Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County No. 03D007708, Claudia Silbar, Judge.
Evan D. Marshall for Appellant Mimi L. Barker.
Peter C. Lomtevas, in pro. per., for Appellant Peter C. Lomtevas.
Law Offices of Steven E. Briggs and Steven E. Briggs for Respondent Marvin Barker.
OPINION
O’LEARY, J.
Mimi L. Barker appeals from the judgment in this dissolution proceeding which, among other things, awarded permanent custody of her daughter, Amanda, to her former husband, Marvin Barker. While this dissolution proceeding was pending, Mimi filed a federal court action against Marvin, his attorney, and a bench officer, seeking a declaration that a temporary custody order violated her civil rights. That action was dismissed by the federal court for lack of jurisdiction. On appeal, Mimi contends: (1) the permanent custody order was an abuse of discretion; (2) bias on the part of the trial court deprived her of a fair trial on custody; (3) the trial court abused its discretion by denying her a continuance when her trial attorney, Peter C. Lomtevas, appearing pro hac vice, stopped coming to trial; and (4) the trial court erred by awarding Marvin attorney fees that included the fees he incurred in defending the federal court action. We conclude the custody issues are moot because Amanda is now an adult, and the trial court did not abuse its discretion by awarding Marvin attorney fees for the federal court action.
We follow the practice in family law cases of referring to the parties by their first names and no disrespect is intended. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1.)
Lomtevas separately appeals the judgment contending the imposition of $25,000 in sanctions against him under Code of Civil Procedure section 128.7 was an abuse of discretion. He also appeals a postjudgment order finding him in contempt of court, and issuing a bench warrant for his arrest, after he repeatedly defied court orders that he appear in court. His contentions are without merit. We affirm the judgment and postjudgment order.
I
FACTS AND PROCEDURE
Marvin and Mimi’s almost 30-year marriage ended in 2003. When the dissolution proceeding was originally filed in August 2003, Mimi was represented by Attorney Curtis Barnes, Jr. In October 2003, Barnes substituted out and Attorney Judi A. Curtin became her counsel. Marvin was initially represented by another attorney, but from March 2004, he has been represented throughout by Attorney Steven E. Briggs.
Marvin and Mimi had three children, only one of whom was still a minor when the dissolution proceeding was filed—Amanda, born in March 1990. Included in the property to be disposed of in the dissolution was the family residence located on Via Genoa, in Newport Beach (the Newport Property), and a duplex located in San Jose (the San Jose Property).
As we shall explain further, the custody issues that have driven this litigation are moot as Amanda is now an adult. Accordingly, our recitation of the facts will focus on the procedural facts that led to the sanctions and attorney fees awards.
In January 2004, Marvin and Mimi stipulated to an order for joint legal and physical custody of then 14-year-old Amanda, her primary residence being with Mimi. In May 2004, they stipulated Dr. Duke Bussey would be appointed as the Evidence Code section 730 custody evaluator.
In August 2004, Attorney Curtin moved to be relieved as Mimi’s counsel due to a “complete breakdown of communication between [her] and [Mimi].” The motion was granted. In September 2004, Attorney Frank Heller substituted in as counsel for Mimi.
On September 3, 2004, Marvin filed an ex parte order to show cause (OSC) for a change in custody due to increasingly bizarre and aggressive behavior by Mimi. Amanda was fearful of her mother and did not want to see her. The application was supported by a report from Dr. Bussey explaining there were increasing levels of conflict in the family and an urgent need to alter the custody and visitation plan. Commissioner Gale P. Hickman issued a temporary order granting Marvin physical custody of Amanda and prohibiting any contact between Amanda and Mimi, until further hearing, unless recommended by Dr. Bussey and another appointed psychotherapist, Dr. Zena Polly.
A hearing was set for September 15, 2004, but continued to October. After a hearing before Judge Claudia Silbar, on October 22, 2004, Marvin and Mimi stipulated to an order that provided Mimi and Amanda could have physical contact if it was initiated by Amanda; Mimi could telephone Amanda; Amanda and Mimi would immediately start therapeutic intervention with either Dr. Laura Brodie or Dr. Patricia Iglesias (Mimi’s choice), and within one month after that therapy began, the provider would file a report making a recommendation about physical contact between Mimi and Amanda.
On November 17, 2004, Attorney Delilah Knox Rios associated in as co-counsel for Mimi. Dr. Iglesias was appointed to act as therapist, and the parties were ordered to contact her to schedule appointments. The matter was continued to January 12, 2005. On December 6, 2004, Heller withdrew as Mimi’s counsel and Attorney Cristian Peirano substituted in. In March 2005, Rios and Peirano moved to withdraw as Mimi’s counsel due to “disagree[ment] on the strategy and prosecution of the case” and Mimi’s refusal to cooperate with counsel. The request was granted.
