Filed 8/29/18 Gabriele v. Garry CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

ANDREA GABRIELE,

Plaintiff and Appellant,

v.

JAMES GARRY,

Defendant and Respondent.

C084141

(Super. Ct. No. 95FL05810)

Defendant James Garry moved in March 2016 for, inter alia, sanctions against plaintiff Andrea Gabriele for her litigation conduct (primarily in propria persona) in this family law matter, which we detail at length below. The trial court confirmed the total amount owing to Gabriele under various court orders, which it offset with $4,500 in legal fees to Garry as a sanction (denying Gabriele’s own request for legal fees).

Gabriele filed her notice of appeal in February 2017. She completed her briefing in April 2018. She contends the trial court abused its considerable discretion in family law matters in awarding legal fees to Garry as a sanction for her behavior. She also contends she was entitled to legal fees as a matter of law pursuant to Code of Civil Procedure section 724.080 (section 724.080). We shall affirm the order but remand the matter for consideration of further sanctions for a meritless (even if not frivolous) appeal.

FACTUAL AND PROCEDURAL BACKGROUND

This court comes late to the party in a matter that has been festering in the trial court’s family law department since 1995 and occupies eight volumes of record in that court’s files. Fortunately, the present appeal requires only setting the time machine to 10 years ago.

The parties were never married. They have two sons, who were 24 and 21 years old at the time of the September 2016 hearing, and who had been living with their father full time since 2008.

In November 2008, the trial court issued an order on Garry’s July 2008 motion after a hearing. As is pertinent, it directed Garry to pay $6,300 (all of these amounts will be rounded to the nearest hundred) to Gabriele as attorney fees and costs, and found that Gabriele owed Garry $1,900 for her share of medical costs. It denied opposing motions for sanctions. As the trial court found in its December 2016 order—the eventual subject on appeal—Garry never satisfied this order.

Without applying to the trial court for assistance in enforcing the order or meeting and conferring with Garry, Gabriele obtained a writ of execution in October 2009 in which she asserted a wildly inflated amount ($32,000, including $4,400 in postjudgment costs) for the obligation under the November 2008 order. She then sent a notice of levy in this amount to what we presume was Garry’s mortgage holder in November 2009. The parties do not enlighten us with respect to the outcome of this collection effort, other than noting it expired.

There is a handwritten minute order issued in June 2010. Its significance lies in the manner in which Gabriele later attempted to put it to use. It is difficult to read, but it does not appear at any point to adjudicate an amount of arrearages, and the trial court did not file any formal order afterward. (According to the minute order, Garry’s counsel was to prepare a formal order.)

In May 2012, Gabriele moved for an increase in child support and determination of arrearages. Her declaration asserted that a Department of Child Support Services (DCSS) “child support audit” and the June 2010 order determined Garry owed her $27,300 in child support. The matter was ultimately continued to August 2012. In the meantime, Gabriele again sought a writ of execution in May 2012 on the November 2008 obligation, which she now accurately listed as $6,300 (with $2,200 in interest), and in a second writ of execution falsely asserted that there was a June 2010 “judgment” in the amount of $27,300 (with $5,100 in interest). She sent a notice of levy on these writs to Garry in August 2012. She also obtained an abstract of judgment that falsely claimed it was based on a June 2010 judgment for $27,300, and filed a lien based on it against Garry’s home, after which she filed an application for forced sale of Garry’s home in which she again falsely claimed the existence of an unsatisfied June 2010 judgment of $27,300. In an e-mail to Garry, she made an overreaching settlement demand to forego execution if inter alia he would discharge his attorney, pay her $42,500, and apologize in open court in front of their children for the way he had treated her. Again, all we are told about the outcome of these collection efforts is simply that they expired. An August 2012 minute order directed the DCSS to redetermine any amount of arrearages and continued the matter to September 2012.

