Opinion
NOT TO BE PUBLISHED
Appeal from two orders of the Superior Court of Orange County No. 99D007398, Nancy A. Pollard, Judge.
Satya V. Reddi, in pro. per., for Appellant.
Hughes and Sullivan, Lisa Hughes, Bruce A. Hughes and Tamira Lopez for Respondent.
OPINION
SILLS, P.J.
Satya Reddi properly appeals in pro per from two orders embodied in an order filed October 16, 2008. We disregard the material in much of his opening brief, because it is really directed at the merits of an initial spousal support order made in favor of Satya’s ex-wife Lakshmi back in April 2001. That order has long since become final and is beyond the jurisdiction of this court to review.
The notice of appeal, filed August 28, 2008, identifies the “related Orders” of the trial court, and gives three dates (July 11, July 23, and August 1 of 2008), which “together dispose of the issues arising from an underlying August 31, 2007 hearing.” No substantive order was made July 11, that was merely the first day of the hearing. That leaves the two orders made July 23 (rejecting a set aside motion) and August 1 (making an attorney fee order).
As in many family law cases, we refer to the parties by their first names to avoid confusion. (E.g., In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 967, fn. 2 [“We refer to the parties by their first names for clarity and ease of reference, and intend no disrespect.”].)
The first order properly challenged on appeal was an order denying a set aside motion. The set aside motion itself attacked an attorney fee order of some $32,000 made in response to several previous OSC’s brought by Satya challenging the 2001 spousal support award. The second order was an attorney fee order for fees incurred by Lakshmi, not only to defend against Satya’s set aside motion, but for everything else in the continuing family law litigation between them during the previous year.
We must reverse both orders. As to the first, a review of the record shows that the trial judge, in making certain remarks concerning Satya, and in particular in her remarks about a settlement methodology he proposed, crossed the line between an impartial evaluation of Satya’s conduct in either furthering or frustrating the policy of the law to promote settlement (see Fam. Code, § 271 ) and words which evidenced a distinct bias against Satya himself. (See Pratt v. Pratt (1903) 141 Cal. 247, 252 [“The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.”].)
All further undesignated statutory references in this opinion will be to the Family Code, with the exception of all references to “section 473,” which will be to the Code of Civil Procedure.
As to the second, the record shows the trial court did not take into account the appropriate factors for an attorney fee order under section 2032.
I
The first of the two orders properly before this court was the trial judge’s decision, rendered July 23, 2008, not to set aside a previous order, announced August 31, 2007. While the August 31, 2007 order was itself set forth in a formal order filed December 10, 2007, we will refer to it as the order of August 31, 2007.
The order of August 31, 2007 provided for two kinds of payments from Satya: (1) payments to Lakshmi’s attorneys of about $32,000 in accumulated attorney fees for several previous (and futile) attempts by Satya to terminate support in orders to show cause; and (2) payments on support arrears, totaling around $26,415.81. As to the latter -- the arrearages -- the parties had previously entered into a stipulation disposing of the matter, so those payments were, as Satya’s attorney told the court, a non-issue.
Lakshmi is correct in asserting that the time has run on the merits of the August 31, 2007 order. So, of course, we do not review the merits of the August 31, 2007 order. However, Satya’s notice of appeal, filed August 28, 2009, is certainly timely as to the order denying the set aside motion made on July 23, 2008.
E.g., as shown by this part of the transcript:
The stipulation concerning the arrearages meant that the object of the set aside motion was solely the $32,000 attorney fee order, which consisted of (1) $10,000 to be paid forthwith and (2) another $22,263.29 to be paid at the rate of $3,000 per month.
Satya supported the set aside motion with two affidavits of attorney fault pursuant to the mandatory provision of section 473, subdivision (b), to the effect that his lawyers failed to file written opposition to the order to show cause that precipitated the August 31, 2007 order in the first place. Essentially, they had allowed the task of preparing written opposition to fall through the cracks -- each member of a two-person firm thought the other would do it.
Subdivision (b) of section 473 provides:
The declaration of Russell Shields in support of the set aside motion on, among other things, “grounds of attorney fault” stated that Shields’ partner, Susan Kowalski told Shields that she would get a continuance of the August 31, 2007 hearing, and Shields assumed that Kowalski’s statement meant she was also going to do a response to the pending motion to determine arrearages and set an order for attorney fees. Hence the August 31 hearing went forward without any written response from Satya to Lakshmi’s two requests. “We both reasonably believed that the other was doing the Response because of the way we normally divide work.
