Opinion
B289936
05-28-2020
G.G., Plaintiff and Appellant, v. E.E., Defendant; MEYER, OLSON, LOWY & MEYERS, et al., Objectors and Respondents.
Law Offices of Melissa B. Buchman, Melissa B. Buchman; Law Offices of Ira M. Siegel and Ira M. Siegel for Plaintiff and Appellant. No appearance for Defendant. Law Office of Leslie Ellen Shear, Leslie Ellen Shear; James Alex Karagianides; Brot•Gross•Fishbein, Ronald F. Brot; and Honey Kessler Amado for Objectors and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BF048990) APPEAL from orders of the Superior Court of Los Angeles County, Thomas Trent Lewis, Judge. Affirmed. Law Offices of Melissa B. Buchman, Melissa B. Buchman; Law Offices of Ira M. Siegel and Ira M. Siegel for Plaintiff and Appellant. No appearance for Defendant. Law Office of Leslie Ellen Shear, Leslie Ellen Shear; James Alex Karagianides; Brot•Gross•Fishbein, Ronald F. Brot; and Honey Kessler Amado for Objectors and Respondents.
____________________
G.G. (Mother) and E.E. (Father), who never married, are parents of a now eight-year-old boy, Y.E., for whom they share custody. Based on allegations that Mother had exposed Y.E. to inappropriate sexual content, Father sought an order for a child custody evaluation and temporary sole custody pending the results of the evaluation. After an evidentiary hearing, the trial court denied Father's request, finding there was no evidence that Mother exposed the child to any sexual content.
We use initials to protect the personal privacy of Y.E., a child in a Family Code proceeding. (Cal. Rules of Court, rule 8.90(b)(1), (11).)
Pursuant to Family Code section 3027.1, Mother thereafter requested monetary sanctions against Father, as well as the law firm and individual attorneys who represented him, for making a false accusation of abuse (namely, exposing the child to pornographic material). The trial court denied that request in a written order, and overruled objections Mother made to that order after it was issued.
All unspecified statutory references are to the Family Code.
On appeal, Mother argues the trial court misconstrued section 3027.1 and erred in not awarding sanctions. We find no error and affirm.
FACTUAL AND PROCEDRAL BACKGROUND
A. Agreement Regarding Joint Custody
Y.E. was born in 2011. In September 2014, the court approved a stipulated order relating to custody and visitation. Under the stipulated order, the parents had joint legal custody. Mother had primary physical custody of Y.E., and Father was entitled to visitation including every weekend from Friday after school until 12:00 p.m. on Sunday.
B. Father's Ex Parte Request for Temporary Sole Custody and a Child Custody Evaluation
1. The Parties' Pleadings and Declarations
On October 4, 2017, Father filed an ex parte application seeking a child custody evaluation, along with a request for temporary sole physical custody of Y.E. and restricting Mother to monitored visitation pending the completion of the child custody evaluation. Father's memorandum of points and authorities and supporting declaration described his concerns about Mother's mental health, and claimed she physically abused the minor child. However, Father primarily focused on an incident in which Y.E. allegedly "engaged in sexually explicit behavior."
Father contended that on September 24, 2017, his friend Yakov Benhamo told Father that while Benhamo was sitting on an outdoor lounge chair the previous day, Y.E. jumped onto Benhamo; Y.E. then straddled Benhamo, and began thrusting his hips in a manner that Benhamo believed to be simulating sexual intercourse. When Father asked Y.E. about this incident, Y.E. "immediately burst into tears." Y.E. stated that " 'mom showed me a picture' of a penis and a woman." Following additional questions from Father, Y.E. clarified that it was a picture (not a video) of a man's penis, that Y.E. had seen pictures of women on different occasions, and that in the picture Y.E. saw the woman touch the penis.
Father's declaration stated "[i]t took nearly an hour for me to get . . . this information from [Y.E.]"; the child "begged and pleaded . . . through his tears," that Father not tell Mother, and asked that it be kept their secret. In describing this interrogation, Father's memorandum of points and authorities stated that Y.E. told Father that Y.E. saw "a naked man's penis and a naked woman. [Y.E.] then began to gesture in an up-and-down movement with his hands to describe what the man and woman were doing." Neither Father's declaration, nor any other evidentiary support submitted with the memorandum, mentioned Y.E. making any such gesture with his hands.
