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In re Marriage of MacIntyre

California Court of Appeals, First District, Second Division
Jul 7, 2008
No. A117664 (Cal. Ct. App. Jul. 7, 2008)

Opinion


In re the Marriage of PATRICK MacINTYRE and FIONA MacINTYRE. PATRICK MacINTYRE, Appellant, v. FIONA MacINTYRE, Respondent. A117664 California Court of Appeal, First District, Second Division July 7, 2008

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. D01-06178

Kline, P.J.

Patrick MacIntyre (Patrick) appeals an order of February 20, 2007, that disposed of various matters in ongoing dissolution proceedings between himself and former spouse Fiona MacIntyre (Fiona). He challenges portions directing him to pay a total of $11,882.21 in attorney fees as sanctions under Family Code section 271, and for vexatious conduct. He claims lack of substantial evidence and of failure to prove he was a “vexatious litigant” (Code Civ. Proc., § 391) or guilty of oppression, fraud or malice (Civ. Code, § 3294). We affirm the order.

All undesignated section references are to the Family Code.

Patrick had counsel below but appeals pro se. Fiona, too, was represented below but is not represented here. She has chosen not to file a respondent’s brief. By a letter and attached order, she informs us that, after the order at issue here, the parties reached a settlement of this and other matters, with Patrick’s obligation nevertheless to be reduced by any amount we might reverse on this appeal.

Background

This litigation was last before us on a similar appeal by Patrick from sanctions under section 271. We affirmed that award in an unpublished opinion in In re Marriage of MacIntyre (July 7, 2006, A109304) [nonpub. opn.] (MacIntyre I).) The background for the current award began that same month, after our opinion, and is set out in a statement of decision issued by Judge Caskey, who heard the matter and whose statement of decision was incorporated by reference into the ultimate order. We quote it for its reasoning and factual summary.

The memorandum of decision was filed on December 15, 2006, and Judge Caskey’s retirement required a different judge to hear a motion for reconsideration brought by Patrick. Judge Goode heard and denied reconsideration, and the final order was signed by Presiding Judge Bruiniers (Code Civ. Proc., § 635).

“The parties appeared before [this court] on the ‘short cause’ calendar of December 5, 2006. [Patrick] was represented by M. Pamela Lauser (who was retained the day before the hearing) and [Fiona] by . . . Greg Abel. Following argument the motions were taken under submission and the court now issues this decision.

“On July 28, 2006, [Patrick] in propria persona filed a post-judgment motion for modification of family support. In his declaration in support, [Patrick] asserted the basis for the modification was a reduction in his income. . . .

“The clerk set [Patrick’s] motion for hearing on August 31 . . . . [Fiona] filed her response on August 17, . . . attaching seven exhibits. The court has reviewed the response and attachments. On August 28, [Patrick] filed a Reply. The court has also reviewed the reply. At the hearing, Judge Steve Austin presided and . . . found the issues of family support and health care cost should be set for a long cause hearing. He set a case management conference for October 20 . . . .

“On September 14, [Patrick] filed a motion seeking attorney fees and costs from his former counsel, Maurice Moyal. In his declaration, [he] asked for an award of fees of $10,000 from his former counsel ‘for his arbitrary, capricious and wholly defective prosecution of the family law contempt against [Patrick].’ [Fiona] then replied, asking that his motion be denied and fees be awarded to her pursuant to [section] 271. The matter was set to be heard . . . . However, at the case management conference conducted on October 20, . . . the court found his request was improperly filed with the family law court and . . . vacated the hearing.

“Meanwhile, on October 5, [Fiona] filed a motion to modify judgment, award fees and divide an omitted asset. This motion was set to be heard on December 5 . . . . On November 1, [Fiona] filed four motions to compel discovery against the four business entities operated by [Patrick]. Those motions were also set for December 5 . . . .

“At the October 20 . . . case management conference, the court set a further case management conference for January 12, 2007 and indicated, time permitting, it would attempt to resolve as many issues as possible at the December 5 . . . short cause hearing.

“[Patrick] filed a responsive declaration on November 22, . . . raising objections to the motions to compel. Mr. Abel, on behalf of [Fiona], filed a reply [and] [Patrick] filed a ‘Supplemental Response to the Reply Declaration of Gregory C. Abel . . .’ On the same date, Mr. Abel filed a document entitled ‘Respondent’s Statement Regarding Issues before the Court and Requested Relief.’ The court read and considered all of these pleadings. Finally, on December 4 . . ., [Patrick] untimely filed a document which the court has not read or considered entitled ‘Responsive Declaration to Respondent’s Notice of Motion for Attorney fees . . . .’

