Javanbakhsh v. Dahms (In re Marriage of Javanbakhsh)

Full title: In re the Marriage of PARISA JAVANBAKHSH and RAINER DAHMS. v. RAINER…

Court: California Court of Appeals, Sixth District

Date published: Dec 5, 2022

No. H045151 (Cal. Ct. App. Dec. 5, 2022)

Opinion

H045151 H045383 H046077

12-05-2022

In re the Marriage of PARISA JAVANBAKHSH and RAINER DAHMS. v. RAINER DAHMS, Respondent. PARISA JAVANBAKHSH, Appellant,

BAMATTRE-MANOUKIAN, ACTING P.J.

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. 2016-FL175505)

BAMATTRE-MANOUKIAN, ACTING P.J.

Parisa Javanbakhsh filed a petition for dissolution on May 26, 2016, against respondent Rainer Dahms. We are presented with three appeals by Javanbakhsh arising out of that proceeding. Pursuant to a prior order of this court, the three matters have been briefed and are being considered together.¹

1 In a prior appeal, this court affirmed a May 24, 2018 order declaring Javanbakhsh a vexatious litigant pursuant to Code of Civil Procedure section 391. (Javanbakhsh v. Dahms (May 9, 2022, H046034) [nonpub. opn.].) We take judicial notice of this previously filed opinion. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 73, fn. 3 [appellate court may take judicial notice of its prior unpublished decision].) By previous order, this court also has taken judicial notice of the appellate record and briefs filed in that prior appeal. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

Appeal No. H045151: On May 27, 2016, Javanbakhsh filed a request for domestic violence restraining orders (DVRO Request), alleging that her husband, Dahms, had physically assaulted and threatened her. After a hearing more than 14 months later, the court denied the DVRO Request in an order filed August 11, 2017 (DVRO Order).

Appeal No. H045383: On May 10, 2017, Dahms filed a request for order in which he, inter alia, sought reimbursement of costs, and an award of attorney fees and costs, including sanctions. The court, after hearing, granted the request and ordered that Javanbakhsh pay Dahms the total amount of $46,687 for reimbursement amounts, attorney fees, and attorney fees in the nature of sanctions. The order was filed November 30, 2017 (Sanctions Order).²

2 As discussed, post, the award included reimbursement of attorney fees paid by Dahms to Javanbakhsh's attorney, reimbursement of expenses incurred by Dahms as a result of his arrest on domestic violent charges brought by Javanbakhsh, and an award of attorney fees and costs in the nature of sanctions. For the sake of simplicity, we will refer to the order as the Sanctions Order.

Appeal No. H046077: The court conducted a trial on various matters on March 13, 2018. The court issued an order after trial on May 29, 2018 (Trial Order) concerning spousal support, reimbursement claims, pension plan issues, and sanctions.

Javanbakhsh contends that the trial court erred in connection with the orders entered in the three cases. Her appellate briefs do not comply with the California rules of appellate practice, and they contain no specific argument in support of her claims of error. As we discuss, although we could elect to consider Javanbakhsh to have defaulted because of these procedural deficiencies, we have considered the merits of the challenges to the orders. Finding no error, we will affirm the orders entered in Appeal Nos. H045151, H045383, and H046077.

I. COMMON ISSUES TO THREE APPEALS

A. Noncompliance with Appellate Procedural Rules

Our review of the merits of this appeal is severely hampered by Javanbakhsh's noncompliance with rules of appellate procedure. The California Rules of Court³prescribe basic rules for the format and content of appellate briefs. Javanbakhsh's briefs do not comply with those appellate rules in a number of respects.

3 Further rule references are to the California Rules of Court.

The party is required in his or her appellate brief to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." (Rule 8.204(a)(1)(B).) An appellant in his or her opening brief is also required to "(A) [s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from; [¶] (B) [s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable; and [¶] (C) [p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2).) The joint opening brief submitted by Javanbakhsh does not comply with these requirements. She has not (1) provided separate headings summarizing the points made in support of her three appeals, (2) summarized the relevant procedural history of the case (i.e., the nature of the action) with citations to the record, (3) explained why the orders are appealable, or (4) provided a summary of significant facts limited to matters in the record.

A significant area of Javanbakhsh's noncompliance is her failure to provide citations to the appellate record. Her joint opening and reply briefs are replete with statements of specific factual and procedural matters upon which she bases her claim that the court below erred in connection with the three matters being appealed. Javanbakhsh's failure to include citations to the record in her appellate briefs constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs "not supported by references to the record are disregarded" by the reviewing court].)⁴

4 Javanbakhsh's use of block record citations in some of the headings in her opening brief does not cure the defect of failing to cite to the record throughout her brief to support her recitation of factual and procedural matters. Nor does her inclusion of some citations to the record in her reply brief cure those defects.

Javanbakhsh's failure to include record citations in support of her assertions of fact and procedure presents significant challenges to this court because the combined record in these three appeals-consisting of a total of more than 7,000 pages in a combined clerk's transcript of 26 volumes-is extensive. We"' "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his [or her] brief makes no reference to the pages where the evidence on the point can be found in the record."' [Citations.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) We will therefore disregard Javanbakhsh's factual contentions and any references to procedural matters below for which she has failed to provide citations to the record. (Yeboah, supra, 128 Cal.App.4th at p.451.)

Further, Javanbakhsh has failed to cite any legal authority in support of her position that the court erred in (1) denying the DVRO Order, (2) granting the Sanctions Order, and (3) issuing the Trial Order. An appellate court has no obligation to "develop the appellants' arguments for them." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) As one court has explained, "We are not required to make an independent, unassisted study of the record in search of error or grounds to challenge a trial court's action. . . . When a brief fails to contain a legal argument with citation of authorities on the points made, we may 'treat any claimed error in the decision of the court . . . as waived or abandoned.' [Citations.]" (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.)

Related to her failure to cite legal authority to support her position, Javanbakhsh, in her opening and reply briefs, makes a number of general statements concerning her claims of error in these three appeals. Examples include her assertions that (1) the amount of the award in the Sanctions Order was "disturbingly high," and was "unmerited"; (2) she did "not behave in ways to deserve sanctions"; (3) "[she] cooperated . . . to the best of her ability and in [g]ood [f]aith" with respect to settlement conferences, discovery and depositions; (4) "[litigation activity she] conducted was merited . . . [while Dahms acted] frivolously, mainly to harass and intimidate [her]"; (5) Dahms "made false reimbursement claims"; (6) the DVRO Order "was made in error and . . . [was] detrimental to [her] life"; (7) the trial judge was "fully aware that he abused his discretion to make legal errors resulting in Respondent's favor"; (8) the court "granted sanctions based on Respondent's opinion without evidence to prove [m]erit" and it "granted sanctions in arbitrary amounts"; and (9) "[s]anctions are rarely imposed on parties in Family Court." (Original boldface.) Javanbakhsh fails to state cogent or specific arguments in her appellate briefs as to why the trial court committed error in issuing the three orders considered here. Her argument is little more than that the trial court was wrong in issuing the orders, and that they are unfair to her. This general position is not proper appellate argument and is of no benefit to this court in evaluating the merits of claims of error.

"Conclusory assertions of error are ineffective in raising issues on appeal. [Citation.]" (Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 (Howard), citing rule 8.204(a)(1)(B).) As a panel of this court has explained: "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone & Fyke).)

We acknowledge that Javanbakhsh is representing herself in these appeals. However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, "[w]hen a litigant is appearing in propria persona, he [or she] is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

As appellant, Javanbakhsh bears the burden of showing that there was no substantial evidence to support the findings of the trial court in support of the three challenged orders. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) She has failed to meet her burden of demonstrating error. She has (1) not complied with the requirements for the content and format of briefs, (2) failed to include any citations to the appellate record, (3) cited to matters outside the record, (4) failed to provide any legal authorities in support of her position, and (5) made general contentions, including undeveloped assertions of error.