Father explained that because Mother rented a room in a house, he did not know whether Y.E. "was exposed to sexually explicit content by [Mother] or by a third party." Either way, he felt "this must be investigated further."
Benhamo also provided a declaration, in English, in support of Father's request. Benhamo stated that on September 23, 2017, while he was "relaxing in a lounge chair," Y.E. "unexpectedly jumped on me. He straddled me and positioned himself near my groin. He began thrusting his hips in a sexual motion for several seconds before I realized that he appeared to be simulating what I believe to be [the] acts of sexual intercourse." Benhamo "immediately removed [Y.E.]" from him. The next day, Benhamo "recounted [Y.E.'s] sexually suggestive movements" to Father.
The court set the ex parte application for hearing on November 1, 2017. On October 20, 2017, Mother filed a response in which she denied exposing Y.E. to anything sexually explicit or physically abusing him. She also argued that notwithstanding that Father filed his ex parte application on October 4, 2017, Father thereafter relinquished custody of Y.E. to her on October 14, 2017 because Father wanted to go out with his fiancée. Thus, Mother argued, Father either did not care about Y.E. or did not believe Mother was truly abusing him. Mother contended Father was falsifying claims of abuse because if Father had primary custody, he could move to Israel with his fiancée and take Y.E with him.
2. Evidentiary Hearing
On November 1 and 3, 2017, the trial court (Judge Patrick A. Cathcart) held an evidentiary hearing during which it heard the testimony of Father, Mother, and Benhamo. We summarize their testimony only to the extent it relates to the issues before us on appeal.
As this matter was heard by two different judicial officers, we identify each by name.
a. Benhamo's Testimony
With the assistance of a Hebrew interpreter, Benhamo testified that he spent Rosh Hashanah at the house of Father's brother. Benhamo stated that "I was sitting on a chair in the yard, and, . . . I don't know how to even say it in Hebrew. [Y.E.] was just posing in some ways. . . . Like a man who is sleeping with a woman." "[Y.E.] lied on me and he made all these movements like a man and woman do when they have [a] relationship." When the court asked for clarification of what movements Y.E. made, Benhamo responded that he did not know how to describe it in Hebrew. The court then asked, "Was he moving up and down, was he riding like a horse or doing something else?" Benhamo responded, "Yes, it is the way you say, but I do not know how to explain it in Hebrew too."
The court then sought further clarification: "Is what you don't know how to explain that he looked like he might have been riding a horse?
"The Witness: No. That—man lying on a woman.
"The Court: Was he lying on you or sitting on you?
"The Witness: No. He was lying on me.
"By [Father's Counsel]
"Q And what was he doing when he was lying on you specifically?
"A He goes up and down. Goes up and down.
" . . .
"Q Where was he lying on your body when his body was going up and down?
"A In the middle.
" . . .
"Q Show the court on what part of your body was [Y.E.] moving up and down.
"A It was the whole body."
On cross-examination, Mother's counsel asked what Benhamo meant in his declaration when he said Y.E. "straddled" him. Benhamo responded that Y.E. "jumped from the floor on top of the chair." Mother's counsel also asked what caused Benhamo to conclude Y.E.'s actions looked like he was mimicking riding a horse. Benhamo responded because it looked "something like that."
b. Father's Testimony
Father testified that Benhamo informed Father of the "chair incident" on Thursday night, not on Sunday, September 24, 2017. Father also testified that Benhamo used the word "porn" to describe the movement Y.E. made. Father stated that the next morning, he asked Y.E. about the incident on the chair and where Y.E. had seen something like that. Y.E. responded by crying and seeming "shy." Over the course of approximately an hour, Y.E. told Father that Mother showed Y.E. a picture of an unknown lady touching an adult male's penis. Neither Father's nor Mother's counsel asked Father questions relating to whether Y.E. gestured with his hands to explain what he saw, and Father did not otherwise testify about such a gesture.
Father's testimony as to what Y.E. told him was admitted only as to Father's state of mind, not as to the truth of the matter.