On April 26, 2005, Attorney C. Thomas Drosman substituted in as counsel for Mimi. A pro hoc vice application by out-of-state counsel, Lomtevas, was granted and he also became one of Mimi’s counsel of record. Trial on custody and reserved issues was set for August 24, 2005.
In June, Marvin filed several motions to compel Mimi to comply with discovery requests. The court granted the motions to compel and imposed sanctions of $3,000 against Mimi. In August, the court granted a second motion to compel discovery and sanctioned Mimi $2,000.
The Federal Court Action
On July 11, 2005, Lomtevas filed a federal court action for violation of civil rights (42 U.S.C. § 1983) on Mimi’s behalf naming as defendants Commissioner Hickman, the Administrative Offices of the Courts, Marvin, Briggs, and several of the mental health experts involved in this proceeding including, Drs. Bussey, Polly, and Brodie. Mimi’s federal court complaint alleged the September 3, 2004, temporary custody order violated her constitutional parenting rights. She sought a declaration that the custody order was unconstitutional, an order for her immediate reunification with Amanda, and $1 million compensatory and $10 million punitive damages.
Mimi’s federal court complaint was accompanied by a 45-page affidavit in support of her complaint detailing the disintegration of her marriage, the circumstances of the ongoing custody battle, and the events leading up to the September 3, 2004, temporary custody order. She also submitted a declaration from a psychologist, Dr. Monty Weinstein. After detailing his expertise in family counseling, Dr. Weinstein opined as to Mimi’s superior parenting skills and criticized the methodology employed by the mental health experts who had supported Marvin being granted temporary custody. After excoriating Marvin, Briggs, the mental health professionals, and the bench officers, Dr. Weinstein claimed Briggs had “orchestrat[ed] a complicitous and conspiratorial team of people” who acted so as to deprive Mimi of a relationship with Amanda. Dr. Weinstein stated that “[a]fter consulting with [Lomtevas], it has come to my knowledge that not only does . . . Briggs have a relationship with Judge Silbar . . . but [Briggs also] had a business relationship with Commissioner Hickman who, in reality, took Amanda away from [Mimi].”
On November 9, 2005, the federal court granted a motion to dismiss Mimi’s federal court action and judgment was entered against her. The federal court concluded the domestic relations exception to federal jurisdiction applied. Mimi’s complaint was “‘at its core a child custody dispute[,]’” and “[a]ll of [Mimi’s] claims take issue with the state court’s decision temporarily to award custody of [Amanda] to [Marvin] on September 3, 2004.” The federal court, however, denied a request for sanctions against Mimi and Lomtevas.
State Court Custody Trial Begins
While the federal action was pending, trial on custody and other reserved issues (property and support) was scheduled for August 24, 2005. On August 3, 2005, Lomtevas filed an OSC to have Dr. Bussey removed as the Evidence Code section 730 custody evaluator and have him replaced with Dr. Weinstein.
At trial, Mimi called Dr. Weinstein as her first witness, and Marvin was allowed to voir dire on his qualifications. During voir dire, Dr. Weinstein testified he and Lomtevas were affiliated with a group called the National Association for Fathers, and were part of the “Delta Team” for litigating custody cases nationwide. On his Web site, Dr. Weinstein maintained a list of “litigation points[,]” which included statements such as most custody reports “‘are done by court-appointed psychologists who are stooges of the court[,]’” and “‘most judges do not have the children’s best interests at heart[.]’” Briggs questioned Dr. Weinstein about the statements he made in his federal court affidavit concerning a business relationship between Briggs and Commissioner Hickman and other alleged improper relationships between Briggs and Judge Silbar. Dr. Weinstein stated he based his statements on information in a private investigator’s report commissioned by Lomtevas indicating both Briggs and Commissioner Hickman were associated with “B.A. Mortgage” and statements made to him by Lomtevas, Mimi, and Mimi’s prior attorneys that only “‘good old boys’” would be listened to in Orange County. Dr. Weinstein confirmed he had discussed all the information in his federal court declaration with Lomtevas.
During Dr. Weinstein’s questioning, the trial court interjected that there was never a request by Mimi that she recuse herself, there were no recusal motions pending, and she denied any sort of relationship with Briggs outside the courtroom. Briggs similarly stated for the record he had no relationship with either Commissioner Hickman or Judge Silbar outside the courtroom. Eventually, Dr. Weinstein was permitted to testify regarding his high opinion of Mimi as a mother and his contempt for Dr. Bussey’s custody evaluation report.