B. Motion to Strike Reply Brief

Dahms filed a motion to strike Javanbakhsh's reply brief in these three appeals, contending that the brief improperly included new material that should have been presented in her opening brief. The motion was opposed by Javanbakhsh. We have considered the motion and opposition. We conclude that the motion to strike is meritorious.

The appellant may serve an optional reply brief. (Rule 8.200(a)(3).) However, the general rule is "that' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. . . ."' [Citations.]" (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 (Shade Foods).) As the California Supreme Court has explained, "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant." (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) Matters that are raised by appellant for the first time in the reply brief are subject to a motion to strike. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 [motion to strike portions of reply brief granted where there was "absolutely no sound reason this [new] issue could not have been raised in the [appellants'] opening brief"].)

Javanbakhsh has raised new issues in her reply brief.⁵ These new issues include, without limitation, argument (1) concerning the 911 dispatch recording from May 25, 2016; (2) that Dahms violated the TRO issued after Javanbakhsh filed the DVRO Request; (3) that the trial court allegedly denied Javanbakhsh the right to call Dahms as a witness at the hearing on the DVRO Request; (4) that the court erroneously excluded on hearsay grounds the declaration of her former college professor that she offered as evidence; (5) that the trial court allegedly prevented her from speaking at the hearing on the DVRO Request; (6) asserting error in the granting of the Sanctions Order; (7) that Dahms fabricated reimbursement requests; and (8) asserting error by the court in imposing additional sanctions against her in the Trial Order. There is no reason why Javanbakhsh could not have raised these issues in her opening brief. And she advances no argument in her opposition to the motion to strike explaining or attempting to justify her failure to raise these issues in her opening brief.

5 We note that Javanbakhsh's reply brief, at 65 pages (excluding attachments), is almost double the length (33 pages) of her opening brief.

The motion of Dahms to strike the new material in the reply brief filed by Javanbakhsh is granted.

II. CASE NO. H045151 (DVRO ORDER)

A. Procedural History

1. DVRO Request and Declaration

On May 27, 2016, Javanbakhsh filed a request for domestic violence restraining orders and an accompanying declaration in support of the DVRO Request. She alleged under penalty of perjury in both pleadings that Dahms had physically assaulted and threatened her on multiple occasions. Javanbakhsh twice stated that at approximately 6:00 a.m. on May 25, 2016, Dahms "pulled [her] hair, grabbed [her] hand so hard that the skin turned blue and shoved and pushed [her] against the wall[;] after several minutes of screaming and hitting [her], he threatened that if [she did] not sign [documents surrendering her rights under the marriage], . . . he [would] get a gun and will kill [her] and himself." She alleged that her injuries consisted of "[s]evere neck [pain] and headache from pulling [her] hair and being shoved into the wall, severe bruising of right hand."

Javanbakhsh also alleged that there had been six domestic violence incidents that had preceded the May 25 incident, occurring on May 3, 10, 17, 20, 21, and 23. She described the May 23 incident, occurring at approximately 10:00 p.m., as one in which Dahms again demanded that Javanbakhsh "sign certain documents surrendering any and all marital rights." After she refused to do so, "he pulled [her] hair, kick[ed her] on [her] back and shoved and pushed [her] against the wall[;] after several minutes of screaming and hitting [her], he pushed [her] out of the house without proper clothing and shoes in the cold for over 20 minutes." Javanbakhsh described the alleged domestic violence incidents as a group, stating that "[Dahms] always does this early morning or late night before he leaves and when he comes home. It is always about demanding to sign certain papers to say [she] would not claim anything in case of divorce. He has on these occasions kicked me, always pulls my hair and always shoves me against the wall." And she declared that Dahms had made the murder-suicide threats "several times."

The court granted a temporary restraining order (TRO) on May 27, restraining Dahms from harassing, assaulting or contacting Javanbakhsh pending a hearing on the matter.

Dahms filed opposition to the DVRO Request. Dahms denied under penalty of perjury all allegations of domestic abuse that had been made by Javanbakhsh. Specifically, he denied that he had ever struck or kicked Javanbakhsh, pulled her hair, hit her head against a wall, squeezed her hand so firmly that her skin turned blue, revv'd his car engine or drove his car erratically to frighten her, abused her in any way, or threatened to take her life or his life.

2. Trial Briefs

The parties submitted lengthy trial briefs in connection with the hearing on the DVRO Request that were considered by the court.

a. Javanbakhsh's Trial Brief

Javanbakhsh recited in detail the allegations of abuse contained in her DVRO Request and supporting declaration. She stated that Dahms's actions were the result of his anger because she would not sign documents he had prepared that were financially to her detriment and because she would not accompany him to the German embassy for that purpose. She described the documents and attached them to her brief. Javanbakhsh further addressed and rebutted various aspects of Dahms's deposition testimony.

b. Dahms's Trial Brief

Dahms in his trial brief denied all allegations of abuse and set forth his position in detail. Dahms acknowledged that he and Javanbakhsh had engaged in an argument that did not become physical on the evening of May 25 that caused him to leave their apartment. He stated that after he returned to the apartment, police showed up in response to Javanbakhsh's 911 call, and he was arrested.

Dahms stated that he and Javanbakhsh are both German citizens and were married in Germany in April 2007. They moved to the United States in 2010 when Dahms was offered a postdoctoral fellowship in Livermore at Sandia National Laboratories (Sandia), which is "a nationwide corporation operated for the U.S. Department of Energy by Lockheed-Martin." In December 2014, Dahms told Javanbakhsh that he intended to seek a divorce, and that under German law a petition may be filed after the parties have been separated for one year. (However, the parties may still live together during that time.) Dahms gave Javanbakhsh written notice on December 31, 2015, that the one-year period of separation under German law had concluded. The parties had an appointment with the German Consulate on May 27, 2016, relative to their divorce, but he was arrested before that appointment as a result of Javanbakhsh's allegations.

Dahms believes that Javanbakhsh "fabricated all of the alleged abuse . . . out of spite because he was leaving her." (Original boldface.) Because Dahms's work as a rocket propulsion engineer at Sandia requires a maximum level security clearance, his employment was negatively impacted by the continuation of the TRO for more than one year without a hearing.

Dahms in his trial brief also reviewed what he contended were numerous inconsistencies in Javanbakhsh's account of the alleged incidents of abuse. Dahms asserted that (1) although Javanbakhsh claimed that she had been repeatedly and severely beaten by Dahms, and that she sustained injuries, she never took contemporaneous photographs showing such injuries; (2) Javanbakhsh had not reported the alleged repeated abuse to anyone, including a 24-hour security guard present in the high-rise apartment building in which they lived; (3) she had declared that the only verifiable injury was "[was an] alleged 'severe bruising of her right hand' allegedly sustained on the morning of May 25, 2016"; (4) Javanbakhsh is right-handed, and was able to sign papers for her DVRO Request at her attorney's office later on May 25; (5) there were no contemporaneous photographs depicting a severely bruised hand that were taken by her or her attorney;⁶ (6) photographs taken by the police on the evening of May 25 showed no bruising of the right hand at all "and possibly only the faintest discoloration to her right forearm"; (7) Javanbakhsh had reported in her DVRO Request that on more than one occasion at nighttime, Dahms had" 'pushed [her] out of the house without proper clothing,'" when the parties in fact lived in a high-rise apartment with a 24-hour security guard; (8) Javanbakhsh did not tell the police on the evening of May 25 that there had been an instance of abuse "that allegedly occurred earlier that same morning" that was referred to in her DVRO Request; (9) she did not report to the police on the evening of May 25 any of the five prior alleged domestic violence incidents she had identified in her DVRO Request; (10) the only alleged incident she reported to the police was an alleged incident of abuse occurring at night on May 25 just before the police arrived, which was not mentioned in her DVRO Request; (11) Javanbakhsh did not disclose in court filings, including a filing on May 31, 2016, that there had been an alleged domestic violence incident on the night of May 25 (i.e., the incident she reported to the police); and (12) when interviewed by the police at night on May 25, she did not disclose that she had signed papers for her DVRO Request at her attorney's office earlier that day, instead telling the police that she was" 'still in the process of contacting an attorney for herself.'" (Original italics and bold.)⁷

6 Dahms stated in his trial brief that Javanbakhsh testified at her second deposition that-contrary to her sworn statements in the DVRO Request and supporting declaration that she had sustained a severe bruise of her right hand in the May 25 incident-she had meant that the bruising had occurred to her right forearm. She attributed this discrepancy to linguistics issue with her dialect of Farsi.