During Father's testimony relating the contents of his declaration, the court observed "Given the language on both sides here, I understand that both counsel drafted all the papers, and these people may have told everything to the counsel that are in the papers, but it's confusing, and the record's confusing because of the language barrier. So we're trying to get through that."
The trial court explained that Mother "speaks Spanish [and] very halting English. She was assisted by a Spanish translator and requires Spanish translators to communicate effectively with her attorneys. Respondent's native language is Hebrew, and while . . . he speaks English at times, certainly during the testimony, it's difficult to understand syntactically."
In the absence of objection, the court admitted the declarations, including Mother's, as evidence. Mother did not further testify about the sexual abuse allegations beyond her admitted declaration.
c. Oral Argument
After the witnesses testified, both parties made oral arguments. During Father's argument, the court expressed skepticism about ordering a child custody evaluation because it would not have the benefit of assessing first-hand the credibility of witnesses interviewed by the evaluator. Further, pursuant to People v. Sanchez (2016) 63 Cal.4th 665, unless the parties stipulated to the admission of the evaluator's report, any additional witnesses would likely still have to testify in court. Hearing the court's skepticism, Father's counsel proposed at the conclusion of her argument that if the court did not order a custody evaluation and temporarily modify the custody order pending that evaluation to give Father sole custody, the court should order 50-50 physical custody.
3. The Court Denies Father's Ex Parte Application
After hearing from both counsel, the trial court denied Father's request. The court found a child custody evaluation was not warranted: "The result would be a great expense, a lengthy period of time, and the evaluator would be asked to elicit hearsay testimony, provide his or her analysis of facts and opine on whether there should be a change in the custody order made in September of 2014." The court noted that it could evaluate the issues having personally heard the pertinent testimony, and that it was "also reluctant to put the minor child through the [custody evaluation] process which could prove traumatic to the child."
The court then reviewed the witnesses' testimony. The court noted Benhamo "had trouble articulating in Hebrew through an interpreter what occurred and stated that [Y.E.] was posing in some way" and that he was "moving, something like riding a horse." The court further observed that Father's testimony about his conversation with Y.E. "is all hearsay" and "not clearly related by [Father]." Further, Father and Y.E. engaged in "a full hour of conversation before [Father] was able to get [Y.E.] to talk about seeing a penis and a man and a woman. . . . I find the description not to have been a clear one. [Father] may well have been interrogating his son about the incident and effectively coaching [Y.E.] into saying what [Father] wanted to hear. The inconsistent recollections of [Benhamo and Father] and statements made by [Father] on the stand render the interview and the result of it inconclusive."
The court further ruled that "if any remedy at all is warranted—and I'm not sure it is—it is therapy and more perhaps parenting classes for the parents so they can learn the pitfalls of communicating through texts . . . and interrogating of their child when they're—especially in a situation where their language skills are highly problematic and can lead to impervious interpretations. . . . There's no evidence that the child saw any video of people in the act or . . . in an act of simulating the act of sexual intercourse. There's no testimony of any connection between . . . something that the child purportedly saw and [Mother]." "The [c]ourt does not find persuasive that a six-year-old boy was imitating sexual activity, unless he was imitating what he'd seen perhaps [Father] and his girlfriend doing. There's no evidence that [Mother] does that. There's no evidence that either [Father or Mother] showed the boy videos, pornography or other information." "In any case, even were the incident as reported, the remedy—and, again, I'm reluctant to say there's any need for a specific remedy—would be counseling or therapy."
C. Mother's Motion for Sanctions Under Section 3027.1
On January 2, 2018, the parties came before the trial court on an application brought by Father's attorneys, Meyer, Olson, Lowy & Meyers, LLP (MOLM), to be relieved as counsel. The court granted MOLM's motion. During that hearing, Mother's counsel requested that the court schedule a hearing for a section 3027.1 sanctions motion against Father, MOLM, and individual MOLM attorneys Lisa Helfend Meyer, Marie LaMolinara, and Brittany Swanson (collectively, Former Counsel). The court did so.
