Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-00-FL092701.
PREMO, J.
In an acrimonious dissolution of marriage proceeding, wife Stacy Lynn Marcus appeals from an order to enforce a prior order regarding settlement of an Israeli tax claim, an order denying enforcement of a prior order regarding the production of certain financial statements, and an order to pay tax professionals for services in settling the Israeli tax claim. Husband Ittai Bareket has filed a motion for sanctions on the ground that the appeal is frivolous. We affirm the orders and grant the motion for sanctions.
BACKGROUND
The parties were married in 1992, had one child born in 1997, and separated in May 2000. They obtained a status-only judgment in 2000. In 2004, they settled a number of property issues.
On May 3, 2004, the trial court, via Justice Donald B. King as temporary judge, filed a stipulated judgment on reserved issues. As pertinent here, the judgment described the following issue and agreement: “The parties acknowledge that there is a pending claim filed by Husband on behalf of the community for reimbursement for community taxes paid by Husband as a result of community income or efforts. Husband represents that he has been pursuing this claim with the taxing authorities and that he shall continue in his efforts to maximize the reimbursement for the benefit of the community. Wife is informed that Husband has retained a tax representative Ishay Etsion, who is working on a contingency basis inclusive of costs. [¶]... [¶] The written consent of both parties or an order from [Justice] King is required for the settlement of the tax-related matter. Neither party shall unreasonably withhold his or her consent to the settlement of the related tax claim(s). Justice King’s jurisdiction as to the parties’ cooperation and reasonableness of the settlement of this tax claim shall be reserved. Any payment by the tax authorities is to be divided equally between the parties after the costs of pursuing the claim are paid to the professional(s) assisting the parties in pursuit of this claim. If the parties have any dispute as to the proposed settlement of the tax claim, they shall cooperate in scheduling a hearing with Justice King within 72 hours of any proposed settlement on the tax claim. Said hearing may be conducted by telephone at the discretion of Justice King. Each party is to bear his or her own tax consequences as the result of receipt of any monies from this Israeli tax claim. To the extent that documents are provided to Justice King pertaining to this claim, they are to be translated into English.”
By February 2008, the family court had assigned the case to Commissioner John G. Schroeder as Judge Pro Tempore, and the Israeli tax professionals had made progress in settling the tax claim. On February 13, Commissioner Schroeder authorized husband’s Israeli attorney to negotiate a settlement, ordered that any tax refund be deposited in trust for the parties with husband’s Israeli attorney, and made other related orders.
By October 2008, the family court had assigned the case to Judge Kevin E. McKenney, and more progress in settling the tax claim had been made. On October 16, Judge McKenney entered an order similar to Commissioner Schroeder’s order and authorized husband’s Israeli attorney to negotiate a settlement for not less than 70 percent of the claim.
In January 2009, husband’s Israeli attorney communicated that the Israeli Tax Authority had offered to settle the tax dispute by refunding approximately 75 percent of the claim (about $600,000). Husband agreed to accept the offer and proposed a stipulation and order authorizing the settlement. But wife refused to stipulate. She disagreed with the terms of Husband’s stipulation and order. She proposed her own. Judge McKenney set a trial date.
According to wife’s papers, she would not accept the settlement offer without “documents, verifying the potential and actual tax refund, interest and inflation-index earnings, the trust account..., the offer by the tax authorities, and the calculations relied upon....” She did not want to “agree to an offer ‘from the tax authorities’ as represented by [husband’s] attorney, [without] the documents that verify the offer and its representation.” According to wife, the stipulated judgment on reserved issues required husband to maximize the reimbursement for the benefit of the community and to protect wife’s interest in the community claim but husband was requesting her “to agree to an offer, alleged to be from the tax authorities, as represented by his attorney--who has confirmed that he represents ONLY the interests of [husband].” She asserted that the judgment “requires that all documents provided to the Court pertaining to [the tax] claim, ‘are to be translated into English.’ ” She concluded that the “documents are necessary for [her] to verify and prudently evaluate the proposed settlement offer, and its value relative to the potential tax refund and existing interim refund.” She asked for “immediate production of all official statements, documents and information, prior to the conclusion of a settlement agreement with the Israeli tax authorities; or in the alternative, if a verified deadline imposed by the tax authorities precludes advance production, that if [husband] does not produce each and every enumerated document, accounting, and statement (with English translation) within five (5) days of the conclusion of any order that [wife] be awarded the tax refund in its entirety at 100 percent of its highest value.” At the trial, Judge McKenney admitted into evidence 67 exhibits offered by husband and 28 exhibits offered by wife.
