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On Behalf of | Feb 12, 2020 | Firm News

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The parties, who were never married, have one child together. Following a child custody hearing in January 2017, the trial court entered an order giving respondent sole physical and legal custody. In June 2017, appellant filed a request to set aside the custody order under Code of Civil Procedure section 473, subdivision (b), on the ground of surprise.

He also sought to change the existing custody and timeshare orders. The trial court denied appellant’s request and denied, without prejudice, respondent’s  1 All statutory references are to the Family Code unless otherwise stated. 2 request for attorney fees under sections 271 and 2030.2 The court filed its findings and order after hearing on August 7, 2017, and served its ruling on the parties that same day. In September 2017, appellant filed a second request to modify the January 2017 custody order.

The trial court denied his request and denied respondent’s request for section 271 sanctions. On March 21, 2018, respondent again sought sanctions under section 271 relating to appellant’s June 2017 motion to set aside or modify the custody order. Appellant filed an objection but did not challenge the motion on the basis of timeliness. On May 1, 2018, the trial court ordered appellant to pay respondent $10,000 in sanctions under section 271.

Appellant then filed an ex parte motion for reconsideration under Code of Civil Procedure section 1008, arguing for the first time that respondent’s sanction request was untimely under California Rules of Court, rule 3.1702(b). 3 The trial court denied appellant’s motion for reconsideration, finding he had failed to demonstrate new facts, circumstances, or law.

On June 6, 2018, the court entered an order awarding respondent $10,000 in attorney fee sanctions for defending against appellant’s June 2017 motion to set aside the custody order. The court separately awarded her $3,000 in attorney fee sanctions for having to defend appellant’s ex parte motion for reconsideration.

On appeal,  the parties also dispute whether appellant’s argument was forfeited because he had not raised the timeliness issue in his initial opposition. It was not forfeited.   So long as the “order that was the subject of the motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.” (Code Civ. Proc., § 1008, subd. (g).)

Turning to the merits, The California Court of Appeal concluded appellant’s claim of error fails because the rule of court he relies upon does not apply to postjudgment claims for attorney fees awarded under section 271. Rule 3.1702 “applies in civil cases to claims for statutory attorney’s fees . . . .” (Rule 3.1702(a).) Rule 3.1702(b), the provision cited by appellant, states as follows: “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108.” (Rule 3.1702(b)(1), italics added.)

Under rule 8.104, a notice of appeal must be filed within 60 days after service (whether by the superior court clerk or by a party) of a notice of entry of judgment or a file-stamped copy of the judgment. (Rule 8.104(a)(1)(A)-(B).) If there is no notice, the notice of appeal must be filed within 180 days after “entry of judgment.” (Rule 8.104(a)(1)(C).) Rule 8.108 extends the time to appeal under exceptions not applicable here.

Respondent argued that rule 3.1702 does not apply to her sanctions request because the attorney fees in question were incurred after entry of the trial court’s January 2017 custody order—an order properly characterized as a final judgment. Respondent has the better argument. On its face, rule 3.1702 prescribes filing periods for motions to recover attorney fees incurred prior to judgment and for fees incurred on appeal. It says nothing about postjudgment fees. In Crespin v. Shewry (2004) 125 Cal.App.4th 259, this court held that former rule 870.2 (renumbered as current rule 3.1702) “does not apply to fee applications for services rendered in the trial court after judgment . . . .” (Crespin, at p. 271, italics added.)

That is not to say that a postjudgment motion for sanctions under section 271 may be postponed indefinitely. Courts have broad flexibility to award sanctions under section 271 during the course of litigation to address uncooperative behavior between the parties or “at the end of the lawsuit, ‘when the extent and severity of the party’s bad conduct can be judged.’ ” (Freeman, (2005) 132 Cal.App.4th 1, 6; In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1495.)

But such discretion is not boundless, and postjudgment requests for statutory attorney fees can be denied under the equitable principle of laches if the delay in filing unfairly prejudices the other party. (See Crespin, supra, 125 Cal.App.4th at pp. 271–272.)

“Laches is an equitable time limitation on a party’s right to bring suit, resting on the maxim that ‘equity aids the vigilant, not those who sleep on their rights.’ ” (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1156.) “ ‘ “The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” ’ ” (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1521.)

However, “ ‘[d]elay alone ordinarily does not constitute laches . . . .’ ‘What makes the delay unreasonable in the case of laches is that it results in prejudice.’ ” (Id. at pp. 1521–1522.) The burden is on the party asserting laches to demonstrate the delay was prejudicial and thus unreasonable. (Id. at p. 1522.) “ ‘ “A defendant has been prejudiced by a delay when the assertion of a claim available some time ago would be ‘inequitable’ in light of the delay in bringing that claim . . . [and] ensues when a defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed.” ’ ” (Magic Kitchen, at p. 1161.)

Turning to the merits, the California Court of Appeal concluded appellant’s claim of error fails because the rule of court he relies upon does not apply to postjudgment claims for attorney fees awarded under section 271.

Appellant asserted he was prejudiced because respondent’s sanction request coincided with his wife having to take five months of medical leave from her job in connection with the birth of their child. He also claims  respondent delayed filing the motion so that the matter would be heard by a new judge, rather than by the judge who denied her section 271 sanction request in January 2018. These are inadequate grounds to demonstrate prejudice. Appellant does not show that any change in his position was caused by respondent’s delay in filing her sanction request. Nor does he explain how the substitution of a new judge was prejudicial to him, particularly as he does not challenge the merits of the court’s sanctions ruling.

The California Court of Appeal concluded the trial court did not abuse its discretion in awarding respondent $13,000 in sanctions. The orders for sanctions were affirmeded!

See George v Shams Shirazi.

f you are involved in an acrimonious type divorce, custody or support battle, or family law matter, you need an experienced and capable attorney on your side. Contact the Law Office of Robert Rodriguez! Call (209) 596-4264 or 510-736-4033 immediately!

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

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