Opinion
B322861
01-19-2023
In re Marriage of FATEMEH JAVANMARD and NASER ASGARI. v. NASER ASGARI, Appellant. FATEMEH JAVANMARD, Respondent,
James C. Eschen for Appellant. Law Office of James F. Clark and James F. Clark for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Clara County, No. 18FL002209, James L. Stoelker, Judge. Affirmed.
James C. Eschen for Appellant.
Law Office of James F. Clark and James F. Clark for Respondent.
CHANEY, J.
Fatemeh Javanmard separated from Naser Asgari in 2016 and petitioned for dissolution of their marriage. The trial court granted the dissolution and restored Javanmard's last name with a status-only judgment on July 7, 2020, but reserved for trial division of community property, business valuation, spousal support, and attorney fees and costs issues.
Javanmard's married name was Asgari. The trial court restored Javanmard's last name by order dated July 7, 2020.
The trial court entered judgment after trial on the reserved issues. As part of its judgment, the trial court awarded Javanmard $50,000 in sanctions under Family Code section 271.Asgari appealed the trial court's judgment, arguing that the trial court erred when it sanctioned him because, he contends, the sanctions were based on Asgari's failure to settle the matter.
Further statutory references are to the Family Code unless otherwise specified.
We disagree with Asgari's characterization of the sanctions award. On that basis, we disagree with Asgari's contention that the trial court erred. We will affirm.
BACKGROUND
Javanmard and Asgari married on September 2, 1986. Javanmard separated from Asgari and filed a petition to dissolve the marriage on October 11, 2016. That petition initiated Santa Clara County Superior Court No. 16FL177506.
Asgari filed in this court a request for judicial notice of the October 11, 2016 petition for dissolution of marriage. The request is granted.
That petition for dissolution of marriage resulted in Javanmard and Asgari signing a one-page marital settlement agreement on August 24, 2017. Javanmard dismissed case No. 16FL177506 pursuant to the terms of the settlement agreement. The trial court dismissed the petition on August 31, 2017.
In their settlement agreement, the parties agreed that they would "seek professional help or [a] mediator and pay expenses equally and fully cooperate for the process of division" of the parties' assets. In general terms, the agreement was that the parties would divide their assets equally and both would waive spousal support.
According to the parties' settled statement for this appeal, Asgari failed to effectuate the settlement agreement "by failing to pay his one-half share of the total fees to attorney-mediator, Dean Rossi, who the parties jointly hired" to fully document the property separation.
After Asgari backed out of the settlement agreement, Javanmard filed another petition to dissolve the marriage on June 1, 2018. As part of the proceedings, the trial court ordered the parties to a mandatory settlement conference. The settled statement in this matter states that "after 10 hours of negotiation at the [m]andatory [s]ettlement [c]onference on July 2 and July 3, 2020, [Asgari] walked out on a second [m]arital [s]ettlement [a]greement drafted by [a] [s]ettlement [j]udge ...." The settled statement further explains that Javanmard's "actual attorney fees and costs incurred[ ] only in the time since the . . . [m]andatory [s]ettlement [c]onference[ ] amounted to $50,314[.]"
On July 7, 2020, the trial court entered judgment dissolving the marriage and restoring Javanmard's last name. In a minute order detailing the July 7 judgment, the trial court noted that it had reserved all other issues for trial, but stated that "[t]he issues that need to be tried include: property division, valuation, reimbursements, . . . attorney fees, and support." In anticipation of trial, Javanmard filed notice of her intent to seek section 271 attorney fees and costs as sanctions at trial.
The remaining issues were tried to the court on October 13 and December 14, 2020. After trial, the trial court issued a tentative ruling (that the court later designated as a proposed statement of decision) that included a section entitled "Attorney Fees and Costs." The tentative ruling stated: "To the extent attorney fees are requested by either party against the other under . . . section 2030, the request is denied on the grounds there is no finding of a disparity of income or assets or respective inability to pay.
"[Javanmard] has itemized a long list of slights and offenses that she contends constitute a basis for attorney fee sanctions under . . . section 271. Generally, these claims can be characterized as [Asgari's] breach of fiduciary duty to [Javanmard] or breach of settlement agreements or claims which were made in his trial brief or other pleadings which were not proved at trial.
"The purpose of [section] 271 sanctions is to discourage culpable conduct which frustrates settlement and unreasonably drives up litigation costs. These sanctions are a penalty for obstreperous conduct. However, there is no need to find a direct correlation between the amount of the sanction imposed and the expenses incurred in resisting the sanctionable conduct. The limit on the sanctions is that they may not impose an unreasonable financial burden. The award of sanctions [is] left to the court's broad discretion.
