Opinion
A159415
09-30-2021
RAYMOND MOSS, Appellant, v. LORI CHANDLER, Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HF19023471
BROWN, J.
Raymond Moss appeals from the trial court's order requiring him to pay $2,000 of Lori Chandler's attorney's fees as a sanction under Family Code section 271 for the conduct of his counsel, Sunena Sabharwal. Moss contends (1) the trial court did not provide sufficient notice of part of the basis for the sanctions order; (2) there is no evidence that his counsel engaged in some of the conduct the court cited; (3) his counsel's conduct that is in the record did not warrant sanctions; (4) the trial court did not identify any delay, impact on settlement, or increased costs of litigation that followed from his counsel's conduct; and (5) the trial court failed to consider unethical conduct by opposing counsel. We conclude that Sabharwal's emails to opposing counsel can support a sanctions award under section 271 and that the trial court sufficiently identified the impact of such behavior on the litigation. We agree, however, that Moss did not receive sufficient notice of other conduct that formed part of the basis for the sanctions award, the record does not contain substantial evidence showing that Sabharwal engaged in some of the behavior on which the trial court based the order, some of the behavior the court identified did not affect Chandler's costs or the course of the litigation, and the trial court failed to consider whether any conduct by Moss's opposing counsel made an award of sanctions against Moss unreasonable. We thus reverse the trial court's order and remand for further proceedings consistent with this opinion.
Undesignated statutory references are to the Family Code.
BACKGROUND
In June 2019, Chandler filed a petition for a domestic violence restraining order against Moss, with whom she had an ongoing custody dispute over their child. Sabharwal, Moss's counsel, had been practicing law for about 29 years, while Chandler's counsel, Norah Alyami, had been practicing for about five years.
In August 2019, Moss served Chandler with a notice of deposition and request for production of documents at the deposition. Alyami asked Sabharwal to withdraw the notice because Alyami believed Sabharwal did not provide 20 days' notice as required by Code of Civil Procedure section 2025.270. Sabharwal responded, “You are incorrect because the subsection you cite states the following, and the language is so obvious that this applies only where the deponent is commanced [sic] to produce personal records of a consumer or employment records, ” and then pasted the text of Code of Civil Procedure section 2025.270, subdivision (c).
When Alyami asked Sabharwal to cite the statute she believed governed the timing of notice, Sabharwal replied, “Norah, I can't believe we are having this conversation. I have taken depositions for almost 30 years and have taken hundreds if not thousands. Please tell me how many you have noticed. I think this is just intended to waste my time.” Shortly afterwards, Sabharwal emailed Alyami the full text of Code of Civil Procedure section 2025.270 and an excerpt of a practice guide describing the notice requirements for depositions. Sabharwal later offered to limit the deposition to two hours, hold the deposition at a location of Alyami's choice, and pay for one hour of Alyami's time. Alyami did not respond to try to resolve the issue.
Instead, three days after Sabharwal's email offering to move the location of the deposition, Chandler moved ex parte to quash the notice of deposition, impose a protective order, and award $2,500 in attorney's fees as a sanction under section 271 and Code of Civil Procedure section 2025.420. Chandler argued in the motion that Sabharwal created conflict and thwarted settlement because Sabharwal “snubbed” Alyami for citing an incorrect statute by saying it was “ ‘so obvious' ” that it did not apply. Chandler also cited the email in which Sabharwal accused Alyami of wasting her time for asking for the authority governing the timing of the deposition. Chandler said that Alyami stopped emailing Sabharwal after these emails because of Sabharwal's condescension and insults.
Section 271 allows a court to “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.” (§ 271, subd. (a).) Code of Civil Procedure section 2025.420, subdivision (h) relates to sanctions in the context of motions for protective orders. (Civ. Proc. Code, § 2025.420, subd. (h).) As the latter statute played no part in the court's sanctions award, we do not further discuss it.
The trial court granted a protective order preventing the deposition from going forward, pending the next scheduled hearing. On the day of that hearing in September 2019, Chandler filed additional papers in support of her request for section 271 sanctions. As documented in emails attached to Chandler's papers, Alyami had told Sabharwal that the starting point for a settlement of the petition would be Moss's agreement to a five-year restraining order. Sabharwal replied, “In other words, Ms. Alyami, you are saying that you want your client's best day in court. That's not negotiation. That means your papers misrepresented that I am thwarting settlement. In fact, there is no genuine desire on your client's part to settle anything. So noted.” Alyami asserted that this email increased animosity, frustrated settlement, and led her to withdraw from further communications with Sabharwal, “out of discouragement with her ongoing negativity and adversarial gaslighting.”
