Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. D474009 Edward B. Huntington, Judge.
NARES, J.
Robert Martin Donaldson (Robert), who is an attorney, appeals in propria persona an order (the restraining order) extending for a period of 15 years a domestic violence restraining order to which he and his former wife, respondent Jenny Miller Donaldson (Jenny), had originally stipulated in September 2002 "without admitting fault or acknowledging the reasonableness of [Jenny's] fears," and which was first renewed in August 2003 for a period of three years. In mid-October 2006, the court denied Robert's request for a continuance to conduct discovery regarding five declarants who had submitted declarations in support of Jenny's July 2006 extension request, and then on November 2 of that year granted the restraining order based in part on those declarations, finding that "[a]buse and intimidation of [Jenny] have continued to take place in spite of the existing restraining orders, though in a more subtle manner[,]" and that Jenny "has a reasonable apprehension of the possibility of future abuse."
On that same date, the court also ordered Robert under Family Code sections 271 and 2030 to pay $7,000 toward Jenny's attorney fees and costs. Robert also appeals this order.
All further statutory references are to the Family Code unless otherwise specified.
Robert has also brought a contested motion to augment the appellate record to include copies of (1) a stipulation and order dated January 4, 2006 (the January 2006 stipulated order) for appointment of the Honorable Thomas R. Murphy (Ret.) (Judge Murphy) of Judicial Mediation and Arbitration Services, Inc. (JAMS) as a mediator in this matter; and (2) an unconformed copy of the interim arbitration award dated July 6, 2006 signed by Judge Murphy in this matter following unsuccessful mediation.
In his appeal, Robert asserts that (1) the court decided to renew the restraining order "before reviewing any evidence, then punished [him] for protesting." He also contends (2) the court violated his federal due process right to confront and cross-examine adverse witnesses when on October 16, 2006, it denied his request for a continuance of the November 2, 2006 restraining order extension hearing to allow him to conduct discovery to locate and question the five declarants who supported Jenny's extension request; (3) the court had no legal basis to "prohibit [him] from pursuing any discovery whatsoever"; (4) the court erred by refusing to consider either Dianne C. Rosenberg, M.D.'s August 2004 letter (Dr. Rosenberg's letter) to Steven Sparta, Ph.D. (Dr. Sparta) or Dr. Sparta's March 2006 report (Dr. Sparta's report) (discussed, post); and (5) the court erred by ordering him to pay a $7,000 attorney fees sanction under section 271 and 2030 to punish him for using his lawyer skills to "work[] over" Jenny. For reasons we shall explain, we deny Robert's motion to augment, reject his contentions, affirm the fee award, and affirm the restraining order in all respects with the exception of the 15-year duration ordered by the court, which we reverse. That portion of the restraining order is reversed and remanded for a determination under section 6345, subdivision (a) (hereafter section 6345(a)) of whether the order is to be renewed for five years or permanently.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, after 15 years of marriage, Jenny and Robert separated. In September 2002 they stipulated "without admitting fault or acknowledging the reasonableness of [Jenny's] fears" to a one-year restraining order. They also stipulated to the court's appointment of Dr. Sparta, who would conduct a "complete [child] custody evaluation," including a psychological evaluation of both Jenny and Robert.
In April 2003, Jenny indicated in her deposition that Robert had raped her "over 250 times" during the marriage. Following a hearing in late August 2003, the court issued a three-year domestic violence prevention restraining order requiring Robert to stay 100 yards away from Jenny, and ordering him to not "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements" of Jenny. It also ordered him to not contact Jenny "[e]xcept for brief and peaceful contact as required for court ordered visitation of children unless a criminal protective order says otherwise."
In May 2004, Jenny and Robert stipulated to the appointment of Dr. Rosenberg as an expert who would review Jenny's medical records. They also stipulated that Dr. Rosenberg's report would "be used solely for the purpose of this litigation . . . " (Italics added.) In August of that year, Dr. Rosenberg sent a confidential letter to Dr. Sparta summarizing her opinions regarding Jenny's medical records. In March 2006, Dr. Sparta completed his custody evaluation report.
