Opinion
NOT TO BE PUBLISHED
Appeal from judgment and order of the Superior Court of Los Angeles County, No. GD035308, Nori Anne Walla, Commissioner.
Law Office of Mary-Lynne Fisher, Marilyn M. Smith and Mary-Lynne Fisher for Appellant Martin J. Foley.
Law Office of William R. Burkitt, William R. Burkitt; Law Offices of Gary W. Kearney and Gary W. Kearney for Appellants William R. Burkitt and Gary W. Kearney.
Law Offices of Gary W. Kearney and Gary W. Kearney for Appellant Linda Sivyer-Foley.
JOHNSON, J.
Martin Foley (Martin) appeals from two orders made in these family law proceedings: (1) an order awarding attorneys’ fees to Linda Sivyer-Foley (Linda), and (2) an order awarding Linda sanctions pursuant to Code of Civil Procedure section 128.7. Martin contends that in awarding fees, the court failed to consider the interplay between Family Code section 2030 providing for need-based fees and Family Code section 271 providing for fees as sanctions in awarding fees. He also contends the trial court failed to correctly apply the provisions of Code of Civil Procedure section 128.7 and failed to make proper findings to support its order in awarding sanctions to Linda. We affirm the judgment and order.
We refer to the parties by their first names in order to avoid confusion.
Linda’s two attorneys, Gary W. Kearney and William R. Burkitt (also referred to as attorney appellants) appeal the attorneys’ fees awards to them, contending the trial court erred in ordering an offset against each of their awards on account of an equalizing payment Linda was ordered to make to Martin. We dismiss the appeal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Martin and Linda were married on March 21, 1986 and separated November 7, 2003. Martin and Linda had a daughter, Michelle, born February 8, 1988. During the marriage, Linda worked at TWA, retired and became a homemaker for a time, and also worked at interior design and renovating houses for resale. During most of the marriage, Martin was a partner at Sonnenschein, Nath and Rosenthal, a position held at the time of separation.
Linda commenced these dissolution proceedings on January 20, 2004, and on March 9, 2004, the parties entered into a child and spousal support order.
A contested trial on property and support issues took place between January 8, 2007 and October 19, 2007. The court issued its memorandum of decision on April 18 2008, and entered Judgment on December 23, 2008. In the judgment, the court ordered Linda to pay Martin an equalizing payment of $20,165.82 (Equalizing Payment), and reserved distribution of $92,000 awarded to Martin pending later hearings on the award of attorneys’ fees. The court awarded Linda $9,000 per month spousal support, plus 33.6 percent of his income over the base rate of $336,000 per year, retroactive to January 1, 2007.
The Equalizing Payment is discussed post in greater detail in connection with the cross-appeal.
On October 21, 2010, we issued our opinion finding that Martin’s year-end distribution from his law firm for the year 2003, although he received it post-separation in 2004, was community property to the extent the distribution was attributable to his employment during the marriage. On remand, we ordered the trial court to recharacterize the property in accordance with an apportionment between community and separate funds. (In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 527–529.)
In addition, in the unpublished portion of the opinion, we ordered the trial court to recalculate Martin’s contributions to his firm’s defined contribution in 2003, Martin’s reimbursement for payment of 2003 income taxes, and Martin’s reimbursement for community debt to the extent they were made from that portion of his 2003 year-end distribution that we had recharacterized as partially consisting of community property in the published portion of our opinion. (In re Marriage of Foley (October 21, 2010, B214462 [nonpub. opn.], pp. 9–10).) We also concluded Linda had failed to establish error with respect to Martin’s reimbursement for payment of unreimbursed medical expenses for the couple’s minor child, in calculating his overpayment of spousal support, and in awarding him reimbursement for overpayment of spousal support. (In re Marriage of Foley (October 21, 2010, B214462 [nonpub. opn.], pp. 12–15).)
The parties stipulated to bifurcate the issue of attorneys’ fees. In its judgment entered December 23, 2008, the court reserved the issues of the allocation of attorneys’ fees and costs, whether Martin should pay additional fees to Linda pursuant to Family Code section 2030, and whether sanctions should be assessed against her pursuant to Family Code section 271.
Linda was represented by William Burkitt from December 27, 2002 to October 2, 2006 and Gary W. Kearney after October 10, 2006.
DISCUSSION
I. ATTORNEYS’ FEES.
Martin contends the trial court failed to make reasonableness findings with respect to the need-based fees it awarded to Linda. In particular, he contends that the trial court rewarded Linda’s pretrial tactics and rejection of a reasonable settlement offer which resulted in the unwarranted increase in her fees. Furthermore, he argues sanctions pursuant to Family Code section 271 may be imposed for conduct causing the cost of the litigation to greatly increase.