In addition to the affidavits of fault, the set aside motion was supported by Satya’s testimony at the hearings on July 11 and July 23. In fact, only he testified and that testimony consisted almost entirely of making the point that Satya had brought a couple of previous OSC’s to terminate spousal support, each rejected by the court, in good faith. Satya testified that he genuinely believed he could have Lakshmi’s support terminated because he honestly thought that Family Code section 4322 required termination of support.
The first attempt to terminate support was filed in December 2004 and rejected by Commissioner Hickman in March 2005. The second attempt was filed in May 2006 (technically, an attempt to reduce it to $1) and rejected by Judge Miller in July 2006.
Section 4322 provides in its entirety: “In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the party’s proper support, no support shall be ordered or continued against the other party.”
E.g.,
One aspect of Satya’s testimony bears special recounting. Satya had made a written proposal that a group of five of Lakshmi’s friends (subject to some vetoes from Satya) arbitrate all issues between him and Lakshmi. The proposal was his idea to “reduce this litigation cost” by his arbitration proposal. In essence, he was offering to go to arbitration, with his opponent picking all the arbitrators, subject to his veto.
But after Satya had begun, on the stand, to outline the proposal, Judge Pollard interrupted: “First of all, why would you drag your dirty laundry of your family’s issues to the world at large including your friends? Because in the future, you need your friends in time of need.”
Then, when Satya’s attorney volunteered the thought that “This is a cultural thing. This is the way disputes are resolved in the Indian --” Judge Pollard cut counsel off with these words: “Mr. Shields, I did immigration law for 15 years. I can tell you more about culture than the number of hairs on your head, so” -- at which point Lakshmi’s counsel began talking.
In denying Satya’s set aside motion, Judge Pollard gave particular weight to Satya’s novel proposal, and clearly held it against him, as well as a perception of Satya’s general unreasonability. Here is what the trial judge said by way of explanation of its decision to deny the set aside motion:
“The court finds that his [Satya’s] reasons are unreasonable. The court finds that, unfortunately, Mr. Reddi is only willing to accept an answer that comports with his position even when there is a settlement offered to take $5,000 in attorney fees and go away and call it quits. He still continued to counteroffer to drag the family friends into the matter so that he has one more bite at the apple for having someone -- hopefully, to find somebody that he is reasonable.
“The court finds that he is extremely unreasonable in his expectations. The court finds he is unreasonable in his findings [sic]; therefore, the court denies the request to set aside the order of December 10th, 2007.”
There was one more paragraph to the effect that Satya’s lawyers were “7.5 percent” at fault as regards to the failure to file a written response to Lakshmi’s motion, but since the attorney fault aspect of section 473 is not at issue here, we need not recount it.
A
Since this case involves Satya’s attempt to set aside an order after an OSC, the mandatory provision of section 473 of the Code of Civil Procedure does not apply. (See Hossain v. Hossain (2007) 157 Cal.App.4th 454, 457-458 [mandatory relief provision of section 473 does not apply to “proceedings” generally, but only to dismissals and default judgments].)
That leaves the discretionary provisions. Normally, confining our review to only the discretionary provisions of section 473 would normally augur in favor of affirmance. Here, however, the trial judge’s remarks disparaging Satya’s attempt to settle the case using a novel, but hardly unreasonable, form of arbitration (by letting one’s opponent’s friends decide the case) calls into question the trial judge’s impartiality in exercising sound discretion concerning all the evidence on Satya’s set aside motion, particularly given that the set aside motion itself was exclusively at a $32,000 attorney fee order.
It may be, of course, that the trial judge might readily have come to the same conclusion (denial of the order) absent any indicia of bias against Satya. But that is not the point. In cases of the appearance of bias, it is the possibility of improper judicial processing of a case that requires reversal, even if the trial court’s decision might otherwise withstand challenge. As the court said in Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247: “Where the average person could well entertain doubt whether the trial judge was impartial, appellate courts are not required to speculate whether the bias was actual or merely apparent, or whether the result would have been the same if the evidence had been impartially considered and the matter dispassionately decided [citations], but should reverse the judgment and remand the matter to a different judge for a new trial on all issues.” (Accord, In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1500 [comments susceptible of gender bias indicated that “decisionmaking process” itself might have infected determination of validly of prenuptial agreement and thus required reversal].)