1. The Parties' Pleadings and Declarations
On January 8, 2018, Mother filed a request for order (RFO) pursuant to section 3027.1 seeking monetary sanctions of at least $45,000 against Father and Former Counsel, jointly or severally. Mother argued that she was entitled to her attorneys' fees and costs because she was forced to defend against knowingly false accusations of child abuse. Mother claimed that Father and Former Counsel "concocted" the chair incident and that Former Counsel "knew that the sex abuse accusation against [Mother] was false because they . . . drafted the declarations of [Benhamo] and [Father]."
In support of her contention that Former Counsel knew the sexual abuse accusation was false when made, Mother offered six arguments. First, Mother claimed Benhamo's live testimony in which he stated Y.E. moved on top of him in a manner "something like riding a horse" was inconsistent with the attorney-drafted declaration that used the phrase "straddling," and described Y.E.'s motion as "thrusting his hips in a sexual motion."
Second, Mother suggested the court could infer knowledge of falsity from Father's inconsistent testimony about the date of the chair incident. Mother asserted that "MOLM, thinking it was merely going up against a single mother, with little formal education and almost no English language skills, and without the wherewithal to obtain a legal team, took license to fabricate a tale about sexual abuse . . . ."
Third, Mother claimed that Former Counsel made a false abuse allegation when, on the first page of Father's memorandum of points and authorities, they contended that Y.E. "gesture[d] in an up and down movement with his hands to describe what the man and woman were doing." However, Father did not refer to any such hand gesture in his declaration or on the witness stand.
Fourth, Mother argued that Former Counsel knew Benhamo's description of the chair incident was false because "[n]o one telling the truth interprets a singular occurrence of mere seconds of a child's actions as evidence of sex abuse."
Fifth, Mother asserted "[a]s further proof that MOLM fabricated the entire abuse allegations," MOLM argued Father would pay for the evaluation and the fees for the professional to monitor Mother's visitation. When the court denied Father's request, Father did not have to expend these monies, but still failed to make a payment of $40,000 to Mother, which the trial court ordered on December 11, 2017, pursuant to section 7605. Thus, Mother concluded, Father "never had the funds for a custody evaluation or for a professional monitor and he was never intending on paying for it . . . . Neither [Father] nor MOLM were concerned about actually getting a custody evaluation because they both knew that the abuse allegations were bogus . . . ."
Sixth, Mother argued that Former Counsel's request for equal custody as alternative relief to Father's request for sole custody and monitored visitation established Father and Former Counsel knowingly made false accusations of abuse, because Former Counsel would not make such a request if they truly believed the abuse allegation.
Former Counsel filed an opposition, which included declarations from each of the individual attorneys. Each attorney averred that she did not "collude" with Father or "concoct" a child abuse scenario. Each attorney also stated that she did not, at any time, have knowledge that the statements by Father or Benhamo were false or fabricated. Meyer averred that after speaking with Father, she believed his concerns relating to his son were worthy of further investigation, and therefore she pursued, on Father's behalf, the child custody evaluation and temporary custody order modification.
Further, each attorney described efforts she took, in compliance with MOLM's established protocol, to engage "in the due diligence necessary to independently corroborate [child abuse] allegations . . . , which may include conducting interviews with third-party witnesses . . . then prepar[ing] a draft declaration based upon the information obtained by both the client and/or third-party witness, and thereafter provid[ing] the draft declaration(s) to the client and/or third-party witness for review and to confirm the information set forth therein is accurate." (Fn. omitted.) While representing Father, the attorneys adhered to this protocol. In particular, Meyer averred that she spoke with Father on several occasions before drafting his declaration. After interviewing Father, Meyer instructed associates LaMolinara and Swanson to contact Benhamo.