All statutory references herein, unless otherwise noted, are to the Family Code.
A. Factual Background.
On October 5, 2006, Linda made a motion for attorneys’ fees and costs in the sum of $134,413. Her attorney Burkitt’s declaration stated that his total fees incurred to date were $128,871, including $5,542.00 in costs. To date, Burkitt had received $98,198.67 in payment of fees and costs, leaving a balance of $36,213.91. Martin opposed the request, contending his financial situation had not increased his ability to pay Linda’s fees and costs. Martin argued that a substantial portion of Linda’s fees had been incurred as a result of her refusal to settle the matter. At the hearing November 8, 2006, the court trailed the motion until the time of trial.
Burkitt renewed the motion in December 2008, after learning trial of the matter had been completed.
On January 4, 2007, just prior to trial, Martin moved pursuant to Family Code section 271 for sanctions based upon Linda’s continuing refusal to settle the matter. To date, Martin had paid $117,443.36 in fees and costs.
On December 17, 2008, Burkitt renewed his motion for fees. On December 18, 2008, the court scheduled briefing and set the matter for hearing December 23, 2008, at which time it continued the matter to January 30, 2009.
On January 16, 2009, Martin filed his opening brief on the bifurcated issue of attorneys’ fees. Martin calculated that his total fees and costs during the proceedings had been $245,889.56 ($8,998.39 in costs), and he was owed $133,941.87 from Linda in fees.
Martin contended the parties have relatively equal need and ability to pay after consideration of payments of spousal support, prior distribution of community funds, use of separate funds, and offset against the Equalizing Payment. According to Martin, Linda had not paid her own fees when she had the ability to do so: she had received $614,452 in support for the period 2004 through 2008. Further, she had the use of the family residence from November 2003 to October 2004; received $80,000 from the liquidation of an IRA in September; she received $240,000 as a predistribution of community funds on account of the sale of the family home; and realized $319,000 in profit from the sale of a residence she sold in 2007. Linda had accumulated $228,420 on consumer debt and tax obligations post-separation, while Martin had only $20,000 in liquid assets. From Martin’s income of $22,916 from his partnership draw, $9,000 was paid to Linda for support, and $8,614 went to pay for Martin’s replacement housing.
Furthermore, Martin argued Linda’s fees were not reasonable because they were incurred in pursuit of an attempt to place Martin’s year-end distributions in trust; an ex parte application to vacate the order for sale of the family residence; two OSCs re release of the remaining funds held in trust from the sale of the family home; and her unnoticed ex parte application to garnish Martin’s wages for spousal support.
At the same time, Martin also sought sanctions pursuant to Family Code section 271 based on Linda’s continuing refusal, since the filing of the dissolution petition on January 20, 2004, to respond to reasonable settlement proposals or make reasonable counterproposals. He contended that he had prevailed at trial on numerous issues, including:
(1) characterization of his law firm distribution as his separate property (a ruling we reversed in Foley I). Martin had offered to compromise this issue by offering to ratably apportion his distributions throughout the year;
(2) the value of the community interest in his law practice was valued at $134,000. Martin had offered to settle this issue for a higher value than that ultimately found by the court;
(3) the characterization of his 2003 retirement account distributions of $106,000 as separate property (a ruling we remanded in Foley I for recalculation in light of our ruling on the characterization of his 2003 year-end law firm distribution). Martin had offered to treat the contributions as if they had been made ratably all year; and
(4) other issues, including the value of community household goods; rental income from use of family home as a film set; request for reimbursement of minor child’s expenses; Linda’s request for reimbursement for expenses of sale associated with the sale of the family home; and Martin’s requests for reimbursement for overpayment of child support and spousal support (the latter issues we remanded in light of Foley I), tax payments, community debt payments, and separate property contributed to community residence.
In sum, Martin contended he offered to waive claims on which he prevailed at trial in the total sum of $271,442.35, but due to Linda’s unreasonable refusal to settle these clams, he incurred an additional $125,000 in attorneys’ fees. He requested that Linda be ordered to pay him $133,941.87 towards his fees and costs incurred subsequent to January 2007, when he initially sought section 271 sanctions due to Linda’s failure to compromise on numerous issues.
With respect to the settlement negotiations, Martin’s declaration stated that he had attempted, commencing in August 2006, to settle property and support issues with Linda. Negotiations continued through the fall of 2006, and in January 2007, the parties exchanged written settlement proposals. Linda’s final offer consisted of a cash payment of $125,000 plus $6,000 per month support (to be applied against 29 percent of Martin’s gross income), which Martin contended amounted to $13,300 per month in spousal support. However, Martin asserted Linda’s refusal to settle resulted in a net loss to her of $271,442.35.