In this case, what creates the “doubt” about partiality was the immediate and vociferous reaction to what Satya thought was the core of his set aside motion: the idea that Satya had honestly thought (even if incorrectly) that his previous OSC’s were in accord with what the law required, and that he actually was trying to promote, not frustrate, the policy of the law favoring settlement. Satya barely got a few words out about his attempt at dispute resolution when the trial judge interrupted him, rejecting out of hand his idea on the merits. That is, to analogize to the hearsay rule, though the evidence of being offered to show Satya’s state of mind (bearing on his overall reasonableness in the litigation), the trial judge abruptly terminated any exploration of it because she rejected it on the merits (it was a bad idea). To compound matters, when Satya’s counsel tried to explain the culturally-specific justification for Satya’s idea, the trial judge again flatly rejected any discussion or exploration of the topic with a statement based on her own pre-judicial experience of, at best, dubious relevancy. Particularly since the core of the trial judge’s own decisionmaking process was a characterization of Satya’s state of mind (Satya was described as “unreasonable” no less than three times), we cannot overlook the appearance of partiality in the case at hand.
II
What we have already said about the appearance of partiality in the processing of the set aside motion is enough to dispose of the ensuing $50,000 attorney fee order. (See Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247 [need to “remand the matter to a different judge for a new trial on all issues”].) It impossible to separate the appearance of bias toward Satya individually as regards the set aside motion versus the appearance of bias as regards the ensuing attorney fee order.
Judicial bias is a difficult subject for judges to write about. We like to think it doesn’t exist. But it does. Most judges, however, have the good sense to keep their thoughts to themselves and not say anything on the record which indicates bias toward a party. But when bias rears its ugly head as here, we have no alternative but to send the entire matter back to the trial court to be heard by another judge. Once a judge reveals a bias it permeates the entire trial. How can we possibly conclude that only the ruling where the unfortunate remarks were made resulted from bias and not also conclude that other rulings, where the trial judge prudently restrained himself or herself from making any impolitic remarks, were not? It simply cannot be done despite the Houdini-like attempt of our dissenting colleague.
For the guidance of the trial court on remand, we explain why the $50,000 attorney fee order is deficient on the legal merits as well.
The $50,000 is different from the August 31, 2007, $32,000 order that was the subject of Satya’s set aside motion in two respects: First, while the $32,000 was made payable in presumably affordable installments (everything over $10,000 payable at the rate of $3,000 a month), the $50,000 was made payable “forthwith, period, amen.” Second, the order clearly encompassed all attorney fees incurred by Lakshmi in the period July 2007 through July 2008, including matters extraneous to Satya’s set aside motion.
Declarations and supplemental declarations filed by Lakshmi’s counsel prior to the August 1, 2008 hearing asked for all fees since July 2007, including fees incurred for execution and on-going discovery.
It is clear from the reporter’s transcript of the August 1, 2008 hearing that the $50,000 fee order was entirely a sanction for what the trial judge perceived to be Satya’s generally unreasonable attitude, including matters extrinsic to his set aside motion, and further including the fact that he had sued previous attorneys asserting malpractice claims.
We quote the entirety of the trial judge’s remarks in announcing the fee order, beginning right after Satya’s counsel had just argued that a simple continuance back in August 2007 could have allowed her to do the never-filed response to Lakshmi’s OSC that led to the $32,000 order that led to the set aside motion:
Satya argues that the $50,000 attorney fee order is contrary to section 2032. On this point, we are forced to agree.
As this court explained in Alan S. v. Superior Court, supra (2009) 172 Cal.App.4th 238, there are a host of factors that go into fashioning an attorney fee award under section 2032 and its directly cross-referenced statutes, section 2030 and section 4320. (Section 2032, subdivision (a) cross-references section 2030 and 2031, while section 2032, subdivision (b) cross-references section 4320.) Section 2032 directs the court to, in considering “what is just and reasonable under the relative circumstances,” to take into account “to the extent relevant, the circumstances of the respective parties described in Section 4320.”
