Filed 9/15/20 Marriage of Hull CA4/2

See Concurring Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of DERRICK and ROSALINE HULL.

DERRICK HULL,

Respondent,

v.

ROSALINE HULL,

Appellant;

REBEKAH RYAN MAIN,

Objector and Appellant.

E072222

(Super.Ct.No. RID1403144)

OPINION

APPEAL from the Superior Court of Riverside County. Belinda A. Handy and Jennifer R. Gerard, Judges. Dismissed in part and reversed in part.

Law Offices of Rebekah Ryan Main and Rebekah Ryan Main for Appellant and Objector and Appellant.

No appearance for plaintiff and respondent.

I. INTRODUCTION

Rebekah Ryan Main (appellant) appeals from an order of sanctions issued against her on January 16, 2019, pursuant to Code of Civil Procedure section 128.7. Following trial in a marriage dissolution action between Rosaline Hull (wife) and Derrick Hull (husband) in which appellant represented wife as counsel of record, appellant filed a motion seeking attorney fees pursuant to Family Code section 2030 and In re Marriage of Borson (1974) 37 Cal.App.3d 632 (Borson motion). In response, husband served a motion for sanctions pursuant to Code of Civil Procedure section 128.7 arguing, in part, that wife’s request for attorney fees had already been denied at the time of trial and appellant’s Borson motion represented an improper motion for reconsideration in violation of Code of Civil Procedure section 128.7, subdivision (b)(1) and (b)(2). The trial court adopted this argument, determined appellant’s Borson motion was “procedurally defective,” and sanctioned appellant in the amount of $4,290 on the basis that her filing of a Borson motion violated Code of Civil Procedure section 128.7, subdivision (b)(2) and (b)(3). We conclude that this order must be reversed.

II. FACTS AND PROCEDURAL HISTORY

A. Facts

The underlying litigation involves a marriage dissolution between wife and husband. Wife hired appellant to represent her in these proceedings. After more than three years of litigation, a one-day trial went forward on October 18, 2017. At the time of trial, an attorney from appellant’s office represented wife and made a request for contribution to wife’s attorney fees. The statement of decision ultimately issued by the trial court on submitted matters did not mention attorney fees, but the minute order following trial stated, “Attorney fees are denied.”

On December 15, 2017, appellant filed a Borson motion seeking attorney fees for the benefit of wife pursuant to Family Code section 2030, but to be paid directly to appellant. Thereafter, counsel exchanged meet and confer correspondence wherein husband’s counsel argued the issue of attorney fees had already been adjudicated and appellant’s Borson motion constituted an improper motion for reconsideration. In response, appellant did not take issue with the law pertaining to motions for reconsideration, but instead took the position that no adjudication had occurred.

On January 15, 2018, husband served a motion for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7, and Family Code section 271. Appellant’s Borson motion was not withdrawn, and on February 14, 2018, husband’s motion for sanctions was filed and a hearing date was set for April 16, 2018. The parties agreed to continue the hearing date set for appellant’s Borson motion so that the two motions could be heard on the same date.

B. Husband’s Motion for Sanctions

With respect to section 128.7, husband’s sanctions motion argued that appellant’s Borson motion was brought for an improper purpose and “legally frivolous” in violation of section 128.7, subdivision (b)(1) and (b)(2), because it was filed after a trial in which the issue of attorney fees had been raised and adjudicated. The motion was accompanied by the declaration of counsel, which set forth that the parties’ pretrial stipulations and submissions identified attorney fees as a disputed issue for trial; that a request for attorney fees was made by appellant at the time of trial; that the trial court denied the request for attorney fees at the time it was made; and that appellant refused to withdraw her Borson motion even after being provided a copy of the trial court’s minute order stating attorney fees had been denied at the time of trial. Counsel’s declaration in support of sanctions attached a copy of the trial court’s minute order stating attorney fees had been denied.

In opposition, appellant argued there was never a prior adjudication of wife’s attorney fee request. In support, appellant noted that evidence on the issue of attorney fees had not been permitted at the time of trial and the trial court’s statement of decision on submitted matters did not reference attorney fees.

