Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. PR157660
McAdams, J.
The subject of this appeal is an order requiring the appellant to pay attorney’s fees and costs for filing a frivolous conservatorship petition. As framed in the parties’ appellate briefs, the issue is whether the trial court abused its discretion in finding that the appellant acted in bad faith in instituting the conservatorship. By motion, the respondent also seeks sanctions for maintaining a frivolous appeal.
After requesting and considering additional briefing from the parties, we conclude that the challenged order cannot stand, because it is based on Code of Civil Procedure section 128.6, which never became operative. As explained below, reversal is required as a consequence, which in turn renders appellate sanctions inappropriate.
BACKGROUND
The parties to this appeal are Phillip Bartels (appellant), who initiated the conservatorship proceedings at issue here, and attorney Doris Hawks (respondent), who was appointed by the court to represent the interests of the proposed conservatee, appellant’s ex-wife Joanne Bartels (Joanne). At the time of the conservatorship proceedings in June 2005, Joanne was dying of cancer.
Each side paints a different picture of appellant’s motivation for instituting the conservatorship. According to appellant, he was “acting entirely in good faith, on extremely suspicious facts” suggesting that Joanne was being isolated and manipulated by two caregivers. For her part, respondent describes appellant as “an abusive ex-husband” who was “motivated strictly by greed rather than any concern” for his ex-wife’s welfare.
A brief summary of the procedural history of this case will suffice to frame the relatively narrow issues before us.
Conservatorship Proceedings (2005)
On June 17, 2005, appellant applied ex parte for appointment as Joanne’s temporary conservator. There was no notice and thus no opposition. Appellant’s application for appointment as temporary conservator was granted on the day it was presented. Joanne apparently was served with the order the same day.
On June 21, 2005, the court appointed respondent to represent Joanne in connection with the conservatorship petition. On Joanne’s behalf, respondent apparently applied to set aside the order for temporary conservatorship.
The sparse record on appeal contains no formal application or petition, only respondent’s declaration. The declaration refers to Joanne’s request to have the temporary conservatorship set aside. The declaration also states: “When the Temporary Conservatorship has been vacated …, I will prepare a petition to request fees and costs….”
On June 24, 2005, the court conducted a hearing on respondent’s request to set aside the temporary conservatorship. The court granted the application, citing supporting evidence that included a declaration submitted by respondent, a capacity declaration from Joanne’s physician, and reports from the court investigator and from Adult Protective Services. In the court’s view, “the evidence is clear and convincing that there is neither a need nor a necessity, nor would it be appropriate to continue the temporary conservatorship at this time.” The temporary conservatorship is described as “unwarranted” in the written order.
While the caption correctly identifies the conservatorship at issue, the operative language of the order itself uses the wrong name, evidently that of another conservatee.
At the June 24th hearing, respondent also asked the court to order appellant to reimburse Joanne’s trust for the attorney fees incurred in defending against the conservatorship. After the court raised procedural concerns about the fee request, respondent agreed to submit a petition for fees. The court requested counsel to “meet and confer” on the issue of fees.
Joanne apparently died shortly after the temporary conservatorship was set aside.
Allowance of Fees and Costs (2006)
In April 2006, respondent set a hearing on her petition for attorney’s fees and costs. Respondent supported the petition with her declaration and with a memorandum of points and authorities. Respondent sought reimbursement of attorney’s fees and costs expended first in defending Joanne against the conservatorship and also for her unsuccessful efforts to obtain reimbursement from appellant. The amount requested was just over $7,000.
Respondent’s request was based on section 128.6 of the Code of Civil Procedure. She argued that appellant had initiated the conservatorship proceeding in bad faith, citing the lack of notice to Joanne or her attorney and the absence of any emergency requiring Joanne’s protection.
Further unspecified statutory references are to the Code of Civil Procedure. As noted above, and as discussed more fully below, section 128.6 never became operative. That fact apparently escaped both parties as well as the trial court.
Appellant opposed the petition. He argued that the conservatorship action was instituted in a good faith effort. On the question of notice, appellant asserted that Joanne’s whereabouts were unknown, which had made notice to her “impossible.” He dismissed the idea of serving Joanne’s known estate planning attorney, Steven Hubert, saying that Hubert was not her “attorney of record.” As for his urgency in filing the conservatorship petition, appellant argued: “It was only after an alarming series of events began to unfold at the time of the rapid deterioration” of Joanne’s health that he “concluded that some action was necessary to prevent the dissipation of the assets of [her] estate.”
In May 2006, the trial court conducted a hearing on the fee petition. The court took the matter under submission.
On July 20, 2006, the court entered an order allowing attorney’s fees and costs. Under the authority of Probate Code section 1472, subdivision (a)(1), the order directs the Trustee of the Joanne Bartels Trust to pay respondent a total of $7,141.36, representing $6,902.00 in fees and $239.36 in costs. Citing section 128.6, the order further directs appellant to reimburse the trust for that amount, based on appellant’s actions in “instituting the conservatorship action under circumstances when he knew or reasonably should have known that Joanne Bartels was still capable of managing her affairs and harbored intense hatred against him….”