After two days of testimony, the trial was continued to October 18. When Lomtevas urged the court to replace Dr. Bussey with Dr. Weinstein as custody evaluator, the trial court commented it would not believe anything Dr. Weinstein had to say—“I think the man lacks credibility.”
On September 16, 2005, Lomtevas filed on Mimi’s behalf an OSC regarding recusal of the court. The motion was accompanied by an 18-page declaration from Lomtevas who asserted his opinion that the trial court was biased against Mimi as evidenced by the court’s favorable attitude toward Briggs and various evidentiary rulings the court made that Lomtevas believed were unfair. He specifically objected to Judge Silbar’s comment that she found Dr. Weinstein to be lacking credibility based upon his declaration filed in the federal court action. Lomtevas stated Dr. Weinstein was simply affirming that “[Judge Silbar] and [Briggs] ‘were in bed together,” and that Commissioner Hickman and [Briggs] had a business dealing together.” Lomtevas explained he had hired a private investigator, whose report demonstrated a business relationship between Commissioner Hickman and Briggs. Accordingly, Lomtevas claimed, Dr. Weinstein’s declaration was completely consistent with the private investigator’s report and the opinion of Mimi’s prior legal counsel.
The recusal motion was also supported by a 16-page declaration from Dr. Weinstein accompanied by over 250 pages of exhibits. Dr. Weinstein expounded at length upon his credentials in family therapy and chastised the trial court for suggesting he in any way lacked credibility. He stated his declaration in the federal court action was improperly considered by the court in assessing his credibility because the private investigator’s report demonstrated a business relationship between Briggs and Commissioner Hickman. He further declared he had learned from Mimi’s counsel in this case that Briggs was the leader of a “‘good ol’ boys club’ [that is] very connected with Judge Silbar.” Dr. Weinstein declared that in these proceedings “the [c]ourt did everything short of sitting in his lap helping . . . Briggs co-counsel the case.” Attached to Dr. Weinstein’s declaration was a private investigator’s report that included information on Marvin, Briggs, and Commissioner Hickman, listing under business associations for both Marvin and Commissioner Hickman “B.A. Mortgage” (it was later explained that “B.A.” is short for Bank of America—in other words at some time both had loans with Bank of America).
In the recusal motion, Lomtevas also asserted his basis for claiming there was a business relationship between Briggs and Commission Hickman. Lomtevas had found in the public records a grant deed recorded in 1995 for someone named “Steven R. Briggs[,]” who Lomtevas asserted must be Briggs’s son, that was notarized by Commissioner Hickman’s wife (who was a notary public). Lomtevas claimed this proved there was a business relationship between the Hickman family and the Briggs family. There is no evidence attorney Briggs has a son named Steven R. Briggs.
Marvin filed an opposition to the recusal motion and a notice he intended to seek sanctions against Mimi and Lomtevas. Briggs filed a declaration denying any business or financial relationship with Commissioner Hickman, or having any relationship with Judge Silbar outside of the courtroom.
Mimi responded with another 23-page declaration from Lomtevas in which he (on the one hand) denied having ever claimed there was a business relationship between Briggs and Commissioner Hickman, but, on the other hand, reasserting that the 1995 grant deed notarized by Commissioner Hickman’s wife proved there was a business relationship. Dr. Weinstein filed another 34-page declaration repeating allegations from his first declaration.
On October 17, 2005, the court issued an order striking Mimi’s recusal motion. The motion was untimely, Mimi had shown no improper conflict of interest, and had not shown any of the court’s rulings demonstrated bias. Mimi simply disagreed with the court’s rulings.
Trial on custody matters resumed on October 18. On October 19, Mimi recalled Dr. Weinstein. On cross-examination by Briggs, Dr. Weinstein again asserted there had been improper conduct by Judge Silbar in the course of trial and there was a business relationship between Commissioner Hickman and Briggs. The trial court indicated it found Dr. Weinstein lacking in credibility and was no longer willing to listen to him testify about claims for which he had no evidentiary basis.
After the court denied several of Mimi’s pending motions (including the one asking the court to appoint Dr. Weinstein as custody evaluator), Lomtevas made a motion for mistrial on the ground the court was unjustifiably disregarding Dr. Weinstein’s superior “psychological expertise,” and had unfairly permitted Briggs and Dr. Bussey to attack Dr. Weinstein’s credibility. The request was denied. Both sides rested and the court continued the matter to January 24, 2006, for closing argument on the custody issues and trial on the remaining financial issues. The court ordered all current custody orders remain in effect.