On March 13, 2009, Judge McKenney filed an “Order Re: Settlement Of Israeli Tax Claim” (March 13 order). It directed the parties to accept the settlement offer. It authorized husband’s Israeli attorney to communicate the acceptance and transmit a formal settlement agreement, translated into English to the extent it was in Hebrew, to the parties for signature. It directed the attorney to account for the proceeds and provide statements translated into English. It provided: “Once a formal written settlement agreement is prepared, including the calculations used to arrive at the settlement amount, both parties will execute said agreement within five days from receipt of the agreement.” It denied wife’s request for the production of various documents because wife had not “provided sufficient evidence that such documents exist or [had] been withheld by [husband].” It affirmed that Judge McKenney was “satisfied with the evidence [husband] produced regarding the settlement of the Israeli tax claim.” It rejected wife’s claims that husband breached his fiduciary duty and prior court orders concerning the tax claim. And it rejected wife’s claim that she should not be responsible for the professional fees paid to husband’s attorney and accountant concerning the tax claim.
On May 13, 2009, wife appealed from the March 13 order. On July 14, we granted husband’s motion to dismiss the appeal as untimely (July 14 order).
Shortly after the March 13 order, husband transmitted to wife a formal settlement agreement prepared by the Israeli Tax Authority. Wife demanded calculations used to arrive at the settlement amount, and husband twice provided such. Wife refused to sign the settlement agreement.
On May 8, 2009, via an order to show cause, Judge McKenney issued a temporary order compelling wife to sign the settlement agreement. And he set a hearing on a permanent order for June 1 (May 8 order). Wife appealed from the May 8 order in the same May 13 notice of appeal that pertained to the March 13 order. In the same July 14 order in which we granted husband’s motion to dismiss the appeal from the March 13 order, we denied husband’s motion to dismiss the appeal from the May 8 order after reasoning that the appeal was premature. We granted wife 10 days leave to file an amended notice of appeal designating the final order appealed from.
Judge McKenney held two hearings on a permanent order. Wife’s papers indicated that she did not sign the settlement agreement because it did not “include the calculations ordered by the court.” According to wife, the March 13 order explicitly required the formal settlement agreement to include the calculations. Wife also claimed that husband had not provided her with the “ ‘calculations used to arrive at the settlement amount’ that is to represent ‘75% of the total potential claim’ as required by” the March 13 order. Husband submitted a declaration setting forth the calculations, arguing that the March 13 order does not require that the calculations be placed within the text of the settlement agreement, and explaining that the Israeli Tax Authority does not “include in settlement agreements which are submitted to [a] court any explanation or calculation in order to demonstrate how a settlement amount was reached.”
On June 24, 2009, Judge McKenney ordered wife to sign the settlement agreement within five days, authorized the clerk of the court to sign if wife refused, and imposed sanctions on wife of $2,500 per day from the sixth day in the event that the Israeli Tax Authority refused to accept the Clerk’s signature (June 24 order). Wife presumably signed the settlement agreement. On July 8, wife amended her extant notice of appeal to eliminate reference to the May 8 order, include reference to the June 24 order, and reiterate reference to the March 13 order.