In their declarations, LaMolinara and Swanson stated that they spoke with Benhamo by telephone for approximately 25 minutes, and while he had a notable accent, he spoke in coherent English. Thereafter, Swanson drafted a declaration to reflect what Benhamo told her. Meyer and LaMolinara reviewed and revised the declaration, but were careful not to substantively alter the facts. LaMolinara and Swanson stated that Benhamo's description of events were, at times, lengthy and therefore, "for efficiency we opted to paraphrase certain descriptions by utilizing more concise verbiage, making careful note not to substantively alter [his] depiction of the facts. By way of example, during our call [Benhamo] described [Y.E.] as having jumped on top of him, putting one of his legs on one side of [Benhamo's] chest and putting [Y.E.'s] other leg on the other side of [Benhamo's] chest. Rather than recite the more lengthy description . . . , we chose instead to use the word 'straddled.' "
After Meyer and LaMolinara reviewed the draft declaration, Swanson sent the draft declaration to Benhamo for his review. Swanson also contacted Benhamo by telephone a few hours after sending the declaration to ask if he had a chance to review it and whether he had any changes. Benhamo stated he had reviewed the declaration and did not have any changes. Further, Meyer, LaMolinara, and Swanson met with Benhamo prior to the November 1, 2017 evidentiary hearing, at which time he "reiterated the same facts and circumstances as initially provided to us . . . , and that which was reflected in [his] [d]eclaration."
Former Counsel further argued that the trial court did not find the accusation of abuse to be false, only inconclusive. Moreover, to the extent Benhamo testified that Y.E.'s action was like riding a horse, that is consistent with the description in Benhamo's declaration that Y.E. straddled him. As to the issue of Y.E.'s gesturing with his hands, Former Counsel argued that if they elicited testimony from Father as to every line in his declaration, the hearing would have taken several additional days. Each attorney also averred that after less than three months of representing Father, MOLM sought to be relieved as his counsel.
As noted above, however, Father's declaration did not mention any such gesture.
In his own responsive declaration, Father denied making any false allegation of child abuse or neglect. He stated he acted as a concerned parent and retained an attorney who, in her expertise, determined his concerns were worthy of investigation. Father requested that the court consider Former Counsel's memorandum of points and authorities as part of his response.
In her reply brief, Mother argued that the statements from LaMolinara and Swanson that they paraphrased Benhamo's description that Y.E. placed his legs on either side of Benhamo's chest as Y.E. "straddl[ing]" Benhamo "near [his] groin" was another example of a falsified sexual abuse allegation.
2. The Hearing on Mother's Motion for Sanctions
On February 1, 2018, Judge Cathcart, having before him Mother's section 3027.1 motion, as well as multiple other RFOs that are not at issue in this appeal, transferred the sanctions motion to a long cause department (Judge Thomas Trent Lewis). Judge Lewis inquired whether Mother, Father, or Former Counsel required an evidentiary hearing to proceed on the section 3027.1 sanctions motion. All interested parties agreed that the matter could proceed on the papers and arguments of counsel.
The November 1, 2017 and November 3, 2017 hearing transcripts were lodged with the court.
On March 9, 2018, the court heard argument. At the conclusion of the hearing, the court advised it would take the matter under submission, read the pleadings again, and issue a written ruling. All interested parties agreed to that course of action. Former Counsel requested a statement of decision, but only if the court was inclined to impose sanctions. Mother made no request for a statement of decision.
3. The Trial Court's Ruling
On March 12, 2018, the trial court issued a written ruling denying Mother's sanctions request. The trial court acknowledged that it framed its analysis under section 3027.1 differently from the parties, but that its analysis was substantively the same. The trial court inquired whether there was (1) a knowingly false (2) accusation of child abuse or neglect (3) made during a proceeding, (4) where the accused was eventually exonerated. The trial court determined there was an accusation of child abuse during a proceeding where Mother was exonerated.
As to whether the accusation was false, Judge Lewis explained that Mother attempted to draw an inference that because Judge Cathcart did not order monitored visitation or order a custody evaluation, it was obvious the allegations were false. Judge Lewis was not persuaded, noting the order denying the ex parte application described Father's testimony not as false but as "inconclusive." Judge Lewis also rejected the claim that Judge Cathcart's decision to forgo a custody evaluation meant Judge Cathcart concluded Father's allegations were false; the more logical inference was that Judge Cathcart did not believe a custody evaluation would be helpful. In the court's view, Mother was "confus[ing] aggressive litigation with committing or suborning perjury."
The trial court then turned to "the key disputed fact" on which "the determination [of the RFO] turns," namely "whether there was a knowingly false accusation by Father or his Former Counsel." On that issue, the trial court found that "Mother simply and utterly fails to show any evidence that either Father or Former Counsel made knowingly false statements. Simply put, Mother's Points and Authorities are ri[f]e with conjecture and unsubstantiated facts concerning Father and Former Counsel's motivations. . . . Mother fails to carry her burden of proof on the issue of a knowingly false allegation." (Fn. omitted.)