This appeal followed.
ISSUES RAISED BY THE PARTIES
As stated in his opening and reply briefs on appeal, appellant seeks reversal of the fee order, claiming insufficient evidence that the conservatorship action was frivolous or brought in bad faith.
Respondent defends the order in her appellate brief, arguing that the trial court did not abuse its discretion in requiring appellant to pay her fees and costs. By motion, respondent also requests this court to impose monetary sanctions against appellant for maintaining a frivolous appeal.
ISSUES RAISED BY THIS COURT
By letter dated December 5, 2007, we asked the parties for further briefing on these two questions: (1) Was section 128.6 operative at any relevant time? (2) What affect does the statute’s inoperative effect have on this appeal?
In response, both parties acknowledge the provision’s inoperative status. But each proposes a different approach for addressing the error in awarding fees under the inoperative provision. Appellant seeks outright reversal. Respondent urges waiver and affirmance; alternatively, she argues for remand.
DISCUSSION
In analyzing the dispositive issue before us, we first address the statute’s inoperative status and its effect on the trial court’s authority to award sanctions. We then explain why outright reversal without remand is compelled here. Finally, we address respondent’s motion for appellate sanctions.
I. Section 128.6 was not operative.
Section 128.6 never became operative. Its operation was contingent on the expiration of section 128.7. (See West’s § 128.6, Inoperative Effect; Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 811 [“section 128.6 will become operative only if and when section 128.7 is no longer in effect”]; id. at p. 813 [same].) But the latter section is still in effect: the Legislature extended its sunset date twice and then deleted the sunset provision entirely. (See Olmstead v. Arthur J. Gallagher & Co., at p. 810; West’s § 128.6, Inoperative Effect, citing Stats. 2005, c. 706.)
II. The court lacked authority to award sanctions under section 128.6.
A court has no inherent authority to award attorney fees as a sanction. (Bauguess v. Paine (1978) 22 Cal.3d 626, 637-639; see also, Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1716.) For that reason, “trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties.” (Olmstead v. Arthur J. Gallagher & Co., supra, 32 Cal.4th at p. 809.)
“Moreover, a court has no authority to award sanctions that are sought under one statute when the other statute is applicable.” (Levy v. Blum (2001) 92 Cal.App.4th 625, 638 [trial court properly applied § 128.5]; Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623-624 [trial court erred in awarding sanctions sought under § 128.7, when § 128.5 was the applicable statute].)
In this case, respondent sought sanctions under section 128.6. Because that provision was never operative, the trial court lacked authority to order the requested sanctions. The challenged order thus is defective.
III. The error was not forfeited.
Respondent notes that appellant never raised the statute’s inoperative status “at any time in this proceeding” – either before the trial court or on appeal. Had he done so below, she contends, “the trial court could have cured the procedural defect by ordering sanctions under CCP Section 128.7.”
We cannot accept respondent’s forfeiture argument. For one thing, respondent is the one who identified the incorrect statute in the first place. (See Murphy v. Yale Materials Handling Corp., supra, 54 Cal.App.4th at p. 622 [moving party sought fees under incorrect statute, § 128.7].) For another thing, as we explain below, the particular defect at issue here cannot be cured by remand. Additionally, the forfeiture doctrine does not apply to the legal issues presented here. “A party may raise a new theory on appeal where it involves a purely legal question,” even via “supplemental brief….” (Dieckmeyer v. Redevelopment Agency of City of Huntington Beach (2005) 127 Cal.App.4th 248, 259.) “The failure to raise the argument previously did not waive the issue.” (Ibid.) Finally, and most importantly, the error goes to the trial court’s very authority to act. (Murphy v. Yale Materials Handling Corp., at p. 623 [“the trial court was without authority to award sanctions under section 128.7”]; Levy v. Blum, supra, 92 Cal.App.4th at p. 638 [“court has no authority to award sanctions” under erroneous statute].) For these reasons, use of the forfeiture doctrine is foreclosed here.
IV. The error cannot be cured by remand.
In respondent’s view, if “the order must be reversed, then the issue of sanctions should be remanded to the trial court to allow the trial court to issue an order for sanctions under [section] 128.7.” In support of that position, she cites West Coast Development v. Reed (1992) 2 Cal.App.4th 693 (West Coast Development). Respondent’s reliance on that case is misplaced.
In West Coast Development, sanctions were ordered under section 128.5. (West Coast Development, supra, 2 Cal.App.4th at p. 697.) Section 128.5 applies in proceedings initiated before 1995. (Olmstead v. Arthur J. Gallagher & Co., supra, 32 Cal.4th at p. 810.) Apart from their operative time frames, section 128.5 and 128.6 are identical. (Olmstead, at pp. 811, 813.)