Appellant also argued she engaged in a good faith effort to meet and confer in an attempt to resolve the issue raised in husband’s sanctions motion. In support, appellant provided various correspondence wherein she asserted that “no adjudication of attorney’s fees has yet been made in this matter and that the issue does remain for resolution”; argued that “the minute order is not the actual court’s order and is not always an accurate recitation of the judge’s indications”; represented that appellant had ordered the transcript of proceedings to verify what occurred at the time of hearing; and requested that husband’s sanctions motion be withdrawn pending receipt and review of the transcript. Appellant’s correspondence also indicated that following receipt and review of the transcript of proceedings, she concluded “that the Court made a clearly reversible error in preventing our client from putting on any evidence of her request for a contribution to her fees” and refused to stipulate to a withdrawal of husband’s sanctions motion in exchange for a withdrawal of her Borson motion and waiver of appeal.

On April 16, 2018, the trial court held a hearing on both appellant’s Borson motion and husband’s motion for sanctions. Initially, appellant continued to argue that no prior adjudication of attorney fees had occurred, stating that despite review of the minute order and trial transcript, “it’s ambiguous. It could go either way.” After extensive argument on this issue, the trial court read from the transcript of trial proceedings verbatim on the record, noting that the trial judge stated: “I’m telling you now, I’m denying attorney’s fees. I have no jurisdiction to do it. I don’t have an attorney’s fees declaration. I’m denying it. I have no other way to do it.” The trial court then asked appellant to explain why she continued to believe the issue was ambiguous. At that point, appellant appeared to concede that her Borson motion was improper stating, “if the only thing that was on calendar for today was [the Borson motion], it would have been withdrawn based on that” and agreed to withdraw her motion.

Following withdrawal of appellant’s Borson motion, the trial court then heard argument on husband’s motion for sanctions. With respect to the sanctions request pursuant to section 128.7, appellant argued that sanctions were not warranted because her Borson motion was not brought for an improper purpose, again taking the position that the trial judge’s ruling on wife’s prior request for fees had been “ambiguous.” When the trial court asked why appellant’s Borson motion was not withdrawn earlier, appellant again appeared to concede that the motion should not have been brought upon confirmation a request for attorney fees had previously been denied, stating “again, this will be the third time or the fourth time I’m saying this, if the only thing on calendar for today was [the Borson motion], it would have been withdrawn.” She argued that her refusal to withdraw the motion earlier was in good faith because doing so “would have been supportive of [husband’s] request for sanctions.” Instead of immediately ruling on husband’s motion for sanctions, the trial court set the matter for a continued hearing on May 11, 2018, but advised the parties that such hearing would only be for the purpose of providing the parties with its ruling and not to entertain further argument.

On May 11, 2018, the trial court informed the parties that it would grant husband’s request for sanctions under sections 128.5 and 128.7 against appellant and wife, jointly and severally, in the amount of $4,290. When appellant attempted to reargue aspects of the sanctions motion, the trial court recited its recollection of the procedural history “just so that we’re abundantly clear,” indicating that the parties had already held a trial on the merits regarding the contested issues in this case before a different judge in October 2017; that appellant did not file her Borson motion until December 15, 2017; that appellant argued the Borson motion was not frivolous because the judge presiding over trial never ruled on the issue of attorney fees; that despite appellant’s contention, the denial of attorney fees at the time of trial “was in the minutes, it was in the transcript, it was pointed out to [appellant] by [opposing counsel]”; and that the record indicated appellant had the opportunity to withdraw her Borson motion prior to hearing, but instead forced husband to prepare and file opposition and appear for hearing to oppose the motion on the merits. The trial court then directed counsel for husband to prepare proposed written findings and orders after hearing for the trial court’s signature.

C. Subsequent Motion for Clarification

On May 18, 2018, appellant filed a motion seeking clarification of the trial court’s May 11, 2018 findings and orders. The request for clarification was made after the parties were unable to agree on the wording of the proposed findings and orders to be submitted to the trial court. Appellant’s request for clarification was ultimately not heard until October 19, 2018.