"In fixing sanctions, the court disregards claims and defenses made by [Asgari] that may appear to be unfounded or unsupportable by the evidence. Likewise, the fact that a claim is not credible to the finder of fact does not make it false or fraudulent. If such were the case, a party would be exposed to severe jeopardy for asserting a claim which may be true but may be based on weak evidence. The court does not find that the claims that are unsupported were intentional falsehoods.
"On the other hand, the evidence does establish that the parties had prior opportunities to resolve this matter. There existed a proposed [m]arital [s]ettlement [a]greement in August[ ] 2017 which was nearly completed but [Asgari] failed to pay his share of the attorney fees required to put it into a form to be signed. The payment by [Asgari] of his final share of the expenses very well would have terminated the litigation three years ago. In fact, now [Asgari] asks that the judgment be patterned after the 2017 proposal. More recently, a proposed settlement agreement constructed . . . in July[ ] 2020 at a [m]andatory [s]ettlement [c]onference was refuted at the last minute by [Asgari] for no apparent reason. Admittedly, no party is compelled to settle litigation. However, the failure of [Asgari] on two separate occasions to complete a reasonable settlement without apparent cause does justify sanctions. For that reason, the court orders monetary sanctions to be paid by [Asgari] to [Javanmard] in the amount of $50,000 which may be subtracted from [Asgari's] distribution of the net proceeds from the [sale of one of the couple's properties]."
Asgari objected to the trial court's tentative statement of decision, including to the imposition of sanctions under section 271.
The trial court adopted its proposed statement of decision as the statement of decision, and incorporated its discussion of attorney fees and costs into the judgment on reserved issues.
Asgari filed a timely notice of appeal.
DISCUSSION
Asgari's primary contention on appeal is that the trial court erred when it sanctioned him under section 271 because, Asgari claims, the sanctions were for his failure to settle the matter. Asgari also contends that he was not given notice of the trial court's intention to sanction him for his behavior surrounding the parties' 2017 marital settlement agreement. We disagree with both of Asgari's contentions.
Section 271 states: "(a) 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.
"(b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.
"(c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property."
"Sanctions under section 271 are committed to the discretion of the trial court, and will be reversed on appeal only on a showing of abuse of that discretion, that is 'only if, considering all of the evidence viewed more favorably in its support, and indulging all reasonable inferences in its favor, no judge could reasonably make the order.'" (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524 (Davenport).)
"It has been said that section 271 . . . imposes a 'minimum level of professionalism and cooperation,' to effect the policy favoring settlement of family law litigation-and a reduction of the attendant costs. [Citations.] Section 271' "authorizes sanctions to advance the policy of promoting settlement of litigation and encouraging cooperation of the litigants" and "does not require any actual injury." [Citation.] Litigants who flout that policy by engaging in conduct that increases litigation costs are subject to imposition of attorney fees and costs as a section 271 sanction.' [Citation.] Some courts have said the section authorizes attorney's fees and costs as a penalty for obstreperous conduct." (Davenport, supra, 194 Cal.App.4th at p. 1524.)
"Section 271 does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay. Rather, the statute 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. 'Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party's costs and attorney fees such conduct generates.'" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.)
We first note that Asgari's contention that the trial court sanctioned him for failing to settle is incorrect.
Reading the record favorably to the trial court's order, as we must, it appears that Asgari and Javanmard did settle their dissolution matter. Twice.
On August 24, 2017, the parties signed a marital settlement agreement that purported to be a" 'global' settlement" and contained an agreement that the parties would "seek professional help or [a] mediator and pay expenses equally and fully cooperate for the process of division," including dividing the couple's real and personal property equally as between the two and waiving spousal support. The document referred to itself as a settlement agreement and provided for the dismissal of Javanmard's 2016 dissolution petition.
The record demonstrates that the parties promptly retained the services of an attorney to effect the terms of the settlement. Asgari, however, refused to pay and strung the situation out for so long that in January 2019, the attorney presented the parties with an ultimatum: "I am a business, and have overhead and commitments," the attorney wrote. "We are also busy. We cannot work without getting paid in full. This account, while small, has been delinquent for months. Also, I cannot retain the family law attorney knowing payment is slow. [¶] To this end, I ask that [Asgari] pay this balance by the end of the week."
Asgari effectively breached the parties' settlement agreement by refusing to comply with its terms. Javanmard reinitiated litigation by filing another dissolution petition.
In July 2020, the parties once again reached a settlement. During the pendency of the instant dissolution petition, the trial court ordered the parties to attend a mandatory settlement conference. The parties and an attorney mediator spent a substantial amount of time together on July 2, 2020. Late that evening, the mediator informed the trial court that "[a]fter going back and forth with each other several times with different types of offers, we finally reached a settlement!!! Wahoooooo! We did run out of time to draft the agreement (which I hate doing) but we all agreed to meet again tomorrow on Zoom ....The agreement is a global settlement of all issues pending for trial." The agreement was again to refer certain real property issues to a third party, and the parties needed to "carve out language for the [s]tipulation." Indeed, emails between the parties' counsel confirm that there had been almost 10 hours of settlement discussions on July 2 and 3, 2020, resulting in four draft settlement agreements, and that the "parties and attorneys verbally agreed to the terms of settlement as set forth in what amounted to [the mediator's] 4th" settlement agreement draft.