On October 31, 2005, Drosman (Lomtevas’s sponsoring counsel) withdrew as counsel and Attorney David Boros substituted in as an attorney of record for Mimi and as Lomtevas’s sponsor. On November 18, Marvin filed a motion for sanctions against Lomtevas and Drosman under Code of Civil Procedure section 128.7, based on the recusal motion and Lomtevas’s ongoing conduct in this proceeding and the federal action of asserting improper relationships between attorney Briggs, Commissioner Hickman, and Judge Silbar. In his opposing declaration, Lomtevas again claimed he and Dr. Weinstein had a sound factual basis for their assertions. On January 3, 2006, Marvin filed a request that he be allowed to call Lomtevas as a witness and question him about the contents of that declaration.
On January 24, 2006, Lomtevas did not appear at the continued trial. He instead attempted to fax file a motion to be relieved as counsel for Mimi. Lomtevas stated he should be allowed to withdraw because he and Mimi “disagree on the tactics and the prosecution of this case[,]” Mimi was being “uncooperative with counsel[,]” and Lomtevas had told Mimi to find a new attorney, but she had not.
Attorney Frances Diaz appeared on January 24 and attempted to file a notice stating she was associating in as counsel for Mimi, but only for the special purpose of appearing on January 24. Diaz advised the court she was only appearing to argue Lomtevas’s motion to withdraw, asserting Lomtevas now had a conflict of interest with Mimi because of Marvin’s request for sanctions. When the court pointed out they were in the middle of trial, Diaz suggested Lomtevas could file a written closing argument as to the custody issues and because of “serious flaws” in Marvin’s responses to Mimi’s discovery requests on the financial issues, Mimi was not willing to go forward yet on the financial issues. The court noted there was no motion to compel discovery pending and they were already in the middle of trial.
Diaz asked the court to continue the trial because Mimi was now without adequate counsel; the court denied her request. The court denied Lomtevas’s motion to withdraw as counsel and ordered him and Boros to appear in court the next day, January 25. Diaz signed and filed a notice associating in as Mimi’s counsel for all purposes.
On January 26, Lomtevas did not appear in court as ordered. Diaz, Boros, and Drosman (Lomtevas’s prior sponsoring counsel) appeared. Diaz asked for a stay of the proceedings, which was denied. Trial on the financial issues went forward. After the court admonished Diaz several times about her insolent demeanor and behavior in the courtroom, Diaz withdrew as counsel and left, leaving Boros as Mimi’s only attorney of record present in the courtroom.
Boros and the court then discussed the situation. Boros acknowledged the only significant remaining trial issue concerned disposition of the family residence and he felt “we are 90 percent of the way in on that issue. That I’m not worried about.” The court posited that perhaps with a few days continuance Mimi could figure out who would now represent her. The matter was continued to the following morning, and the court set a hearing on an OSC regarding contempt for Lomtevas on March 3, 2006.
On January 26, Boros was present in the courtroom, but Mimi was not. Boros explained to the court Mimi had discharged him and wanted to represent herself in propria persona. Boros explained he met with Mimi and tried to explain her options, but she refused to talk to him. Boros tried to file substitutions of attorney for himself and Lomtevas, which the court denied. In the meantime, Lomtevas had tried to fax file another (unserved) motion to disqualify Judge Silbar. Briggs suggested Mimi and Lomtevas were attempting to manipulate the court.
Mimi eventually showed up in court later in the day on January 26. When the court questioned her about her actions and intentions, Mimi said she wanted to proceed in propria persona so she could file another motion to disqualify the court. She argued Lomtevas had a conflict of interest by virtue of Marvin’s request to question Lomtevas about his declaration. Mimi advised the court she was not ready to go forward on the financial issues and she requested a continuance. The court commented it was clear Mimi, Lomtevas, and Diaz were all engaged “in some manipulation, attempting to delay this matter even further . . . .”
The court then explained to Mimi that even if she substituted herself in propria persona, the court would not continue the trial. Mimi then proceeded into a rant accusing Briggs of sending Marvin’s girlfriend off to hide “with his friendly [Commissioner] Hickman” and she began yelling at Briggs in the courtroom. She made further accusatory comments about Marvin, and the court cautioned Mimi to focus on the issue at hand (i.e., whether Mimi’s trial counsel should be permitted to withdraw). The court commented on the fact Mimi had gone through seven attorneys so far, and the case had been in trial for several months, they were now on “day six or seven of a trial on a 2003 matter” and the ramifications of Mimi’s current actions were “another thousands upon thousands of dollars for both sides. [¶] It’s just a travesty for this court to sit and watch hundreds of thousands of dollars continue to be spent to resolve a resolvable case . . . . [¶] The money spent on this case could have put [your] three children through college[.]”