Under section 128.5, a sanction order “shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” (128.5, subd. (c).) Where those statutory requirements are not satisfied, the recognized remedy is to “remand the case for the fashioning of a proper order by the trial court….” (West Coast Development, supra, 2 Cal.App.4th at p. 706, fn. omitted.) On remand, the trial court could “issue a new judgment awarding such expenses as the judge may now find proper, including appropriate findings, or in the alternative … deny an award of fees.” (Id. at p. 707 [remand order].)
No such remedy is available to correct the defect here.
Since this proceeding was initiated after 1995, section 128.7 would apply. “Section 128.7 represents an alternative approach to that offered by section 128.5 to the problem of sanctions for litigation that is frivolous or undertaken for an improper motive. Both substantively and procedurally the two sections differ from [each] other.” (Murphy v. Yale Materials Handling Corp., supra, 54 Cal.App.4th at p. 623; see also Levy v. Blum, supra, 92 Cal.App.4th at pp. 637-638.)
Section 128.7 includes “safe harbor provisions,” which provide an opportunity to correct conduct warranting sanctions. (§ 128.7, subd. (c); Levy v. Blum, supra, 92 Cal.App.4th 625 at p. 637.) In enacting section 128.7, “the Legislature fully intended to have California sanctions practice be brought into conformity with [Federal Rules of Civil Procedure] rule 11 including the use of the safe harbor provisions designed to allow a ‘challenged paper, claim, defense, contention, allegation, or denial’ [citation] to be withdrawn.” (Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 423-424.) Section 128.7 thus “authorizes monetary sanctions for violations, including reasonable resulting expenses and attorney fees, but only after the alleged violator has received notice and a specified time to correct or withdraw the challenged pleading.” (Olmstead v. Arthur J. Gallagher & Co., supra, 32 Cal.4th at p. 810, fn. omitted.)
In the posture of this case, if the opportunity to apply the safe harbor provisions ever existed, it has long since passed. Resisting this conclusion, respondent asserted at oral argument that the trial court could make the necessary findings under section 128.7, because she had sent out a letter requesting appellant’s withdrawal, but he nevertheless refused.
That assertion finds no support in the record. Respondent was not even appointed in this case until after the petition for temporary conservatorship had been granted. Within days after she filed formal objections to the temporary conservatorship, it was vacated. At that hearing, when the question of fees against appellant was first raised, his attorney represented to the court that respondent had not “called” either him or appellant prior to requesting relief. Nor do respondent’s declarations or her billing statements reflect any contact with appellant or his attorney until after (1) the temporary conservatorship had been vacated, and (2) appellant had withdrawn his petition for permanent conservatorship.
On these facts, there was no opportunity for the safe harbor provision of section 128.7 to come into play. That provision “permits an offending party to withdraw an improper pleading during a specified period.” (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440.) The recipient of a motion under section 128.7 has “21 days after service of the motion, or any other period as the court may prescribe,” in which “the challenged paper, claim, defense, contention, allegation, or denial” may be “withdrawn or appropriately corrected.” (§ 128.7, subd. (c)(1).) “During the safe harbor period, the recipient may avoid sanctions by correcting its conduct and withdrawing the offending paper, claim or contention.” (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 413.) Here, no motion under section 128.7 was made nor had the statutory period passed by the time the offending pleadings had been corrected (the temporary conservatorship) or withdrawn (the permanent conservatorship). As has been said, “allowing a party to serve and file a sanctions motion after the conclusion of the case would completely defeat the purpose of the safe harbor provision.” (Id. at p. 414.) That is essentially what happened here.
As stated in respondent’s declaration of June 24, 2005: “When the Temporary Conservatorship has been vacated and the permanent conservatorship denied, or, better, dismissed, I will prepare a petition to request fees and costs….”
“Here, there was complete noncompliance with the safe harbor provisions of section 128.7, subdivision (c)(1). Under those circumstances, no section 128.7 sanctions may be imposed.” (Goodstone v. Southwest Airlines Co., supra, 63 Cal.App.4th at p. 424; cf. Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1170 [interpreting section 128.7 “to allow correction of a signature defect”].) Under these circumstances, remand for reconsideration under section 128.7 would accomplish nothing.
Respondent has not suggested any other statutory basis for the fee order that might warrant remand, nor has our independent research disclosed any.
V. There is no basis for appellate sanctions.
When an appeal is “frivolous or taken solely for delay,” appellate sanctions may be imposed. (§ 907; see also, Cal. Rules of Court, rule 8.276 (a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
In this case, there is no basis for sanctions, since we are compelled to reverse. Under these circumstances, appellant, “as the prevailing party, could hardly be accused of pursuing a frivolous appeal.” (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1442.)
DISPOSITION
The order of July 20, 2006 is reversed, insofar as it requires appellant Phillip Bartels to reimburse the Trustee of the Joanne Bartels Trust for $7,141.36.
In the interests of justice, the parties shall bear their own costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: Bamattre-Manoukian, Acting P.J.,Duffy, J.