At the September 2012 hearing, the trial court ordered the parties to meet and confer, after which they arrived at a settlement. The trial court received the settlement in open court and incorporated its terms in its minute order (fortunately one of the three copies in the record is legible). As we gather from the declarations of the parties, the amount of arrearages was set at $18,000, with $15,000 due within 30 days and the remaining $3,000 in six equal payments starting in November 2012. In its formal order that followed in October 2012, the court also ordered that no further child support was due after October 1, 2012. This order did not make any express provision for the outstanding November 2008 obligation for legal fees. Garry paid the $15,000 within 30 days. However, he did not make any payment on the balance until July 2015, when he paid the $3,000 in full into court.

To advance a few years, the trial court ordered Garry to pay his share of a dental bill for their younger son in July 2015 in the amount of $2,100 within 60 days. He did not, however, send payment to Gabriele until November 2015. Earlier in November 2015, without initial resort to the trial court, or meeting and conferring with Garry, Gabriele obtained three writs of execution. The first was for $10,600 on the November 2008 order (including interest and costs). The second asserted outstanding interest of $700 on the September 2012 order enforcing the support settlement of $18,000. The third was premised on the then outstanding balance on the July 2015 order for reimbursement of dental costs with interest from the due date. Yet again, she filed a notice of levy on Garry’s home. Garry filed objections to the levy. In January 2016, Gabriele noticed a hearing on an order for forced sale of the residence. In January 2016, the DCSS also determined that Garry did not have any outstanding child support obligations to Gabriele (although he still owed the county $2,300).

This lengthy prelude at last concluded, we come to the present matter. In March 2016, Garry filed a motion for legal fees, costs and sanctions against Gabriele under Family Code section 271 and other statutory provisions. He also sought an order to compel Gabriele to file an acknowledgment of satisfaction of judgment for the payments he had made to her on the 2012 and 2015 orders, and that the 2012 judgment satisfied the 2008 order (as he had demanded in January 2016 letters to Gabriele). Following a brief hearing over the course of two days (amounting to only 230 pages of transcript), the trial court issued its ruling from the bench, in which it awarded $4,500 pursuant to section 271 in legal fees as a sanction, offset against the balance due on the November 2008 order (which the trial court concluded was not part of the September 2012 settlement, as it was limited to support). Following the hearing, Gabriele made an untimely request for a statement of decision, specifying 54 controverted issues, which the trial court denied in its written order (which also found additional interest due on the September 2012 settlement of $900, and on the July 2015 order of $60). The written order also specified the basis for the sanctions being Gabriele’s failure to cooperate with Garry, her frustration of the process of settlement through her “way, way too over excessive” conduct without an initial resort to the trial court that resulted in increasing the costs of litigation and the harassment of Garry. It also chastised Gabriele for seeking overinflated writs and levies. It made the offset amount owing to Gabriele due in 180 days without interest. Finally, it denied Gabriele’s request for legal fees under section 724.080.

DISCUSSION

1.0 The Award of Legal Fees as Sanctions Was Not an Abuse of Discretion

Paying lip service to the notion that the standard of review is abuse of discretion (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178), Gabriele nonetheless seeks to have us redetermine as a matter of law whether her conduct warranted sanctions. We do not have any difficulty in sustaining the trial court’s order despite her several sets of contentions to the contrary.

In an argument surely difficult to make with a straight face, Gabriele asserts it was improper to award sanctions on the basis of the length of the superior court file without a determination of the extent to which this was a function of her own conduct. The trial court manifestly did not cite the overall length of the record as a basis for its ruling. This was simply an observation in the course of expressing its distaste for the extent to which Gabriele added to the record with her multiple resorts to the extreme remedy of writs and levies (often misstating the obligations at issue) and orders for the sale of what is the home of her own children for what is trifling amounts of interest with respect to two of the orders. While Gabriele argues she was technically entitled to pursue these remedies, this does not forestall the trial court from finding that her choosing to pursue a scorched-earth option did not further the statutory goal of promoting settlement and reducing the cost of litigation through encouraging cooperation between the parties (Webb v. Webb (2017) 12 Cal.App.5th 876, 883 (Webb)), or encouraging civility on the part of litigants. Nor, for that matter, does the failure to award sanctions in earlier orders preclude the present trial judge from concluding at the time it made its 2016 ruling that Gabriele’s overall conduct for the past 10 years merited sanctions.