A. The Restraining Order
On July 17, 2006, Jenny filed a request for a 45-year renewal of the three-year domestic violence prevention restraining order that was set to expire at midnight on August 26, 2006. In support of her request, Jenny filed and served on Robert (among other things) a notice that the hearing on her renewal request would be held on August 15, 2006 at a specified time, her own declaration, documentary evidence that Robert had enrolled in an anger management program but had failed to show up at several of the sessions, and the declarations of five other people: Amber Wilfong, a former nanny; Irene Casey; Juan Vargas; Jim Wilson; and a Mrs. Bremer. Jenny accused Robert of numerous violations of the then-existing restraining order. The five other declarants indicated that Robert had engaged in various acts that Jenny claimed violated that order, such as blocking a classroom doorway to prevent her from going inside, and making an obscene gesture to her as she left the building.
1. Robert's Lodgment of Dr. Rosenberg's letter and Dr. Sparta's report
In August 2006, Robert submitted with his answer his own declaration in opposition to Jenny's request to extend the restraining order. He also lodged for in camera review copies of Dr. Rosenberg's letter and excerpts of Dr. Sparta's report.
2. Continuance of the August 15, 2006 hearing on Jenny's extension request
At the August 15, 2006 hearing on Jenny's restraining order extension request, her counsel informed the court that Judge Murphy had completed a binding arbitration in the dissolution case, and had "released a full judgment for the parties." Jenny's counsel explained that Jenny's restraining order extension request was "not a matter we sent over to Judge Murphy and is really the only issue remaining in this court." Counsel also objected to Robert's lodgment of Dr. Rosenberg's letter and Dr. Sparta's report.
The court continued the matter to November 2, 2006, stating that the only issue to be decided was "whether the orders can be extended," and that "[t]he issue is not going to be going back and rehashing whether the order should have been issued in the first place." The court then urged Robert to stipulate to the extension and avoid paying additional attorney fees.
3. Robert's late-August 2006 discovery requests
On August 29, 2006, Robert served on Jenny (but not on her counsel of record) his first set of discovery requests (including numerous special interrogatories, requests for admission and demands for production of documents and other things. Through counsel, Jenny objected to all of the requests on various grounds. Robert did not bring a motion to compel further responses to his discovery requests.
4. Jenny's early-October 2006 order to show cause (OSC) application
In early October 2006, Jenny obtained and served on Robert an OSC set to be heard on November 6, 2006 (after the November 2 hearing on her extension request), objecting to the court's consideration of the copies of Dr. Rosenberg's letter and excerpts from Dr. Sparta's report that Robert had lodged with the court, and requiring Robert to show why he should not be ordered under sections 271 and 2030 to pay $6,500 for attorney fees Jenny incurred in (among other things) bringing her restraining order extension request and responding to Robert's discovery requests. In her supporting declaration, Jenny's counsel described Robert's discovery requests and explained why she objected to them on Jenny's behalf. In her own supporting declaration, Jenny objected to Robert's lodgment of Dr. Sparta's report because it was inadmissible hearsay and under the parties' stipulation it was a custody evaluation, and custody was not an issue in her request for a restraining order extension. She also objected to Robert's lodgment of Dr. Rosenberg's letter on the ground that under the parties' stipulation the letter was to be used "solely for the purpose of this litigation," which referred to the earlier dissolution case and not the restraining order proceedings.
5. Robert's October 10, 2006 amended discovery requests
On or about October 10, 2006, less than a month before the November 2 hearing on Jenny's restraining order extension request, Robert propounded an amended set of discovery requests, which included numerous special interrogatories and demands for production of documents.
6. October 18, 2006 ex parte hearing and denial of Robert's continuance request
On October 18, 2006, Jenny's counsel appeared ex parte to request that the November 6 OSC hearing on Jenny's fee application and objection to Robert's lodgment of Dr. Rosenberg's letter and Dr. Sparta's report be heard on November 2 along with Jenny's restraining order extension request. The court reset the OSC hearing for November 2, the date set for the hearing on Jenny's restraining order extension request.
Robert then asked for a continuance of the November 2 hearing, stating "it's become clear that discovery is not going to be complete by that time." The court denied Robert's request, indicating that discovery was complete.
7. November 2, 2006 hearing
On November 2, 2006, the court heard the parties' arguments on both Jenny's restraining order extension request and the OSC concerning her fee application and objection to Robert's lodgment of Dr. Rosenberg's letter and Dr. Sparta's report. Applying the applicable domestic violence restraining order statute—section 6345(a) (discussed, post)—and the interpretation of that subdivision in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), the court explained that "[w]hen a petition for renewal of a domestic violence order is contested by the respondent, the trial court should renew the order, if and only if, it finds by a preponderance of the evidence that the protected party entertains a reasonable apprehension of future abuse."