At the time of the hearing, the trial court first clarified it was only issuing sanctions pursuant to section 128.7 contrary to its earlier oral statement that sanctions would be issued pursuant to both sections 128.5 and 128.7. The trial court then stated its sanction order was based upon two findings: (1) that appellant’s filing of the Borson motion violated section 128.7, subdivision (b)(2), because it was “procedurally defective at the time that she filed” and, that even if appellant had a reasonable basis for filing the motion, appellant had no basis to continue pursuing or arguing the motion after receipt of the trial transcript; and (2) appellant’s conduct violated section 128.7, subdivision (b)(3), because after review of the trial transcript, it was not reasonable for appellant to “continue to argue the motion before this Court.” Finally, the trial court clarified that the sanctions order would be made against appellant only and not wife contrary to its prior oral statement that both appellant and wife would be jointly and severally liable for sanctions.

D. The Trial Court’s Written Findings and Orders

On December 28, 2018, the trial court entered an order setting forth its findings and orders with respect to the May 11, 2018 hearing. The order memorialized the oral statements made by the trial court at the time of that hearing, stating that husband’s request for sanctions under both Code of Civil Procedure sections 128.5 and 128.7 were granted; the sanctionable conduct consisted of filing a motion that should not have been brought to the court following trial; both appellant and wife would be jointly and severally liable for $4,290 in sanctions; and that no findings were made as to the request for sanctions pursuant to Family Code section 271.

On January 16, 2019, the trial court entered an additional order setting forth its findings and orders following the October 19, 2018 hearing requesting clarification. Without explicitly vacating or superseding the December 28, 2018 order, this new order memorialized the trial court’s oral statements at the time of the hearing on the motion for clarification, that Code of Civil Procedure section 128.5 did not apply; that sanctions pursuant to Family Code section 271 were denied; that sanctions would be issued for violation of Code of Civil Procedure section 128.7, subdivision (b)(2) and (b)(3); and that the $4,290 in sanctions would be issued against appellant only.

Appellant and wife appeal from the December 28, 2018 order and appellant appeals from the January 16, 2019 order.

III. DISCUSSION

A. Appeal from The December 28, 2018 Order Is Dismissed as Moot

Initially, we briefly address appellant and wife’s appeal from the December 28, 2018 order. Both appellant and wife appeal from this order arguing that it was clearly erroneous for a variety of reasons. We need not address these specific arguments because we conclude this order was clearly superseded by the trial court’s subsequent January 16, 2019 order and therefore dismiss the appeal from the December 28, 2018 order as moot.

When viewed in context, the trial court’s January 16, 2019 order was clearly a reconsideration of its prior order regarding sanctions. While the order was issued after appellant’s “motion for clarification,” “[t]he name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Indeed, this court has previously held that a “motion for clarification,” which asks the court to issue a new or expanded ruling on an issue previously ruled on, is in effect a motion for reconsideration. (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 681-682; see §1008, subd. (a) [motion for reconsideration is a request to “modify, amend, or revoke the prior order”].) Here there can be no doubt that the January 16, 2019 order was an order issued after reconsideration of the December 28, 2018 order. There was only one motion before the trial court requesting sanctions pursuant to section 128.7. Since both the December 28, 2018 and January 16, 2019 orders award sanctions pursuant to that section, the January 16, 2019 order must necessarily be construed as a reconsideration, since the order expressly addressed a matter previously ruled upon.

More importantly, the January 16, 2019 order clearly supersedes the December 28, 2018 order, even without explicit language stating so or language vacating the prior order. Monetary sanctions orders are effectively judgments. (§ 680.230 [defining “judgment” as including orders and decrees].) “[M]onetary sanctions orders . . . have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction. [Citations.]” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) “In case of two conflicting judgments the later in time controls.” (Standard Oil Co. of California v. John P. Mills Organization (1935) 3 Cal.2d 128, 139.) Thus, to the extent the two orders may conflict, the January 16, 2019 order controls and supersedes the prior order. For this reason, any alleged error with respect to the December 28, 2018 order is moot and we dismiss the appeal with respect to that order.