4. Mother Objects to the March 12 , 2018 Ruling
On March 26, 2018, Mother filed objections pursuant to Code of Civil Procedure section 634 and California Rules of Court, rule 3.1590 to what she characterized as the court's "March 12, 2018 proposed statement of decision." In her objections, Mother reargued that Former Counsel made knowingly false statements. Mother also complained that the trial court's order mistakenly attributed to her one argument that she did not make.
On April 17, 2018, the trial court issued a written ruling overruling Mother's objections. The trial court explained that pursuant to a stipulation by all concerned, the trial court's ruling on Mother's section 3027.1 motion "was served electronically; and it became final on the date of filing and service, to wit, March 12, 2018." The court observed "there was no controverted issue for which a statement of decision was sought; and there was no legal basis for the request." Thus, the court did not issue a statement of decision, which would have permitted Mother to file objections. Further, the trial court stated Mother's "various objections and pleadings are an attempt to reargue the motion because [Mother] is dissatisfied with the results of the court's ruling denying her request. As indicated in the court's Ruling on Submitted Matter, among other things, the court determined that [Mother] did not carry her burden of proof to demonstrate a knowingly false allegation by either [Father] or Former Counsel. [¶] The court is satisfied that there is no basis for reconsideration of its ruling on its own motion as invited by [Mother]." (Fn. omitted.)
DISCUSSION
Section 3027.1 provides that "[i]f a court determines . . . that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions" not to exceed all costs directly incurred in defending against the accusation as well as reasonable attorney's fees in recovering the sanctions. (Id., subd. (a).) As is evident from its plain language, the statute requires, among other things, that "the person making the accusation knew it to be false at the time the accusation was made." (Ibid.)
Although Mother raises numerous appellate claims, we find it necessary to address only her contention that the trial court erred in finding she failed to establish Father and Former Counsel knew the sexual abuse allegation was false when made. Because we find no error in the trial court's finding that Mother failed to carry that burden of proof, she cannot establish entitlement to section 3027.1 sanctions regardless of her other arguments. (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1527 [declining to consider issues not necessary to the appellate court's decision].)
A. Standard of Review
We review the trial court's decision to grant or deny discretionary family law sanctions for an abuse of discretion. (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 652.) " 'While sanctions are discretionary, the term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking.' " (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.) Under an abuse of discretion review, " ' " ' "[t]he trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order." ' " [Citation.] "In reviewing such an award, we must indulge all reasonable inferences to uphold the court's order." ' " (In re Marriage of Sorge, supra, at p. 652.)
As to the trial court's factual findings, where the issue on appeal turns on a failure of proof, the question for the reviewing court is not whether there is substantial evidence, but " 'whether the evidence compels a finding in favor of the appellant as a matter of law.' [Citation.]" (In re Luis H. (2017) 14 Cal.App.5th 1223, 1227.) The appellant must demonstrate "the evidence 'was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Ibid.) If she does not, we must affirm.
We reject Mother's argument that our review here should be de novo because the material facts are undisputed and the trial court's "erroneous conclusion that [r]espondents did not know the abuse allegation to be false at the time they made it . . . is not a finding of fact, it is a conclusion of law." The facts here were disputed. Nor does Mother cite relevant authority for her contention that the question of the accuser's knowledge is one of law and not fact. In the absence of any such support, we decline to stray from the well-established principle that a person's mental state, such as whether they formed the requisite knowledge, is a finding of fact. (See, e.g., Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 48 [dispute as to a party's knowledge presents a question of fact]; Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 462 [attorney's knowledge as to truth of claim is a question of fact]; People v. Wolf (1978) 78 Cal.App.3d 735, 740 ["The question of knowledge was a factual question for the determination of the trial court"].)
At oral argument, Mother argued People v. Vargas (1993) 13 Cal.App.4th 1653 establishes the question of Father's and Former Counsel's knowledge is one of law, subject to de novo review. In Vargas, the Court of Appeal held the "voluntariness of a waiver [of a defendant's right to appeal as part of a plea bargain] is a question of law which we review de novo." (Id. at p. 1660.) The voluntariness of an appellate waiver is distinguishable from an individual's knowledge regarding the falsity of a factual allegation.