7 The petition for dissolution was signed by Javanbakhsh and her attorney nine days earlier, on May 16, 2016.

3. Hearing on DVRO Request

The court conducted an evidentiary hearing on Javanbakhsh's DVRO Request on August 2, 2017, more than 14 months after the issuance of the TRO. Javanbakhsh was self-represented; Dahms was represented by counsel. At the outset, the court noted that it had reviewed the lengthy trial briefs submitted by the parties. The two witnesses who testified were Javanbakhsh and San Jose Police Officer Abraham Ra'oof.

a. Testimony of Officer Abraham Ra'oof

Officer Ra'oof testified that at approximately 10:30 p.m. on May 25, he and another officer responded to a 911 call from Javanbakhsh. He took three photographs of Javanbakhsh that evening, which showed a slight discoloration of her right forearm, which was consistent with what Officer Ra'oof observed. Javanbakhsh told the officer that just before she had called the police that evening, she had gotten into an argument with her husband, and he had grabbed her, pushed her against the wall and pulled her hair. Javanbakhsh did not tell Officer Ra'oof that she had had a physical altercation with Dahms at around 6:00 a.m. that morning or that she had received the mark on her arm in the morning.⁸ She did not request medical attention for any injury.

8 Javanbakhsh testified that when she spoke to the police on the evening of May 25 about the incident with Dahms earlier that day, she did not make a false statement that she received the bruise at some time other than that morning, and she did not understand why the police officer had understood she had sustained the bruise in the evening.

b. Testimony of Parisa Javanbakhsh

Javanbakhsh testified that on the morning of May 25, 2016, "[her] husband was very violent." He had requested that she sign documents that would "release [her] marital rights," telling her that if she didn't do so, he would obtain a gun and kill her and himself. He had made the same threats previously. She received a bruise to her right forearm that morning, not in the evening. Javanbakhsh denied that she told the police that the bruise was from that evening. She testified that Dahms returned home that evening, again demanded that she sign the papers, became very aggressive, kicked her on the back, pulled her hair, and shoved her against the wall. When she called the police, Dahms left the apartment. Javanbakhsh testified that when the police photographed her, the bruise was not visible in the photograph but was visible in person. She photographed her arm two days later and it showed a bruise.

Javanbakhsh signed the DVRO Request at her attorney's office in the early afternoon on May 25, after the morning incident with Dahms. As stated in the DVRO Request, she sustained her injury in the morning on May 25. On cross-examination, she testified that the bruise she received on the morning of May 25 from Dahms's assault was on her arm, even though she stated in her DVRO Request that it was on her hand. She explained that "in [her] language [Farsi]," she uses" 'hand' and 'arm' interchangeably."⁹

9 Javanbakhsh testified that she received all formal education in Germany. She testified further that she speaks German and Farsi fluently, and that the German words for "hand" and "arm" are the same as they are in English. Dahms stated in his trial brief that Javanbakhsh is also fluent in English.

It was Javanbakhsh's testimony that there were many violent incidents before May 25 in which Dahms demanded that she sign divorce documents. She testified specifically about incidents on May 3, 10, 17, 21, and 23.

The court concluded the hearing by denying the DVRO Request, stating that it did "not find [Javanbakhsh] to be a credible witness." It found Officer Ra'oof's testimony to be credible. It concluded that the photographs showed no bruise at all on Javanbakhsh's hand and showed only a "very faint area" on Javanbakhsh's arm that Officer Ra'oof decribed as being a slight bruise.

4. DVRO Order

A formal order was filed on August 11, 2017. The trial court, reciting that it had considered the testimony, denied the DVRO Request. The court specifically found "that all of the allegations [contained] in Ms. Javanbakhsh's . . . [DVRO Request and accompanying declaration], and any other subsequent pleadings she has filed with this court in which she has [reiterated] those allegations, are completely without any credibility whatsoever and are, therefore, not believed by this court." Javanbakhsh appealed the August 11, 2017 DVRO Order.

B. Discussion of Claim of Error

1. Applicable Law

The DVRO Request was brought pursuant to the Domestic Violence Prevention Act (DVPA) (Family Code, § 6200 et seq.).¹⁰ "The purpose of the DVPA 'is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.' (§ 6220.) Under the DVPA, the court is required to 'consider the totality of the circumstances in determining whether to grant or deny a petition for relief.' (§ 6301, subd. (c).)" (Lugo v. Corona (2019) 35 Cal.App.5th 865, 869.) The "trial court has broad discretion' in its decision to grant or deny a request for a restraining order under the DVPA." (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702 (Fregoso & Hernandez).)

10 All further unspecified statutory references are to the Family Code.

We review a trial court order granting or denying a petition for a restraining order under the DVPA for abuse of discretion. (Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.) In determining whether an abuse of discretion has occurred in the grant or denial of a request under the DVPA," '[t]he appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420 (Gonzalez).) "We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment. [Citation.]" (Fregoso & Hernandez, supra, at p. 702.)

It is the appellant's burden to establish that the trial court abused its discretion in granting or denying a petition for a restraining order brought under the DVPA. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1141, fn. 1 (Burquet).)

2. Analysis of Claim of Error

Javanbakhsh challenges the DVRO Order. She contends that her testimony was credible and questions why the court disagreed and found that her testimony was not credible. Javanbakhsh makes further arguments (1) emphasizing certain evidence that she contends supported a finding in her favor;¹¹ (2) identifying instances at the hearing that she claims showed that the trial court did not treat her fairly; and (3) evidence that the court disregarded was critical in support of her position.

11 Included in Javanbakhsh's reply brief is a lengthy narrative of what she described as her "testimony" at the hearing on the DVRO Request. The narrative was not her testimony at the hearing; rather, it was a declaration she filed with the court prior to the hearing.

The claim of error fails. As we have explained, if multiple inferences can be drawn from the facts presented below, an appellate court cannot substitute its determination for that of the trial court. (Gonzalez, supra, 156 Cal.App.4th at p. 420.) Simply stated, the record below shows that two inferences could have been drawn from the evidence: (1) Javanbakhsh was the victim of the physical abuse perpetrated by Dahms as alleged in her sworn DVRO Request, accompanying declaration, trial brief, and testimony; or (2) no such physical abuse was perpetrated by Dahms, as he stated in his sworn response. This court is thus constrained from substituting its decision for that of the trial court.

Further, as the trial court made very clear, the disposition of Javanbakhsh's DVRO Request turned on the credibility of the parties. The trial court unequivocally concluded that Javanbakhsh's allegations in her DVRO Request and supporting declaration, as well as documents she later filed concerning her claims of abuse, "are completely without any credibility whatsoever and are, therefore, not believed by this court."¹² A fundamental tenet of appellate review it that "trial courts are genuinely in the best position 'to assess witness credibility.'" (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 729.) Thus," '"' "it is the exclusive province of the [trier of fact] to determine the credibility of a witness . . . ." '"' [Citation.]" (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.) We must defer therefore to the trial court's assessment of the credibility of the witnesses. (See Ashby v. Ashby (2021) 68 Cal.App.5th 491, 518 (Ashby) [reviewing court defers to trial court's assessment of credibility of witnesses in appellate challenge to domestic violence restraining order]; see also Curcio v. Pels (2020) 47 Cal.App.5th 1, 12 [same].)

12 At a later hearing on Javanbakhsh's motion for disqualification (Code Civ. Proc., § 170.6.) and on her motion for reconsideration (id., § 1008)-the latter motion being discussed herein, post-the court reiterated that in its denial of the DVRO Request, it "did not find [Javanbakhsh's] testimony to be believable. That was based both on [the court's] opportunity to observe [her] as a witness and to judge [her] credibility based on that observation. And it was further based on the content of [her] testimony, which [the court] found to be not credible."

