Opinion
H049366
04-27-2023
In re the Marriage of FATEMEH JAVANMARD and NASER ASGARI. v. NASER ASGARI, Appellant. FATEMEH JAVANMARD, Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 18-FL002209)
BAMATTRE-MANOUKIAN, ACTING P.J.
On February 9, 2021, the court below entered a judgment after trial in this marital dissolution proceeding involving appellant Naser Asgari and respondent Fatemeh Javanmard. Naser then filed alterative motions for reconsideration or for new trial, both of which were untimely. Fatemeh opposed the motions and sought sanctions. On July 7, 2021, the court denied Naser's motions and ordered him to pay Fatemeh attorney fees of $15,000 as sanctions, pursuant to Family Code section 271. Naser appeals the sanctions portion of this postjudgment order. We will affirm the order.
We refer to the parties by their first names for convenience and clarity; we mean no disrespect in doing so. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
All further unspecified statutory references are to the Family Code.
I. PROCEDURAL HISTORY
This dissolution proceeding was initiated by Fatemeh on a date that is not disclosed by the record. The court entered a judgment (status only) on July 7, 2020. After a two-day trial on reserved issues, a judgment after trial was filed on February 9, 2021 (judgment). The court disposed of issues including, inter alia, the division of community property and debt; the characterization of assets and obligations as community or separate assets or debt, respectively; the confirmation of separate property; spousal support; and the determination of Fatemeh's request for the imposition of attorney fees as sanctions (§ 271). Fatemeh served a notice of entry of judgment on March 7, 2021. Naser filed a notice of appeal from the judgment on April 29, 2021.
This appeal of the judgment was filed in this court. (See In re Marriage of Javanmard and Asgari, H049086.) On our own motion, we take judicial notice of matters filed in this court in that appeal, including the notice of appeal. (See Evid. Code, § 459, subd. (a).) The appeal from the judgment was transferred by order of the Supreme Court to the Second District Court of Appeal. The appeal was recently decided by that court. (See In re Marriage of Javanmard and Asgari (Jan. 19, 2023, B322861) [nonpub. opn.].) On our own motion, we take judicial notice of this related appeal. (Evid. Code, § 459, subd. (a); see also In re Christy L. (1986) 187 Cal.App.3d 753, 755, fn. 2 [judicial notice taken of opinion filed in related appeal].) In that appellate case, the Second District Court of Appeal affirmed the judgment, rejecting Naser's primary challenge to the trial court's judgment that the order requiring him to pay Fatemeh $50,000 attorney fees as sanctions under section 271 was improper because it was based upon (in Naser's view) his refusal to settle.
On or about May 7, 2021, Naser challenged the February 9, 2021 judgment by a motion for reconsideration, or in the alternative, motion for new trial. Fatemeh opposed the alternative motions, sought their dismissal, and asked for an award of attorney fees as sanctions under section 271 in the amount of not less than $24,580.
After a hearing, the court issued an order on July 7, 2021, denying Naser's motions. The court found that his motion for reconsideration was untimely under Code of Civil Procedure section 1008, which requires that a motion under that statute be filed within 10 days after written notice of the challenged order. The court held that even were it timely, Naser's reconsideration motion failed on the merits. Similarly, the trial court held that Naser's alternative motion for new trial under Code of Civil Procedure section 657 was untimely because it was not filed within 15 days of the clerk's mailing of a notice of entry of judgment (id., § 659, subd. (a)); and could not be acted upon because the time for granting a new trial, which is jurisdictional, was 75 days after the mailing of the notice of entry of judgment (here, May 17, 2021), only 10 days after Naser filed his untimely new trial motion.
The court agreed with Fatemeh that Naser's "improper application for reconsideration and bad-faith motion for a new trial" warranted the imposition of sanctions pursuant to section 271. The motions, the court found, were filed "past any of the deadlines" for them. The trial court concluded that Naser, in bringing the reconsideration motion, "raised the same information and arguments previously considered by the Court. This is a blatant attempt at relitigation; it is apparent [that Naser] was dissatisfied with the Court's decision and wanted to try certain issues on the merits again." The court found the reconsideration motion "frivolous" and that Naser's "conduct violated the policy of the law under . . . section 271 by unnecessarily increasing [Fatemeh's] litigation costs." The court ordered that Naser pay attorney fees to Fatemeh of $15,000 as sanctions within 30 days. It found no indication that the award would impose an unreasonable financial burden upon Naser.
Naser filed a notice of appeal challenging the July 7, 2021 order. (See In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 5 &fn. 4 [order imposing sanctions under § 271 appealable].)
II. DISCUSSION
A. Sanctions Under Section 271
Subdivision (a) of section 271 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." As a sanction, "[t]he statute is aimed at conduct that furthers or frustrates settlement of family law litigation and at reduction of litigation cost." (In re Marriage of Freeman, supra, 132 Cal.App.4th at p. 6.)
Sanctions under section 271 are appropriate to address "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 Daniels (1993) 19 Cal.App.4th 1102, 1106.) Unlike other sanctions statutes, such as Code of Civil Procedure section 128.5, subdivision (a), where the conduct to be sanctionable must be "frivolous or solely intended to cause unnecessary delay," section 271 "is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318; see also In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227 ["sanctions under section 271 are justified when a party has unreasonably increased the cost of litigation"].)