B. The Trial Court Did Not Err in Concluding Mother Failed To Establish Knowledge of Falsity
In arguing Father and Former Counsel knew the allegations were false when made, Mother zeros in on certain inconsistencies in the evidence. Before we address those inconsistencies, we think it important to first take a step back and look at the broader picture. Before the trial court, Benhamo said, both in his declaration and at the hearing where he was cross-examined, that Y.E. got on top of Benhamo, put one leg on either side of Benhamo's body, and made a motion like a man and woman having sex. Father said, both in his declaration and at the hearing, that when he questioned Y.E. about getting on top of Benhamo, Y.E. responded that Mother previously showed him a picture of a woman touching a man's exposed penis. While Judge Cathcart did not credit those statements as showing sexual abuse, and Mother points out reasons one might be suspicious of those statements, Mother did not carry her burden to demonstrate that Father or Former Counsel in fact knew these descriptions were false.
Mother focuses on two inconsistencies in this testimony, and extrapolates from those inconsistencies that Former Counsel and Father knew that everything else Benhamo and Father said was false. First, Mother points out that Former Counsel asserted in their moving papers that Y.E. made an up and down gesture with his hands when speaking with Father about the picture he saw of a man and woman, and there was no evidentiary support for this statement. This lack of evidentiary support, however, did not require the court to find Father or Former Counsel knew that what Benhamo said about Y.E. simulating a sex act, or what Father otherwise testified he heard from Y.E. (that he was exposed to pornography before the incident with Benhamo) was false. (In re Luis H., supra, 14 Cal.App.5th at p. 1227.)
Mother argues that Former Counsel fabricated this allegation because they knew "they could not make a case based on what they had actually learned from [Father] and his friend Benhamo." Putting aside that Mother does not point to any evidence in the record that establishes that Former Counsel or Father fabricated this description (as opposed to say, forgetting to include it in Father's declaration), this argument fails. What counsel said was not evidence, and making an allegation for which there was no evidentiary support arguably undermined, rather than bolstered, Father's case when the court considered the actual facts.
Mother's second contention, that Former Counsel improperly paraphrased Benhamo's statement in his declaration about the positioning of Y.E. on his body, similarly fails. Mother argues that the declarations from Former Counsel show Benhamo told them Y.E. put one leg on one side of Benhamo's chest, and Y.E.'s other leg on the other side of Benhamo's chest; Former Counsel, however, prepared a declaration stating that Y.E. straddled Benhamo near Benhamo's groin. Mother argues this description inaccurately sexualized Y.E.'s conduct.
Putting aside that Benhamo reviewed his declaration and signed it under penalty of perjury—a representation on which the trial court implicitly found Father and Former Counsel could rely—Benhamo's testimony at the evidentiary hearing was consistent with his declaration. Regardless of the precise positioning of Y.E., Benhamo consistently said he interpreted Y.E.'s actions as simulating a sex act. Benhamo described that Y.E. placed one leg on one side of Benhamo and another leg on the other side of Benhamo, like riding a horse, a position fairly characterized as straddling. As for Y.E.'s positioning during this straddling, during his testimony Benhamo described Y.E.'s position as being on the middle of his body. Given that Benhamo's testimony in court was consistent with the declaration to the extent that both pieces of evidence described Y.E. simulating a sex act, the trial court was entitled to find the questioned paraphrase was not evidence of a knowing fabrication.
The other arguments Mother made in the trial court such as Former Counsel seeking alternative relief at the conclusion of Father's closing argument, the confusion as to the date of the chair incident, and Father's failure to pay attorneys' fees pursuant to section 7605 similarly suffer from the defect that they require the trier of fact to speculate and draw inferences to reach the conclusion urged by Mother even though other, reasonable inferences and conclusions may be drawn. Even taken together, Mother's evidence is not " ' "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." ' " (In re Luis H., supra, 14 Cal.App.5th at p. 1227.) It accordingly does not compel a finding in favor of Mother as a matter of law.