Moreover, there was a significant basis for the trial court's drawing the inference that Javanbakhsh had not established her allegations of abuse. This included, of course, the sworn denial by Dahms that any abuse had occurred. Further, as pointed out below by Dahms, the allegations in Javanbakhsh's DVRO Request and accompanying declaration were subject to question because, inter alia, (1) she had alleged under penalty of perjury that at 6:00 a.m. on May 25, 2016, Dahms had physically abused her, but she did not mention that alleged abuse when she spoke to the police that evening; (2) she had claimed in her sworn court filings that on May 25, Dahms had squeezed her right hand so hard that it turned blue and became severely bruised, but she did not tell the police that her hand had been injured, and the photographs taken by the police showed no such injury; (3) she had claimed six instances of assault by Dahms in her DVRO Request, but she mentioned none of them to the police on May 25; (4) there was no corroborative evidence of any instances of assault, aside from a slight discoloration on her right arm that was a possible bruise (an injury not identified in her DVRO Request); and (5) she did not disclose to the police on the evening of May 25 that she had signed papers for her DVRO Request at her attorney's office earlier in the day, and instead told the police that she was still in the process of retaining an attorney.

Javanbakhsh has not met her burden on appeal of establishing error. (Burquet, supra, 223 Cal.App.4th at p. 1141, fn. 1.) The trial court did not abuse its discretion in denying the DVRO Request. (Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 702.)

III. CASE NO. H045383 (SANCTIONS ORDER)

A. Procedural History

The appeal by Javanbakhsh of the trial court's Sanctions Order in fact consists of a combination of her appeal of that order and her purported appeal of a subsequent order denying her motion to reconsider the original order. "An order denying a motion for reconsideration is not independently appealable. [Citations.]" (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 937, fn. 1.) This fact notwithstanding, "the denial is reviewable if the request for reconsideration is made from an appealable order." (George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 138.) We will therefore address Javanbakhsh's challenges to both the Sanctions Order and the subsequent order denying her motion for reconsideration.

1. Request for Attorney Fees and Costs

On September 7, 2017, Dahms filed a request for attorney fees and costs, including an award of sanctions, pursuant to sections 271 and 6344. The request had three components. Dahms sought (1) reimbursement of funds he paid to Javanbakhsh for her attorney fees; (2) reimbursement of attorney fees and costs related to his arrest for domestic violence charges; and (3) attorney fees and costs as the prevailing party with respect to the DVRO Request, as well as attorney fees and costs in the nature of sanctions under section 271 for costs he incurred as a result of Javanbakhsh's improper conduct that greatly increased Dahms's litigation expenses. Dahms requested an award of attorney fees and costs that totaled between $123,000 and $132,000.¹³

13 In his request, Dahms indicated he was seeking attorney fees and costs of $123,390. In his memorandum in support of the request, his counsel indicated that Dahms had incurred a total of $132,077 in attorney fees and costs in the proceedings that Javanbakhsh should be ordered to pay.

Dahms alleged that he had paid a retainer of $5,000 to Javanbakhsh's attorney at the outset of the proceedings. The payment, he alleged, was based upon a false claim in Javanbakhsh's income and expense declaration that she only had $40, she had not paid an attorney retainer, and she owed her attorney $5,000. He alleged that at the time she submitted this declaration, she had already paid her attorney $5,000.

Dahms also stated that he had incurred bail bond and legal expenses in connection with his arrest that occurred as a result of Javanbakhsh's "[making] false allegations and corresponding false statements to the police." These expenses totaled $6,687.

In addition to these amounts, Dahms claimed that he had incurred substantial attorney fees and costs in the proceeding that were greatly increased by "[t]he untruthful and[,] as counsel believes, intentionally deceitful manner in which Ms. Javanbakhsh . . . conducted herself in this matter." Dahms asserted that the total cost of his legal representation by his current and former attorney in the proceedings was $120,390. There were two legal bases for this third component of Dahms's request. First, Dahms asserted an entitlement to fees and costs under section 6344, subdivision (a) as the prevailing party in connection with Javanbakhsh's DVRO Request. Second, Dahms sought an award of attorney fees and costs as sanctions pursuant to section 271, subdivision (a), based upon conduct by Javanbakhsh that "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. . . ." (Ibid.) Counsel for Dahms detailed the conduct of Javanbakhsh that he asserted justified an award of sanctions, including that she had "misrepresented and fabricated material facts" in connection with her DVRO Request; "changed her 'story' about 'severe bruising of her right hand' "; "demonstrated obstructionistic conduct" during two sessions of her deposition; disobeyed an order of the trial court by refusing to answer certain questions at her deposition; filed a frivolous ex parte motion; and "filed multiple untruthful declarations."

Javanbakhsh did not file written opposition to Dahms's request for an award of attorney fees and costs.

The court heard the request on October 19, 2017. Dahms appeared through his counsel; there was no appearance by Javanbakhsh. The court granted Dahms's request for attorney fees and costs. In the formal order filed November 1, 2017 (the Sanctions Order), the court ordered Javanbakhsh to pay to Dahms a total of $46,687, which consisted of $5,000 as reimbursement for the retainer Dahms paid to Javanbakhsh's original attorney; $6,687 as reimbursement for expenses incurred by Dahms related to "his arrest based on Petitioner's false allegations to the police of domestic violence against Respondent, which led to Respondent's arrest on May 26, 2016"; $25,000 as attorney fees and costs as sanctions under section 271; and $10,000 under section 6344 for attorney fees arising out of the hearing on Javanbakhsh's DVRO Request. (Original boldface.) The court found that Javanbakhsh had the ability to pay the amount of the award and that such payment would not create a financial hardship for her.

On November 30, 2017, Javanbakhsh filed a notice of appeal of the Sanctions Order.

2. Motion to Reconsider

On November 15, 2017, Javanbakhsh filed a motion for reconsideration of the Sanctions Order. She asserted that it had been an "honest mistake" that she had not appeared for the October 19, 2017 hearing on Dahms's request for sanctions. Javanbakhsh argued, inter alia, that she did not have the ability to pay sanctions since her only source of income was the temporary spousal support she received. Dahms filed opposition to the motion for reconsideration. On January 2, 2018, one day prior to the hearing, Javanbakhsh filed a 125-page document designated as a "[r]esponsive [d]eclaration" that was in fact in further support of her motion for reconsideration. She requested a continuance of her own motion, asserting that she had not had an opportunity to respond to the opposing papers submitted by Dahms.

The court heard and decided Javanbakhsh's motion for reconsideration on January 3, 2018. Although it found that Javanbakhsh had not "set forth a credible basis for reconsideration," and it rejected her attempt to "reargue whether sanctions should be appropriate," the court, on its own motion, granted reconsideration to address whether Javanbakhsh had the present ability to pay the entirety of the sanctions ($46,687). In a formal order dated March 1, 2018, the court, inter alia, (1) found that "[t]here [was] no credibility whatsoever to [Javanbakhsh's] claim that her failure to appear at the . . . hearing [on Dahms's request for sanctions] was the result of an 'honest mistake' "; (2) found that Javanbakhsh had "failed to demonstrate any 'new or different facts, circumstances or law'" under Code of Civil Procedure section 1008, subdivision (a) warranting reconsideration of the prior sanctions order; (3) indicated it had reexamined the issue of when and how Javanbakhsh should pay to Dahms the reimbursement amount, attorney fees, and sanctions of $46,687 previously ordered; (4) found that Javanbakhsh had the present ability to pay $10,000 in monthly installments of $500, for Dahms's attorney fees arising from the hearing on the DVRO Request (awarded under Fam. Code, § 6344); (5) held that Dahms would receive a cash credit of $46,687 (less any amounts paid by Javanbakhsh on the $10,000 sanctions award) when the court ordered the division of community assets and Dahms's 401k retirement plan; and (6) denied Javanbakhsh's request for attorney fees and sanctions.¹⁴