“Contra Costa [County] Superior Court Local Rule 12.4(F) requires a ‘fully completed, current Income and Expense Declaration (or Simplified Financial Statement, when appropriate) as set forth in Rule 12.9(b) below shall be filed and timely served seven (7) calendar days prior to the hearing on opposing party by each party in all hearings involving requests for support, attorney fees or other financial relief.’ Local Rule 12.9(b) sets out that the documents that must be filed and served ‘shall include, but not be limited to: (1) Pay statements for the three full months prior to the hearing date; (2) All IRS W-2 forms for the two prior years; (3) All IRS 1099 forms for the two prior years; (4) the most recent two years’ state and federal tax returns with all schedules and attachments; (5) Any requests for extensions to file tax returns which reflect income paid or payable to a party, for the last two prior tax years; (7) Any schedule of income, balance sheet or other documentary evidence which that party intends to introduce at the hearing.’ Local Rule 12.12 provides that if any party or attorney fails to comply with the provision of this Rule 12, ‘ . . .the court may impose appropriate sanctions, including but not limited to a summary determination of any contested issues, the assessment of attorney fees and costs or taking appropriate calendar action in the Court’s discretion.”

These rulings followed: “[Patrick] failed to comply with Local Rules 12.4 and 12.9. On that basis, his motion to modify family support is denied. . . .

“Based upon Local Rule 12.12 and [section] 271 attorney fees are awarded to [Fiona] in the sum of $5,000.00 . . . . This award takes into consideration all evidence submitted to the court concerning [Patrick’s] income, assets and liabilities [and] will not impose an unreasonable financial burden. [Fiona’s] requests to compel discovery [are] rendered moot given the court’s decision denying [Patrick’s] motion to modify. . . .

“[Patrick] did not file a timely response to [Fiona’s] requests filed October 5 . . . . Her request to modify the judgment to include judgment interest is granted. Her request to declare [Patrick’s] motion filed September 14 . . . as vexatious conduct as defined in Code of Civil Procedure [section] 391 is granted. Additional sanctions in the sum of $1,500.00 are awarded payable to [her] pursuant to [section] 271 for having to respond to the frivolous motion by [Patrick] to require the court to order [Patrick’s] former counsel reimburse him for attorney’s fees. This award is based upon a review of all the evidence concerning his income, assets and liabilities and will not impose an unreasonable financial burden. . . . [Fiona’s] request for an award of attorney’s fees as sanctions pursuant to [section] 271 to assist her with the defense of [Patrick’s] appeal is granted in the sum of $5,267.50 in fees and $114.71 in costs . . . . This award is based upon a review of all the evidence concerning [Patrick’s] income, assets and liabilities and will not impose an unreasonable financial burden. . . .”

Discussion

Section 271 authorizes an award of attorney fees and costs to the extent that a party “ ‘frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.’ ” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 5, quoting § 271, subd. (a).) The award is in the nature of a sanction, requiring consideration of all of the evidence concerning the parties’ incomes, assets and liabilities, so long as the paying party is not strapped with an unreasonable financial burden (id. at pp. 5-6). The court here expressly stated—three times—that it did not impose such a burden.

Two of Patrick’s complaints are that the proof did not rise to standards of a “vexatious litigant” (Code Civ. Proc., § 391) or oppression, fraud, or malice as required for punitive damage awards (Civ. Code, § 3294). Neither complaint has merit.

Civil Code section 3294, subdivision (a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

We are cited no authority that the oppression/fraud/malice standard for punitive damages has any place in a sanctions award under section 271. And while we recognize that the court in this case went so far as to state that it imposed at least $1,500 worth of the sanctions, not just under section 271, but also for “vexatious conduct” (Code Civ. Proc., § 391), this was unnecessary to the award.

A similar effort to import a frivolous-appeal standard has been rejected. “While fees and costs imposed under [section 271] are in the nature of a sanction, the requisite delicts are limited. The statute is aimed at conduct that furthers or frustrates settlement of family law litigation and at reduction of litigation cost. It is the successor to former Civil Code section 4370.6, which was enacted in 1990 along with amendments to former Civil Code section 4370.5. These statutes do not require that the conduct be ‘frivolous or taken solely for the purpose of delay’ as do appellate sanctions imposed under In re Marriage of Flaherty [(1982)] 31 Cal.3d 637, 650. Flaherty sanctions are appropriate ‘only when [the appeal] 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.’ [Citations.]” (In re Marriage of Freeman, supra, 132 Cal.App.4th at p. 6.) It has also been held that section 271 does not contain “any requirement of separate injury to the complaining spouse as a precondition to the imposition of sanctions.” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479.)

