Opinion
C084293
07-03-2018
In re the Marriage of DORIN and MICHELLE DANILIUC. DORIN DANILIUC, Appellant, v. MICHELLE DANILIUC, Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FL01294)
Dorin Daniliuc (husband) appeals from a trial court order compelling him to pay $7,000 in attorney fees to Michelle Daniliuc's (wife's) attorney Paul Cass. Husband contends the trial court abused its discretion in ordering the fees and that attorney Cass is precluded by Family Code section 272, subdivision (c) from enforcing the order for fees. We dismiss this appeal as frivolous.
BACKGROUND
The record on appeal contains no reporter's transcript, and the clerk's transcript contains only orders issued by the trial court: the order appealed from and several, unrelated minute orders issued after the notice of appeal was filed. The record we do have establishes that on January 18, 2017, husband and wife (both represented by counsel) appeared before the trial court for a hearing on wife's motion. After the hearing, the trial court issued an order that, among other things, compelled husband to pay $7,000 in attorney fees to wife's attorney Cass.
DISCUSSION
I
Attorney Fees
Husband contends the trial court abused its discretion in awarding "$7,000 out of $10,000 that [wife's] counsel requested for services that [had] not yet been rendered." Husband, however, has failed to provide this court with a record to review. He failed to obtain a settled statement in lieu of the reporter's transcript. (Cal. Rules of Court, rule 8.137(a).) He also failed to include in the record any pleadings relevant to his claim on appeal. Thus the record does not include wife's motion or husband's response. The record also is devoid of any declarations or documentary evidence filed by either party in support of or in opposition to wife's motion. And the court's order offers no explanation for the court's ruling, e.g. no findings of fact and no conclusions of law.
At oral argument, husband's counsel also argued the order for fees was void on its face because it ordered husband to pay attorney fees to Paul Cass and, according to counsel, Paul Cass is no longer the attorney of record. Without a record, we cannot review this claim either. Counsel's argument to this court is not evidence. --------
Husband did attach two exhibits to his opening brief and refers to them in his opening brief. However, neither of those documents are included in the record on appeal, nor are they regulations or rules that are not readily accessible. Accordingly, we cannot consider them. (Cal. Rules of Court, rule 8.204(d).)
In short, husband is asking this court to find the trial court abused its discretion in ordering him to pay attorney fees but has failed to provide us with a record to support such a finding. In fact, he has given us nothing other than the order itself. Any reasonable attorney would agree that with this record, husband's argument is "totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
II
Family Code Section 272Husband also contends that wife's counsel Cass, is statutorily barred from "any attempt at enforcement of the attorney's fee order." (Bolding and capitalization omitted.) By extension, he argues, wife may not have "standing to appear in the matter before the Court of Appeal." This contention also is frivolous.
In support of his contention, husband relies on Family Code section 272, subdivision (c), which provides that "[i]f the attorney has ceased to be the attorney for the party in whose behalf the order was made, the attorney may enforce the order only if it appears of record that the attorney has given to the former client or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10-day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion."
This is not an enforcement action, it is an appeal from an order for attorney fees. Family Code section 272 does not apply. Husband's assertion that attorney Cass cannot represent wife in this appeal because he has not provided written notice as required by Family Code section 272 is absurd. Any reasonable attorney would agree this argument also is "totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
III
Sanctions
Wife requests that this court sanction husband for filing a frivolous appeal. (RB 25) We agree the appeal is frivolous. We will dismiss the appeal accordingly. (See In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510 , 516 ["California courts have the inherent power to dismiss frivolous appeals"].) We also will grant wife's request for sanctions.
Sanctions may be imposed on appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a).) Sanctions are warranted "only when [the appeal] is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) "The two standards under Flaherty are often used together, with one providing evidence of the other." (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1295.)
As we explained ante, both husband's claims are "totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) Thus, despite counsel's protestations at oral argument, this appeal can only have been prosecuted to harass wife or delay payment of attorney fees. Accordingly, the sanctions requested by wife are warranted.
"Factors relevant to determining the amount of sanctions to be awarded a party responding to a frivolous appeal include 'the amount of respondent's attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future. [Citation.].)' (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33-34.)" (In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 519.)
Wife incurred $22,550 in attorney fees and costs in defending this appeal. This request is supported by a declaration by counsel and an itemized billing statement showing fees incurred. The degree of objective frivolousness in this appeal is high and the need to discourage like conduct in the future is great; however, given the limited record on appeal and uncomplicated nature of the issues raised, we conclude $22,550 is an excessive amount for sanctions. We find $10,000 to be an appropriate amount of sanctions.
Courts, with increasing frequency, have imposed additional sanctions, payable to the clerk of the court, to compensate the state for the cost to the taxpayers of processing a frivolous appeal. (See Pierotti v. Torian, supra, 81 Cal.App.4th at p. 36.) The cost of processing an appeal that results in an opinion has been estimated to be approximately $8,500. (See Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 560.) However, where the legal issues involved in the appeal "are not at all complex," courts have found $6,000 to be an appropriate sanction. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 190; In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 520; see DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 182 [$6,000 is "a conservative measure" of the cost of processing the average civil appeal based on a 1992 cost analysis].) Here too, the legal issues are not complex. But this only adds to the frivolousness of the appeal. In determining a sanctions amount, we must also consider "the degree of objective frivolousness" and "the need for discouragement of like conduct in the future." (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 34.) The degree of objective frivolousness is very high and the need for discouragement of like conduct in the future is great. For these reasons, we impose the amount of $6,000 in sanctions payable directly to the clerk of this court.
We also deem it appropriate to hold husband's attorney George Fögy liable for the payment of these sanctions. (In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 756 ["sanctions may be assessed solely against a lawyer who, because the appeal was so totally lacking in merit, had a professional obligation not to pursue it . . . ."]; Bus. & Prof. Code, § 6068, subd. (c).)
DISPOSITION
This appeal is dismissed. The matter is remanded to the trial court to calculate and award to wife reasonable attorney fees incurred in responding to the appeal and in seeking sanctions. (See In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at pp. 521-522 [dismissing the appeal, awarding sanctions, and remanding the matter for calculation of fees].)
George Fogy is ordered to pay $10,000 to wife and $6,000 to the clerk of this court as sanctions for bringing this frivolous appeal. All sanctions shall be paid no later than 30 days after the date the remittitur is issued. Wife also is awarded costs on appeal.
Pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), a copy of this opinion and a copy of the oral argument transcript shall be forwarded to the State Bar of California upon issuance of the remittitur. (Pierrotti v. Torian, supra, 81 Cal.App.4th at pp. 37-38.)
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Duarte, J.