During the hearing, Alyami introduced a letter from the couple's coparenting counselor that attributed comments to Moss during their therapy sessions. Sabharwal objected on various grounds, including that the document had not been produced previously and that it was hearsay. After stating it would take the objections under consideration, the trial court denied Chandler's request for a restraining order but imposed various orders relating to the custody of their child. The court ordered Sabharwal to prepare an order and continued the matter until November 2019 for a review of custody, visitation, and financial issues.
In advance of the November hearing, Chandler again filed a new set of papers in support of her request for sanctions under section 271 based on Sabharwal's conduct. Alyami described in a declaration how the attorneys had disagreed about the language of a proposed order after the prior hearing. In early October, after determining that Sabharwal had not sent the parties' competing proposed orders to the court, Alyami sent her proposed order to the court with a cover letter stating, “Counsel have met and conferred and unfortunately [Sabharwal] has not submitted any proposed [orders], to date.”
Sabharwal, after receiving a copy of the letter, emailed Alyami, “Norah, it is a violation of rules of court and caselaw to submit a proposed order where you know there is a disagreement about the language. I am very surprised, this is the first time in 29 years I have had this happen. Please retract this immediately, ” Within the same minute, Sabharwal wrote another email, saying, “Wow, the letter is a total misrepresentation. I did indeed submit to you my proposed order.” The record does not contain Alyami's response, but Sabharwal then replied, “Please read your letter. It says I did not submit anything to you. You know full well I did. We disagree about the language. You submit both versions and tell the court we have a disagreement. Instead you misrepresented (very serious) that I did not submit anything. If I were you I would be hustling down to the courthouse to retract this or correct it as one thing you never want to do is lose credibility with the court. I try very hard to maintain that. Sometimes things get busy and we get reckless and I am assuming that is what happened here.”
Alyami's reply is again not in the record. But Sabharwal followed up, “You just don't get it.” Two minutes later, Sabharwal wrote, “Just like you didn't get that it was totally unethical to ask [a therapist] to write about the contents of a therapy mediation; and [the therapist] is so unethical that she didn't understand that either.” Alyami responded, “You continue to assume the worst of me, which is unfortunate, as this is our first time working together. My client solicited the letter, herself. Therapist wrote what she thought the court should know. I have had no contact with the therapist. If you have questions, instead of allegations, I am happy to discuss.” Sabharwal then concluded the exchange, “You submitted it to the court not your client. I don't see much difference. You knew it was an unethical practice to disclose private mediation communications. The therapist and your client will have to deal with the consequences of that. It is just shocking. Are you aware of HIPAA? Are you aware of the body of caselaw that requires that lawyers not use records they know are confidential? [¶] Instead of being defensive, you might think about the precious CLE you are getting.” The same day that Sabharwal sent these emails, Alyami sent the court a revised cover letter, in which she wrote, using italics to set off the new text, “Counsel have met and conferred and unfortunately [Sabharwal] has not submitted any proposed [orders], to the court, to date.... [Sabharwal] may, and has been invited to, submit her own proposed [order], should she wish to do so.”
Sabharwal was apparently referring to the letter from Chandler's and Moss's coparenting counselor that Alyami had provided to the court.
Sabharwal's use of “CLE” apparently refers to the State Bar's requirement that attorneys take 25 hours of minimum continuing legal education (MCLE) every three years, meaning Sabharwal was implying that she was instructing Alyami in how to practice law. (See Rules of State Bar, rules 2.50, 2.72.) When Sabharwal objected to introduction of the letter at the September 2019 hearing, her bases did not include reference to any alleged ethical or HIPAA violations.
In her declaration in support of Chandler's request for $2,500 in sanctions, Alyami characterized Sabharwal's boasting in her emails about her decades of law practice as a hazing process and attempt to bully younger attorneys. Alyami asserted that she withdrew from communicating with Sabharwal due to Sabharwal's emails.