Martin’s attorney Mary-Lynne Fisher submitted a declaration stating that she was a certified specialist in family law, and her hourly rate had ranged from $325 to $385 an hour during the proceedings. Martin’s fees during the period January 21, 2004 through December 26, 2008 totaled $245,889.56, of which $8,930.32 (plus $68.07 in late fees) was for costs. Prior to trial in the matter and after settlement negotiations, Martin’s fees totaled $120,405.44, after trial, they had risen to a total of $186,155. After posttrial briefing, Martin’s total fees had risen to $214,392; by the end of 2008, his fees totaled $236,891. In Fisher’s opinion, Linda’s conduct during the proceedings was unreasonable, including her ex parte application to seize Martin’s 2003 year end distribution, a motion to quash a subpoena, deficient discovery, an OSC Martin was required to file concerning sale of the family residence, numerous additional discovery, and depositions, resulting in a total of $133,941.87 in section 271 fees that Linda should be ordered to pay Martin.
Fisher’s associate Marilyn M. Smith submitted a declaration detailing the alleged difficulties in obtaining discovery from Linda.
Linda submitted a request for attorneys’ fees pursuant to section 2030. The Declaration of Gary Kearney (her second attorney) stated he was a certified family law specialist and the hourly rate he charged Linda was $350 per hour. Linda’s total fees for the period October 2006 to January 2009 were $78,715, minus a payment of $19,250, for a balance of $62,352.49. In addition, Burkitt’s fees for the period through October 2006 totaled $134,413, of which $98,198.67 had been paid, leaving a balance of $36,214.33.
According to Kearney, Linda only refused to settle three issues: (1) spousal support, (2) Martin’s refusal to contribute attorneys’ fees to Burkitt, and (3) Martin’s previous wife’s life insurance. After 12 days of trial, Linda contended she received a better result because she got more spousal support and a “greater likelihood of [Martin] having to contribute to Mr. Burkitt’s fees.” Linda’s income as of January 2009 was $1000 per month and her liabilities exceeded her assets by $200,000, and she thus had no ability to pay the balance of fees due her attorneys. On the other hand, Martin’s average annual income was $640,000. Kearney argued that Martin’s income was 6.8 times higher than Linda’s and thus he should pay 85 percent of the combined fees, for a total contribution to Linda of $146,800.00.
Burkitt’s declaration stated that he was also a family law specialist, he was discharged during the representation and was thus seeking his fees pursuant to In re Marriage of Borson (1974) 37 Cal.App.3d 632. Burkitt had incurred total fees and costs of $134,412.58, with Linda paying $98,198.67, leaving a balance due of $36,213.91. Based on Linda’s inability to pay his fees, Burkitt sought payment from Martin under Family Code section 2030.
In response, Martin argued that in addition to Linda’s ability to pay, the court should consider the opportunities to improve her condition that Linda had failed to take. These included purchasing a franchise restaurant business (which Martin had offered to help her with), profits in the amount of $319,910.62 from the sale of her separate property residence which Linda reinvested in additional property in Mexico instead of a revenue-generating business.
Linda argued that Martin was not entitled to fees as sanctions for her conduct postsettlement because she did not act reprehensibly, and further there was no authority for sanctioning her attorney, as well as her, for any alleged misconduct. Linda’s declaration in support stated that initially she and Martin had tried to settle their issues, but after watching Martin’s attorneys “bicker” and his hostility towards Burkitt, she decided a “mediator” type attorney would better further her claims, and hired Kearney to replace Burkitt. Linda stated she had been making approximately $64,000 per year while Martin earned between $600,000 to $729,000 per year. Linda also countered that the $319,000 in proceeds from the sale of a residence was used to purchase and remodel a new residence leaving her without funds to purchase a restaurant franchise, and further, Martin’s settlement offer regarding the value of his law practice was not reasonable based the appraiser’s valuation.