Boros again advised the court he “could be effective counsel” for Mimi and was prepared to continue, but Mimi had discharged him. The court refused to permit the substitution on attorneys and after a short break Mimi left the courtroom, advising the court she would not participate further. The court had some additional discussions with Boros satisfying itself he could ensure the proceedings were fair and equitable and he could make obvious objections on Mimi’s behalf. The court observed it did not want to do anything unfair to Mimi, but “this could go on for years if we allowed it to. Years, absolutely years.” The court further observed it was not taking sides on the legal issues involved in the dissolution, but it simply could not “allow one party to delay and delay and delay and cost and cost . . . . [¶] I’ve given [Mimi ] leave to substitute in counsel on numerous occasions, but it’s just gotten to the point that it’s become unreasonable, impractical; and if the court continued to allow [her] to take control of these proceedings, you’d have a mockery of the entire system. I can’t have that.” Trial ended for the day and was continued to January 30.
On January 30, Mimi and Boros both appeared. Boros advised the court Mimi had directed him to not take any actions on her behalf. Mimi again asked for a continuance of the trial, which was denied. Evidence was taken regarding financial issues. When trial resumed for the afternoon session, Boros was present, Mimi was not. Boros explained Mimi had “elected to not return to court” and had instructed him “not to proceed on her behalf” although he remained in court for the remainder of the day. Presentation of financial evidence continued, Marvin’s counsel gave closing argument and the court ruled.
The Judgment
In its January 30 order (and the subsequently entered judgment), the court found the Newport Beach residence to be community property, valued at $2,500,000, with total liens of $881,715. Mimi was given the option to buy Marvin out, but if she did not do so by March 19, 2006, the property was to be sold. The court found the San Jose property to be community property and ordered it sold. The court made other distributions of property and ordered Marvin to pay Mimi $3,360 a month in spousal support. The court granted Marvin sole legal and physical custody of Amanda. The matter was continued to February 1 for hearing on attorney fees and sanctions.
On February 1, Mimi did not appear, but attorney Boros was again present. The court imposed sanctions against Mimi, Drosman, and Lomtevas under Code of Civil Procedure section 128.7 and Family Code section and 271. As to sanctions, the court found under Code of Civil Procedure section 128.7 Mimi and her attorneys had repeatedly filed documents for an improper purpose, that were frivolous, and that had no basis in fact or law. It found under Family Code section 271 Mimi and her counsel had frustrated any reasonable possibility of settlement, unreasonably delayed the proceedings, refused to engage in meaningful settlement discussions, and incurred costs and fees that were “exorbitantly unnecessary.” Lomtevas was ordered to pay a sanction of $25,000 to the clerk of the court. Mimi, Lomtevas, and Drosman were ordered to pay a sanction of $2,025 (jointly and severally) to Marvin. (The sanction payable by Drosman was later reduced to $999.) Earlier discovery sanctions awarded against Mimi of $5,000 were ordered paid from her share of the equity from the sale of either the Newport Beach Property or the San Jose Property.
Mimi was also ordered to pay Marvin attorney fees of $120,000 under Family Code sections 270, 271, 2030, and 2032, which included the fees incurred by Marvin in defending the federal court case. The court found the federal case filed by Mimi was a related matter, and court found Mimi had the ability to pay Marvin’s attorney fees as she had over $1 million in equity from her share of community property. Marvin’s and his counsel’s conduct had been completely reasonable. The court’s order detailed the unreasonable conduct by Mimi and Lomtevas that resulted in Marvin incurring attorney fees of $187,000 in a marital dissolution matter the court believed should not have cost more than $30,000 to resolve. The order stated the court was not sanctioning Mimi or her attorney for filing a recusal motion and denied Marvin his attorney fees associated with the recusal motion.
Lomtevas did not appear as ordered for the OSC regarding contempt held on March 3, a bench warrant was issued for his failure to appear, and bail was set at $50,000. Judgment was entered March 23, 2006, and Mimi and Lomtevas appeal the judgment and the March 3 order finding Lomtevas in contempt.
II
MIMI’S APPEAL
A. Custody Issues are Moot
Mimi challenges the custody order giving Marvin sole legal and physical custody of Amanda, and leaving it to Amanda to decide if and when she wants to see Mimi. We conclude all custody issues are moot.
