitioner's actions delayed resolution of the litigation, and the respondent had to incur fees to file the Requests for Orders. Respondent argues that petitioner has $75,000 available from the sale of the residence, and the attorney fees were directly incurred because of the non-response to the seven letters. The problematic part of 271 sanctions lies in the question of whose conduct is being punished? In Marriage of Quay, the court found that the client was at fault for seeking counsel who would run amok and encouraged the behavior beyond aggressive litigation. The question becomes more complicated when the conduct appears to be attorney lapses (i.e., failing to respond to counsel's letters or telephone calls) and lack of knowledge of the law or procedures (i.e., failure to file the preliminary declaration of disclosure). Section 271 can turn a client against their attorney in the courtroom and devolve into a screaming match when the client learns they are being sanctioned for conduct which they neither authorized nor had any knowledge of. Because the sanction can be directly taken from an equalization payment or property division (see In re Marriage of Falcone & Fyke, 203 Cal. App. 4th 964, 988 (2012)), or an offset against future spousal support (In re Marriage of Pearson, 21 Cal. App. 5th 218, 234 (2018)), the client is being punished for conduct attributable to the attorney. These types of sanctions can, in turn, potentially cause a breakdown of the attorney-client relationship and possibly lead to the retention of new counsel and further delay, thus, ultimately frustrating the reason the requests for orders were filed in the first instance.

So are 271 sanctions a game changer or just the bogeyman? It depends... 

#943

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