On March 25, 2009, the court entered its memorandum of decision finding that Linda’s failure to reach a global settlement prior to trial and her diminished recovery after trial did not require the court to find her attorneys’ fees were unreasonable. The court stated: “In their settlement negotiations, [Linda] and [Martin] differed, significantly, with regard to the amount [Martin] would pay to [Linda] in spousal support. While [Martin] eventually prevailed after trial with regard to many of his other issues, and those other issues were quite financially significant, it is apparent to this court that the monthly amount of spousal support to be provided from [Martin] to [Linda] was a very major issue in the mind of [Linda], and not an unreasonable issue in light of the marital lifestyle of the parties and [Linda’s] inability to support herself in such a lifestyle without a significant award of spousal support from [Martin].” The court found Linda was in need of a reasonable contribution from Martin towards her attorneys’ fees and that Martin had the ability to pay such an award, and that Martin was not in need of any contribution towards his attorneys’ fees. Specifically, the court noted: Martin’s earnings capacity, past and present, greatly exceeded Linda’s earnings capacity; Martin’s share of assets was $500,000, including retirement accounts, while Linda’s share of assets, including retirement accounts, was $280,000; Martin had no installment debt, other than a vehicle lease, while Linda had between $172,750 to $368,920, depending on whether her January 2009 or February 2009 Income and Expense Declaration was used; Martin owed $6,736 in attorneys’ fees (of which $245,890 had been paid out of his separate property), while Linda owed $98,566 (out of a total of $117,499 paid, $79,949 had been paid from her separate property funds and $37,500 from contributions from Martin and community property funds).
B. Discussion.
1. Sections 2030 and 2032.
Pursuant to sections 2030 and 2032, the court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action. (Fam. Code, §§ 2030, 2032.) The court is to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party’s relative need and the other party’s ability to pay, the court is to take into account “‘all evidence concerning the parties’ current income, assets, and abilities.’” (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406.) The fact that a party who is requesting fees and costs has the resources is not, by itself, a bar to an award of part or all of such party’s fees. Financial resources are only one factor to consider. (Ibid.) The court may also consider the other party’s trial tactics. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314.) Other factors include the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attorney’s experience and learning in the particular type of work, and the success of the attorney’s efforts. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318.)
Family Code section 2030 provides in relevant part: “(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.”
Family Code section 2032 provides in relevant part: “(a) The court may make an award of attorney’s fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) 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 Section 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.”
By tying a need determination to consideration of the parties’ relative circumstances, section 2032 rejects the application of a numerical standard. (In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 883.) The parties’ circumstances may be considered, including assets, debts, earning ability of both parties, ability to pay, duration of the marriage, and age and health of the parties. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) The court may also consider the parties’ relative need and ability to pay in light of the property division made in the dissolution proceedings. (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1110–1111.)
In summary, the proper legal standard for determining an attorneys’ fees award requires the trial court to determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances. (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 406 .) In making this determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768–769.) However, “although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
Here, we find no abuse of discretion in awarding fees pursuant to sections 2030 and 2032. In terms of income, Martin has a greater ability to pay. Martin is a partner at a large law firm, making at least $500,000 per year. Linda has a relatively limited earning capacity, and primarily she has made money from real estate investments. Linda’s income as of January 2009 was $1,000 per month and her liabilities exceeded her assets by $200,000, and she thus had limited ability to pay the balance of fees due her attorneys. We recognize that Martin’s income from his law practice had declined because of the economic crisis that began in 2008. Nonetheless, Martin’s ability to pay remains greater than Linda’s ability to absorb the cost of attorneys in this matter. Further, Linda’s need for attorneys’ assistance in this complex matter, which involved numerous assets (law firm goodwill, pension benefits, sale of the family home, spousal and child support) demonstrates that in order for her to be fairly represented given her limited income, the trial court properly awarded her fees. While we recognize that Martin asserts Linda had opportunities to increase her earning power (purchasing a franchise), there is no evidence in the record that such an opportunity was actually available to her or was a viable business venture.
2. Section 271.
Pursuant to section 271, a court may award sanctions against a party whose uncooperative conduct has frustrated the policy of promoting settlements and reducing litigation costs. (§ 271, subd. (a).) The power to award fees and costs is independent of the court’s authority to impose need-based fees and costs. (§ 271, subd. (a); In re Marriage of Quay (1993) 18 Cal.App.4th 961, 969.) Although clients are entitled to zealous representation by their counsel, section 271 imposes a “minimum level of professionalism and cooperation” to effect the policy goal favoring settlement of family law litigation and a reduction of the attendant costs. (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1107.) Section 271 sanctions are imposed for “‘obstreperous conduct which frustrated the policy of the law in favor of settlement, and caused the costs of the litigation to greatly increase.’” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.)
Section 271, subdivision (a) provides: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or 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. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.”
