Opinion
NOT TO BE PUBLISHED
Super. Ct. No. D306476
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
O’LEARY, JUDGE
It is ordered that the opinion filed herein on June 16, 2008, be modified in the following particulars:
“We find it appropriate to treat the request for sanctions in this case as a request for attorney fees on appeal. (See In re Marriage of Mason, supra, 46 Cal.App.4th at p. 1028 [appellate court has authority to make attorney fee award on appeal]; Fam. Code, § 271.) An award of fees under Family Code section 271, subdivision (a), “is in the nature of a sanction,” and is authorized where an opposing party’s conduct has frustrated “the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” (Fam. Code, § 271; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) Thomas’ position on appeal had no support in the law, his briefing ignored the legal basis of the court’s ruling, he sought judicial notice of irrelevant documents, and he unnecessarily caused Pamela to expend extra fees and costs in her defense. Aggressively pursuing a meritless appeal certainly frustrates the policy of the law to promote settlement and reduce the cost of litigation, and Pamela should not be required to pay for it.
“Pamela has submitted her counsel’s declaration stating Pamela has incurred over $15,000 in fees and costs as of January 31, 2008, all of which were reasonable and necessarily incurred in defense of the appeal. Thomas has not argued or demonstrated those fees are unreasonable. It appears a Family Code section 271 award of $15,000, together with the recovery of costs on appeal, would be sufficient to discourage further frivolous litigation in this case, and would compensate Pamela for damages reasonably related to the appeal. However, Family Code section 271 specifies that a court making an award under this section “shall take into consideration all evidence concerning the parties’ incomes, assets and liabilities” because the sanction cannot impose an unreasonable financial burden on Thomas. Accordingly, the trial court is in the best position to consider these factors and determine the amount of attorney fees that Thomas shall pay to Pamela.
“Disposition
“The postjudgment order is affirmed. Pursuant to Family Code section 271, the trial court shall determine the amount of attorney fees that Appellant shall pay to Respondent. Respondent’s motion to strike the opening brief’s appendices and to quash the subpoena are granted. Respondent’s motion to strike the opening brief is denied. Appellant’s motion for judicial notice is denied. Respondent shall also recover her costs on appeal.”
The petition for rehearing is DENIED. This modification changes the judgment.
WE CONCUR: SILLS, P. J., IKOLA, J.