Amanda, born March 20, 1990, turned 18 during the pendency of this appeal (i.e., on March 20, 2008). Thus, the family law court’s jurisdiction over the custody and visitation of Amanda has ended. (Fam. Code, §§ 3022 [the court may “make an order for the custody of a child during minority”], 6500 [a minor is “under 18 years of age[]”]; see also In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594 [“Visitation is a form of custody[,]” and the court lacked authority to issue a visitation order regarding a child after he had reached the age of majority].) Consequently, the court’s order regarding Amanda is no longer enforceable, and all Mimi’s issues raised regarding custody and visitation as to Amanda are moot. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 648, pp. 676-677 [“Where the order is rendered ineffective by . . . emancipation of a child, an appeal from it will be dismissed as moot[]”].)
“It is settled that ‘the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]’” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) We recognize this court has the discretion to consider moot issues which may “‘pose[ ] an issue of broad public interest that is likely to recur’” (People v. McCoy (1992) 9 Cal.App.4th 1578, 1581, fn. 3), but such is not the case here.
B. Attorney Abandonment/Alleged Judicial Bias: Mimi Has Failed to Carry Her Appellate Burden to Show Prejudice
Mimi raises two issues concerning the conduct of the proceedings below. First, she contends the trial court abused its discretion by denying her a continuance of the trial when she was abandoned in the middle of trial by her counsel, Lomtevas. Mimi also complains the trial court was biased against her, particularly with regard to the custody and visitation issues, and thus she was not afforded a fair trial.
We need not belabor either point. We will not reverse a judgment in the absence of an affirmative showing there was a miscarriage of justice. (Cal. Const., art. VI, § 13; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) It is the appellant’s burden to demonstrate she was prejudiced by the claimed error. The only prejudice Mimi suggests is the court’s custody and visitation order. She does not challenge the judgment as it pertains to property disposition or spousal support, other than to suggest those parts of the judgment may have been somehow improperly influenced by alleged judicial bias.
As to Mimi’s claim of judicial bias, we have reviewed the record and do not find any support for Mimi’s complaints. Indeed, the record indicates the trial court endeavored to give Mimi every benefit of the doubt despite the odious conduct of Mimi and her attorney, Lomtevas. As the trial judge aptly surmised in denying Mimi’s recusal motion brought in the middle of trial, Mimi’s claims were based on her disagreements with the court’s rulings or how the court viewed the evidence. “‘[W]hen the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him in the trial of the action. It is his duty to consider and pass upon the evidence produced before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose evidence outweighs that of the opposing party. The opinion thus formed, being the result of a judicial hearing, does not amount to [improper] bias and prejudice . . . .’ [Citation.]” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.)
We also note Mimi’s frustration appears to be that the trial judge successfully resisted Mimi’s and her counsel’s blatant efforts at wresting control of the proceedings away from the court. But, “‘[I]t is “the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”’ [Citation.]” (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1006-1007, italics omitted.) The trial judge cannot be faulted for not permitting Mimi and Lomtevas to run the show—and the “strained relations” that might have resulted are not evidence of bias or prejudice. (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724 .)
We also cannot fault the court for not granting Mimi a continuance when Lomtevas failed to appear for the continued trial. Granting or denying a request for continuance of trial rests within the trial court’s discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249; Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) The court specifically found Mimi was complicit with Lomtevas in an attempt to further delay the trial. Furthermore, Mimi had counsel—Boros—who advised the court he was ready to proceed on Mimi’s behalf.
C. Attorney Fees
Mimi complains the trial court abused its discretion by awarding attorney fees to Marvin based upon his defense costs in the federal court action. She asserts the federal court action was not related to the dissolution action, and because Marvin has higher earnings than Mimi, an award of attorney fees to him does not further the goals of achieving economic parity between spouses. We reject her contentions.
“Under [Family Code] section 2030, subdivision (a), ‘the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights, order any party . . . to pay the amount reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding.’ The purpose of such an award is to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy. [Citations.] [¶] The court may award attorney fees under [Family Code] section 2030 ‘where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.’ ([Family Code] § 2032, subd. (a).) [¶] ‘In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [Family Code] [s]ection 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.’ ([Family Code] § 2032, subd. (b).)” (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629 (Duncan).)
“‘[A] motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. [Citations.] In the absence of a clear showing of abuse, its determination will not be disturbed on appeal.’ [Citation.]” (Duncan, supra, 90 Cal.App.4th at p. 630.) Mimi has not shown the trial court abused its discretion by awarding Marvin his attorney fees for the federal court action.
Family Code sections 2032 and 2030 “plainly allows the family law court in a dissolution action to make an award of attorney fees pending completion of the family litigation or ‘any proceeding related thereto.’” (Askew v. Askew (1994) 22 Cal.App.4th 942, 964 (Askew).) “‘[R]elatedness’ is normally a factual question for the trial court [citation] . . . .” (Ibid.)