A lesser showing is required than under other sanctions statutes, such as Code of Civil Procedure section 128.7 (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 399) or Code of Civil Procedure section 907 (In re Marriage of Freeman, supra, 132 Cal.App.4th at p. 6 [conduct may be sanctionable under section 271 that is not frivolous for purposes of appellate sanctions]). Furthermore, because the purpose of section 271 is to encourage settlement and conserve costs rather than preventing harm, a showing of actual injury is not required. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478–1480.) The amount of any sanction awarded is not limited to expenses incurred in opposing the sanctionable conduct. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226–1227.) We review an award of section 271 sanctions for abuse of discretion. (Id. at pp. 1225–1226.)
In In re Marriage of Daniels, supra, 19 Cal.App.4th 1102, the court found section 271 sanctions proper where the wife’s counsel engaged in conduct that included failure to return phone calls; mailing correspondence to the wrong address; seeking entry of default improperly; seeking to capitalize on the death of the husband’s first counsel; failure to give notice of an uncontested hearing; and refusal to stipulate to set aside the wrongly entered default. (Id. at pp. 1106–1107.)
Here, Martin argues that in August 2006, approximately five months prior to trial, he attempted to settle the case with a “comprehensive, fair and equitable proposal” on two occasions, and enlisted the help of Linda’s two sisters. Additional settlement negotiations were conducted with her new attorney, Kearney, but Linda did not agree to settle the matter because, although she agreed to the other terms of the settlement, she insisted on an additional cash payment of $125,000. Nonetheless, Linda fared much worse at trial, receiving an award that was $271,442.35 less than the settlement offer, with a vast increase in fees to both her and Martin.
We find no abuse of discretion in the trial court’s refusal to impose sanctions on Linda. Although the settlement discussions were protracted and Linda did not receive a greater amount at trial, these facts, by themselves, cannot form the basis for section 271 sanctions. Linda’s refusal to concede the $125,000 additional payment was based upon the great income disparity between the parties and Linda’s limited ability to earn income on her own, which was sporadic at best (proceeds from the sale of an investment property and nominal income the rest of the year). The record does not demonstrate that Linda otherwise engaged in a pattern of obstruction, or sought to run up the parties’ costs and fees unreasonably.
II. SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.7
Martin argues the trial court erred in denying his motion on the procedural ground that he had failed to serve it 21 days in advance of the hearing as required by section 128.7. However, he argues that section 128.7 does not require service 21 days before hearing, but instead requires service 21 days before the motion is filed with the court, and in this case, it would have been impossible for him to comply with the terms of the statute because the hearing date on the new trial motion was set less than 21 days before the motion. Further, the court in granting Linda’s motion for sanctions and ordering sanctions against Martin made no findings other than his motion for sanctions was not timely served, and failed to make the specific findings required by the statute that his motion was factually or legally frivolous or brought for an improper purpose, and that it was “‘objectively unreasonable.’”
A. Factual Background.
1. Martin’s Motion for Sanctions.
On January 6, 2009, Linda moved ex parte for a new trial on the issues of characterization, reimbursement, and support. At the hearing on the motion scheduled for January 12, 2009, the court deemed it to be a notice of intent to move for a new trial, and set the matter for February 26, 2009 to be heard simultaneously with the hearing on modification of spousal support. On January 26, 2009, Linda filed an amended motion for a new trial contending error in the computation of Smith Ostler credits in connection with spousal support calculations because it did not remove the child support, which had been terminated for their child in June 2006, resulting in less monies for spousal support. Linda argued that as a result she did not receive the proper percentage of Martin’s year-end distributions for 2003, 2004, 2005 and 2006. On January 30, 2009, apparently because of the statutory time limits regarding new trial motions, the court advanced the date for the hearing on Linda’s motion for new trial to February 17, 2009.
In re Marriage of Ostler & Smith [(1990) 223 Cal.App.3d 33].
Pursuant to Code of Civil Procedure section 660, the trial court loses its power to rule on a new trial motion 60 days after the entry of judgment, which in this case was December 23, 2008.
On February 2, 2009, Martin’s counsel sent a letter to Linda’s attorney Kearney stating that “I am sending you this letter as a courtesy to ask you to withdraw the motion [for a new trial] before I prepare and serve the formal motion pursuant to Code of Civil procedure section 128.7 as well as requesting sanctions pursuant to Family Code [section] 271.”
On February 5, 2009, the parties’ counsel spoke by phone and Linda’s attorney offered to take the new trial motion off calendar. On February 9, 2009, Martin’s attorney sent a proposed stipulation embodying the parties’ discussions, but Linda’s counsel refused to sign the stipulation unless Martin made additional concessions.