Neither party directs us to a place in the record where this fact is evident. Later events indicate, however, that wife or the clerk signed the settlement agreement to the satisfaction of the Israeli Tax Authority.
The June 24 order is the first-filed order at issue on appeal.
In May 2009, wife had filed a motion to enforce an order of March 19, 2009 (March 19 order), that required husband to provide within 10 days all statements from January 1, 2000, through May 3, 2004, for the Mercury Manager’s Plan and Mercury Keren Histalmut Plan. According to wife, husband had produced seven pages but none showed the balance on January 1, 2000, or “the known and unknown transactions that are the subject of the accounting ordered in the JUDGMENT.” Wife conceded that husband had represented that he had provided all statements in his possession. But she argued that the March 19 order “does not require [husband] to provide the statements in his possession, but to finally comply with the 2004 JUDGMENT and produce all statements....” Judge McKenney held a hearing on June 29, 2009.
On July 17, 2009, Judge McKenney denied wife’s motion (July 17 order). He explained: “Both the March 19, 2009 Order and the Stipulated Judgment are silent as to whether [husband] has to produce statements that are not in his immediate possession, i.e., whether he has to ‘secure [the statements] from the respective financial institution, ’ as requested by [wife]. There is no dispute that [husband] has produced all of the statements he has in his possession. Under the Code of Civil Procedure, parties who are asked to produce documents are only required to produce those documents that are in their possession, custody, or control. [Citation.] There is no evidence [husband] has not produced all such statements in his possession, custody, or control. Nor does the Court believe he is required to produce statements that are not in his possession, custody, or control. Based on the evidence presented at the hearing, [husband] has complied with [the March 19 order].” On August 26, wife amended her extant amended notice of appeal to eliminate reference to the March 13 order, include reference to the July 17 order, and reiterate reference to the June 24 order.
The July 17 order is the second-filed order at issue on appeal.
Wife refused to authorize payment to Mr. Etsion according to the contingency agreement referenced in the judgment. On October 6, 2009, husband filed a motion to pay Mr. Etsion one-third of the recovery from the money that was then held in trust. Wife opposed the motion. Her papers and argument are unclear as to her grounds for opposing the motion. She sought bank statements and claimed that husband “created a situation wherein [she could not] prudently agree to the release of funds, division of the community asset and resolution of the issue.” She then argued: “With reference to the payment to Mr. Etsion as the stipulated judgment provides for the payment to Mr. Etsion, I am not contesting the payment to Mr. Etsion. What I’m asking the Court for is to not cherry-pick the order. And if a payment is made to Mr. Etsion that the remaining balance be divided between the parties pursuant to the stipulated judgment.” Husband then pointed out that distribution to the parties was not in issue: “We are requesting the limited order of the payment of the fees for the Israeli professionals only today. That is the sole issue before the Court.”
On December 31, 2009, Judge McKenney granted husband’s motion (December 31 order). It explained that there was no prior order that conditioned payment to Mr. Etsion upon wife’s receipt of bank statements itemizing interest. And it added that, while wife was entitled to request alternative relief, distribution to the parties was not an alternative to paying Mr. Etsion. On February 8, 2010, wife amended her extant second amended notice of appeal to include reference to the December 31 order and reiterate the references to the July 17 and June 24 orders.
The December 31 order is the third-filed order at issue on appeal.
We have construed our July 14 order in which we granted wife 10 days leave to file an amended notice of appeal as allowing wife’s July 8 amended notice of appeal that is applicable to the June 24 order. We have construed wife’s August 26 amended notice of appeal as a separate appeal from the July 17 order and have assessed a filing fee therefor. And we have construed wife’s February 8, 2010, amended notice of appeal as a separate appeal from the December 31 order and have assessed a filing fee therefor. We are considering the three appeals together.
JUNE 24 ORDER
This is the order that compelled wife to sign the tax settlement agreement.