At the hearing in November 2019, the trial court said it would impose $2,000 in sanctions against Moss for Sabharwal's conduct. The court initially said the basis for the award was Sabharwal's conduct toward Alyami, specifically as alleged in Alyami's request, but the court also said it took into consideration its experience in the courtroom and in chambers with Sabharwal on other cases, in which Sabharwal rolled her eyes, sighed deeply, and talked over the court and opposing counsel. Sabharwal noted that Alyami had not complained about any of Sabharwal's in-person conduct and said she did not remember the other things the court mentioned. She said she wished the court had called out the behavior at the time so that she could be clear on what had happened.
In its later statement of decision, the court ordered Moss to pay Chandler $2,000 as a sanction under section 271 for Sabharwal's conduct alleged in Chandler's filings. The statement of decision specifically cited as an example of sanctionable conduct the email in which Sabharwal told Alyami, “Instead of being defensive you might think about the precious CLE you are getting.” The statement of decision also stated that the court “wrestled with whether to impose sanctions. In deciding to do so, the court noted that it had personally observed [Sabharwal] behave in a discourteous fashion numerous times, both in open court as well as in chambers. The court noted it had observed counsel roll her eyes with respect to counsel and the court; deeply sigh in response to the court and counsel; repeatedly interrupt counsel and the court; be condescending toward the court and counsel. Moreover, while the court did not take this into consideration when deciding the size of any sanctions, the court noted that [Sabharwal] had similarly behaved in other matters before this court.” In addition to the monetary sanctions, the trial court ordered Sabharwal to review the California Attorney Guidelines of Civility and Professionalism, and to sign and file the attorney pledge. The court also notified Sabharwal that it would interpret the pledge as a standing commitment to civility in the courtroom and would take that into account if there were future requests for sanctions. The statement of decision did not mention any of Alyami's conduct that preceded Sabharwal's emails.
Sabharwal later filed a declaration in which she denied doing any of the things on which the trial court based its sanctions award, other than sending the emails to Alyami.
DISCUSSION
I. Section 271
Section 271 allows a trial court to “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.” (§ 271, subd. (a).) The statute explicitly states that such an award of attorney's fees and costs “is in the nature of a sanction” (ibid.), but “the requisite delicts are limited” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6). Conduct need not necessarily be frivolous or taken solely for the purpose of delay to be sanctionable under section 271. (Ibid.) “[S]ection 271 sanctions have been upheld for ‘obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase' [citation], and for making a one-sided, overreaching demand.” (Ibid.)
“We review a family court's decision to grant or deny attorney fees under section 271... under an abuse of discretion standard. [Citation.] ‘While sanctions are discretionary, the term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion, all the material facts must be known and considered together also with the legal principles essential to an informed, intelligent and just decision. [Citation.] Therefore, the court must examine the entire record in determining whether the ultimate sanction should be imposed.' ” (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316; id. at p. 1318 [finding that family court abused its discretion in failing to award § 271 sanctions for litigant's “antics”].) We will overturn an award of section 271 sanctions “ ‘ “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.”' ” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1177 (Parker).) Questions regarding a trial court's legal authority to make an award of sanctions are reviewed de novo, and any findings of fact that form the basis for an award are reviewed for substantial evidence. (George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 138; In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995.) “ ‘Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531 (Davenport).)
II. Notice and due process
Moss first argues the trial court's order should be reversed because the trial court did not provide notice that it was contemplating imposing sanctions for Sabharwal's demeanor and actions in court and in chambers. Section 271, subdivision (b) states, “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.” Due process requires the same. (Parker, supra, 212 Cal.App.4th at p. 1178.) “In addition, the notice provided must specify the authority relied upon and must advise of the specific grounds and conduct on which sanctions are to be based.” (Ibid.)
Sabharwal told the trial court she intended to pay the sanctions award, not Moss, and she continues to represent Moss on appeal. However, the sanctions order was directed at Moss, he is liable for the award, and the appeal is prosecuted in his name. We therefore treat the arguments in Moss's brief as his own. Chandler did not file a respondent's brief.