The court denied Linda’s motion for a new trial on February 17, 2009 because Linda did not raise the issue in a timely fashion. On February 17, 2009, Martin served his motion for sanctions pursuant to Code of Civil Procedure section 128.7 on Linda, contending that Linda’s new trial motion was devoid of factual or legal merit because the court had ruled on the support issue. Martin’s attorney Mary-Lynne Fisher expended $9,933 in attorneys’ fees in opposing Linda’s motion. The motion was set for hearing April 13, 2009, and Martin filed it March 10, 2009.
On March 30, 2009, Linda filed her opposition to Martin’s sanction motion, contending Martin did comply with Code of Civil Procedure section 128.7’s “safe harbor” provision because he had failed to serve the motion 21 days before the hearing on her new trial motion in order to give her an opportunity to withdraw the motion. Linda further contended her new trial motion had merit because Martin’s counsel acknowledged the Smith-Ostler percentage should have been recalculated in a stipulation prepared regarding her new trial motion.
Martin replied that he complied with the notice provisions of Code of Civil Procedure section 128.7 because the statute required the motion to be filed 21 days after service and his motion was filed within that time frame; furthermore, Linda failed to act to take her motion off calendar.
At the hearing, Martin argued that he did not know the hearing on the motion was going to be advanced from February 26 to February 17 until 17 days before the advanced hearing date, making it impossible for him to comply with the terms of the statute. The court found that Martin did not serve the motion in time to permit Linda to withdraw the motion, and that counsel’s letter of February 2, 2009 did not constitute notice he would be seeking sanctions, and the motion actually filed was not identical to the letter stating he would seek sanctions.
2. Linda’s Motion for Sanctions.
On March 23, 2009, Linda moved for sanctions based upon Martin’s unsuccessful Code of Civil Procedure section 128.7 motion for sanctions, seeking $3,775 in attorneys’ fees expended opposing his motion for sanctions. Linda contended Martin’s sanctions motion was improper because it was not timely. Martin opposed, contending that Linda’s motion was nothing more than retaliation for his motion for sanctions, that the trial court did not rule on the merits of his motion, instead denying it on procedural grounds, and that Linda still had an opportunity withdraw her motion because he served his sanction motion on her before the hearing.
At the June 11, 2009 hearing, Martin argued that section 128.7 only required that the motion must be filed 21 days after service. The court stated it recognized that the time of the ex parte motion for a new trial and other motions made at that time “turned on end this whole 21 days. Nevertheless, the court never prescribed a period other than 21 days. Therefore, 21 days it is. [Twenty-one] days after service of the motion, the challenged paper—if the challenged paper is not withdrawn.” The court granted Linda’s motion.
B. Discussion.
1. Martin Failed to Comply with the “Safe Harbor” Notice Provisions of Section 128.7, Subdivision (c)(1).
Code of Civil Procedure section 128.7 requires attorneys (or parties if they are unrepresented) to certify, through their signature on documents filed with the court, that every pleading, motion or other similar paper presented to the court has merit and is not being presented for an improper purpose. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516; § 128.7, subd. (b)(1)–(4).) If, after notice and a reasonable opportunity to respond, the court determines the certification was improper under the circumstances, it may impose an appropriate sanction. (§ 128.7, subd. (c).)
Section 128.7, subdivision (c)(1), provides, “A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.... ”
Under the “safe harbor” provision of subdivision (c)(1) of section 128.7, a party seeking sanctions must serve on the opposing party, without filing or presenting to the court, a notice of motion specifically describing the sanctionable conduct. This service of the motion initiates a 21-day “hold” or “safe harbor” period. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698 (Martorana).) During this time, the improper document may be corrected or withdrawn without penalty; if so withdrawn, the motion for sanctions “shall not” be filed. (Ibid.; § 128.7, subd. (c)(1).) Section 128.7, subdivision (c)(1)’s safe harbor provisions are designed to be remedial and to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. “‘This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request.’” (Martorana, at p. 699.)
On a party’s motion for sanctions, the court may shorten (or extend) the 21-day “safe harbor” period. (See Code of Civ. Pro., § 128.7, subdivision (c) (1) [providing for “any other period as the court may prescribe”].)
Under section 128.7, “[a] party seeking sanctions must follow a two-step procedure. First, the moving party must serve on the offending party a motion for sanctions. Service of the motion on the offending party begins a [21]-day safe harbor period during which the sanctions motion may not be filed with the court. During the safe harbor period, the offending party may withdraw the improper pleading and thereby avoid sanctions. If the pleading is withdrawn, the motion for sanctions may not be filed with the court. If the pleading is not withdrawn during the safe harbor period, the motion for sanctions may then be filed.” (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440; Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 130–131.) A motion for sanctions not served sufficiently in advance of the hearing on the offending pleading fails to comply with the safe harbor provision of section 128.7, subdivision (c)(1). (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1128.) The safe harbor period of the statute allowing for sanctions is mandatory, and the full 21 days must be provided absent a court order shortening that time period. (Li v. Majestic Industrial Hills, Inc. (2009) 177 Cal.App.4th 585, 592–594.)