Wife contends that “The trial court acted in excess of its subject matter jurisdiction in setting aside its regularly entered order as the order was reviewable only on appeal.” We glean that wife is arguing that the trial court erred by entering the June 24 order because “proceedings on the issue of execution of the agreement were stayed by the filing of a notice of appeal” as to the May 8 temporary order. There is no merit to this claim.
As we explained in our July 14 order, “the appeal filed from [the May 8] order was premature.” The appeal was therefore of no effect. It follows that the appeal could not have had the effect of staying proceedings on the issue of execution of the agreement.
Wife contends that the appeal of the June 24 order “divested the trial court of jurisdiction over the [Israeli settlement agreement]. Thus, the December 31, 2009 order releasing settlement funds is a void judicial act.” There is no merit to this claim.
The June 24 order directs wife to sign the settlement agreement. “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the execution of one or more instruments unless the instrument or instruments are executed and deposited in the office of the clerk of the court where the original judgment or order is entered to abide the order of the reviewing court.” (Code Civ. Proc., § 917.3.)
Wife contends that no substantial evidence supports the June 24 order. She claims that “the court erred in relying on [husband’s] ‘explanation of the calculations’ to made [sic] orders” and failing to order husband’s “production of the records evidencing the valuation of the tax refund.” There is no merit to this contention.
The trial court was entitled to rely on husband’s explanation in addition to the 96 exhibits introduced by the parties. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134 [the testimony of a single witness, including that of a party, may be sufficient to establish substantial evidence].) Moreover, “we defer to the trier of fact on issues of credibility. [Citation.] ‘[N]either conflicts in the evidence nor “ ‘testimony which is subject to justifiable suspicion... justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” [Citations.] Testimony may be rejected only when it is inherently improbable or incredible, i.e., “ ‘unbelievable per se, ’ ” physically impossible or “ ‘wholly unacceptable to reasonable minds.’ ” ’ ” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
JULY 17 ORDER
This is the order that denied wife’s motion to compel husband to provide “all statements” for the Mercury Manager’s Plan and Mercury Keren Histalmut Plan.
Wife contends that “The trial court erred in finding... that the Judgement and the March 19, 2009 order ‘are silent as to whether [husband] has to produce statements that are not in his immediate possession’ as the language of the orders is explicit in requiring [husband] to ‘provide all account statements.’ ” There is no merit to the claim.
The duty to produce documents is limited to items “in the possession, custody, or control of any other party to the action.” (Code Civ. Proc., § 2031.010, subd. (a); People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1080 [trial court erred when it issued an order compelling the defendant to produce documents from a nonparty state agency; “to obtain documents and witnesses from state agencies... [the propounding party] was required to serve subpoenas directly upon the agencies from which they sought this information.”].) Similarly, it is fundamental that a judicial subpoena duces tecum is properly issued only as to matter in the possession or under the control of the person or entity to which the subpoena is directed. (Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 784-785; see Code Civ. Proc., § 1985.) The same is true of an administrative subpoena duces tecum. (See Interstate Commerce Comm. v. Brimson (1894) 154 U.S. 447, 476-477; Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 42.) Stated another way, it is a prerequisite to an adjudication of contempt for failure to obey an order that the contemner had it within his power to perform the act ordered. (In re Wells (1946) 29 Cal.2d 200, 202.) A person whom a court orders to produce matter cannot, of course, produce the matter if it is nonexistent or not in his or her possession or control. It would be improvident to require a court to issue an enforcement order it could not enforce. In short, husband cannot be ordered to produce documents not in his possession or control.
Wife contends that “The trial court erred in finding: ‘[t]here is no evidence [husband] has not produced all such statements in his possession custody or control.’ ” Wife has forfeited the claim because she has failed to provide us with a reporter’s transcript of the June 29, 2009 hearing on her motion at which the evidence on the question was presented.
Wife also failed to provide us with her written motion. We augmented the record to include the motion upon husband’s motion.
In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s transcript of settled statement].)