14 Javanbakhsh in her opening brief on appeal twice asserts that the trial court on January 3, 2018, "lowered the sanction amount from $46,687 to the arbitrary amount of $10,000." She repeats this statement in her reply brief. Javanbakhsh is mistaken. This was not the order of the court. To the contrary, the court left intact the prior award of attorney fees and costs from the November 1, 2017 order at $46,687, but changed the method of payment of that amount. It found that Javanbakhsh had the present ability to pay $10,000 (of the total award of $46,687) and ordered her to do so at the rate of $500 per month for 20 months. It held further that at a later time when the court ordered the division of community assets, including Dahms's 401k plan, Dahms would receive a cash credit of $46,687 (less any amounts paid by Javanbakhsh on the $10,000 sanctions award). Thus, as a result of the January 3, 2018 hearing on Javanbakhsh's motion to reconsider, the trial court, as stated in its March 1, 2018 order, "re-examined [and modified] the terms of when and how the Court's $46,687 attorney fees, sanction and reimbursement order shall be paid to Respondent." For simplicity, since the court denied the substantive relief requested by Javanbakhsh, we will refer to the court's disposition of Javanbakhsh's reconsideration motion as a denial of the motion.

On March 12, 2018, Javanbakhsh filed a purported notice of appeal from the order denying her motion for reconsideration.

B. Discussion of Claim of Error

1. Applicable Law

One component of the Sanctions Order ($25,000) was sanctions under section 271. Attorney fees and costs are awardable as sanctions under the Family Code. Section 271, subdivision (a) provides: "[T]he 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 rendering such an award, "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." (Ibid.)

As a panel of this court has explained, section 271 "advances the policy of the law 'to promote settlement and to encourage cooperation which will reduce the cost of litigation.' [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction. [Citations.]" (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177 (Petropoulos).) A party's status as a self-represented litigant does "no[t] excuse" him or her for engaging in conduct that frustrates the policies of promoting settlement and curbing litigation costs because "self-represented parties are entitled to no greater consideration than other litigants and attorneys. [Citation.]" (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

"A[n] award of attorney fees and costs as sanctions under section 271 is reviewed for abuse of discretion. [Citation.]" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225 (Corona); see also Petropoulos, supra, 91 Cal.App.4th at p. 178 [appellate court "will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it"].) As a court of appeal, we will reverse an order imposing sanctions under section 271 "only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.]" (Corona, supra, at pp. 1225-1226.) And we review for substantial evidence the factual findings upon which the sanctions order is based. (Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479 (Feldman).)

A second component of the court's Sanctions Order here ($10,000) was made under section 6344 for attorney fees incurred by Dahms that arose out of the trial of the DVRO Request. Section 6344 is part of the DVPA and permits an award of attorney fees to the prevailing party in proceedings arising out of requests for protective orders. (See Faton v. Ahmedo (2015) 236 Cal.App.4th 1160, 1168 (Faton).) The statute provides: "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party." (§ 6344, subd. (a).)

An order awarding attorney fees under section 6344 is reviewed for abuse of discretion," 'and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances.' [Citation.]" (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509 (Loeffler).)

A third component of the Sanctions Order involved reimbursement requests by Dahms. Orders concerning reimbursement requests are reviewed for abuse of discretion. (See In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1127 (Dandona & Araluce); Hebbring v. Hebbring (1989) 207 Cal.App.3d 1260, 1272 (Hebbring).)

2. Analysis of Claim of Error

We will address the challenge to the Sanctions Order by considering separately its three components, i.e., reimbursement, fees and costs awarded under section 6344 as the prevailing party, and fees and costs in the nature of sanctions awarded under section 271. We will then address the order denying reconsideration.

a. Reimbursement Order

Dahms presented evidence that he furnished Javanbakhsh's attorney with a $5,000 retainer at the outset of the proceedings based upon the false premise contained in Javanbakhsh's financial declaration that the attorney had not yet been paid this retainer and she had no funds to pay him. Dahms showed that the attorney had, in fact, received a $5,000 retainer from Javanbakhsh. Dahms also presented evidence to support his claim for reimbursement of the expenses totaling $6,687 that were associated with his arrest resulting from Javanbakhsh's domestic violence allegations. He detailed these expenses as consisting of $2,500 for the posting of bail; $1,500 to retain a criminal attorney to communicate with the District Attorney regarding potential criminal charges that were ultimately never brought against him; $187 paid to an immigration attorney for advice regarding the potential impact of a domestic violence restraining order upon his green card status and his application for United States citizenship; and $2,500 to retain another criminal attorney "to represent him in a Petition for Determination of Factual Innocence and to Seal and Destroy Arrest Records," which was necessary to secure his continued, high-security employment with Sandia.

Javanbakhsh, who filed no opposition, did not refute any of this evidence upon which Dahms based his reimbursement claims. And she does not assert on appeal any specific argument that the court erred in granting these claims. There was substantial evidence to support the order requiring Javanbakhsh to reimburse Dahms for the retainer he paid to her attorney ($5,000) and for expenses incurred as a result of his arrest ($6,687). The trial court did not abuse its discretion in granting such requests for reimbursement. (Dandona & Araluce, supra, 91 Cal.App.4th at p. 1127.)

b. Attorney Fees Under Section 6344

There can be no question that Dahms was the "prevailing party" in connection with that the proceeding involving Javanbakhsh's DVRO Request. As detailed above in connection with our discussion of Appeal No. H045151, the trial court, after consideration of lengthy written submissions by the parties and after an evidentiary hearing, denied the DVRO Request. The court specifically found "that all of the allegations [contained] in Ms. Javanbakhsh's [DVRO Request, supporting declaration] . . . and any other subsequent pleadings . . . in which she has [reiterated] those allegations, are completely without any credibility whatsoever and are, therefore, not believed by this court."

Dahms, as the prevailing party, established his claim for attorney fees and costs under section 6344, subdivision (a). (Faton, supra, 236 Cal.App.4th at p. 1168.) Further, there is no doubt that the amount of attorney fees awarded under section 6344, subdivision (a) to Dahms as the prevailing party was appropriate. Dahms presented evidence that the fees and costs he incurred in defending the DVRO Request were more than 10 times the amount awarded. Dahms's request indicated that the attorney fees incurred to his counsel then representing him were $113,890. At the hearing on the request, his attorney noted that 95 percent of those attorney fees had been incurred in defending against the DVRO Request. The trial court did not abuse its discretion in awarding $10,000 to Dahms pursuant to section 6344, subdivision (a) as the prevailing party. (Loeffler, supra, 174 Cal.App.4th at p. 1509.)

c. Attorney Fees as Sanctions Under Section 271

We next address the court's award of $25,000 in attorney fees and costs as sanctions under section 271. After considering the evidence, the court indicated at the hearing that "the conduct of Ms. Javanbakhsh . . . merit[ed] some sanctions under Family Code Section 271," and it found the sum of $25,000 to be an appropriate award. In the court's formal order, the court reiterated its finding that an award of sanctions of $25,000 under section 271 was appropriate as "Respondent's attorney fees arising from Petitioner's frustration of the settlement process, which included Respondent's reasonable offer of settlement and Petitioner's continued false allegations of domestic violence against Respondent."