Chandler's filings provided ample notice that Moss might be sanctioned for Sabharwal's emails, since Chandler explicitly described in detail, with supporting exhibits, the emails on which she based her request. But as Sabharwal pointed out at the hearing, Chandler never requested sanctions based on Sabharwal's actions in person. The first mention of this basis for sanctions came at the hearing in November 2019, when the court announced that while “the basis of the [section] 271 award is solely [Sabharwal's] conduct in this case, and more specifically the conduct alleged in Ms. Alyami's request, it is not lost on the Court, and the Court took into consideration, my interactions with [Sabharwal] on a variety of cases.” The court then said there were “numerous examples” of Sabharwal “rolling [her] eyes, taking deep sighs, [and] talking over the Court, as well as opposing counsel.” The court cited a specific example of Sabharwal's conduct in another case, which the court described as “one of the more negative experiences I've had as a new member of the bench, where [Sabharwal] and the opposing counsel were constantly being incredibly and surprisingly and shockingly rude to one another on the record and in chambers.” The statement of decision repeated the court's observations of Sabharwal's in-person behavior in this case and other cases, though it stated it did not take into consideration Sabharwal's behavior in other cases when deciding the size of the sanctions.
The absence of notice to Moss that he might face sanctions for Sabharwal's conduct in court and in chambers in this or prior cases, rather than just her emails to Alyami, is inconsistent with section 271, subdivision (b) and due process. (In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1421-1422 [sanctions order violated due process where grounds recited as the basis for the order for sanctions were not previously asserted by a party or the court].) A person cannot be sanctioned for behavior unless the party had adequate notice of the basis for the sanctions in advance of the sanctions being imposed. (Ibid.) Notice was particularly important here, because the trial court imposed sanctions for Sabharwal's behavior in chambers and at prior hearings in this case that occurred months earlier, and it noted her behavior in other cases. The court did not identify specific instances of Sabharwal's behavior, and while Sabharwal seemed to remember one prior case to which the court was referring, she was unable to recall anything specific she might have done that would have bothered the court. She wondered whether the court had confused her with someone else and said she wished the court had raised the issue earlier so she could understand what may have happened. Because the trial court did not tell Moss the specific instances of Sabharwal's behavior that the court found sanctionable or identify such behavior sufficiently in advance for him to research the facts and gather evidence from the earlier hearings and cases to support his defense, the sanctions award against Moss is inconsistent with section 271 and due process to the extent that it rests on Sabharwal's in-person actions.
III. Sabharwal's emails to Alyami
Moss does not dispute that Sabharwal sent the emails about which Alyami complained, but he urges us to reverse the sanctions order because he believes the emails were, at most, on the low end of the spectrum of impolite comment and therefore not sanctionable. We disagree.
We address in Section VI, post, the argument that the context of Sabharwal's emails is an important consideration in assessing a section 271 sanctions request.
Derisive or condescending communications can warrant sanctions under section 271. Davenport, supra, 194 Cal.App.4th 1507 is instructive. The Court of Appeal there held that substantial evidence supported the trial court's ruling that an attorney's hostile and disrespectful mistreatment of opposing counsel in correspondence warranted section 271 sanctions. (Id. at pp. 1521, 1534-1537.) The court first noted that while abusive communication is bad enough in any litigation, “[i]t is utterly inconsistent with a fundamental aspect of proper family law practice. ‘Family law cases are not supposed to be conducted as “adversarial” proceedings. Quite the contrary, the goal is to reduce acrimony and adversarial approaches common to general civil litigation and, instead, to foster cooperation between the parties and their counsel with a view toward settlement short of full-blown litigation.' ” (Id. at p. 1534.) Davenport quoted section 19 of the Attorney Guidelines of Civility and Professionalism (Guidelines), which state, “ ‘in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind.' ” (Davenport, at p. 1534.) The court then recited several examples of the attorney's abusive, rude, hostile, or disrespectful language, including insinuations of dishonesty and unethical conduct and accusations that an excuse for not appearing for a deposition was “tired, old, and shopworn.” (Id. at pp. 1534-1535.) The court also found the attorney was disrespectful for saying the opposing counsel's argument was like a case of the “ ‘pot calling the kettle black' ” and his arguments were “ ‘illusory' ” and “ ‘rang hollow.' ” (Id. at p. 1535.)