The reason for this follows from the cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. ‘[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.’ ” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) This general principle of appellate practice is an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) “Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
The absence of a reporter’s transcript renders impossible any meaningful review of wife’s appellate contention.
The claim fails on the merits in any event. The underlying premise of wife’s motion was that husband was withholding documents for the Mercury Manager’s Plan and Mercury Keren Histalmut Plan. Wife therefore had the burden to prove that husband was withholding such documents. The trial court simply found that wife had failed to carry her burden. Where the issue turns on a failure of proof, the question on appeal is not whether substantial evidence supports the judgment or order but whether the appellant is entitled to judgment as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Here, whether husband was withholding documents posed the usual evidentiary conflict: either husband was withholding or he was not. The trial court rejected wife’s proof. It is not our function to rehear the motion.
Wife also complains that “The trial court erred in deciding issues based on unauthenticated Hebrew documents as the law requires certified English translation and authentication for the documents to be relevant and admissible evidence.”
Wife’s motion, however, did not seek an order to translate documents that husband produced. It instead sought an order to produce documents that husband supposedly withheld. Wife crystallized her complaint as follows: “As is verified by a review of each of the 7 pages, none of the pages show the balance in the Plans and sub-accounts on January 1, 2000. Nor do the pages evidence the known and unknown transactions that are the subject of the accounting ordered in the JUDGMENT. Further, the 7 pages are for random dates, and refer to several different account numbers, such that not one complete set of statements for any of the accounts has been produced by [husband].”
Wife’s argument also fails for the lack of a reporter’s transcript. And it also fails because the trial court did not decide issues based on unauthenticated Hebrew documents but simply found that wife had failed to carry her burden to prove entitlement to the relief she sought.
Wife finally argues that the trial court erred “in finding that [husband] had met his fiduciary duty” and “A finding of breach of fiduciary duty [for husband’s ‘limited production in Hebrew’] is supported by substantial evidence including [husband’s] own testimony.”
Again, the claim fails for lack of a reporter’s transcript. And we observe that wife’s moving papers did not assert a breach of fiduciary duty for producing Hebrew documents. It asserted and sought relief for withholding documents.
DECEMBER 31 ORDER
This is the order that granted husband’s motion to pay Mr. Etsion one-third of the tax refund from the money that was then held in trust.
Wife reiterates that her claim that the appeal of the June 24 order “divested [the trial court] of jurisdiction over the Israeli tax matter.” We have rejected the point. (Code Civ. Proc., § 917.3.)
Wife argues that (1) the trial court “erred in releasing community funds as payment as [husband’s] representatives did not meet the conditions for payment as stipulated by the parties in the Judgment, ” (2) the trial court “erred further in not determining the issue of Kirsh’s payment under Paragraph 9 of the Judgment as the parties stipulated to that paragraph governing any tax issue other than the pending refund claim identified in Paragraph 4, ” (3) the trial court “erred in ordering [wife] to pay the fees of [husband’s] representatives as the trial record evidences that they, together with [husband], purposefully acted against [wife’s] interests, ” and (4) the evidence compels a finding of breach of fiduciary duty.
Wife’s point appears to be that the judgment provided payment for professionals assisting the parties but that Mr. Etsion was “unilaterally retained” by husband.
Mr. Kirsh was husband’s Israeli attorney. He apparently was working on the tax matter in conjunction with Mr. Etsion. His arrangement was to be paid by Mr. Etsion from the contingent fee realized by Mr. Etsion. Husband did not request, and the trial court did not order, any payment to Mr. Kirsh.
Wife agreed in the judgment to pay a contingency fee “to the professional(s) assisting the parties in pursuit of [the tax] claim.”
Wife’s complaints appear to be that (1) husband forbade Mr. Etsion from communicating directly with wife, and (2) husband introduced false evidence to justify the March 13 and June 24 orders.