As discussed in our analysis above concerning the appellate challenge to the DVRO Order in Appeal No. H045151, the trial court based its denial of the DVRO Request upon an assessment of the witnesses' credibility, and it concluded, bluntly, that all of Javanbakhsh allegations of domestic violence "are completely without any credibility whatsoever and are, therefore, not believed by this court." The record shows that Dahms incurred significant legal expense-indeed, based upon the evidence presented by Dahms, an expense of more than $100,000-to defend against Javanbakhsh's allegations that the court ultimately found as being "completely without any credibility whatsoever." And Dahms presented evidence that more than seven months before the hearing on Dahms's request for attorney fees, his counsel made a written proposal to settle the dispute concerning the DVRO Request, including with the proposal a written stipulation; Dahms presented evidence that Javanbakhsh did not even respond to that proposal. Based upon the record before us, the trial court could have properly found that Javanbakhsh engaged in "obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase." (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106.) We therefore conclude the trial court did not abuse "its broad discretion in making" the award of sanctions under section 271. (Petropoulos, supra, 91 Cal.App.4th at p. 178.)

d. Reconsideration Order

Javanbakhsh asserts generally that the court's order denying her motion for reconsideration that was heard on January 1, 2018, was made in error and because "this order is detrimental to my life and makes me destitute." (See Howard, supra, 187 Cal.App.4th at p. 523 ["[c]onclusory assertions of error are ineffective in raising issues on appeal"].) The appellate challenge to the court's order denying her motion for reconsideration is without merit for several reasons.

First, Javanbakhsh failed to sign the motion for reconsideration under penalty of perjury. Code of Civil Procedure section 1008, subdivision (a) provides that "[t]he party making the application [for reconsideration] shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Italics added.) The moving party's use of an affidavit (or declaration under penalty of perjury) is thus a "statutory procedural requirement" for making a motion for reconsideration. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048 (Branner).) Therefore, Javanbakhsh's "motion to reconsider was invalid when filed and served because the motion failed to contain an affidavit or declaration in support of the motion." (Ibid., original italics.)

Second, even were we to overlook Javanbakhsh's noncompliance with this statutory requirement, she did not establish grounds for reconsideration in her motion. The trial court specifically found that Javanbakhsh had not "set forth a credible basis for reconsideration," concluding that "[her] explanation as to why [she] failed to appear on the October 19th court appearance . . . made no sense." And in its formal order, the court concluded that "[t]here [was] no credibility whatsoever to [Javanbakhsh's] claim that her failure to appear at the . . . hearing [on Dahms's request for sanctions] was the result of an 'honest mistake.' "

Third, Javanbakhsh did not cite any law, nor did she present new or different facts or circumstances as required under Code of Civil Procedure section 1008, subdivision (a). And she failed to make a satisfactory explanation for failing to present earlier any new or different facts. As the moving party, it was her burden to make this showing. (See New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Rather, it appears that her motion for reconsideration was in fact a tardy opposition to Dahms's request for sanctions that should have been presented prior to the hearing on that request. (See Hennigan v. White (2011) 199 Cal.App.4th 395, 406 [facts known by a party when the original motion was pending do "not constitute 'new or different facts' for purposes of granting reconsideration"].)

The motion for reconsideration by Javanbakhsh without an affidavit or declaration under penalty of perjury did not comply with the procedural requirements of Code of Civil Procedure section 1008 and was therefore invalid; it was therefore properly denied by the court. (Branner, supra, 175 Cal.App.4th at p. 1048.) Further, even were this procedural requirement overlooked, the court's denial of the reconsideration motion did not constitute an abuse of discretion. (Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 50.)

Based upon the foregoing, we conclude there is no merit to Javanbakhsh's appeals of the Sanctions Order and of the court's subsequent order denying her motion for reconsideration. We will affirm the Sanctions Order.

IV. CASE NO. H046077 (TRIAL ORDER)

A. Procedural History

The court conducted a trial on March 13, 2018, on issues that included spousal support, reimbursement claims, Dahms's 401k retirement plan, and sanctions. Prior to trial, the parties submitted briefs setting forth their respective positions.

A formal order was filed May 29, 2018. The trial court, inter alia, ordered that (1) Javanbakhsh receive monthly spousal support of $1,500 from April 1, 2018 through March 2019, $1,000 from April 1, 2019 through March 2020, $500 from April 1, 2020 through March 2021, and no spousal support thereafter; (2) Javanbakhsh reimburse Dahms the total amount of $8,177.50; (3) Dahms's claim for reimbursement of Javanbakhsh's tuition be denied; (4) Dahms receive the Toyota Prius (which was owned by the parties and for which there was substantial negative equity), with the direction that he promptly sell the vehicle for the best price practical, and then Dahms to advance the deficiency (loan less sales proceeds) with Javanbakhsh to reimburse Dahms at the rate of $100 per month from her spousal support; (5) Javanbakhsh pay additional sanctions of $10,000 under section 271; (6) the community interest of Javanbakhsh in Dahms's Fidelity 401k plan was $47,274; (7) after offsetting that amount from the total amount of $64,864.50 she owed, Javanbakhsh owed Dahms the net sum of $17,590.50 for which judgment would be entered. The trial court "reserve[d] jurisdiction to modify spousal support based upon a showing of a substantial change of circumstances."

Javanbakhsh appealed the Trial Order.

B. Discussion of Claim of Error

There are essentially six components to the court's Trial Order: (1) spousal support, (2) reimbursement claims, (3) disposition of community property and debt (Prius automobile), (4) disposition of community property (Dahms's retirement plan), (5) sanctions under section 271; and (6) ultimate monetary award.

1. Spousal Support

After presenting detailed reasoning in the Trial Order,¹⁵ the court ordered that Javanbakhsh would receive monthly spousal support of $1,500 for the first year after the trial (commencing April 1, 2018), $1,000 for the second year, $500 for the third year, and no spousal support after March 31, 2021.

15 The reasoning of the court concerning its award of spousal support comprised six pages of the Trial Order.

As a panel of this court has explained, "Spousal support is governed by statute. (See §§ 4300-4360.) In ordering spousal support, the trial court must consider and weigh all of the circumstances enumerated in the statute, to the extent they are relevant to the case before it. [Citations.] . . . [¶] 'In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.' In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the 'court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.' [Citation.] Furthermore, the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support. [Citations.]" (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302-304, fn. omitted.)¹⁶

16 The statutory factors that the trial court must consider are, as set forth in section 4320, as follows: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage . . . [¶] . . . [¶] (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] (i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child . . . [¶] . . . [¶] (j) The immediate and specific tax consequences to each party. [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336 [marriage of at least 10 years from date of marriage to date of separation], a 'reasonable period of time' for purposes of this section generally shall be one-half the length of the marriage . . . ."

A significant component of the court's reasoning concerning the spousal support award was its finding that the date of separation was December 31, 2014, the date of separation advanced by Dahms at trial. In so concluding, the trial court specifically rejected the claim of Javanbakhsh that the parties did not separate until May 2016. The court found the evidence "overwhelmingly" showed that the date of separation was December 31, 2014, and it based this conclusion on the testimony of Dahms and "[his] conduct, which was consistent with a decision to end the marriage." The trial court rejected Javanbakhsh's evidence in support of a claimed June 1, 2016 separation date, finding as a general proposition that during the trial that" 'when there are issues upon which credibility requires a determination, the Court is drawing an adverse inference regarding Petitioner's credibility.' "¹⁷ Based upon the court's finding, it concluded that the duration of the marriage was approximately seven years, eight months, and that one-half of that time period was three years, ten months, which is the relevant benchmark under section 4320, subdivision (l) for determining the reasonable period of time within which it is presumed that a supported spouse should become self-supporting.