Hence, the list of factors under section 4320 is “near-exhaustive.” (Alan S., supra, 172 Cal.App.4th at p. 253.) Such factors include (no big surprise) such things as “marketable skills of the supported party,” possibility of retraining of the supported party (§ 4320, subd. (a)) as well as the ability of the supported party to engage in gainful employment without interfering with the care of minor children (§ 4320, subd. (g); the supporting party’s income, assets and standard of living (§ 4320, subd. (c); the standard of living established during the marriage (§ 4320, subd. (d); the assets of each party (§ 4320, subd. (e)); the age and health of each party (§ 4320, subd. (h); and the overall balance of hardships (§ 4320, subd. (k)).
Thus, the task of properly fixing an attorney fee award is a “nuanced process in which the trial court should try to get the ‘big picture’ of the case, i.e., ‘the relative circumstances of the respective parties’” and “definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test.” (Alan S., supra, 172 Cal.App.4th at p. 254.)
It appears from the record that the $50,000 award was not the product of any balancing, but was (like the denial of the set aside order) based on Satya’s perceived unreasonableness including such matters as his having sued previous attorneys for malpractice, and for having complained to the trial judge about the injustice of past decisions. These were ad hominem matters fundamentally inconsistent with section 2030’s object that “each party has access to legal representation.” (§ 2030, subd. (a)(1).)
Moreover, $50,000 was clearly for all fees incurred by Lakshmi up to that point, not just the fees Lakshmi had incurred defending the set aside motion. That fact confirms that the trial judge considered Satya’s perceived unreasonableness generally in fashioning the attorney fee award, as distinct from what Lakshmi needed to defend the set aside motion, balanced against Satya’s having the continued ability to have a lawyer of his own. (See Alan S., supra, 172 Cal.App.4th at p. 254 [record must demonstrate “an actual exercise of discretion and a consideration of the statutory factors in exercise of that discretion.”].)
There is also the matter that the trial judge precluded Satya from calling Lakshmi to the stand. Testimony from Lakshmi may have been of considerable aid in making an award under the section 2032 and hence it was error to exclude Lakshmi’s testimony as a priori irrelevant. Beyond that error, the trial judge’s refusal to hear such testimony supports the notion that the court issued its order to punish Satya for his overall conduct throughout the litigation.
Nor can, as a punishment or sanction, the $50,000 fee award be upheld under section 271, which allows an attorney fee award to be based on the degree to which a party may further or frustrate “the policy of the law to promote settlement of litigation.” There is no attempt in Lakshmi’s respondent’s brief to justify the order under section 271. Indeed, the statute does not appear anywhere in the respondent’s brief. And, in fact, the respondent’s brief affirmatively disavows any attempt to justify the award under section 271. On page 21 of the respondent’s brief we read: “First and foremost, the court issued attorney fees, not sanctions.”
Section 271 provides in its entirety:
As we said in In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 531 about another fee order which was also imposed as a sanction: “Nor can the award be saved because the trial court might have made a $12,500 fee order simply on the basis of need and ability to pay. The trial court imposed that award as a sanction and it can therefore only be upheld as a sanction.” (Italics added.) The $50,000 fee order must therefore be reversed and remanded for a new trial in which the trial judge is directed to make a decision in accord with the section 2032 factors.
III
To recap the disposition:
The order denying the set aside request is reversed and remanded. The presiding judge of the Orange County Superior Court shall assign the case to a new judge. (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247.)
The $50,000 fee order is also reversed and remanded to the new judge for reconsideration in accord with this opinion.
In the interest of justice, the trial judge on remand shall have discretion to assess the costs of appeal in this case according to the results of the reconsidered set aside motion and the relevant section 2032 factors.
I CONCUR: MOORE, J.
ARONSON, J., Concurring and Dissenting:
I concur in the court’s decision to reverse the $50,000 attorney fee order because the trial court failed to follow the dictates of Family Code sections 2032 and 4320, as the majority correctly explains. Because this alone supports reversal of the $50,000 attorney fee order, there is no need to consider whether bias prompted the court to veer from the statutory guidelines for awarding attorney fees. I dissent, however, from the majority’s decision to reverse the trial court’s denial of Satya Reddi’s motion to set aside the August 31, 2007, attorney fee award. The record simply does not support the majority’s conclusion there was an appearance of bias in the trial court’s rejection of Satya’s set aside motion.