Wife raised none of these issues before the trial court. The sole issue raised by husband was payment to Mr. Etsion. The sole opposition raised by wife was her reiterated complaints about husband’s failure to produce all documents. Moreover, wife agreed that Mr. Etsion should be paid according to the invoice submitted by husband. She only conditioned her agreement upon a distribution of the balance of the tax refund to husband and her.
HUSBAND’S MOTION FOR SANCTIONS
Husband has moved for sanctions for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(a); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) We ordered that the motion would be considered with the appeal and notified wife that we were considering imposing sanctions. We also consider whether to impose sanctions payable to the court. Wife filed a brief arguing that sanctions are not warranted. (See Cal. Rules of Court, rule 8.276(c), (d).)
We acknowledge that wife is representing herself on appeal. Under the law, one may act as his or her own attorney if he or she chooses. But when a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure and evidence as an attorney--no different, no better, no worse. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)
California Rules of Court, rule 8.276(a), gives the appellate court the authority to “impose sanctions... on a party... for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay....” Code of Civil Procedure section 907 states that “[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”
“[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.) Thus, we may impose sanctions either when an appeal indisputably has no merit, or when it is filed for an improper purpose.
We conclude that sanctions are warranted because wife’s appeal is indisputably without merit. As shown by our discussion of the issues that wife has raised, not one presents even a colorable claim that the trial court erred. Some of wife’s appellate arguments are clearly baseless because they are contradictory to the positions she took at trial, were not raised below, were decided against wife in prior final orders, or were contrary to a statute. Moreover, wife challenged the sufficiency of the evidence without providing a reporter’s transcript. And she challenged the sufficiency of the evidence when the issue was failure of proof.
Sanctions are also warranted because it appears that wife has filed her appeal for the improper purpose of harassing husband. As our Supreme Court has observed, the fact that an appeal is objectively without any merit is often an indication that the appellant filed it for an improper purpose. (See Flaherty, supra, 31 Cal.3d at p. 649 [“the total lack of merit of an appeal” is often “viewed as evidence that appellant must have intended it only for” improper purposes].) Therefore, the clear lack of merit to wife’s appeal is one indication that she has filed it in bad faith. Wife’s bad faith is further shown by the fact that wife claims in her appeal to seek a reversal of the trial court’s order authorizing settlement of the Israeli tax, but, according to husband’s motion, she has already accepted the benefit of the order by accepting her share of the tax refund ($235,567.88). That fact--coupled with the complete lack of merit to her appeal--gives rise to the inference that wife is not pursuing the appeal in good faith to obtain the remedy she purports to seek, but instead is pursuing the appeal to harass husband.
Husband requests that we impose sanctions of $30,636.99 representing his attorney fees and costs in defending the appeal plus $25,000. Attorney fees are appropriate given that attorney fees are a common measure of sanctions payable to an opposing party and given the “degree of objective frivolousness” of wife’s appeal and “the need for discouragement of like conduct in the future.” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 34 [$26,000].)
We also impose sanctions payable directly to the clerk of this court. “Because a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals.” (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 35.) A 2008 case cites a cost analysis by the clerk’s office for the Second Appellate District that estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520; see also Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1163-1164 [relying on that cost analysis to set amount of sanctions payable to the court].) The processing of this appeal was far more time consuming than that required for an average civil appeal. Wife’s opening brief is 46 pages; her reply brief is 44 pages plus seven pages of attached exhibits. The appellate record contained five volumes of clerk’s transcript amounting to 1, 417 pages. We conclude that a sanction of $12,500 is appropriate to reimburse the state for the costs of this appeal.
DISPOSITION
The June 24 order is affirmed. The July 17 order is affirmed. The December 31 order is affirmed. Wife shall pay $30,636.99 to husband and $12,500 to the clerk of this court as sanctions for bringing this frivolous appeal. All sanctions shall be paid no later than 30 days after the date the remittitur is filed.
WE CONCUR: Rushing, P.J., Elia, J.