B. The January 16, 2019 Order of Sanctions Must Be Reversed

1. General Legal Principles and Standard of Review

Under section 128.7, a court may impose sanctions if it concludes a pleading or motion “was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Ibid.)

Additionally, “Section 128.7 provides for a 21-day period during which a party may avoid sanctions by withdrawing the offending pleading or other document. [Citations.] The Legislature included this safe harbor provision so that the statute would be remedial rather than punitive. [Citation.] If a party does not take advantage of the safe harbor period by withdrawing a frivolous filing, a court has broad discretion to impose sanctions. [Citation.]” (Bucur v. Ahmad, supra, 244 Cal.App.4th at p. 190.)

“ ‘Ordinarily, a ruling on a motion for sanctions brought under section 128.7 is reviewed under a deferential abuse-of-discretion standard.’ [Citations.] . . . However, some cases call for a less deferential standard of review. For example, ‘where a question of statutory construction is presented in the course of the review of a discretionary decision, such issues are legal matters subject to de novo review.’ [Citation.] Similarly, ‘[t]he availability of sanctions under section 128.7 in connection with undisputed facts is a question of law subject to de novo review. [Citation.]” (Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 261.)

2. Appellant’s Borson Motion Was Not Legally Frivolous Under Section 128.7, Subdivision (b)(2)

Here, appellant advances multiple arguments regarding the trial court’s alleged abuse of discretion in awarding sanctions. We need not address any of these arguments in detail because we find that these arguments are premised on a fundamentally incorrect understanding of the applicable law. As we explain post, all parties and the trial court erroneously assumed that reconsideration of a request for attorney fees in a family law proceeding must comply with the jurisdictional requirements of section 1008 governing motions for reconsideration generally. Since the correct interpretation of the applicable rules of procedure is exclusively a question of law, we review the matter de novo and reverse the trial court’s order on this basis.

Generally, section 1008 governs reconsideration of orders in family law proceedings. (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [husband’s request to reconsider child support and child custody issues bound by jurisdictional requirements of section 1008]; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168 [reconsideration of security order governed by jurisdictional requirements of section 1008].) However, a request for attorney fees under the authority of Family Code section 2030 is an exception to this general rule.

“[A] section 2030 request for attorney’s fees that is filed after an earlier denial of such fees need not comply with section 1008.” (In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 365.) Family Code section 2030 “provides . . . a different method for seeking reconsideration of attorney fee orders in family law cases. . . . [Stating:] ‘From time to time and before entry of judgment, the court may augment or modify the original award for attorney’s fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto.’ ” (Hobdy, at pp. 365-366, fn. and italics omitted.) “The only reasonable interpretation of the ‘from time to time’ language is that application to augment or modify an attorney’s fees award in a family law matter may be brought at any time, not just within 10 days of the original order. [Citation.] Additionally, unlike section 1008 . . . which require[s] a showing of new or different facts, circumstances or law, a section 2030 application may be made if fees are ‘reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto. . . .’ A moving party need not show changed events.” (Id. at p. 367.) This is true even where the prior order denied fees. (Id. at pp. 372-373.)

Here, appellant’s arguments all rest on the premise that Code of Civil Procedure section 1008 would bar reconsideration of a request for attorney fees, but her belief there had been no prior adjudication was reasonable and in good faith. However, since a request for fees under the authority of Family Code section 2030 is not governed by Code of Civil Procedure section 1008, these arguments are entirely irrelevant. Appellant was permitted to file a motion seeking attorney fees pursuant to Family Code section 2030 regardless of whether the trial court had previously denied her request and even if she was fully aware the trial court had previously denied such a request. Her right to seek reconsideration of that denial pursuant to Family Code section 2030 was not limited by the jurisdictional requirements set forth in Code of Civil Procedure section 1008 and as such, her filing of such a motion could not have been “procedurally defective” in violation of Code of Civil Procedure section 128.7, subdivision (b)(2). To the extent the trial court sanctioned appellant on this ground, the order of sanctions must be reversed.