Jenny's counsel addressed (among other things) the five declarations submitted by Wilfong, Casey, Vargas, Wilson, and Bremer. He argued that the parties' former nanny, Wilfong, a neutral third party who does not socialize with either party, describes in her declaration Robert's abusive conduct toward Jenny and the children, and says she fears for her own safety because Robert cannot control his rage. Counsel argued that Casey's declaration describes Robert's angry and threatening appearance at the children's school where he blocked Jenny from exiting the room, raised his middle finger and said "Die bitch" as she tried to leave the room. He also argued that the declaration of Vargas, a security guard who does not know either of the parties, shows that Robert blocked Jenny from exiting a store and made an obscene gesture at her. Wilson's declaration, he argued, shows that Wilson just happened to be in the neighborhood and describes Robert's efforts to break into Jenny's home, and Bremer's declaration corroborates those facts.
Robert, in propria persona, argued that the court should not believe the other declarants. He asserted that "[a]ll of those declarations are either self-impeached or I absolutely deny that they occurred in the way that they did or else they are demonstrably false because the facts do not fit logic." Robert then told the court, "I would like . . . the opportunity to examine and question all of these declarants so that the court can see where the preponderance of evidence lies as to whether [Jenny's] fears of future abuse are objectively reasonable as required by [Ritchie]." (Italics added.)
The court indicated it had not read Dr. Rosenberg's letter or Dr. Sparta's report, and ruled it would not consider them. The court indicated it would consider the declarations submitted by the parties, and stated "I did go through the declarations of both parties thoroughly, and I did read the other declarations that were submitted as well." Concluding that "the facts . . . stated in [Jenny's] declaration are accurate[,]" the court found that "she has a reasonable apprehension of the possibility of future abuse." It explained that "usually divorcing spouses kind of get over their anger and they are able to move on with their lives but unfortunately that hasn't happened in this case. And as a result of that, we have a situation where [Robert] has continued to . . . harass, to threaten and to intimidate [Jenny] in some subtle and occasionally not so subtle ways."
The court ordered Robert to pay $7,000 in attorney fees under sections 271 and 2030, finding in the order after hearing that Robert "has significantly greater ability to pay attorney[] fees than [Jenny] does[,]" the issues "could easily [have] been resolved" but Robert "chose not to do so," and he had "used his ability and skills as an attorney to 'work over' [Jenny]."
The court ordered that "the orders will be in effect for 15 years." This appeal followed.
DISCUSSION
I.
Under this court's order dated October 15, 2007, Robert's motion to augment the record is considered with his appeal.
Robert has brought a contested motion to augment the appellate record to include copies of two documents: (1) the January 2006 stipulated order appointing Judge Murphy as a mediator in this matter; and (2) an unconformed copy of the interim arbitration award dated July 6, 2006 signed by Judge Murphy following unsuccessful mediation. These documents are not relevant to the issues (discussed, post) that Robert has raised on appeal. Accordingly, we deny the motion to augment.
II.
APPEAL
A. The Court's Consideration of the Evidence
Robert first asserts that the court decided to renew the restraining order "before reviewing any evidence, then punished [him] for protesting." (Italics added.) The record refutes this claim. The reporter's transcript of the November 2, 2006 hearing shows that before it granted the 15-year restraining order extension, the court specifically stated: "I did go through the declarations of both parties thoroughly, and I did read the other declarations that were submitted as well."
The record thus demonstrates the court read and considered Robert's and Jenny's declarations, as well as those submitted by Wilfong, Casey, Vargas, Wilson, and Bremer. In any event, the transcript of that hearing also shows that both Jenny's counsel and Robert himself argued pertinent details set forth in the declarations. We shall discuss, post, the court's award of attorney fees and costs in favor of Jenny.
B. Due Process and Right to Confront and Cross-Examine Adverse Witnesses
Robert next contends the restraining order should be reversed because the court violated his federal due process right to confront and cross-examine adverse witnesses when on October 16, 2006, it denied his request for a continuance of the November 2, 2006 restraining order extension hearing to allow him to conduct discovery to locate and question the five declarants who supported Jenny's extension request. We reject this contention.