Mimi’s assertion the federal court case was not related is absurd. Indeed, the raison d'etre of the federal court action was to obtain a federal court order reversing the September 4, 2004, temporary custody order. As the federal court stated in its order dismissing Mimi’s action, “All of [Mimi’s] claims take issue with the state court’s decision temporarily to award custody of [Amanda] to [Marvin] on September 3, 2004.” (Italics added.)
In Askew, supra, 22 Cal.App.4th 942, husband in a pending dissolution proceeding filed a separate civil fraud action against wife alleging not only misrepresentations by wife in the inception of the marriage (e.g., that she loved him), but misrepresentations about how certain property would be characterized. This court held the family law court erred when it refused to award wife any attorney fees under Family Code section 2030 for her defense costs in the fraud action. The court reasoned that even if husband had filed his fraud action in good faith, it was entirely predicated upon matters that were within the province of the family court in the dissolution action. “[T]he fact remains the filing of the civil action sought to preempt the family law court from determining issues it already had jurisdiction to determine. Filing a separate civil action was duplicative of the family law action and wasteful of the parties’ resources.” (Id. at p. 965.) “The expense associated with the civil action was completely avoidable. [Husband] should have waited for the family court to decide the issue first.” (Ibid.)
Furthermore, the fact that Marvin has salary earnings which Mimi lacks, does not preclude the award of fees. In fashioning an award “‘“a trial court must consider the respective incomes and needs of the parties, including all evidence concerning income, assets and abilities, in exercising its discretion to award attorney’s fees. [Citations.]” [Citation.]’” (In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 371, italics added.) The trial court found Mimi had over $1 million in equity in her share of the community property. She does not challenge that finding. Furthermore, as the trial court concluded, Marvin has been put to completely unnecessary legal expense as a result of Mimi’s actions. We simply cannot say the attorney fees award constitutes an abuse of discretion.
III
LOMTEVAS’S APPEAL
Lomtevas separately appeals the judgment insofar as it imposes $25,000 in sanctions against him payable to the court. He also purports to appeal the March 3, 2006, order of contempt and issuance of a bench warrant for his failure to appear.
Lomtevas’s actions in these proceedings are well detailed above, and we need not reiterate them here. Besides his obstreperous litigation tactics, which included filing a federal court action to interfere with the state court custody proceeding, Lomtevas deliberately failed to appear on January 24, 2006, the continued trial date and instead on that day tried to withdraw as counsel for Mimi. When the court denied the motion and ordered Lomtevas to appear in court the next day, he again refused to appear. The court set a contempt hearing for March 3, 2006, and again ordered Lomtevas to appear—he defied that order as well.
Lomtevas’s obnoxious conduct continues on appeal. He requested oral argument, but then filed a document entitled “Application to Appear by Telephone.” In it, he demanded oral argument, but said he could not appear because of the outstanding arrest warrant—he did not want to come back to the jurisdiction and risk arrest. He also stated he feared for his safety in this court because he believed “[t]here is a criminal ring in operation in and around the Superior Court from which the orders on appeal arose.” Lomtevas stated he refused to appear in any court in this jurisdiction and will not do so unless he can obtain a license to carry a firearm.
When Lomtevas’s request to appear for oral argument by telephone was denied, he filed a document entitled “Application for The Court’s Disqualification.” In it, he asserted that by denying him the “right” to appear for oral argument by telephone, this court is complicit in the “conspiracy” he believes surrounds the trial court. That request was denied as well. Lomtevas did not appear for oral argument.
We note at the outset there is a sound basis for us simply dismissing Lomtevas’s appeal under the disentitlement doctrine. As explained in TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379-380: “It is well settled that this court has the inherent power to dismiss an appeal by any party who has refused to comply with orders of the trial court. [Citations.] . . . ‘A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]’ No judgment of contempt is required as a prerequisite to our exercising the power to dismiss. [Citations.] The power to dismiss an appeal for refusal to comply with a trial court order has been exercised in a variety of circumstances, including: where a parent had taken and kept children out of the state in violation of a divorce decree [citations]; where a husband had failed to pay alimony as ordered in an interlocutory judgment of divorce [citation]; where a party in a civil action was a fugitive from justice and in contempt of the superior court for failure to appear on criminal charges after being released on bail [citations]; and where defendants willfully failed to comply with trial court orders regarding a receivership. [Citation.] Moreover, the inherent power to dismiss an appeal has been exercised in several cases where a party failed or refused to appear for a judgment debtor examination. [Citations.]”