Further, a formal noticed motion is required to begin the 21-day safe harbor period under the statute providing for sanctions for frivolous filings. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.) A party does not comply with the notice provisions of statute providing for sanctions for frivolous filings simply by sending a letter of its intent to seek sanctions to the offending party. (Martorana, supra, 175 Cal.App.4th at p. 700; Barnes v. Department of Corrections, supra, 74 Cal.App.4th at p. 136.) Strict compliance with the provisions of section 128.7 is required. (Galleria Plus, Inc. v. Hamni Bank, at p. 538 [“Strict compliance with the statute’s notice provisions serves its remedial purpose and underscores the seriousness of a motion for sanctions.”].)
Here, the court did not err in denying Martin’s motion for sanctions for failure to comply with the statute. First, his counsel’s letter of February 2, 2009 stating his intent to seek sanctions against Linda for her new trial motion did not start the 21-day safe harbor period running. Even if it had, at that time the motion for new trial had already been rescheduled to February 17, 2009, which should have alerted Martin to the fact that there was an insufficient safe harbor period. At that point, Martin should have sought relief from the 21-day period; however, he did not. His failure to comply with the safe harbor provisions was fatal to his Code of Civil Procedure section 128.7 motion.
2. Martin has Failed to Show Error With Respect to Linda’s Sanctions Motion.
“Under section 128.7, an attorney or unrepresented party who files a pleading, motion or similar paper impliedly certifies it has legal and factual merit. That certification includes: The paper is not presented for an improper purpose (i.e., to harass, cause unnecessary delay, or increase costs of litigation); the legal contentions are warranted; and the factual contentions have evidentiary support. [Citation.] The attorney or unrepresented party is subject to sanctions for violation of this certification.” (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220, italics omitted.) We review the trial court’s grant of sanctions de novo on these undisputed facts. (Galleria Plus, Inc. v. Hamni Bank, supra, 179 Cal.App.4th at p. 538.)
Here, Martin’s “motion” for sanctions was first served improperly in a letter format on Linda 15 days before the hearing. At the time, Martin knew that the statutory “safe harbor” period could not be met given that the trial court had advanced the hearing date on the new trial motion to comply with Code of Civil Procedure section 660. It was incumbent upon Martin to obtain relief from the statutory time limits of section 128.7, subdivision (c)(1) to preserve his right to file the sanction motion. This he did not do. Therefore, the court was justified in awarding sanctions to Linda based upon Martin’s improperly noticed section 128.7 motion.
Further, Martin argues the court failed to make specific findings that his conduct was frivolous or “objectively unreasonable.” He contends that even if service of his motion was defective because it did not give Linda the full 21-day safe harbor period, there was no evidence of any willful, deliberate or improper conduct that would warrant the imposition of sanctions. (See, e.g., Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344 [sanctions reserved “for the rare and exceptional case where action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose”].)
Code of Civil Procedure section 128.7, subdivision (e) provides that “[w]hen imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” We may affirm the trial court’s award of sanctions on any ground supported in the record. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) Here, the court found that Martin’s motion for sanctions against Linda failed to comply with the safe harbor provisions of Code of Civil Procedure section 128.7, and further that the letter format used to advise her that Martin would be seeking sanctions did not comply with the statute. The court also expressly advised Martin’s counsel that it was “concerned that the litigation in this matter is not stopping.” The court imposed Linda’s costs in opposing Martin’s motion for sanctions. These stated factors support a finding of frivolous conduct that was not objectively reasonable and are sufficient to satisfy the requirements of Code of Civil Procedure section 128.7, subdivision (e). As stated above, Martin failed to follow the procedural requirements of Code of Civil Procedure section 128.7; thus, the trial court did not misread the statute as Martin argues. In awarding sanctions, the court pointed to Martin’s improper request for sanctions, and rested its finding on two separate grounds: the failure to give Linda the necessary safe-harbor period, and Martin’s failure to put the sanction request in a motion format. Further, the court’s concern that the litigation was “not stopping” in this matter supports its finding of Martin’s improper conduct in bringing his sanction motion. Finally, the record supports the amount of sanction awarded, namely, Linda’s attorneys’ fees in opposing Martin’s sanction motion, on the ground that she would not have incurred such costs but for Martin’s improper motion.