3. There Was Insufficient Notice to Sanction Appellant Under Section 128.7, Subdivision (b)(3)

The trial court also relied on a purported violation of section 128.7, subdivision (b)(3), as an alternative ground for sanctioning appellant. To the extent the trial court sanctioned appellant on this alternative ground, the order of sanctions must be reversed for inadequate notice.

Section 128.7, subdivision (c)(1), requires that “[a] motion for sanctions under this section . . . shall describe the specific conduct alleged to violate subdivision (b).” “Adequate notice prior to the imposition of sanctions is not only mandated by statute, but also by the due process clauses of the state and federal Constitutions. [Citation.] The notice requirements of section 128.7, subdivision (c)(1) [are] therefore mandatory, and neither the parties nor the trial court [are] permitted to disregard them. [Citations.]” (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700.)

Here, husband’s motion cited only to section 128.7, subdivision (b)(1) and (b)(2), as grounds for sanctions against appellant. At no point did husband argue that appellant violated subdivision (b)(3) or that the factual matters set forth in appellant’s Borson motion lacked evidentiary support. Husband’s motion was simply inadequate to provide notice appellant might be sanctioned on this ground.

Further, “a sanctions order cannot be supported solely by evidence of conduct occurring after the motion is served, because a motion for sanctions under section 128.7 must describe the specific conduct taken by the party to be sanctioned and allow a safe harbor period to withdraw or appropriately correct the sanctionable conduct.” (Primo Hospitality Group, Inc. v. Haney (2019) 37 Cal.App.5th 165, 168.) Here, the trial court sanctioned appellant under section 128.7, subdivision (b)(3), because it determined appellant’s argument that there had been no prior adjudication of attorney fees lacked evidentiary support. However, husband’s notice of motion identified appellant’s Borson motion as the offending paper warranting sanctions under section 128.7, and appellant’s arguments regarding prior adjudication of that issue are not asserted anywhere in that motion. Instead, the record suggests appellant raised this argument as a response to husband’s motion for sanctions. Thus, even if factually frivolous, the argument was not asserted in the offending paper identified as the basis of sanctions in husband’s notice of motion.

We caution that our decision here should not be interpreted as an endorsement of appellant’s conduct in the proceedings below. The trial court was certainly correct in concluding that appellant’s position there had been no adjudication of attorney fees at trial was unreasonable and lacked evidentiary support. Further, the type of conduct displayed by appellant here in continuing to assert factually frivolous arguments is not necessarily free from consequences. We hold only that the notice of motion seeking sanctions in this case was insufficient for the trial court to impose sanctions for that conduct pursuant to section 128.7 and reverse the order on this basis.

IV. DISPOSITION

The order imposing sanctions dated January 16, 2019, is reversed and the trial court is directed to enter a new order vacating the award of sanctions and providing for a refund of any amount in sanctions that have already been paid by appellant during the pendency of this appeal. The appeal from the order of December 28, 2018, is dismissed as moot. The parties to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

I concur:

CODRINGTON

Acting P. J.

[In re the Marriage of Hull, E072222]

MENETREZ, J., Concurring.

I concur in the opinion of the court except for the final paragraph of the discussion, including footnotes 9 and 10. Appellant Rebekah Ryan Main contended that she could still seek attorney fees despite what happened at trial. We hold that she was right as a matter of law. Husband’s counsel contended that because of what happened at trial, not only was appellant barred from seeking fees but her request for fees was therefore so patently meritless as to be sanctionable. We hold that husband’s counsel was wrong on both points. Appellant was advocating a meritorious position throughout—her only mistake was to argue that attorney fees were not denied at trial, instead of arguing that fees were not denied with prejudice. I consequently cannot join the majority opinion’s disparagement of appellant. She made a mistake, but in context it was relatively trivial and did not affect the merits of her attorney fees motion.

MENETREZ

J.