Observing that attorneys are not permitted to mislead the court (Bus. & Prof. Code, § 6068, subd. (d); Rules of Prof. Conduct of State Bar, rule 5-200), Mother argues the failure to impose sanctions here will encourage attorneys to disregard their duty of candor to the court. An attorney's duty of candor is both fundamental and necessary. Our affirmance here, based on the applicable standard of review, should not be read to condone making factual assertions in pleadings without evidentiary support, or embellishing witness statements by changing, for example, "chest" to "groin." We caution counsel to keep in mind that in family law proceedings, where emotions can run high and the consequences of careless or misleading allegations may be life-altering for a child, attorneys must be vigilant to ensure the statements they present to the court are truthful and accurate.
Mother's counsel has also fallen short in this regard. Counsel assert throughout their brief that the trial court denied Mother's motion for sanctions because it improperly sought to shield Former Counsel from the imposition of sanctions that would have to be reported to the State Bar. Counsel cite to no evidence to support this allegation. (See Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792 [stating a party must allege concrete facts to establish bias; otherwise we may be forced "to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute-resolving tribunals"].)
Of course, we must take equal care not to discourage the raising of genuine concerns about potential child abuse. Mother essentially posits that monetary sanctions under section 3207.1 are appropriate whenever the party making the accusation fails to meet its burden of proof. As Former Counsel point out, the Legislature struck a different balance in section 3207.1: deterring knowingly false accusations of abuse, while at the same time not penalizing the raising of legitimate concerns that a child may be a victim of abuse, even when a court later disagrees with those concerns.
Section 3027.1 provides the trial court "may" award sanctions, not that it "must" do so. Here, it was reasonable for the trial court to conclude that Benhamo, Father, and Former Counsel had a factual basis for the concerns they raised about whether Mother had exposed Y.E. to sexual content. Accordingly, the trial court's exercise of its discretion to deny sanctions was not arbitrary or capricious. (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1316.)
C. The Trial Court Did Not Improperly Refuse to Consider Mother's Objections to the March 12, 2018 Ruling
Mother argues the trial court erred in refusing to consider her objections to what she styled as the "March 12, 2018 proposed statement of decision." Mother acknowledges the trial court's ruling on her sanctions request was not in fact a statement of decision, but contends it would exalt form over substance not to treat it as such. She relies on In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642 and In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 569 to support her argument. These decisions are inapposite.
"Code of Civil Procedure section 632 requires a statement of decision, if one is timely requested, only 'upon the trial of a question of fact by the trial court.' " (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294, italics omitted.) Mother made no timely request for a statement of decision. (Code Civ. Proc., § 634; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 ["a party must request a statement of decision as to specific issues to obtain an explanation of the trial court's tentative decision"].) Moreover, because a motions hearing is not a trial, "courts have held that a statement of decision ordinarily is not required in connection with a ruling on a motion [citations], even if the motion involves an extensive evidentiary hearing [citations]." (In re Marriage of Fong, supra, at p. 294.)
Behrens involved a trial in which a statement of decision was requested—it is therefore inapposite to whether rules regarding statements of decision apply to orders on motions. (In re Marriage of Behrens, supra, 137 Cal.App.3d at p. 568.) In Buser, the court considered whether the appellant was entitled to a statement of reasons under former Civil Code section 4600.5 or a statement of decision under Code of Civil Procedure section 632. Buser's analysis cautions against applying the rules for a statement of decision to rulings not expressly subject to those highly detailed requirements, and thus undermines rather than supports Mother's argument. (In re Marriage of Buser, supra, 190 Cal.App.3d at pp. 642-643.)
Given the detailed and technical procedures to which statements of decision are subject, we decline to expand the category of rulings subject to those procedures to encompass the sanctions order here. In any event, the trial court considered the substance of Mother's objections and found there was no basis to reconsider its ruling. As we find no error in the court's order denying the imposition of sanctions, we similarly find the court did not err in declining to reconsider that ruling.
DISPOSITION
The trial court's orders denying Mother's section 3027.1 motion for sanctions and overruling Mother's objections to the March 12, 2018 ruling are affirmed. Former Counsel are awarded their costs on appeal.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
BENDIX, J.