17 During Javanbakhsh's cross-examination by Dahms's counsel, the court made a finding that she was "avoiding the questions," "not being a cooperative witness," "wasting time," and "ha[d] no credibility." The court then excused the witness. In the Trial Order, the court recited from a portion of the reporter's transcript of the March 13, 2018 trial as follows:" 'First of all, when the Court conducted a trial on the Petitioner's domestic violence restraining order request, the Court made a specific finding that the Petitioner was not credible, that her testimony was not credible. [¶] We have seen again in this trial repeated instances in which the Petitioner's testimony lacks credibility. The Court is making a finding based on its analysis of her testimony, on observing her testify and her manner of testifying that too often her testimony is simply not credible. [¶] Accordingly, when there are issues upon which credibility requires a determination, the Court is drawing an adverse inference regarding Petitioner's credibility.' "

The trial court considered each of the relevant factors as required under section 4320. (See fn. 16, ante.) One factor it considered was the marketable skills of the supported party (Javanbakhsh), the job market for those skills, and the time and money required for the supported party to obtain education or training to develop such skills and the potential need for retraining or education to obtain more marketable skills. (See id., subd. (a)(1).) The court concluded from Javanbakhsh's testimony that she had not taken reasonable steps to become self-supporting within a reasonable period of time. Further, based upon the testimony of Dahms's expert witness concerning Javanbakhsh's earning ability, Tim Harper, M.A.-which the court found "persuasive"-the court concluded that Javanbakhsh's earning capacity with a Bachelor's Degree in Psychology that she had achieved was in the range of $40,000 to $50,000, and that the salary range would not be appreciably higher were she to complete studies for a Master's Degree in Psychology. The court, based upon the testimony of the expert, Harper, concluded that "Ms. Javanbakhsh's investment of further time and resources in pursuit of a Master's Degree in Psychology while she is supported by spousal support [not] to be reasonable under the circumstances."¹⁸ (See In re Marriage of Watt (1989) 214 Cal.App.3d 340, 348 [substantial evidence supported trial court finding that supported spouse's proposed career change "would not immediately or necessarily result in a material increase in income and [she] . . . did not demonstrate a present need for retraining or education to attain more marketable skills"].)

18 At trial, Javanbakhsh testified that "it was always [the parties'] plan that [she] also [would] continue [her] education for math or to a Ph.D. degree." And she testified that she had entered a two-year program for a Master's Degree in August 2017.

In making the spousal support order, the court also considered "[t]he ability of the supporting party [Dahms] to pay spousal support, taking into account [his] earning capacity, earned and unearned income, assets, and standard of living." (§ 4320, subd. (c).) It found that "this dissolution of marriage has been a financial disaster for both parties, that Dr. Dahms' attorney fees are in excess of $100,000 and that his ability to pay those fees has been stretched to the breaking point. The Court finds the Petitioner has been largely responsible for the excess litigation in this case." The court considered the assets and liabilities of the parties (see id., subd. (e)), and it concluded that "the parties are essentially penniless and upside down at the present time and they have more debts than assets." It concluded further that Dahms would sustain adverse tax consequences as a result of the dissolution proceeding. (See id., subd. (j).)

The court, addressing the issue of whether there was documented history of domestic abuse (see § 4320, subd. (i)), acknowledged that Javanbakhsh had obtained a TRO for claimed domestic violence, but that it was dismissed by the court "with a finding that the allegations brought by Ms. Javanbakhsh were totally unsubstantiated." Lastly, in balancing the respective hardships to the parties (see id., subd. (k)), the trial court found that "there is a tremendous hardship, financial and otherwise on both parties. The Court encourages the parties to bring this litigation to an end and begin reconstructing their lives."

It is apparent-although no cogent argument is made in her appellate briefs-that Javanbakhsh contends that the spousal support award is inadequate in both amount and duration. As to the duration of spousal support, the court's finding that the date of separation was December 31, 2014, rather than June 1, 2016, as urged by Javanbakhsh, was supported by substantial evidence. Notwithstanding Javanbakhsh's conclusory assertion in her reply brief that Dahms "falsely claimed that [the parties] were already separated before [she] filed for divorce," the trial court believed Dahms's testimony, not Javanbakhsh's. We defer to the trial court in its assessment of the credibility of witnesses. (Ashby, supra, 68 Cal.App.5th at p. 518.) We observe further that in a marriage of less than 10 years in duration (as was the case here), the statutory goal is for the supported party to be self-supporting within the period of one-half of the length of the marriage. (§ 4320, subd. (l).) Based upon the date of separation as found by the court, the duration of the marriage was approximately seven years eight months, and one-half of that time period was three years 10 months. Because Dahms began providing support in June 2016, the total period of time Javanbakhsh would receive support under the Trial Order is four years, nine months, or nearly one year longer than the statutory goal under section 4320, subdivision (l). This strongly suggests a very fair and reasonable approach by the trial court.

"Spousal support must be established according to the needs of both parties and 'their respective abilities to meet these needs.' [Citation.]" (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1317.) And "[a]fter weighing all [statutory] factors, the court may 'fix spousal support at an amount greater than, equal to or less than what the supported spouse may require to maintain the marital standard of living, in order to achieve a just and reasonable result under the facts and circumstances of the case.' [Citations.]" (Id. at p. 1316.) In short," 'the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion.' [Citation.]" (In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.)

In reviewing the support order here, we are guided by the following principles:" 'An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines. [Citation.] In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. "The issue of spousal support, including its purpose, is one which is truly personal to the parties." [Citation.] In awarding spousal support, the court must consider the mandatory guidelines of section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.] "Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders."' [Citation.]" (In re Marriage of McLain (2017) 7 Cal.App.5th 262, 269; see also In re Marriage of Cheriton, supra, 92 Cal.App.4th at pp. 302-304.) The trial court in this instance did not abuse its discretion in ordering stepdown spousal support for an additional period of three years.

2. Reimbursement Claims

The court ordered that Javanbakhsh reimburse Dahms for community expenses incurred during the marriage totaling $8,177.50. (See In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (Epstein), superseded by statute on other grounds as stated in In re Marriage of Walrath (1998)17 Cal.4th 907, 914.).) The expenses consisted of apartment rent, utilities, car payments, and insurance premiums.¹⁹ In so ordering, the court also denied Dahms's request for reimbursement of substantial sums (over $9,000) paid for Javanbakhsh's college tuition.

19 Dahms asserted that "[a]lthough he had been excluded from the apartment" and Javanbakhsh was receiving temporary monthly support from him of $3,471 that should have been used for her housing, she "refused to pay her own rent," and because it was a joint obligation, Dahms made the rent payments.

The court is empowered "to order reimbursement in cases it deems appropriate for debts paid after separation but before trial." (§ 2626.) As the California Supreme Court has elucidated," '[A]s a general rule, a spouse who, after separation of the parties, uses earnings or other separate funds to pay preexisting community obligations should be reimbursed therefor out of the community property upon dissolution. However, there are a number of situations in which reimbursement is inappropriate, so reimbursement should not be ordered automatically. [¶] 'Reimbursement should not be ordered if payment was made under circumstances in which it would have been unreasonable to expect reimbursement, for example, . . . generally, where the payment was made on account of a debt for the acquisition or preservation of an asset the paying spouse was using and the amount paid was not substantially in excess of the value of the use.'" (Epstein, supra, 24 Cal.3d at pp. 84-85.) The trial court is vested with "broad discretion" in determining whether to award Epstein credits, i.e., reimbursement to a spouse who has used postseparation separate property to satisfy community obligations that existed at the time of separation. (Hebbring, supra, 207 Cal.App.3d at p. 1272.)

Dahms presented evidence, uncontradicted by Javanbakhsh, that he incurred the above expenses. And (as with all issues in this appeal) Javanbakhsh presents no specific argument to support any claim of error. The trial court did not abuse its discretion in rendering an award of Epstein credits to Dahms in the amount of $8,177.50. (Hebbring, supra, 207 Cal.App.3d at p. 1272.)

3. Community Property and Debt (Prius)

The court addressed the disposition of the parties' community property interest and debt relative to the 2013 Prius automobile. Dahms requested that, although he did not want the car and had not seen it since May 25, 2016, he be awarded title to the car. He requested this award because he was the sole borrower on the underlying loan obtained through his credit union. Dahms alleged that the Prius had a value (subject to verification of its condition) of between $5,002 and $6,237, and that its debt ($9,671) far exceeded its value.

The court concluded that the parties were "upside down" on the Prius. It awarded the Prius and the loan against it to Dahms. It ordered Javanbakhsh to cooperate in transferring title to Dahms, who was ordered to sell the vehicle "as soon as possible for the highest practical price." The court ordered further that Dahms was to advance the amounts to repay any loan deficiency, with Javanbakhsh to reimburse him at the rate of $100 per month through a deduction of her spousal support payments.