Some judges might agree with Moss that Sabharwal's comments to Alyami were an unremarkable part of the “scrummage” of this country's adversarial legal system. But a trial court's decision to impose sanctions under section 271 is a matter of judicial discretion, meaning that so long as the trial court considers the entire record of material facts and relevant legal principles, we will affirm unless no judge could reasonably make the order. (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1316; Parker, supra, 212 Cal.App.4th at p. 1177.) We cannot say that all of Sabharwal's emails were beyond the scope of section 271 as a matter of law. “The purpose of section 271 is ‘ “to promote settlement and to encourage cooperation which will reduce the cost of litigation.”' ” (Parker, supra, 212 Cal.App.4th at p. 1176, fn. omitted.) As Davenport, supra, 194 Cal.App.4th at page 1534, explained, section 271 and the Guidelines manifest an expectation that attorneys will reduce the adversarial nature of litigation and foster cooperation in the conduct of family law litigation, which is supposed to be non-adversarial and cooperative. The trial court could reasonably conclude that Sabharwal's comment to Alyami that she should appreciate the free CLE Sabharwal was providing “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, subd. (a).) The same is true of Sabharwal's statement that it was a waste of time to respond to Alyami's request for a citation to legal authority, her question about the number of depositions Alyami had taken compared to her decades of experience, and her suggestion that Alyami “hustl[e] down to the courthouse” to correct her cover letter to maintain her credibility with the court. These comments are condescending and counterproductive, and the trial court was within its discretion to find they were not consistent with a good-faith, cooperative effort to resolve differences and disagreements.
Though the conduct at issue was different, In re Marriage of Abrams (2003) 105 Cal.App.4th 979, disapproved on another ground by In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097, illustrates the wide reach of section 271. In that custody contest, a father made a “totally one-sided” settlement offer that would have imposed on the mother all of the costs and given father all of the benefits. (Abrams, at p. 992.) Because the settlement offer could therefore be characterized as being in bad faith and designed to antagonize or gain an unfair advantage, Abrams affirmed the trial court's determination that the settlement offer violated the policy in favor of settlement. (Id. at pp. 992-993.) If a one-sided settlement offer favorable to one party can be sanctionable under section 271, the trial court here could reasonably conclude that Sabharwal's condescending communications that damaged her ability to work with Alyami were also sanctionable.
While Sabharwal's emails may support a sanctions award, it is not clear that they warranted the $2,000 the trial court imposed. But we need not determine at this juncture whether the size of the trial court's sanctions order relative to the gravity of Sabharwal's emails was within its discretion. We have concluded that Sabharwal's behavior in other cases and her demeanor and actions in this case that are not reflected in the record cannot support a sanctions award. The trial court itself also acknowledged that only a few of Sabharwal's many emails were sanctionable and that it wrestled with whether to impose sanctions at all. “Having found merit in only one of the court's... reasons for imposing the attorney fee sanction, we cannot say with any certainty that the court necessarily would have exercised its discretion in the same fashion based only on the one valid reason. Hence, we will remand the matter to the trial court for it to reconsider whether sanctions pursuant to section 271 are warranted.” (In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 993.)
IV. Sabharwal's behavior in chambers and in the courtroom
Although our resolution of Sabharwal's other arguments requires reversal of the challenged order, we analyze the remaining issues for the guidance of the parties and court on remand.
Moss contends the transcripts of hearings in this case and other cases in which Sabharwal appeared before the same judge do not support the trial court's assertions that Sabharwal's in-person conduct was disrespectful or sanctionable. We agree that the transcripts Moss has provided from prior cases reveal no instances of conduct by Sabharwal that might have supported a request for sanctions. In one hearing, Sabharwal's opposing counsel described an out-of-court disagreement with Sabharwal, and the trial court remarked on the fact that Sabharwal and her opposing counsel were both contentious and had ill feeling towards each other. But there is no evidence in the transcripts of such animosity leading to sanctionable behavior in the courtroom.
Of course, because the trial court did not cite any specific comments by Sabharwal or the date of any hearings at which such conduct occurred, neither Moss nor we can know for sure that the hearing transcripts Moss has provided are the relevant ones. This uncertainty underscores why due process required the trial court to give Moss notice of the specific bases for the sanctions.