I refer to the parties by their first names for clarity and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
Whether there is an appearance of judicial bias is determined by an objective standard. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another ground in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349.) The issue is resolved by asking whether a reasonable person would entertain doubts concerning the judge’s impartiality or would cause the reviewing court to lack confidence in the fairness of the proceedings. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 461.)
Here, Satya never accepted the validity of the April 2001 dissolution judgment awarding $3,000 monthly spousal support to Lakshmi. He subsequently filed several orders to show cause (OSC) in a futile effort to terminate the spousal support order. Because Lakshmi incurred attorney fees in defending Satya’s numerous attacks on the support order, she sought and obtained the August 31 attorney fee award. Satya responded with the set aside motion resulting in this appeal. At the hearing on the motion, he sought to show he acted in good faith when he made numerous attempts to overturn the spousal support order.
Along the way, he apparently sued his trial attorney for malpractice, and later sued for malpractice the lawyers he hired to sue his trial attorney.
The trial court correctly rejected this argument. As we recently explained in Alan S. v. Superior Court (2009) 172 CalApp.4th 238, the purpose of an attorney fee order is to provide both sides with the opportunity to retain counsel. We noted the “preference for parity is expressed in both subdivision (a)(1) of section 2030, with its statement of purpose that ‘the court shall ensure that each party has access to legal representation to preserve each party’s rights...’ (italics added), and in a companion statute, section 2032, subdivision (b), which announces the goal of enabling ‘each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately.’ (Italics added.)” (Id. at p. 252.) Consequently, Satya’s good faith in filing several OSC’s, which resulted in the August 31 attorney fee award, was not in issue and irrelevant to the trial court’s determination.
What annoyed the majority was the trial court’s peremptory termination of Satya’s proposal that five of Lakshmi’s friends arbitrate the disputed issues between them. The majority gleans from the court’s comments that it held “a distinct bias against Satya himself.” (Maj. opn., ante, at p. 3.) I do not agree. True, the court expressed exasperation with Satya, but this does not mean an objective observer would conclude she held a personal bias toward Satya. At this stage of the proceedings, Satya’s unusual “arbitration” proposal came too late and, in any event, no legal basis existed for the court to entertain this unique offer. The court correctly rejected it out of hand, and in light of our scarce judicial resources amid an ever-expanding caseload, I do not think the court had to indulge Satya and listen to the cultural basis for a proposal it could not legally adopt.
Nevertheless, the majority discerns the trial court held a personal bias toward Satya because it “abruptly terminated” (maj. opn., ante, at p. 7) the topic, offering an explanation that it was familiar with immigration law, a comment the majority finds to be of “dubious relevancy.” (Ibid.) Perhaps so, and it may be the court should not have taken the bait and commented on the merits of Satya’s proposal by questioning why Satya would want to disclose the details of his disagreements with Lakshmi to their friends. This comment hardly warrants the majority’s precipitous conclusion the court was biased, however. Nor does the majority explain why bias is shown merely because the court quickly rejected Satya’s unmeritorious legal arguments. But none of this would cause an objective observer to conclude the court was biased. Indeed, an objective observer would not understand why the trial court should have indulged Satya and listened to a proposal it could not legally adopt.
The only other basis the majority offers to support its conclusion is the trial court’s description of Satya as “unreasonable” (maj. opn., ante, at p. 7), an observation the trial court made on three separate occasions. I agree with the trial court: Satya’s position was unreasonable, and describing it as such would not demonstrate to an objective observer the court held a personal bias toward the party who advanced these rather fanciful legal arguments. Consequently, I would affirm the trial court’s rejection of Satya’s motion to set aside the August 31, 2007, attorney fee award.
Technically, the appeal from the two orders rendered July 23 and August 1 is premature, since the two orders were not embodied into a formal, signed order until October 16, 2008. This court, however, has jurisdiction to reach the merits of such a premature appeal. (See Cal. Rules of Court, rule 8.104(e)(1) [“A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment.”].)