Under section 2550, absent the parties' written agreement or court stipulation, the court in the judgment of dissolution must divide the community assets equally." 'This task constitutes a nondelegable judicial function [citation] which must be based upon substantial evidence [citation].' [Citation.]" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572 (Campi).) An equal division of the community estate must be predicated on fair market value. (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 88-89.) And the community assets (and liabilities) of the parties must generally be valued "as near as practicable to the time of trial." (§ 2552, subd. (a).) "The trial court's findings on the characterization and valuation of assets in a dissolution proceeding are factual determinations which are reviewed for substantial evidence. [Citation.] 'In this regard, the court has broad discretion to determine the manner in which community property is divided and the responsibility to fix the value of assets and liabilities in order to accomplish an equal division. [Citations.] The trial court's determination of the value of a particular asset is a factual one and as long as that determination is within the range of the evidence presented, we will uphold it on appeal.' [Citation.]" (Campi, supra, at p. 1572.)

Dahms presented evidence, uncontradicted by Javanbakhsh, concerning the value of the Prius and the outstanding community indebtedness reflected by the loan against it. Javanbakhsh presents no specific argument here to support any claim of error. There was substantial evidence supporting the trial court's findings regarding the value of the community asset and the amount of the community debt. (Campi, supra, 212 Cal.App.4th at p. 1572.) The court did not abuse its discretion in distributing the asset and determining the manner in which the community debt would be satisfied. (Ibid.)

4. Community Property (Retirement Plan)

Dahms presented testimony from an expert witness, attorney Elizabeth Strasen, concerning the valuation of Javanbakhsh's community property interest in Dahms's 401k retirement plan. Using December 31, 2014, as the date of separation, Strasen opined that Javanbakhsh's community interest in that retirement plan was $47,274. The trial court accepted that valuation and determined in the Trial Order that Javanbakhsh would be awarded $47,274 as her community property interest in the retirement plan, subject to offset as discussed below.

"Generally speaking, a trial court's division of the community interest in retirement rights' "will not be interfered with on appeal unless an abuse of discretion is shown. The criterion governing judicial action is reasonableness under the circumstances. The method adopted may vary with the facts in each case." [Citation.]' [Citation.]" (In re Marriage of Cooper (2008) 160 Cal.App.4th 574, 580 (Cooper); see also In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 759 ["[t]he decision how to award the community interest in future pension plan payments is one within the trial court's broad discretion"].)

There was substantial evidence supporting the court's valuation of Javanbakhsh's community property interest in Dahms's Fidelity retirement account as $47,274. Indeed, Javanbakhsh presented no evidence to contradict this valuation. And Javanbakhsh makes no cogent argument on appeal supporting a claim that the court erred in this valuation. The trial court did not abuse its discretion in its order determining Javanbakhsh's community interest in the retirement account. (Cooper, supra, 160 Cal.App.4th at p. 580.

5. Sanctions Under Section 271

Dahms submitted a request that he be awarded further attorney fees and costs as sanctions pursuant to section 271. He sought attorney fees and costs totaling $43,818 (as explained below).

Dahms submitted a detailed declaration of counsel in support of the request for sanctions under section 271 in the amount of $43,818. Counsel for Dahms asserted in the declaration, inter alia, that Javanbakhsh had (1) engaged in litigation misconduct that "greatly increased" the attorney fees incurred by Dahms, which fees and costs totaled $144,858 as of February 1, 2018; (2) filed an "improper motion for reconsideration" of the Sanctions Order (see discussion concerning Appeal No. H045383 in pt. III, ante), which motion was denied with the court reserving jurisdiction to award Dahms attorney fees in connection with that motion (which fees totaled $9,598); (3) "misrepresented and fabricated material facts" in connection with her DVRO Request; (4) obstructed questioning during the taking of her two depositions; (5) disobeyed a court order requiring her to answer all deposition questions related to nonprivileged matters; (6) "filed a frivolous ex parte request" concerning the Prius and seeking to place "unilateral communication restrictions" upon Dahms's counsel which effectively constitute a "request for a restraining order" against counsel, which request was denied (causing Dahms to incur $8,220 in fees); (7) filed "multiple untruthful declarations" in the proceedings; (8) failed to respond at all to a March 2017 settlement proposal, made "long before the cost of this litigation got completely out of hand" (for which Dahms sought sanctions of $20,000); (9) filed an untimely disqualification motion under Code of Civil Procedure section 170.6; and (10) "refused to discuss settlement and refused to even respond to the settlement proposal" jointly prepared by Dahms's counsel and the settlement officer at the January 8, 2018 settlement conference that Javanbakhsh had specifically requested in November 2017, and failed thereafter to participate in good faith at a February 20, 2018 settlement conference (for which Dahms sought sanctions of $6,000). (Original boldface and italics.)

After considering the matter, the court found it "appropriate" to award $10,000 additional attorney fees to Dahms as sanctions under section 271.

Dahms presented a strong showing below in support of an additional award of attorney fees and costs as sanctions under section 271. The court had previously made an award of attorney fees and costs as sanctions under section 271 in the sum of $25,000. This was related to fees and costs incurred prior to the hearing of October 19, 2017, that resulted in the Sanctions Order. As we have concluded, ante, that Sanctions Order was proper, and the sanctions imposed were far less than the amount Dahms requested. (See discussion in pt. III, concerning Appeal No. H045383, ante.) Dahms presented evidence that he incurred additional attorney fees and costs-nearly $44,000, more than four times the sanctions awarded by the court in the Trial Order-that postdated the Sanctions Order and was the result of Javanbakhsh's conduct that "frustrate[d] 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." (§ 271.) And Javanbakhsh presents no cogent argument on appeal to support her challenge of the order imposing additional sanctions.

"Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction. [Citations.]" (Petropoulos, supra, 91 Cal.App.4th at p. 177.) There was substantial evidence supporting the imposition of further attorney fees and costs as sanctions under section 271 (Feldman, supra, 153 Cal.App.4th at p. 1479), and the trial court did not abuse its broad discretion in making such order. (Corona, supra, 172 Cal.App.4th at pp. 1225-1226; see also Petropoulos, supra, at p. 178.)

6. Ultimate Monetary Award

Based upon its prior Sanctions Order (see discussion in pt. III, concerning Appeal No. H045383, ante), and its rulings concerning reimbursements, Dahms's retirement plan, and sanctions discussed above, the court in the Trial Order issued a final monetary award in the form of a judgment in favor of Dahms in the amount of $17,590.50. This figure was derived from simple arithmetic: (a) based upon the prior Sanctions Order ($46,687), reimbursements ($8,177.50), and additional sanctions under section 271 ($10,000), Javanbakhsh owed Dahms the gross amount of $64,864.50; (b) Javanbakhsh had community interest in Dahms's 401k retirement plan of $47,274; and (c) after deducting the amount of Javanbakhsh's interest in the retirement plan, the net amount she owed to Dahms was $17,590.50.

" '[T]he disposition of marital property is within the trial court's discretion, by whatever method or formula will "achieve substantial justice between the parties."' [Citation.]" (In re Marriage of Gowan (1997) 54 Cal.App.4th 80, 88; see also In re Marriage of Connolly (1979) 23 Cal.3d 590, 603 [family court is "vest[ed with] . . . considerable discretion in the division of community property in order to assure that an equitable settlement is reached"].) Javanbakhsh presents no argument on appeal challenging the court's method of offsetting her credit for the community property interest in the retirement account against amounts the court determined to be owed by Javanbakhsh to Dahms. The trial court did not abuse its discretion in its making of the ultimate monetary award in favor of Dahms.

V. DISPOSITION

In Appeal No. H045151, the order filed August 17, 2017, denying appellant's request for domestic violence restraining orders is affirmed.

In Appeal No. H045383, the order filed November 30, 2017, granting respondent's request for sanctions is affirmed.

In Appeal No. H046077, the order after trial filed on May 29, 2018, is affirmed.

Respondent is awarded his costs of suit in connection with the Appeal Nos. H045151, H045383, and H046077. .

WE CONCUR: DANNER, J. WILSON, J.