Even if the transcripts from other cases did reveal sanctionable conduct by Sabharwal, however, such behavior could not support the trial court's sanctions award here. The court said it did not take Sabharwal's behavior in prior cases “into consideration when deciding the size of any sanctions.” The trial court nonetheless remarked on such behavior, both during the November hearing and in its statement of decision, suggesting it did consider that behavior for some purpose. To the extent the trial court relied on Sabharwal's behavior in other cases for any purpose when imposing the section 271 sanctions, this was error. Even when sanctions under section 271 are based on the actions of counsel, they are imposed on the party whom the counsel represents. (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1110-1111 [construing substantively identical predecessor statute, former Civ. Code, § 4370.6].) The rationale for this is that a party may be sanctioned for conduct by the party's attorney because under the law of agency parties are bound by the actions of their attorneys within the scope of their express or apparent authority. (Id. at p. 1111, fn. 3.) This rationale cannot justify imposing sanctions on Moss for acts by Sabharwal when she represented someone else entirely, especially when, as appears to have been the case here, Sabharwal committed the acts in question more than a year before Moss hired her.
Turning now to Sabharwal's actions in this case, the court identified several types of Sabharwal's discourteous behaviors in court and in chambers that warranted sanctions: rolling her eyes, deeply sighing, behaving in a condescending manner to the court and opposing counsel, and repeatedly interrupting the court and opposing counsel. The transcripts do not reflect anything that took place in chambers, and nor do they contain any indication or suggestion that Sabharwal had sighed, rolled her eyes, acted condescendingly to the court or Alyami during courtroom proceedings, or interrupted Alyami. A reporter's transcript often does not include proceedings in chambers and naturally would not capture sighs and eyerolls. It might be impossible to detect condescension if it were a matter of tone rather than word choice. But if the trial court or anyone else believed Sabharwal's behavior in court or in chambers was egregious and sanctionable, they could have remarked on it on the record or otherwise tried to ensure that the record reflected such behavior. (Cf. Boysaw v. Superior Court (2000) 23 Cal.4th 215, 222 [annulling order of contempt based on attorney's tone and noting, “ ‘If adjudication depends on the volume, accent, inflection, or tone of voice, or on manner, facial expression, or demeanor, this aspect must be described in detail. Any admonition or rebuke that was given should also be recited' ”].) The reporter's transcripts contain no such comments on Sabharwal's unspoken conduct. And Chandler's briefing in support of her request for sanctions complained only of Sabharwal's emails, not any conduct in person. The record therefore does not support the trial court's finding that Sabharwal rolled her eyes, sighed, acted condescendingly, interrupted Alyami in court or in chambers, or interrupted the court in chambers.
By contrast, the record reflects a number of instances in which Sabharwal began speaking before the trial court was finished, and on several of those occasions the trial court identified the behavior or told Sabharwal to stop interrupting. Moss cites some of these admonitions as proof the trial court was not even-handed, but we disagree. In context, the trial court's comments appear to be brusque but do not show any partiality. In support of this argument, Moss quotes the trial court as telling her, “stop talking.” But as Sabharwal recognizes in another part of her brief, the trial court's full statement, after Sabharwal's interruption of an answer it was providing in response to a question Sabharwal had asked, was, “Stop talking if I'm talking, if for no other reason than out of respect to my court reporter, and because you asked me a question. So if you want an answer, I'll give you an answer. If you don't want an answer and you want to continue to talk, feel free to do that and I'll make a record.” Moss also quotes the trial court's comment, “your mouth is going to remain closed.” This line came after the court after told her to stop interrupting and Sabharwal then immediately interrupted again. The court said, “You're doing it again, ” and then, “Here's what we're going to do. Unless you hear total silence in the courtroom, your mouth is going to remain closed, and I promise I'll let you put whatever you want on the record. I promise. But for my court reporter, if nothing else, let me answer the question you asked me to answer.” In context, while the trial court's comments show that its patience with interruptions had worn thin, this is not proof of partiality against Sabharwal. Indeed, the transcripts indicate the trial court treated Alyami, Chandler, and Moss in a similar fashion, sometimes itself interrupting counsel and the parties, in an apparent attempt to streamline proceedings and keep the hearings focused on the relevant issues. There is substantial evidence to support the trial court's finding that Sabharwal interrupted the court.
Moss hypothesizes that the trial court may have been biased against Sabharwal because she was a woman or imposed sanctions to protect Alyami because Alyami was a relatively inexperienced, female lawyer. Moss cites no specific evidence to support these speculations, and we are aware of none. The closest the trial court came to expressing bias was when it noted twice that Sabharwal and the opposing counsel in the other case in which the court found Sabharwal engaged in rude behavior were both female. In context, the trial court appeared to intend these references to help Sabharwal remember the specific case about which the court was concerned (perhaps because the court had not previously notified Moss of this consideration in its analysis of Alyami's sanctions request). We therefore reject Moss's accusation of bias.