"'The express constitutional right to confrontation is confined to criminal proceedings. Nevertheless, in civil proceedings a party has a due process right under the Fifth and Fourteenth Amendments to the federal Constitution to cross-examine and confront witnesses. [Citations.]' [Citation.]" (Seering v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 304.)
The right to confront witnesses in a criminal case is not unlimited. (See People v. Frye (1998) 18 Cal.4th 894, 946.) A civil litigant's due process right to confront and cross-examine witnesses in an action governed by the Family Code is also not unlimited; it is limited by the rules of discovery. Robert acknowledges that Jenny's request for a restraining order extension was governed by section 6345, subdivision (a) (hereafter section 6345(a)). He also acknowledges that as a civil matter governed by that section, Jenny's extension request was "subject under [section] 210 to the Code of Civil Procedure generally."
Citing section 210 and California Rules of Court rule 5.21, Witkin explains that "[e]xcept to the extent that statutes or Judicial Council rules provide applicable rules, the rules of practice and procedure governing civil actions generally . . . apply in proceedings under the Family Code." (11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 5, p. 28.) Thus, under section 210, the discovery statutes that apply generally to civil cases also apply to cases such as the instant one that are governed by the provisions of the Family Code, subject to the limited exceptions set forth in that section.
Section 210 provides: "Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code."
California Rules of Court rule 5.21 provides: "Except as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code if they would otherwise apply to such proceeding without reference to this rule. To the extent that these rules conflict with provisions in other statutes or rules, these rules prevail."
Here, when Jenny responded with objections to all of his late-August 2006 discovery requests, Robert had the statutory right under section 210 and the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) to promptly bring a motion for an order compelling further responses to his interrogatories, inspection demands, and requests for admission. (See Code Civ. Proc., §§ 2030.300, 2031.310 & 2033.290.) He acknowledges, however, that he did not assert this right. In fact, Robert explains why he chose not to bring such a motion. Citing Code of Civil Procedure section 2023.030, subdivision (a), Robert states that he "knew that if he lost a motion to compel he would have to pay [Jenny's] costs and fees incurred in resisting the motion . . . ."
Code of Civil Procedure section 2023.030, subdivision (a) provides: "To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: [¶] (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
After causing Jenny to incur attorney fees in response to his first set of discovery requests, and then electing to not bring a motion to compel further responses, Robert waited until about October 10, 2006—less than a month before the November 2 hearing on Jenny's restraining order extension request, and almost three months after Jenny filed her July 16 extension request—to serve her with a second "amended" set of discovery requests. This belated discovery attempt was untimely. Code of Civil Procedure section 2024.020, subdivision (a), which arguably applies in this case under section 210 (discussed, ante), provides: "Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action." (Italics added.) Even if we were to construe November 2, 2006 as the "date initially set for the trial of the action" for purposes of that subdivision, Robert propounded his second round of discovery after the statutory discovery cut-off date, which was October 3, 30 days before November 2.
In his Appellant's Appendix, Robert has included copies of his amended discovery requests and the cover letter he sent to Jenny's counsel, all of which are dated October 10, 2006. However, he has not included a copy of any proofs of service.
As already discussed, the hearing was originally set for August 15, 2006.
Robert also had the right under Code of Civil Procedure section 2024.050, subdivision (a), to bring a noticed motion, accompanied by a meet and confer declaration, for an order permitting him to complete discovery proceedings or to reopen discovery. However, he did not bring such a motion and thus waived his right to do so. Because Robert orally requested at the October 18, 2006 hearing a continuance of the November 2 trial date, the court acted well within its discretion in denying that request.
Code of Civil Procedure section 2024.050, subdivision (a) provides: "On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040."
In sum, the record does not support Robert's contention that the court violated his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution, as well as his statutory discovery rights under Code of Civil Procedure section 2017.010, "by preventing [him] from introducing relevant evidence in the form of witness cross-examination testimony." Rather, the record shows that by not exercising his discovery rights in a timely manner, Robert waived them.
Code of Civil Procedure section 2017.010 provides: "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property."