A party moving for relief under section 271 need not "show harm as a prerequisite to an award of sanctions." (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1480.) But an award of sanctions under section 271 must be "tethered to attorney fees and costs." (Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 351.) And while the statute plainly requires that the award be based upon attorney fees and costs related to a party's conduct that frustrates the policies of promotion of settlement and, where possible, reducing litigation costs, "the party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct. [Citation.]" (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155-1156.)
B. Standard of Review
As the California Supreme Court has reiterated, "it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).)" 'All intendments and presumptions are indulged to support [the lower court's judgment or order] on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Any ambiguities in the record are resolved in favor of affirmance of the judgment or order. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) It is the appellant's burden to overcome the presumption of correctness by demonstrating, through an adequate record, error requiring reversal. (Jameson, supra, at p. 609.)
An award of attorney fees and costs as sanctions under section 271 is "reviewed for abuse of discretion. [Citation.] . . . [W]e will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] 'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.' [Citation.]" (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226; see also In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478.) In short," '[w]e will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it.' [Citation.]" (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828.)
The appellant bears the burden of demonstrating that the trial court abused its discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.) And an "order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
C. The Sanctions Order of July 7, 2021
Naser contends that the trial court abused its discretion in imposing sanctions against him under section 271. His primary argument is that the court disregarded his economic circumstances-specifically, his modest fixed income-in its determination that the award would not" 'impose[] "an unreasonable financial burden" on'" him under the standard set forth in section 271. Naser contends that "[h]e cannot afford to pay the imposed sanctions as he has no way of paying back $15,000."
We observe at the outset that Naser's appellate briefs do not comply with the rules of appellate procedure. His briefs contain conclusory assertions that are unsupported by any analysis. As an example of such unsupported arguments, Naser claims that the judge who ruled on his alternative motions and Fatemeh's motion for sanctions was not the judge who conducted the trial proceedings, and thus "was simply unfamiliar with the underlying situation." An appellate court "need not consider . . . a perfunctory assertion [in a brief] unaccompanied by supporting argument. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.)
The most glaring violation of the rules of appellate procedure is Naser's failure to include citations to the record in support of statements of fact or procedure. This omission is in disregard of rule 8.204(a)(1)(C) of the California Rules of Court, which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Naser's appellate briefs contain no citations to the appellate record in support of various assertions of fact, such as the alleged circumstances that make it impossible for him to pay the sanctions award-his age, partial disability, absence of "the requisite skillset to gain meaningful employment," and his having to "continuously . . . borrow money from friends and family." "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.) We will therefore disregard Naser's factual contentions for which he has failed to provide citations to the record. (See Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah).)
Notwithstanding the noncompliant nature of his appellate briefs, we will address the merits of Naser's appellate claims (but will not consider his unsupported factual contentions).
Section 271 requires the trial court to consider "all evidence concerning the parties' incomes, assets, and liabilities . . . [and it] shall not impose a sanction . . . that imposes an unreasonable financial burden on the [sanctioned] party." (§ 271, subd. (a).) Although the statute requires the court to consider various factors, it does not require the court to make specific findings on the record. (See In re Marriage of Falcone &Fyke, supra, 203 Cal.App.4th at p. 981 [court is not required to issue statement of decision on attorney fee award under § 271.) In addressing Naser's contention that the order presented an unreasonable financial burden, "we indulge all reasonable inferences to uphold the trial court's order. [Citations.]" (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178.)
Naser argues that "the trial court abused its discretion by not weighing the fixed income of [Naser] more heavily in the award of sanctions against him." He asserts that it was unreasonable to impose sanctions of $15,000 in light of the fact that his sole monthly income was a fixed amount of $932 from Social Security. Assuming that it is accurate that Naser's monthly income was $932, his analysis is incomplete and does not support his claim of error.
Although not cited in his appellate briefs, Naser listed in his income and expense declaration filed on June 8, 2021, as his sole monthly income $935 from Social Security. There was evidence in the record potentially refuting that this retirement payment reflected his sole monthly income. During the trial that took place on October 13 and December 14, 2020, Naser initially testified that he was retired, had no work address, and had no income from self-employment. During cross-examination, Naser testified (contrary to his earlier testimony) that he (1) had requested in April 2020 a taxpayer identification number under the name "Naser Asgari Insurance Agency" (the Agency); (2) maintained a business address under the Agency's name in San Jose; (3) maintained a business checking account with Bank of America under the name "Naser S. Asgari, Sole Proprietor, DBA Naser Asgari Insurance Agency"; (4) was at the time of trial an independent broker for four insurance companies; (5) had "more than several clients"; and (6) had made deposits into the above-referenced business bank account from April 1 to September 30, 2020, that totaled $18,231.