V. Connection between Sabharwal's conduct and section 271
Moss also contends the trial court abused its discretion in imposing sanctions because it did not identify any delay, impact on settlement, or increased costs of litigation that followed from Sabharwal's emails or her demeanor. We reject this argument as to Sabharwal's emails, but we agree that her in-person conduct did not relate to the purposes of section 271.
Section 271 does not require a party seeking sanctions to “establish with great precision an amount directly caused by the improper conduct.” (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155; In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226-1227 [“Because section 271 is not a need-based statute and does not require a correlation between the sanctioned conduct and specific attorney fees, ” a party seeking sanctions need not demonstrate his or her current financial situation and attorney fees].) “In part, this flexibility exists because the misconduct may increase attorney fees in ways that are indirect and difficult to prove.” (Sagonowsky, at p. 1156.) A sanctions award under section 271 is proper so long as the record demonstrates that a party engaged in conduct warranting sanctions and the sanctions award bears some relationship to the other party's attorney's fees and costs. (See id. at pp. 1155-1156.)
The trial court's statement of decision demonstrated a sufficient link between Sabharwal's conduct and section 271's policies. The trial court noted that “rude and uncivil behavior reflects poorly on the legal profession; frustrates the promotion of settlement; contributes to tension inherent in civil litigation, particularly in family law and civil domestic violence matters; models poor behavior for clients and other attorneys; and contributes to attorneys deciding to leave the legal profession in general, and the family law profession specifically.” The trial court further observed at the hearing that one could surmise Sabharwal's conduct modeled bad behavior for Moss in this case. These observations are reasonable; the trial court could logically infer that Sabharwal's treatment of Alyami spilled over and encouraged Moss to treat Chandler disrespectfully, as the trial court concluded he did.
Alyami's court filings provide additional evidence of the impact of Sabharwal's behavior on the litigation. Alyami averred that Sabharwal's emails led her to withdraw from communicating with Sabharwal three times. It is not a stretch to conclude that this led to more adversarial proceedings, increased the costs of litigation, or torpedoed chances for a partial or complete settlement. For example, by the time Sabharwal began offering concessions to Alyami in an attempt to secure a date for a limited deposition of Chandler, Alyami had already withdrawn from communication. Had Sabharwal's first emails been less insulting, the parties may have been able to resolve the dispute over Moss's notice of deposition without requiring Chandler to file an ex parte motion to quash it. This demonstrates a sufficient connection between Sabharwal's conduct, the course of the litigation, and Chandler's attorney's fees and costs to support an award of sanctions under section 271.
However, we agree with Moss that Sabharwal's interruptions of the court during the hearings had no connection to Chandler's attorney's fees. Section 271 allows for a sanctions award based on conduct 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.” (§ 271, subd. (a).) The focus of the statute is on interactions between the parties and their counsel, not between the court and parties or their counsel. Sabharwal's interruptions, while disrespectful, were disrespectful only to the court. The trial court has an array of other tools for controlling courtroom behavior like Sabharwal's. (See, e.g., Code Civ. Proc., §§ 128, subd. (a)(4) & (5) [courts have contempt power to compel obedience to their orders and process and to control all persons involved in judicial proceedings], 128.5, subd. (a) [sanctions available against attorneys for actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay]; Cal. Rules of Court, rule 5.14(c) [court may impose sanctions payable to the court or aggrieved person for violation of applicable rules]; Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271 [affirming terminating sanctions order under court's inherent authority based on counsel's contemptuous conduct towards the court and opposing counsel].) There is no indication that the Legislature intended section 271 to address behavior aimed only at the court. (See In re Marriage of Daniels, supra, 19 Cal.App.4th at pp. 1109-1110 [substantively identical predecessor statute to § 271 was intended to allow courts to shift fees between the parties as a sanction for attorney conduct frustrating the public policy of promoting settlement of family law litigation].)