By the time the conference ended on July 3, however, Asgari had decided that he had "one issue" with the settlement and he "walked out" of the conference. It turned out that Asgari's "one issue" was that he disagreed with the date set for him to move out of the family home.
Ultimately, as the trial court explained in its tentative ruling, which became its proposed statement of decision, Asgari asked the trial court for a judgment that tracked the terms of the 2017 settlement agreement that he had breached and the July 2020 agreement that he refused to sign. Asgari's conduct, then, required the parties to engage in months of litigation and a two-day bench trial over matters that the parties agreed to and documented in at least one settlement agreement that Asgari simply decided he would not comply with.
We need draw no inferences from the record for it to support the trial court's order. The record shows on its face that Asgari's conduct unnecessarily prolonged the parties' litigation, resulted in a bench trial, and cost Javanmard approximately $50,000 in attorney fees to obtain a judgment that gave the parties exactly what each agreed to accept in 2017 and again in 2020.
We also note that the cases applying section 271 afford the trial court broad discretion in considering what conduct is sanctionable. Asgari cites no authority, and we found none, supporting his implicit contention that using settlement negotiations to lull a litigation opponent into dismissing a case or to generate attorney fees is not sanctionable conduct. The 1884 case upon which Asgari relies most heavily, Eastin v. Bank of Stockton (1884) 66 Cal. 123, is a malicious prosecution case, is not a family law matter, and has nothing to do with sanctions in any context. The remainder of Asgari's cited authority deals with sanctions under other statutory provisions imposed for purposes other than frustrating or obstructing settlement-Asgari cites no authority related to section 271. (See Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1422 [Code Civ. Proc., § 128.5, for frivolous actions or delay]; Southern Christian Leadership Conference v. Al Malaikah Auditorium Co. (1991) 230 Cal.App.3d 207, 228 [Code Civ. Proc., § 128.5]; Moore v. Superior Court of Orange County (2020) 57 Cal.App.5th 441, 464-465 [Code Civ. Proc., § 1218, for contempt of domestic violence prevention order]; Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 71, fn. 7 [no statutory basis cited or discernible from the record in the case, but none of the possible bases was section 271].)
Contrary to Asgari's attempt to superimpose various other statutory sanctions frameworks onto section 271, our sister courts have explained that even a lack of settlement offers is sanctionable if the context demonstrates behavior frustrating or obstructing the public policy in favor of settlement. (See Davenport, supra, 194 Cal.App.4th at p. 1527.)
We are also not persuaded by Asgari's attempt to characterize section 271 sanctions as "coercion" to settle. By its very terms, section 271 "contemplates assessing a sanction at the end of the lawsuit, when the extent and severity of the party's bad conduct can be judged." (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.) Asgari was free to make the choices he made; if section 271 had any sort of coercive effect, it is not apparent from the record-after a two-day trial-in this matter.
Finally, Asgari contends that the trial court violated his due process by sanctioning him without notice for conduct related to the parties' 2017 settlement agreement.
Asgari's contention is without merit.
The trial court issued a tentative ruling, in which it specifically identified Asgari's conduct related to the parties' 2017 settlement agreement as one of the bases upon which it intended to award sanctions under section 271. Asgari was afforded an opportunity to-and did, in fact-object to the proposed statement of decision specifically identifying his conduct related to the 2017 settlement agreement.
The record demonstrates on its face that Asgari was given precisely the same type of notice the court in Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1179 found sufficient in the section 271 context: "Here, the court notified Harbert it intended to impose sanctions under section 271. It also gave Harbert a meaningful opportunity to be heard: the tentative decision advised him he could object to it and request a hearing on the proposed sanctions. Furthermore, the court notified Harbert of the specific conduct giving rise to sanctions and the grounds upon which sanctions would be based. The imposition of sanctions under section 271 did not violate Harbert's due process rights." (Ibid.)
We also recognize that the trial court tethered its sanctions award to attorney fees Javanmard incurred after Asgari's behavior related to the 2020 mandatory settlement conference, and not to fees incurred after the time of Asgari's breach of the 2017 agreement. Asgari does not contend he had no notice of the trial court's intent to sanction him for his conduct in 2020, which would serve as an independent basis for the section 271 sanctions.
Asgari has demonstrated no error. We affirm the trial court's judgment.
DISPOSITION
The judgment is affirmed. Javanmard is entitled to her costs on appeal.
We concur: ROTHSCHILD, P.J., BENDIX, J.