By parallel reasoning, Patrick’s attempt to import intent (or separate harm) standards for exemplary damages and vexatious litigation cannot succeed. Heightened misconduct of that variety certainly would satisfy the lesser requirements of section 271 (In re Marriage of Freeman, supra, 132 Cal.App.4th at p. 6), but is not required. Nor is there any authority supporting Patrick’s suggestion that, to establish the needed threshold, a trial court has to utilize the clear-and-convincing-evidence standard of proof statutorily prescribed for imposing punitive damages (Civ. Code, § 3294, subd. (a); fn. 4, ante).

Patrick’s substantial evidence claim does not contest the amount of sanctions, only whether his behavior reached the section 271 threshold for imposing them. We review a sanction under section 271 for abuse of discretion and overturn it only if, considering all the evidence viewed most favorably in support of the order, no judge could reasonably make the order. We indulge all reasonable inferences to uphold the order (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478) and test any underlying factual bases for substantial evidence (id. at p. 1479), although the facts here appear to be undisputed.

Ample support for the order appears in the statement of decision, which chronicles a course of filings by Patrick, very little or none of which apparently furthered the policy of the law to promote settlement of litigation. Indeed, he resisted motions to compel and disclosure of his financial information, while bringing his own motion to modify support that the court ultimately had to dismiss for Patrick’s failure to provide required financial information. He tried to use these proceedings to wrest attorney fees from one of his former counsel (one of seven, according to statements on the record). Judge Caskey called it “frivolous,” and Patrick offers no appellate briefing or authority as to how the effort or forum were legally feasible.

Patrick faults the court for allowing a contempt matter to remain pending against him until dismissed by Judge Craddick as deficient. That dismissal, however, was in January 2006, months before the filings and other conduct that fueled the sanctions here. Moreover, calling our attention to that dismissal is far more damning than helpful to Patrick on the sanctions question before us, for Judge Craddick wrote in her order: “[Patrick] was difficult to deal with throughout the case, was manipulative, and by his conduct caused litigation costs to be higher than they would otherwise have been if he had acted in good faith in trying to resolve the matter instead of in some instances playing ‘hide the ball’ and otherwise being unreasonable and obstreperous, and making untrue and unfounded accusations against counsel and the court. [¶] Nevertheless, the contempt against him is dismissed and discharged.”

Patrick also ignores that some of the current sanctions were awarded for Fiona having to defend against his appeal of sanctions in MacIntyre I, and that appeal delayed the prior sanctions for more than 19 months. That appeal was not only unsuccessful, but we observed in our opinion that his first claim “border[ed] on the specious.” We noted that Patrick had “engaged in a pattern of uncooperative and obstructive behavior,” and we found “ample evidence supporting a finding that [his] conduct during the course of the litigation was uncooperative,” thus warranting sanctions.

No abuse of discretion appears in the latest sanctions awarded under section 271.

Disposition

The order is affirmed.

We concur: Haerle, J., Lambden, J.

Paraphrasing, Code of Civil Procedure section 391, subdivision (b), defines “[v]exatious litigant” as one who: (1) prosecutes or maintains five actions or proceedings within seven years, pro se, that are adversely determined or allowed to pend at least two years without trial; (2) repeatedly does or tries to relitigate, in pro se, the validity of a finally determined fact or legal conclusion; (3) repeatedly files pro se motions or other tactics that are unmeritorious, frivolous or solely intended to cause unnecessary delay; (4) has been declared a vexatious litigant in the same or similar action.


Summaries of

In re Marriage of MacIntyre

California Court of Appeals, First District, Second Division
Jul 7, 2008
No. A117664 (Cal. Ct. App. Jul. 7, 2008)
Case details for

In re Marriage of MacIntyre

Case Details

Full title:In re the Marriage of PATRICK MacINTYRE and FIONA MacINTYRE. PATRICK…

Court:California Court of Appeals, First District, Second Division

Date published: Jul 7, 2008

Citations

No. A117664 (Cal. Ct. App. Jul. 7, 2008)