It is completely unacceptable for Lomtevas, who sought and was granted the privilege of appearing as an attorney pro hac vice in a court of this state (Cal. Rules of Court, rule 9.40), to display such complete disrespect for the orders of the trial court, yet to seek relief from those orders from this court. However, no party has responded to Lomtevas’s opening brief (Marvin’s respondent’s brief addresses only the attorney fees payable to him by Mimi, not the sanctions imposed against Lomtevas payable to the trial court), or requested his appeal be dismissed. Accordingly, Lomtevas’s has not been put on notice that we were considering such an action (Gov. Code, § 68081). And inasmuch as his appeal may easily be resolved on its merits, we find it the more prudent course to address his arguments.
On March 20, 2008, Marvin filed a motion for sanctions against Lomtevas to include Marvin’s own attorney fees incurred in reviewing the various applications Lomtevas has filed with this court. The motion is untimely (see Cal. Rules of Court, rule 8.276(d)) and is therefore denied.
Sanctions were imposed against Lomtevas under Code of Civil Procedure section 128.7, for filing frivolous court papers. “[T]here are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. [Citation.]” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167 (Guillemin).) A lower threshold exists for imposing sanctions against an attorney under Code of Civil Procedure section 128.7 than under Code of Civil Procedure section 128.5. The conduct need only be “‘objectively unreasonable,’” no showing of subjective bad faith is required. (Guillemin, supra, 104 Cal.App.4th at p. 167.) Sanctions under Code of Civil Procedure section 128.7 may be in the form of a penalty ordered paid into the court. (Code Civ. Proc., § 128.7, subd. (d).)
A trial court’s imposition of sanctions under Code of Civil Procedure section 128.7 is reviewed under an abuse of discretion standard. (Guillemin, supra, 104 Cal.App.4th at p. 167.) Lomtevas has not shown an abuse of discretion. In imposing the penalty, the trial court found Lomtevas had filed documents for an improper purpose—to harass or cause unnecessary delay; he filed documents and declarations that were frivolous and had no basis in fact or law; and specifically, he filed declarations in the trial court and federal court containing allegations against Briggs and bench officers that had no basis in evidence.
Lomtevas argues sanctions are not supported by substantial evidence because he had evidentiary support for his contention “a conspiracy was at work in the court below.” He asserts there was evidentiary support for his and Dr. Weinstein’s factual claims there were improper relationships between Briggs and bench officers, but he cites to none. He essentially asserts the existence of a conspiracy was a reasonable assumption because the only plausible explanation for the September 4, 2004, temporary custody order was “‘relationships.’”
Lomtevas also argues the court’s order finding him in contempt is not supported by substantial evidence. He claims any attorney-client relationship with Mimi ended at the conclusion of the custody trial because only custody issues were within the scope of his retainer agreement. Thus, he argues, the court improperly ordered him to appear at the continued trial on financial issues.
Lomtevas has filed a request that we take judicial notice of his retainer agreement with Mimi. That is not the kind of document of which we may take judicial notice and his request is denied. (Evid. Code, §§ 452, subds. (b), (c), (d), 453, 459; Code Civ. Proc., § 909.)
The contention is waived for failure to provide any authority to support it. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Furthermore, the contention is preposterous. Lomtevas failed to appear on the date set for the conclusion of the custody trial and beginning of the trial on the remaining financial issues. But the record demonstrated Lomtevas conducted discovery on financial issues and filed court papers addressing these issues. Furthermore, he apparently had possession of Mimi’s financial records, which he did not return to her until after he failed to appear. At no time did Lomtevas suggest below his representation of Mimi was limited to custody. Rather, it was when faced with the prospect of being sanctioned for his litigation tactics that Lomtevas petulantly tried to withdraw as counsel in the middle of trial—first arguing Mimi was being uncooperative, then claiming he had a conflict because of Briggs’s request that he be allowed to question Lomtevas as to the contents of his declaration. Lomtevas’s motion was denied, he was ordered to appear the next day, and he again failed to appear. He was then ordered to appear for the contempt hearing, but did not. Lomtevas has offered no basis for us to interfere with the contempt finding or the issuance of the bench warrant.
IV
DISPOSITION
The judgment and postjugment order are affirmed. Respondent, Marvin Barker, is awarded his costs on appeal against Appellant, Mimi Barker.
Appellant Peter C. Lomtevas is ordered to notify the Appellate Division of the Supreme Court of the State of New York with which he is registered of the judgment and orders in this case ordering him to pay a $25,000 sanction to the clerk of the Superior Court of Orange County, holding him in contempt of court, and directing the issuance of a bench warrant. The clerk of this court is directed to forward a copy of this opinion to the State Bar of California and the Appellate Division of the Supreme Court of the State of New York.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.