VI. Relevance of Alyami's alleged misconduct
Finally, Moss argues that Sabharwal's emails were a necessary response to Alyami's behavior; she faults the trial court for neither acknowledging the context of her emails, nor criticizing or punishing Alyami's purportedly unethical behavior. In re Marriage of Fong (2011) 193 Cal.App.4th 278 considered a similar argument. The trial court there had imposed section 271 sanctions on a husband, and on appeal he argued the wife had herself engaged in sanctionable conduct. (Id. at pp. 285, 292.) The husband contended the Legislature could not have intended to allow a trial court to reward a noncomplying party for her noncompliance. (Id. at p. 292.) Fong rejected this contention, noting, “[S]ection 271 does not necessarily require that the moving party be in compliance with particular obligations before moving for an award.” (Id. at p. 293.) The court reasoned, “Although the extent to which the moving party's conduct furthers or frustrates settlement may be an appropriate consideration for a court considering an award under section 271, [the husband] has not shown that [the wife's] conduct in these circumstances was so egregious as to compel the conclusion that the award in her favor was unreasonable and an abuse of discretion.” (Ibid.)
While we have some concerns regarding Alyami's litigation choices that preceded Sabharwal's emails, on the limited record and issues before us, we express no opinion on whether Alyami engaged in misconduct or sanctionable behavior. Even assuming she did, however, Fong demonstrates that any asserted misconduct by Alyami would not necessarily absolve Moss of responsibility for Sabharwal's actions under section 271. Nonetheless, we agree with Fong that Alyami's conduct was an appropriate factor for the court to consider when it decided whether to award sanctions against Moss based on Sabharwal's actions. If both attorneys' actions damaged their working relationship, it could be unfair to punish only one side simply because only one party moved for sanctions. It is not clear the trial court considered this point. When Sabharwal raised the issue of Alyami's conduct at the hearing as the context for her actions, the trial court said it would not explain the basis for the order “with reference to other people's behavior, because that's not what's in front of me. What's in front of me is a request for sanctions against you.” The trial court's comments suggest that it did not believe it had discretion to consider Alyami's behavior, and the statement of decision does not address any of Alyami's conduct prior to Sabharwal's emails. On remand, the court should consider whether Alyami's behavior mitigates or otherwise bears on the question of whether and to what extent Sabharwal's conduct in her emails justifies sanctions.
Relatedly, Moss argues that if a trial court can sanction an attorney for impolite emails and thereby subject the attorney to investigation by the State Bar, it will have a chilling effect on attorneys' abilities to advocate for their clients. We are skeptical of this prediction. As Davenport, supra, 194 Cal.App.4th at page 1536, explained when rejecting the same argument, by its terms section 271 provides that a court may award sanctions for behavior by an attorney that frustrates the policy of the law to encourage cooperation between parties and attorneys. We will not refuse to enforce the plain language of the statute based on speculation about chilling effects. Additionally, we agree with Davenport that zeal and vigor in the representation of clients and civility and cooperation with opposing counsel are not mutually exclusive. (Id. at p. 1537.)
Moss's concerns are also speculative for another reason. Attorneys and courts must report to the State Bar any judicial sanctions imposed against an attorney except for discovery sanctions or sanctions of less than $1,000. (Bus. & Prof. Code, §§ 6068, subd. (o)(3), 6086.7, subd. (a)(3).) The trial court imposed sanctions on Moss, not Sabharwal, and did not indicate that it would report the matter to the Bar. It is not clear whether sanctions against a party under section 271 that are based on the conduct of the party's counsel trigger this obligation. Even if they do, we are reversing the trial court's order. On remand, after excluding from consideration Sabharwal's behavior in other cases and her demeanor and in-person actions in this case, the trial court may render Moss's concerns moot by choosing not to impose sanctions or by imposing sanctions in some amount below the $1,000 threshold. We therefore express no opinion on whether, if the trial court elects on remand to impose sanctions on Moss based on Sabharwal's emails and sets an amount above the reporting threshold, Sabharwal and/or the court must report the sanctions order to the State Bar.
DISPOSITION
The record supports section 271 sanctions against Moss only to the extent the award is based on Sabharwal's emails to Alyami. The trial court's sanctions award against Moss is therefore reversed, and upon remand, the court should consider whether any conduct by Alyami made it unreasonable to impose sanctions based on those communications. The matter is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3) & (5).)
WE CONCUR: POLLAK, P. J. ROSS, J. [*]
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.