III. KEARNEY AND BURKITT’S APPEAL.
Burkitt and Kearney object that the trial court offset against their fee awards the $20,162.82 Equalizing Payment Linda owes to Martin, and they have standing to pursue this appeal because the trial court ordered fees directly paid to them pursuant to Family Code section 272. Martin contends the attorneys lack standing to make such an objection, and their appeal is not saved by In re Marriage of Borson, supra, 37 Cal.App.3d 632 because Borson is predicated on the assumption that counsel can seek fees on behalf of the client and have no independent right to seek fees. We agree with Martin and dismiss Burkitt and Kearney’s appeal.
A. Factual Background.
At the time of Linda’s fee motion, the court granted Burkitt’s request for fees, and ordered Martin to contribute $25,000. Of that sum, $10,000 was offset from the Equalizing Payment owed by Linda to Martin, leaving $15,000 owing from Martin to Burkitt. The court also granted Kearney’s request, and ordered Martin to contribute $50,000. Of that sum, $10,162.82 was offset from the Equalizing Payment owed by Linda to Martin, leaving $39,834.18 owing from Martin to Kearney. Both Kearney and Burkitt objected in the trial court.
B. Discussion.
In In re Marriage of Tushinsky (1988) 203 Cal.App.3d 136 (Tushinsky), the court addressed the issue of an attorney’s standing to appeal the award of attorney’s fees in a family law matter, concluding the attorney had no standing because the right to attorneys’ fees belonged to the client, not the attorney. (Id. at pp. 142–143.) Tushinsky reasoned that the right to attorney’s fees and costs under section 2030 belongs to the client spouse and accrues to the benefit of the attorney only indirectly; further, the right to such fees and costs belongs to the spouse to whom they were awarded, not to the attorney, even if the award is made directly payable to the attorney. (Id. at p. 142.) In summary, “[t]he right of an attorney to recover attorney’s fees cannot be invoked in the dissolution action itself. Instead, the attorney must institute an independent action against the client to recover attorney’s fees on his or her own behalf.” (Ibid.) Thus, Burkitt and Kearney lack standing to pursue this appeal.
Furthermore, to the extent Burkitt’s fees rested on Borson because he had been discharged, we do not find that fact confers standing on him. (See In re Marriage of Kelso (1998) 67 Cal.App.4th 374, 383, fn. 5 [lawyer has standing to appeal directly from denial of Borson motion].) We do not agree that Borson’s fiction allowing an attorney to pursue fees in the trial court, ostensibly on behalf of his or her former client, extends to conferring standing on the attorney to appeal independently from the error in connection with a fee motion because as stated in Tushinsky¸ the right is derivative of the client. (Tushinsky, supra, 203 Cal.App.3d at p. 142; Meadow v. Superior Court (1963) 59 Cal.2d 610, 615–616 [attorney’s interest in fees is derivative of client’s right to recover those fees].)
In re Marriage of Green (2006) 143 Cal.App.4th 1312 (Green), relied on by attorney appellants in their reply brief, does not change this result. Green addressed the issue of whether an attorney could enforce a judgment entered pursuant to Family Code section 272, subdivision (a), which authorizes an attorneys’ fee award to be made directly payable to the attorney. (Id. at pp. 1320–1321.) Green noted that section 272, subdivision (b) gave the attorney “an independent, nonderivative statutory right to enforce the award in the judgment.” (Id. at p. 1321.) Here, Burkitt and Kearney’s rights under section 272 to enforce their attorneys’ fees awards against Martin are not at issue, but rather whether they can challenge the trial court’s judgment awarding those fees in this appeal. To the extent that their fee and cost demands against Linda are not satisfied by the section 272 fee award against Martin, they can proceed against Linda directly in a separate action for the balance due. (Tushinsky, supra, 203 Cal.App.3dat p. 142.) In that regard, it is Linda who is the party aggrieved by the trial court’s offset—an offset she did not challenge.
Section 272 provides in relevant part: “(a) Where the court orders one of the parties to pay attorney’s fees and costs for the benefit of the other party, the fees and costs may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto. [¶] (b) Subject to subdivision (c), the order providing for payment of the attorney’s fees and costs may be enforced directly by the attorney in the attorney’s own name or by the party in whose behalf the order was made.”
The cross-appeal is dismissed. (Tushinsky, supra, 203 Cal.App.3d at p. 143.)
DISPOSITION
The judgment of the superior court awarding fees to Linda and the order granting Linda sanctions are affirmed. Burkitt and Kearney’s appeal is dismissed. The parties are to bear their own costs.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.