C. Legal Basis for "Prohibiting" Discovery
Robert next contends the court had no legal basis to "prohibit [him] from pursuing any discovery whatsoever." We reject this contention, as it is based on the false premise that the court prohibited him from "pursuing any discovery whatsoever." As already discussed, the record shows that by not exercising his discovery rights in a timely manner, Robert waived them.
D. Exclusion of Dr. Rosenberg's Letter and Dr. Sparta's Report
Robert also contends the court erred by refusing to consider Dr. Rosenberg's letter and Dr. Sparta's report before it granted the extension of the restraining order under the provisions of section 6345(a). We reject this contention.
1. Applicable Legal Principles
Section 6345(a) provides: "In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party." (Italics added.)
Construing the provisions of section 6345(a), the Court of Appeal in Ritchie, supra, 115 Cal.App.4th at page 1290, held that under that subdivision "[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Italics added.) The Ritchie court explained that "this does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party's apprehension is genuine and reasonable." (Ibid.)
2. Analysis
Robert asserts the court committed reversible error by refusing to read or consider reports from court-appointed experts who reviewed relevant evidence and addressed questions of fact. This assertion is unavailing.
The record shows that under the parties' September 11, 2002 stipulation, Dr. Sparta's report was to be received into evidence only in the context of the child custody proceedings. Specifically, the written stipulation and order thereon stated that the parties would "submit to a complete custody evaluation," and that Dr. Sparta would be appointed as the evaluator. When Jenny's counsel objected at the initial August 15, 2006 hearing to Robert's lodgment of that report, Jenny's counsel argued that the custody proceedings had already been resolved. In a declaration in support of her request for attorney fees and costs that the court granted at the November 2 hearing, Jenny stated that she and Robert had stipulated that Dr. Sparta would perform a custody evaluation, custody was not an issue in the November 2 hearing, and thus Dr. Sparta's report was not relevant and should not be considered. She also objected to Robert's lodgment of excerpts of that report on the grounds they contained inadmissible hearsay and Robert "should never have been in possession of this report to begin with under the terms of our stipulation."
We conclude the court did not abuse its discretion in excluding the excerpts of Dr. Sparta's report lodged by Robert. Use of those excerpts at the November 2, 2006 hearing was barred by the terms of the parties' stipulation because custody was not at issue. As already discussed, at issue during that hearing were Jenny's request for an extension of the restraining order, her objection to the lodgment of Dr. Rosenberg's letter and excerpts from Dr. Sparta's report, and Jenny's request under sections 271 and 2030 for an award of fees and costs.
We also conclude the court did not abuse its discretion by excluding Dr. Rosenberg's letter to Dr. Sparta. The record shows that under the terms of the parties' May 2004 stipulation and the court's order thereon, Dr. Rosenberg letter was to be used "solely for the purpose of this litigation" (italics added), which in 2004 did not include Jenny's July 2006 request under section 6345(a) for an extension of the restraining order. The record also shows that Robert was not entitled to possession of the report when he lodged it with the court in August 2006 in connection with his opposition to Jenny's request for an extension of the restraining order.
E. Attorney Fees and Costs (§§ 271 & 2030)
Robert contends the court abused its discretion at the November 2, 2006 hearing by ordering Robert to pay a $7,000 attorney fees sanction under section 271 and 2030 to punish him for using his lawyer skills to "work[] over" Jenny. We reject this contention.
1. Statutory Provisions and Standard of Review
a. Section 2030
Section 2030, subdivision (a) provides: "(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward."
b. Section 271
Section 271 provides: "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. 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." (Italics added.)
c. Abuse of discretion standard of review
The parties acknowledge that a sanction order under section 271 and an award of attorney fees and costs are both reviewed under the abuse of discretion standard. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82 [§ 271]; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 [§ 2030 ].) Under that standard, "'the trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .' [Citations.]" (Ibid.)
2. Analysis
The court did not abuse its discretion in awarding $7,000 in reasonable attorney fees and costs to Jenny under sections 271 and 2030. The amount of the award was supported by the declaration of Jenny's counsel, Jennifer Britt, who described Robert's discovery requests and explained why she objected to them on Jenny's behalf. Britt also indicated that Jenny had incurred as of the date Britt executed her declaration—October 6, 2006—about $5,000 in attorney fees in connection with Jenny's meritorious request to extend the restraining order and in responding to discovery propounded by Robert (discussed, ante). Britt estimated at that time, about a month prior to the November 2 hearing, that the total amount of fees might be $6,500. The actual award of $7,000 was reasonable in light of Britt's declaration. At the hearing, Jenny's counsel reminded the court, without objection by Robert, that based on the court's prior findings he was capable of earning $96,000 annually, and thus an award of fees to Jenny under section 2030 was appropriate.