We deny the motion to dismiss the appeal (though we grant the application to file a reply to the opposition to the motion to dismiss). The record, which includes reporter’s transcripts of the hearings at which the trial court made the two subject orders, is certainly complete enough to allow us to evaluate them. Any arguable deficiencies are only confined to documents in the trial court file, and, as to those, we have the power to augment the record on our own motion. (See Cal. Rules of Court, rule 8.155(a)(1)(A) [(“(a) (1) At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court....”). The Courts of Appeal regularly does so. (E.g., David S. Karton, a Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 145, fn. 8.) In Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261, footnote 5, for example, the power was exercised in order to take notice of a timely filed notice of appeal that had not been included in the appellant’s appendix, rather than dismiss the case on the failure to include the notice of appeal in the appellant’s appendix: “Neville failed to include his notice of appeal in his appendix, in violation of California Rules of Court, rules 8.122(b)(1)(A) and 8.124(b)(1)(A). The notice of appeal is in the court file, however. Although we do not condone Neville’s failure to comply with the applicable rules, we decline Chudacoff’s invitation to dismiss the appeal, and we augment the record with the notice of appeal on our own motion.”
On the other hand, appellant’s application, filed September 3, 2009, to take new evidence, is denied, as the evidence proffered is irrelevant to our determination in this appeal.
“Mr. Shields [Satya’s attorney]: Just for clarification purposes of the hearing today would be that’s my understanding -- and I believe that Ms. Hughes concurs -- that the set aside was granted, and the issue before the court then is whether or not the attorneys fees awarded on August 31 of almost $30,000 should stand as an order or whether there would be some order in mitigation. There was an arrears issue but the parties agreed on that, and that is [sic] part of the hearing that was heard on August 31 has been resolved.” (Italics added.)
“(b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”
“Q. By Mr. Shields: What was your understanding?
“A. The code -- by law, the code must terminate the spousal support if the supported spouse has sufficient income to support herself; sufficient income is equal to about the standard of living. The code, by law, it must terminate support.”
“The court: Counsel, this matter could have been resolved when they were offered to waive the attorney fees and get on with it. That is just one step. And I noticed in Mr. Reddi’s appearance before this court, as he testified, Mr. Reddi sees the world through the eyes of Mr. Reddi, and he expects the rest of the world to see the same thing. [¶] What he doesn’t understand is that the world does not always have to agree with him. And the fact that he has sued every attorney who has represented him, in addition to suing the attorney who represented his attorney who defended himself in a malpractice suit, only leads the court to believe that, perhaps, Mr. Reddi is one of the most unreasonable litigants that this court has ever heard of.” (Italics added.)
“Now, the fact that Ms. Reddi may or may not be able to pay all the bills for Hughes and Sullivan when she determined that she wanted them for representation, I don’t think is an argument that follows reasonableness. I think that this is a case where I don’t care what you threw up against the wall, Mr. Reddi wasn’t going to accept any of it. He was extremely unreasonable.” (Italics added.)
“When I said to him, ‘Mr. Reddi’ -- he complained there were 10 things he objected to. I said, ‘Mr. Reddi, you tell me the 10 things that you didn’t like.” [This conversation may have occurred in chambers: We did not stumble across any portion of the transcript of the set aside hearings where the trial judge asked Satya what he “didn’t like.”]
The trial judge continued: “The first thing out of his mouth was he didn’t have a big, high regard for Judge Brown. [The trial judge who made the original 2001 support order.] He thought Judge Brown -- I mean, this is my interpretation. These may not be his exact words, ‘Judge Brown was a crook. Judge Brown didn’t follow the law. Everybody was against me. Nobody did anything right. [¶] And my goodness, his tirade went on and on with the most unreasonable arguments and statements that I have ever heard. Believe me, in 12 years of sitting on the bench, I’ve heard really doozies of arguments. The fact that there are attorney fees incurred to the tune of $55,000 is -- at this point in time by Hughes and Sullivan -- does not surprise this court.”
The trial judge then segued to this comment about Satya’s relationship with his own counsel: “When I look at the back of the courtroom, I see 25 boxes of documents because they have the laboring oar. And, Ms. Kowalski, I don’t know how much information Mr. Reddi gave you, I don’t think he was forthcoming with you, and I bet dealing with him was like pulling teeth.” (Italics added.)
Continuing, and speaking directly to Satya’s counsel, the judge continued: “And the fact that you didn’t charge any more money leads this court to believe that you are going to get the award for the most charitable law practice this side of the Mississippi.”
Finally, after the comment about Satya’s counsel’s charity in representing Satya for free, the trial judge finished with: “As it relates to the attorney fees the for the offices of Hughes and Sullivan, I’m going to order that $50,000 forthwith, period, amen.”
“(a) 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.
“(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
“(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”