Gabriele also suggests it is “unclear” whether the trial court based sanctions on Garry’s argument in the trial court that laches applies to the effort to enforce the 2008 order. Gabriele must be reading a different record. We do not see any indication that this argument figured in the trial court’s ruling.

Also entirely without merit is Gabriele’s effort to justify her misrepresentations that the 2008 and 2010 orders included tens of thousands of dollars in adjudicated support arrearages. All the 2008 order adjudicated was the ongoing support obligation. For Gabriele to have represented in her applications that it did any more than that was, plainly, a lie. There is also absolutely no basis for her present argument that a reckoning on the part of DCSS of the accumulated arrearages had the force of a judgment delegated to it by the trial court. Equally specious is her assertion that somehow her misconduct in these false representations is “time-barred” from the trial court’s assessment of her total behavior in 2016. As she does not give any authority for this remarkable proposition, we do the same in rejecting it out of hand. Finally, it is utterly irrelevant that Garry had procedures available to him for challenging her execution efforts. The focus is on her wrongful conduct, not Garry’s ability to respond to it.

Gabriele also apparently believes that her testimony about pursuing these remedies in good faith somehow insulates her from sanctions. The trial court was entitled to (and apparently did) discredit her post hoc rationale, a resolution that binds us on appeal. In the same vein, her claim that she in fact attempted to meet to resolve her disputes with Garry misleadingly cites to a declaration of her present counsel only in connection with the motion at issue on appeal and not any of her earlier execution efforts, as it appears from counsel’s billing statement that he did not begin to provide services to Gabriele until January 2016. Nor is Webb remotely apposite to her claim that her conduct is insulated from sanctions, as Webb involved a dispute between the debtor husband and the attorneys for the wife over their efforts to collect their fees from him, a dispute which Webb concluded was not subject to Family Code section 271. (Webb, supra, 12 Cal.App.4th at p. 882.)

In short, Gabriele has not provided a single valid basis for establishing an abuse of discretion on the part of the trial court in awarding sanctions. While we cannot say that this appeal is frivolous, in light of the standard of review and the absence of merit to any of her claims, we will remand the matter to the trial court to consider whether further sanctions are warranted for the costs to Garry of responding to this appeal.

2.0 Denial of Legal Fees Under Section 724.080 Was Not an Abuse of Discretion

Section 724.080 provides that the prevailing party in an action or proceeding for acknowledgment of satisfaction of judgment shall be awarded reasonable legal fees. Gabriele contends that because she ultimately complied with Garry’s demand and filed acknowledgment of partial satisfaction of the 2012 and 2015 judgments (see Code Civ. Proc., § 724.110), and the trial court did not order any further acknowledgments (instead determining the 2008 order was unsatisfied and interest was outstanding on the other orders), it abused its discretion in failing to award her legal fees as the prevailing party.

The trial court did not elaborate on the reason it denied Gabriele’s request for legal fees. We conclude, however, it made an implied finding that Garry was the prevailing party with respect to obtaining partial acknowledgments for his actual payments as a result of filing his motion, and therefore the fact that Gabriele also prevailed to the extent that the court did not order any further acknowledgments meant the outcome was at best mixed and did not warrant an award of fees. Such a conclusion was not an abuse of discretion. (Cf. Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109 [Civ. Code, § 1717].)

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court to consider whether further sanctions under Family Code section 271 are warranted for Garry’s legal fees on appeal. Garry shall recover costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ , J.

We concur:

HULL , Acting P. J.

MAURO , J.