Robert objects to the court's finding that he used his attorney skills to "work[] over" Jenny. He maintains that his "'working over' consisted of nothing more than (1) filing a standard form objection to the [restraining order] renewal and supporting declarations; (2) sending comparatively brief and routine discovery requests; (3) lodging two relevant reports [i.e., Dr. Rosenberg's letter and excerpts from Dr. Sparta's report]; and (4) not yielding to the trial court's pressure to stipulate to a renewal despite its warning that he would lose and be forced to pay fees if he tried to present the case . . . ." Robert's objections are unavailing.
The record substantially supports the court's finding. At the initial August 15, 2006 hearing, the court urged Robert, appropriately, to stipulate to a restraining order extension and thereby avoid paying additional attorney fees. Specifically, the court stated: "I can't tell you how wasteful this is. Mr. Donaldson, you can understand you're going to be paying a fair share of the fees in this. I don't know what your objection is to continuing the restraining orders in effect to keep the two of you apart. You don't have a government job . . . . It might make some real sense where you both get on with things."
For reasons already discussed, Jenny's request for an extension of the restraining order was meritorious. Also, Robert minimizes the attorney time that his unsuccessful discovery attempts and litigation tactics necessitated on the part of Jenny's counsel. For reasons already discussed, we have concluded that Robert, in seeking to defeat Jenny's extension request, inappropriately lodged with the trial court Dr. Rosenberg's letter and excerpts from Dr. Sparta's report. In response to this behavior, Jenny's counsel instituted the successful OSC proceedings that were also heard on November 2, 2006.
In imposing the sanction under section 271, the court chastised Robert, stating: "One of the things that's offended me most over the years is when lawyers use their ability and skills to work over the other person. And I believe without any hesitation in my mind you've done exactly that. Now, you are going to deny it and you are going to tell me that isn't true, I'm wrong, but I have seen it happen. I've practiced in family law for 28 years myself. I have seen lawyers try to do that." (Italics added.)
We conclude the record shows that Robert's conduct in this matter "frustrate[d] the policy of the law to promote settlement of litigation" within the meaning of section 271, and thus the court did not abuse its discretion by imposing the sanction against Robert under that section.
Robert's conduct in this appeal shows he is continuing his efforts to (in the words of the trial court) "work[] over" Jenny. For reasons we have already explained, this appeal is based largely on the faulty, inaccurate and unsupportable premises that the court decided to renew the restraining order "before reviewing any evidence," and that it violated Robert's due process rights by prohibiting him from "pursuing any discovery whatsoever." (Italics added.) In fact, as the record demonstrates, Robert waived the right to enforce his discovery requests. Robert acknowledges that when Jenny objected to his first set of discovery requests, he elected to not bring a motion to compel further responses in order to avoid discovery sanctions. Instead, he abandoned those discovery requests and served her with an untimely second set of discovery requests after the statutory discovery cut-off date had passed. Robert has also brought a contested but unmeritorious motion to augment the appellate record with two documents that are not relevant to the issues he has raised in his appeal.
F. Duration of the restraining order
Although we affirm the restraining order in all other respects, we reverse the portion of the order that provides it "shall remain in effect for 15 years from November 2, 2006." As already discussed, section 6345(a) provides in part that a trial court may renew a restraining order "either for five years or permanently . . . ." (Italics added.)
Here, the court did not order a "permanent[]" renewal, and the 15-year renewal it did order exceeds the alternative five-year limitation specified by section 6345(a). Accordingly, we must reverse the portion of the restraining order providing for the 15-year extension and remand the matter for a determination under that subdivision of whether the restraining order shall be permanent or limited to a duration of five years from November 2, 2006.
DISPOSITION
Robert's motion to augment is denied. The fee award is affirmed. The portion of the restraining order providing it "shall remain in effect for 15 years from November 2, 2006" is reversed, and the matter is remanded for a determination under section 6345(a) of whether the restraining order is to be renewed either for five years or permanently. Jenny shall recover her costs on appeal.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.