Naser's position ignores the fact that the trial court, in assessing whether the imposition of sanctions will be "an unreasonable financial burden on the [sanctioned] party," is required to "consider all evidence concerning the parties' incomes, assets, and liabilities." (§ 271, subd. (a), italics added.) Here, the significant fact omitted from Naser's analysis is that, by his own verified statement in his June 2021 income and expense declaration, he had cash deposits of $5,000 and real estate assets with a fair market value (without indebtedness) of $1,909,356. This statement concerning Naser's real estate holdings was consistent with the court's disposition of assets as reflected in the February 9, 2021 judgment in which Naser was awarded (1) an unimproved lot in Los Gatos (without indebtedness) having a fair market value of $1,250,000; and (2) a one-half interest in residential property in Campbell that was ordered to be sold that had a fair market value of $2,350,000 (and a net fair market value after debt of $1,356,935).
In support of his claim of error, Naser cites In re Marriage of Pollard (1979) 97 Cal.App.3d 535 (Pollard), which he claims presented "similar circumstances" to those here. Pollard has no application to this case. Pollard involved the propriety of an award of pendente lite attorney fees, not the imposition of attorney fees as sanctions under section 271. (Pollard, supra, at p. 537.) Pollard is also factually distinguishable. There, the question was whether fees were awardable where the proposed payor spouse (and the payee spouse) "were legitimately on welfare; both were impecunious." (Id. at p. 539.) The court "deem[ed] it an abuse of discretion [to] impos[e an attorney fee obligation] upon one of the financially incapacitated parties." (Ibid.) The record here shows that Naser-far from being "impecunious" or "financially incapacitated" (ibid.)- had, by his own admission in his financial declaration, access to over $1.9 million in assets.
Naser's reliance on Herriott v. Herriott (2019) 33 Cal.App.5th 212 (Herriott) is similarly misplaced. In that case, the appellate court declined to impose appellate sanctions under section 3111 for the appellant's disclosure of confidential information contained in a custody evaluation, where she had made a record that her sole income was $650 monthly Social Security disability income, she had no other means to pay sanctions, and she had qualified and had obtained a fee waiver. (Herriott, supra, at p. 229.) The court thus concluded that the imposition of sanctions "would create an unreasonable financial burden on her." (Ibid., fn. omitted.) In contrast, the record here, indicating that Naser had access to over $1.9 million in assets-and contrary to his assertion that "he has no way of paying back $15,000"-offers ample support for the trial court's finding that an award of attorney fees as sanctions under section 217 would not constitute an unreasonable financial burden for Naser.
Naser also argues that the order imposing sanctions did not take into consideration that he had "continuously had to borrow money from friends and family," "was receiving assistance from family," and "owes debts to family." We may disregard these assertions of alleged fact that are unsupported by citations to the appellate record. (See Yeboah, supra, 128 Cal.App.4th at p. 451.) Moreover, the record, even were we to undertake our own search of it, does not support Naser's claim. To the contrary, his verified statement in the June 2021 income and expense declaration identified no such debts owing to family or friends.
Lastly, Naser argues that the imposition of attorney fees as sanctions under section 271 was improper because the conduct being sanctioned involved alternative motions he brought postjudgment. He cites no legal authority for the proposition that attorney fees as sanctions may not be awarded by the court for postjudgment conduct. The argument is thus forfeited. (See Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 "failure to provide legal authorities to support arguments forfeits contentions of error"].) Furthermore, there is no legal basis for Naser's position. (See In re Marriage of Freeman, supra, 132 Cal.App.4th at p. 7 ["trial courts are empowered to assess costs incurred on appeal against a spouse whose conduct falls within the description in section 271"].)
Naser also contends that sanctions were improper because the conduct sanctioned was the "filing legally authorized motions to assert statutory rights." This argument ignores the fact that the reconsideration motion and the alternative motion for new trial were unquestionably untimely. Further, Naser does not present any argument-nor even present the court with the motions themselves as part of the record-that the motions were an appropriate exercise of his statutory rights, and not, as the trial court found, "frivolous."
The court below found that "[t]here [was] no indication such [a sanctions] award [would] create an unreasonable financial burden on [Naser] given [that he has] access to approximately $1.9 million in assets." In assessing whether the claim that the imposition of sanctions under section 271 constituted an unreasonable burden on the sanctioned party, "we indulge all reasonable inferences to uphold the trial court's order. [Citations.]" (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 178.) Naser's claim of error is based upon only one aspect of his financial circumstances: his claimed monthly income. He does not address the correct legal standard: Whether, the trial court, after "consider[ing] all evidence concerning the parties' incomes, assets, and liabilities," abused its discretion by concluding that sanctions would not "impose[] an unreasonable financial burden on" Naser. (§ 271, subd. (a), italics added.) Applying this correct legal standard, there is sufficient evidence in the record from which the trial court could have reasonably concluded that the imposition of sanctions of $15,000 against Naser would not be an unreasonable financial burden. (See In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291 [no showing trial court failed to consider sanctioned party's ability to pay].) The court therefore did not abuse its discretion in ordering Naser to pay Fatemeh attorney fees of $15,000 as sanctions under section 271.
See footnote 4, ante.
III. DISPOSITION
The postjudgment order of July 7, 2021, is affirmed.
Statutory costs on appeal are awarded to respondent.
WE CONCUR: DANNER, J. WILSON, J.